Tensions are reaching boiling point in Burundi as outgoing President Pierre Nkurunziza insists on running for a third term as the country’s leader. His bid comes amid protests of large numbers of citizens and the international community that such a move would be unconstitutional and contrary to the Agreement of Arusha for Peace and Reconciliation, signed in 2000 to end to protracted ethnic conflict in Burundi.
The constitution states that the president “is elected by universal direct suffrage for a mandate of five years renewable one time.” Nkurunziza came to power in 2005, and was re-elected in 2010, but hinges his bid for a third term on the fact that in 2005 he was not elected by “universal direct suffrage,” but rather by the Parliament in accordance with the transitional provisions of the constitution.
One could certainly debate the president’s argument, and one could also note that the preamble states that the constitution is adopted “in accordance with the Agreement of Arusha,” where the limit to two presidential terms is clear. But such a debate is mostly academic. It is the seven members of the Burundi Constitutional Court alone who have the power to interpret the constitution and on May 5 the court approved the president’s bid. The court’s ruling has drawn broad criticism, not the least from one of its members, now in exile, who has revealed he and his colleagues faced enormous political pressure and even death threats to rule for the incumbent.
With presidential elections planned for June 26, the president looks set to defy protestors and international pressure. Belgium, the largest donor to Burundi this week announced suspension of aid.
As violence continues to spread across the nation, the African Union — which through Commission Chair Dr. Nkosazana Dlamini-Zuma has been categorical on the illegality of Nkurunziza’s bid for a third term — has called for the postponement of elections until the political crisis is resolved.
This is the latest example of the important role the continental body has assumed in recent times in protecting democracy and constitutional governance in its member states. From a strict policy of noninterference since its establishment — first as the Organization of African Unity in the 1960s — its position has gradually shifted to that of nonindifference. This principle undergirds a number of policy and legal instruments it has developed in recent years to strengthen a culture of constitutional democracy, as laid out in the African Charter on Democracy, Elections and Good Governance.
Adopted in 2007 to complement and strengthen previous frameworks against unconstitutional rule such as the Lomé Declaration of 2000, the charter provides the legal basis for an increasingly important number of AU actions to combat unconstitutional challenges to the constitutional order.
It also provides a comprehensive sanctions regime, which in the wake of coups for instance, has been crucial in accelerating the return of the country to a democratic constitutional order as seen in the recent past in Guinea (2008), Madagascar and Mauritania (2009), Niger (2010), Guinea-Bissau and Mali (2012), Egypt (2013) and Burkina Faso (2014).
Through the dialogue platforms we organize annually between regional organizations, it has been clear that the AU is far ahead of its peers in the development of norms and standards for constitutional governance. However, the reality shows that many challenges remain. An initial observation is the remarkable recurrence of coups despite AU’s rejection and isolation of former coup leaders, suggesting that the deterrence expectation, which undoubtedly also undergirded the AU’s sanctions and regulatory regime, has not always worked. Burkina Faso coup leader Colonel Isaac Zida’s famous “we are not afraid of [AU] sanctions” line, when threatened with sanctions at the height of Burkina Faso’s crisis, exemplifies this reality.
Although he later handed power to a transitional civilian government following talks with AU officials, his initial reaction itself, like the recurrence of coups, is also a fresh reminder of the limits of existing measures.
We are working with the AU to explore what might be done, and the AU itself is already deeply engaged in this reflection at many levels. For example, it has requested the AU Commission collect and review the constitutions of all member states to identify inconsistencies with basic standards of constitutionalism and good governance that might threaten social order, peace and stability.
This could play an important early warning role, which is reminiscent of that provided by European Commission for Democracy through Law (Venice Commission) to its member states. It is an initiative, which the AU’s partners must welcome, and support the organization on how to best develop and implement in the light of Africa’s specific circumstances.
The AU is also continuously reviewing existing norms and standards to accommodate new political realities. The emerging phenomenon of popular uprisings, which one may argue technically violates current AU norms and standards, is one such reality. In its 50th Anniversary Solemn Declaration of May 2013 the AU reiterated its position against unconstitutional change of government and attempts to seize power through force but recognized “the right of [its] people to peacefully express their will against oppressive systems.” In the context of recent popular uprisings against oppressive regimes in Libya, Tunisia and Egypt now replicating across sub-Saharan, this comes as a timely exception.
With the support of the AU’s partners, notably International IDEA, it has since organized various expert meetings and commissioned studies to review its normative framework to ensure that its soft stance on popular protests are nonetheless not exploited by undemocratic forces to undermine the values of democracy, constitutional governance, the rule of law and human rights. Here again as in the era of norm setting, the AU is demonstrating both flexibility and leadership in uncharted territory.
This will surely provide useful precedents for other regional organizations like the OAS which despite adopting standards and norms is, unlike the AU, yet to deal with the reality of popular uprisings in the context of implementing current normative standards.
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Yuhniwo Ngenge is a Cameroonian lawyer working as program officer at International IDEA’s Constitution Building Program in The Hague, Netherlands. His current research interest is the role of courts in democratization and constitutional transition processes. Prior to that, he managed, among others, the development of IDEA’s ConstitutionNet website. He has authored and edited many analytical features on constitutional transitions.
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