Burundi referendum a blatant violation of its Constitution

Ahead of the controversial referendum scheduled to take place in Burundi on 17 May 2018, CIVICUS speaks to human rights lawyer and civil society activist Janvier Bigirimana about the referendum’s implications for democracy. Janvier has represented victims of human rights violations in Burundi, East and Central Africa. He currently lives in exile because of the political crisis and human rights violations in Burundi.

1. Why is the Burundi government holding a referendum on 17 May 2018?

President Pierre Nkurunziza has long sought a third term. This is illegal and in violation of the Arusha Agreement of 28 August 2000 and the resulting Constitution of 18 March 2005, and has faced continuous and strong opposition since 2015. As a result, he imposed a referendum upon the Burundi people to amend the Constitution. The main goal of this referendum is to set Pierre Nkurunziza up as a dictator-emperor of Burundi and deny political and ethnic minorities any access to power. It should be noted that his political party recently gave him the title of “Eternal Supreme Guide”, a thinly disguised way of getting public opinion ready to enshrined a cult of personality. Pierre Nkurunziza is making every effort possible to become the next absolute ruler.

Indeed, as the Nkurunziza regime realised it would not be able to obtain the 4/5 legislative majority required to pass a constitutional amendment in the National Assembly, they decided to call a referendum. They had failed to pass a constitutional amendment in 2014 and did not want to fail again. Given that the official body in charge of elections is not independent and no international observers will be present, there is reason to believe that the regime will stop at nothing to ensure a victory of the “yes” vote to enable the constitutional reform.

2. What effect will the referendum have on democracy in Burundi?

The referendum will have multiple negative effects on democracy in Burundi. First, the draft amendment of the Constitution ignores the principle of power-sharing with ethnic and political minorities provided for in the Arusha Agreement. It does so by modifying governmental structure, extending the president’s term and lowering the majority required to pass laws in the National Assembly.

Moreover, the constitutional amendment rules out entirely any possibility of democratic alternation of power in Burundi and turns the Constitution’s strict presidential terms limit into wishful thinking. In so doing, the amendment violates the Arusha Agreement’s stipulation that no president shall be allowed more than two terms in office.

The amendment to the Constitution is unconstitutional in itself. Article 299 of the Constitution clearly states that “no amendment procedure may be adopted if it jeopardises national unity, the cohesiveness of the Burundian people, the secular state, reconciliation, democracy, or the territorial integrity of the Republic”. The referendum is planned to take place in a context of crisis and runs the risk of further polarising Burundian citizens. Indeed, we are facing multiple violations of the Constitution by the Nkurunziza regime.

Furthermore, it is a well-known fact that more than 400 000 Burundians, including members of the political opposition and civil society leaders, are currently living in exile following a major crisis and the subsequent repression. Negotiations initiated by the East African Community failed because the Nkurunziza regime was never willing to resolve the crisis through a negotiated political solution. Human rights violations against Burundians both within and outside the country are no way to help Burundi get back on the path of democracy.

Additionally, while Article 297 of the Constitution allows the president to submit a draft constitutional amendment to a referendum, such vote would merely have consultative value and would not be legally binding since Article 300 clearly specifies that its adoption would require a vote by a majority of four fifths of the members of the National Assembly and two thirds of the members of the Senate. Despite the unquestionable clarity of this constitutional provision, Article 5 of Decree no. 100/0027, issued on 18 March 2018 to call on voters to participate in the referendum, violates it by specifying that the draft amendment of the Constitution shall pass if it gets the absolute majority of votes (50%+1).

In fact, the Constitutional Court’s ruling no. RCCB 272 of 11 September 2013 confirmed the consultative nature of the referendum. The political trickery attested to by Article 5 of Pierre Nkurunziza’s decree is yet another proof that the regime is deliberately acting in bad faith.

Ultimately, the chances of resolving the crisis peacefully through a negotiated political settlement are crumbling even further and the lack of dialogue, tolerance and political pluralism constitutes a serious infringement of the democratic process.

3. Why is a mechanism for popular participation such as a referendum having such undemocratic effects?

This is happening for a series of reasons. First, the regime is exhibiting selfishness and indifference to the population’s distress. In the context of a grave political, socio-economic and humanitarian crisis, one might as well wonder whether a referendum should take priority over the challenges currently facing the country.

Far from being a priority, this referendum will cause a serious regression in Burundian democracy. It has been tailored to fit Pierre Nkurunziza’s interests and the game is not transparent in the least. It is being organised against a backdrop of terror, human rights violations, persecution of opponents and clamping down on all civil liberties.  Proponents of the “no” vote have undergone various forms of persecution and the likelihood of preventing the amendment’s passage has dwindled, even if the majority of Burundians were to vote against it.

