Burundi violence signals ‘crisis of constitutionalism’ in Africa

BY RUTH GREEN

An ongoing human rights crisis in Burundi that has already claimed the lives of over 500 people and displaced more than 250,000 civilians risks descending into further violence as the international community looks on.

The East African nation was plunged into crisis on 26 April 2015 when President Pierre Nkurunziza announced his intention to run for a third term in office, a move which was considered by many as unconstitutional since Burundi’s 2005 Constitutional Referendum restricts presidents to two consecutive five-year terms in office.

‘The problem in Burundi is one of the many manifestations of a deep crisis of constitutionalism on the African continent,’ says Sternford Moyo, former President of the Law Society of Zimbabwe and former Chair of the IBA's Human Rights Institute.

‘Whatever constitutionality may require as prescribed by domestic African constitutions, few will require persuasion to appreciate that contemporary constitutionalism, namely, adherence not only to specific provisions of domestic constitutions, but to broader democratic and rule of law values which inform and guide on a long-term basis – the framework under which democratic governments under the rule of law ought to operate – requires that there be regular change in those in power,’ says Moyo. ‘It is because of this that most modern constitutions, including the domestic constitution of Burundi, impose term limitations on those vested with executive authority.’

Since April 2015, extra-judicial killings, arbitrary arrests and detention, enforced disappearances and sexual violence have become increasingly common across Burundi. On 26 April 2016, the anniversary of Nkurunziza’s announcement, a group of Burundian, African and international NGOs penned an open letter to the UN Security Council asking it to authorise a robust UN police presence to stop the situation from escalating.

Moyo says both Burundi’s judiciary and the African Union have a responsibility to intervene to prevent further human rights violations in the country.

‘It is most unfortunate that the President of Burundi did not respect the term limitations in the domestic constitution and that the judiciary in Burundi failed to act as a safeguard against violation of the constitution,’ says Moyo. ‘Even more regrettable is the failure by the African Union to take firm and corrective action against the President of Burundi and his government. The African Union needs to embrace urgently the emerging concept of responsibility to protect and act decisively to protect victims of rogue state action by individual African governments, if it is to remain relevant as a continental body.’

While experts agree it looks unlikely that the situation in Burundi will descend into genocide, as it did in neighbouring Rwanda in 1994, there is strong cause for concern among the international community.

‘An ugly and intolerable situation has now become day-to-day,’ says Simon Adams, Executive Director of the Global Centre for the Responsibility to Protect. ‘The chances of Burundi metastasising in some way are very, very real. At the very least the international community needs to push for an enhanced policing presence with a large number of human rights monitors so we can try and establish some semblance of the rule of law and some kind of eyes and ears of the international community on the ground in Burundi.’

Vincent Rouget, associate analyst at Control Risks, says the prospects of a negotiated resolution to the crisis remain poor: ‘The last round of talks took place in May in Tanzania without the main opposition coalition (CNARED), precluding any chance of meaningful progress,’ he says. ‘The government has offered only token concessions in response to international pressure and remains intransigent about negotiating with opposition factions which it denounces as ‘criminals’. The appointment of former Tanzanian president Benjamin Mkapa as facilitator in March has brought fresh momentum to international mediation efforts, but there are still considerable obstacles to opening lines of communication between both parties, let alone charting a way out of the crisis.’

Historically Burundi has been overshadowed by the violence that escalated across the border in Rwanda. According to Adams, this may be one reason why it has taken so long for the world to wake up to the crisis ravaging the country. ‘People kind of ignore the fact that neighbouring Burundi, whose history is tied so closely with Rwanda, also went through a cataclysmic period after April 1994, with its president killed in the same event that killed the president of Rwanda, which sparked the genocide,’ he says. ‘And it clung on just barely to avoid going down the path that Rwanda went down. And then, of course, there was a disastrous civil war which killed some 350,000 people, but I don’t think there are many people outside Africa that are even aware of that.’

Adams says the ethnic undertones to the crisis in Burundi, which, like Rwanda, has an ethnic Hutu majority and Tutsi minority, are also particularly concerning: ‘Increasingly we’re seeing "dog whistling" around ethnic issues – there’s an increasing use of ethnicised language to draw out the differences between people and in a country like Burundi, with its history, that is extremely dangerous.’

This was highlighted on 15 January 2016 when the UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein said ‘all the alarm signals, including the increasing ethnic dimension of the crisis, are flashing red.’

The Burundian government’s moves to systematically shut down independent media, civil society organisations and other dissenting voices are also eroding the rule of law in the country. ‘Respect for the rule of law has become secondary to a government now chiefly preoccupied with its own survival and ready to crack down at the sign of dissent,’ says Rouget. ‘The space for independent political expression has drastically shrunk in the last year, both as a result of security force intimidation and explicit bans. The longer the crisis persists, the more likely its repercussions will be felt far beyond the current government, entrenching corruption into judicial processes and eating away at the institutional bedrock for the rule of law.’