Aurthor: Dr Oluwatoyin Badejogbin
Oluwatoyin Badejogbin is Advocacy and Policy Lead for the Democratic Governance and Rights Unit (DGRU), University of Cape Town. The views expressed in this blog are his alone and may not be attributed to DGRU.
On 17 April 2015 when 14 members of Burundi’s Senate asked the Constitutional Court of Burundi to interpret articles 96 and 302 of the Constitution of Burundi, the judiciary became saddled with the serious responsibility of bringing some order to a frayed political situation that threatened regional peace and stability. A rare and historic opportunity it would have been, had the request not been part of a scheme to remove constitutional obstacles to President Nkurinziza’s quest for a third term in office.
Apparently, the third term quest had long been in the works. Only the year before, Parliament blocked the ruling party’s attempt to introduce constitutional amendments that would have given Mr. Nkurunziza a third term. When it failed and opposition to the bid escalated nationally and internationally, the ruling party turned to the Constitutional Court. If Mr. Nkurunziza could not legitimize a third term through constitutional amendment, he might well do so through constitutional interpretation.
Mr Nkurinziza got what he wanted. The Constitutional Court ruled that the Constitution did not foreclose a third term for him. But was the decision right?
Article 96 of the Constitution requires presidential elections to be by ‘direct universal suffrage’. It also limits a presidential term to five-years, subject to renewal for a second term. However, Article 302 permits an exception to the ‘direct universal suffrage’ rule, by requiring the country’s first post-transition President to be elected by Parliament. Both articles were adopted in compliance with constitutional principles enshrined in Articles 7(1) and 20(10) of Protocol II to the Arusha Peace Accords. The Protocol contains an agreed set of principles that the post transition Constitution and the transition period must conform to.
While, interpreting articles 96 and 302, the Court acknowledged that the Protocol is part of Burundi’s legal system, having been enacted into law by Parliament. It described the constitutional principles in the Protocol as the Constitution’s bedrock, reasoning that violating them disregards the Constitution.
Whether Mr Nkurunziza could run for a third term then turned on the interpretation of ‘exceptionally’ in article 302. The court made three noteworthy observations: first, the word required consideration of the Arusha Protocol. Secondly, the intendment of the Protocol and Constitution was that presidents would be limited to two term in office. Thirdly, a special mechanism for electing the first post-transition president had to be adopted because the political situation that prevailed at the time the Protocol was adopted was too fragile to be subjected to a contested poll in which citizens could vote directly.
Up to this point, the court rightly weighed the circumstances surrounding the adoption of the aforesaid special mechanism, applying tested approaches to constitutional interpretation, such as the historical and political context that underlay the adoption of the Protocol and Constitution, in order to ascertain the true intention of the negotiators and drafters of the documents. Had the court continued along this path, it would have been open to the real probability that article 302 had nothing to do with term limits, or that the drafters intended that a presidential term secured in terms of article 302 could only be one of two terms any president could serve under the Constitution. But the court foreclosed its mind to this possibility, and rendered a ruling that meant the two-term limit in article came into effect only after the first election by direct universal suffrage had held.
In Burundi’s transitional calendar, that election, which Mr Nkurunziza won, held in 2010. It was Mr Nkurunziza’s second election as president. Going by the Constitutional Court’s interpretation however, the second election ushered Mr Nkurunziza into his first term in office under article 96. His preceding five years in office, having come into place through an electoral college (i.e., Parliament), were not to be reckoned as part of the two term prescript of article 96.
If this was what the negotiators and drafters of the Arusha Protocol and the Constitution intended, they gave whoever became the first president a potential head start. If, as it has happened with Mr Nkurunziza, a presidential candidate who served as the first post transition president contested and won two subsequent elections under the Constitution, s/he would have served more terms as President than any other President would. However, a close scrutiny of the relevant constitutional principles in Protocol II and articles 96 and 302 of the Constitution suggests that this was hardly the intention. An even closer review of the court’s judgment may suggest that the court’s reasoning supported a sharply different view than the ruling it eventually delivered.
For one thing, the suggestion that the two-term prescript in article 96 was in abeyance until the first general election was concluded is a constitutional absurdity. This, conceivably, is what the ruling achieves, a constitutional absurdity.
Apparently, and having regard to the fact that no other provision in the Constitution regulates the length of a presidential term of office, the Court must have presumed – and indeed anybody would - that the same provision (i.e., article 96) gives legitimacy to Mr Nkunrunziza’s five years in office as first post transition President. If Mr Nkurunziza’s first coming was subject to a five-year term prescript because article 96 says five years, he cannot turn around to say that his first coming is excluded from article 96. Surely, the court cannot permit such approbation and reprobation at the same time: article 96, which gave Mr Nkurinziza the privilege of serving his country for ten years, is the same provision that binds him to not extend his presidency beyond ten years. What then, in the absence of some sound legal and constitutional basis, motivated the court to extend the limit?
Justice Sylvere Nimpagaritse, Vice President of the Constitutional Court, probably provides the answer. Soon after the Court gave Mr Nkurunziza the nod, Justice Nimpagaritse blew the whistle, alleging political pressure and death threats had forced the court’s decision. Four out of seven justices of the Court had believed a third term was unconstitutional, but two were forced to change their minds after receiving death threats. Justice Nimpagaritse subsequently fled the country.
Justice Nimpagaritse’s whistleblowing may provide insight into why the Court’s decision was such an unlikely outcome. As observed above, there is very little in the reasoning of the court that supports the conclusion it drew. Someone may even suggest that the court probably struggled - against its better judgment - to find a justification for the final outcome, which it conveyed in the very terse statement that ‘the drafters of the 2005 constitution erroneously interpreted the Arusha Agreement recommendation’. The court did not explain how this is so.
An election has been held, and Mr Nkurunziza has since settled into a third term. But he does so amidst unnerving political unrest and insecurity, having compromised the democratic institutions that would have helped to deepen democracy in his country. The entire saga illustrates how vulnerable the judiciary in particular continues to be in Africa’s evolving democracies, and underlines the importance of measures that secure the institutional independence of the judiciary, insulating courts from political interference.
The importance of the functions that courts discharge in a democracy are such that would justify the establishment of some regional policy framework and mechanism that supports and protects judiciaries from political interference. However, it must be emphasized that the judiciary’s autonomy as an institution begins with the individual judge who is able to assert his or her own independence. Each judge must have the courage to administer justice without fear or favour in the face of political pressure, guided only by his or her oath of office and an unwavering commitment to the constitutional values that he or she has sworn to uphold.