The proposed constitutional amendment is illegal and has been engineered by a regime lacking wide support. In a fragile democracy like Burundi’s, it is especially important to take into account the country’s recent and painful unresolved past to evolve towards consensual governance. This is not the present case: the Nkurunziza regime has committed a number of serious crimes currently under investigation by the International Criminal Court and continues to promote the law of force instead of the force of law.

4. How have opposition parties and civil society responded to the decision to hold the referendum and what has been the government reaction?

Opposition political parties and civil society organisations have denounced repeated violations of the Constitution. In declarations, public statements, campaigns and other advocacy initiatives, these organisations have demonstrated how dangerous it is to try to modify the Constitution unilaterally, when the crisis caused by a similar attempt in 2015 has not yet been resolved.

The main challenge facing us now is that the government has become callous and turned a deaf ear to the advice and appeals it has received. Let us keep in mind that most of the actors of civil society and the political opposition are working from outside Burundi. In that sense, the recent suspension of international media broadcasting to Burundi, including the Voice of America and the British Broadcasting Corporation, is another reminder that the situation in the country is worsening and it is likely to lead to the perpetration of more serious atrocities in the coming days.

5. In which ways have democracy and human rights deteriorated in Burundi over the past three years?

Burundi has suffered serious democratic setbacks. These have taken the concrete form of restrictive laws concerning public demonstrations, not-for-profit associations, foreign NGOs and the press, the persecution of political opponents, the deliberate sowing of division among opposition parties, the closure of all spaces for dialogue concerning the country’s challenges, repeated violations of the Constitution and the Arusha Agreement, and the destruction and prohibition of independent media. Forced into exile and sometimes killed, the main opposition leaders dare not return to Burundi as arrest warrants against most of them have been issued by the Nkurunziza regime.

Numerous human rights violations have been documented. After the bloody repression of peaceful demonstrations in April 2015, the period following the failed coup attempt on 13 May 2015 has been deadly for Burundians who make up the country’s civil society and political opposition or are presumed to do so. Several human rights advocacy organisations have been prohibited and their leaders killed, disappeared, jailed or forced into exile. Warrants have been issued for their arrest and the bank accounts of the organisations and also those belonging to some of their leaders have been frozen.

Informal military forces headed by Pierre Nkurunziza are killing with impunity. They comprise the Imbonerakure (Youth) militia, elements of the police and army as well as the National Intelligence Service. The Burundian judiciary, which is supposed to protect the rights and liberties of citizens and individuals, has been turned into a tool of repression against opponents, which the executive branch uses as it sees fit.

As a result of this repression, more than 500 000 Burundians are listed as refugees in neighbouring countries, while many others have been displaced internally. Several thousand Burundians have been assassinated, thousands have disappeared, more than 10 000 have been arbitrarily imprisoned, and several hundred cases of torture and rape have been reported, along with trafficking women and girls to certain Arab countries.

The country’s grave human rights issues have led the United Nations to set up a commission of inquiry regarding the situation in Burundi, which produced its first report in September 2017. Moreover, in view of the seriousness of the crimes, the International Criminal Court (ICC) decided to open an inquiry into the situation in Burundi on 25 October 2017, two days before Burundi definitively withdrew from the Rome Statute underpinning the tribunal;

6. What do you think are the underlying factors that account for this deterioration of democracy and human rights?

I think three major factors have intervened. Firstly, the government’s unwillingness to share power with other political forces and its willingness to clamp down on civil liberties and violate the country’s fundamental texts in order to maintain its dominance. Secondly, the lack of functioning accountability mechanisms or their failure to check and balance the government’s actions. And last but not least, the prevalence of impunity, which induced the commission of further crimes rather than deterring them.

7. How can the international community assist in bringing about democratic reforms in Burundi?

First of all, the international community needs to acknowledge what is happening in Burundi. The shift from relative democracy to absolute dictatorship may have serious repercussions for the future of democracy across Africa, as other African leaders might be tempted to experiment following the example of Pierre Nkurunziza;

It is worth noting that the risk of mass atrocities, including genocide, is very high. All the necessary preconditions are present, including the adoption of hate speech by the highest state authorities and the existence of a militia that has replaced state institutions. In the name of the responsibility to protect, the international community must take the situation in Burundi seriously and plan on taking meaningful, effective coercive measures to keep the Nkurunziza regime from committing irreparable harm and have it agree to negotiate sincerely and unconditionally with its opponents.

We therefore call upon regional and international organisations to engage in actions to raise awareness of the current situation in Burundi so that the issue remains on the agenda of the international community, and to support the efforts of Burundian civil society and enable its voice to reach key international actors.

  • Janvier Bigirimana was Secretary General of the Burundi civil society organisation FOCODE and the Lawyers Coalition for Victims of International Crimes in Burundi (CAVIB). He is also a member of the Governing Counsel of East African Civil Society Forum (EACSOF) on Behalf of Burundi Civil Society and coordinating member of “Tournons La page”, an international campaign calling for democratic reforms in Burundi.

Civic space in Burundi is rated as CLOSED by the CIVICUS Monitor