A new constitution replaces the previous one, but it does not abolish the past. It does not remove the three terms that President Nkurunziza will have completed by 2020. Fifteen years of Burundian history are not erased in one stroke.
Fortunately, the apprentice manipulators did their job shoddily. As a result, the Constitution they have drafted is pregnant with many more setbacks.
Ever since 2015, polls in Burundi have been manipulated by a regime desperate to get out of the political quagmire it brought about. Each and every time, it failed completely. The constitutional referendum of May 17 once again, has proven this trend.
First, the political environment and the conditions in which the referendum took place.
With regard to a constitution — the theoretical foundation of democracy — great precautions must be established: Thorough explanation of the text, widespread debate, freedom of expression, open campaign, etc. None of this happened.
The Burundi Constitution which was promulgated on March 18, 2005 provides for its revision and specifies the modalities of such an endeavour: “No procedure of revision shall be undertaken if it undermines national unity, the cohesion of the Burundian people, the secularity of the state, reconciliation, democracy and the integrity of the territory of the republic.
On the contrary, pressure was wielded to force people to register, then vote, and vote “Yes” for that matter.
“No” was declared tantamount to contempt of the nation. For months, all over the country, Burundians heard only one slogan: Vote yes! Otherwise... It was only intimidation, threats, sometimes murder in short, an unbearable climate for forced consultation. It took tremendous courage to brave such repression and dare to say no.
But the most incredible, the most mind-boggling feat in the conduct of the referendum is its subject matter and purpose — the new constitutional text, remained virtually secret until the end.
In fact, it was “published” only on May 8, nine days before the election and five days after the start of the official campaign. We put quotation marks to “published” as the text appeared only on the website of the National Independent Electoral Commission, CENI, where it had to be thoroughly searched to be found. Indeed, no link was ever publicised or indicated, no title, no reference to any home page.
Mystery of draft law
Even today, for one to locate it you have to click on the tab “Legal Texts” then on “Constitution of Burundi” and finally on “Draft Constitution 2018!” A tedious labyrinth to go through to discover finally, too late, the text to approve or disapprove.
Why this mystery? Why was the text posted on the website of the CENI when this constitutional revision was initiated by State House which took the initiative for the referendum as provided for by the Constitution?
An editorial published on May 4 in Iwacu newspaper — the day after the opening of the referendum campaign — asked a simple but serious question: “Where is the text?” Is this the editorial that triggered the reaction? It’s possible.
However, such late publication, carried out surreptitiously, on a single website, did nothing to resolve the fundamental problem of a referendum with no subject matter nor purpose.
How can such crucial a text be presented to Burundians through the internet only! Yet in Burundi, like Somalia and Eritrea, less than two per cent of the population has access to the internet?
Both CENI and State House had the duty to disseminate the constitutional text in several languages, in Kirundi first and foremost, and on all the media channels accessible to the Burundian public. They did not do so. Why?
The May 17 referendum is a resounding failure for the Burundi regime. Certainly, a new constitution can come into force if it is passed by parliament as required by Article 300 of the 2005 Constitution.
It is time to put to rest a harmful rumour, spread by the media purporting that thanks to this new constitution, Pierre Nkurunziza will be president until 2034. This reading of the text is false.
It plays into the wishes and desires of this man who proclaimed, on his inauguration for the third term, that it would be the last. Nothing in the new constitutional text authorises a fourth and fifth term.
On the contrary, in addition to making explicitly reference to the Arusha Agreement in its preamble, it reproduces word for word, under Article 97, the term limits enshrined in the Agreement: “No one shall exercise more than two consecutive terms.”
The past
A new constitution replaces the previous one, but it does not abolish the past. It does not remove the three terms that President Nkurunziza will have completed by 2020. Fifteen years of Burundian history are not erased in one stroke.
To allow President Nkurunziza to run for a fourth term, it would have been necessary to provide for special provisions in the new constitution, in clear terms. It would have been necessary to explicitly authorise the outgoing president, who has been in office since 2005, to make an exception to Article 97. In short, this flawed Constitution does not regulate anything. On the contrary, it creates confusion.
Second problem. It proves an obstacle for those who thought to resolve everything through this referendum without bothering to write a more meticulous and in-depth draft.
The referendum was optional, it was only one stage on a path. It has no force of law whatsoever.
As pointed out above, the draft text must now be voted on by parliament pursuant to the 2005 Constitution, which is still in force, under Article 300: “An amendment of the Constitution or a proposal thereto shall be adopted by the majority of four-fifths of the members of the National Assembly and two-thirds of the members of the Senate.”
The most astonishing fact is that such a prerequisite is reproduced as such in the new text, under Article 287. Why then? It is a great mystery.
Why write again that any constitution must be adopted by parliament, even though the government wanted the referendum to be sufficient on its own to pass this constitutional change? And why did the regime maintain this requirement of a vote by the four-fifths of the National Assembly? There are no answers to these questions. The fact is that the referendum is only indicative and we must now go to both chambers.
Obstacles
The constitutional articles limiting the number of consecutive terms to two and requiring a vote of four-fifths of MPs, the absence of an article dealing with the eligibility of the outgoing president, are all obstacles on the way to a new constitution and a “29-year term” for one man.
These obstacles are all the more difficult to overcome because the May 17 vote proved a snub for the regime.
It wanted a triumphal plebiscite, it got a disapproval. It wanted a massive “Yes” overwhelming, surpassing the “Yes” to the 2005 Constitution, and it is the opposite that happened.
In 2005, the vote took place under perfectly democratic conditions, after a completely free and open campaign, in the presence of many international observers. “Yes” carried the day with 90.40 per cent of the vote and the “No” a mere 7.589 per cent.
In 2018, under non-democratic conditions, the “Yes” won, according to the CENI, with 73 per cent of the votes and the “No carried 19 per cent.
This referendum is turning against its authors. In fact, it reveals a deep attachment of Burundian society to the Arusha compromise and its majority opposition to constitutional manipulation aimed at distorting it.
Fortunately, the apprentice manipulators did their job shoddily. As a result, the Constitution they have drafted is pregnant with many more setbacks.
The CNDD-FDD party does not have four-fifths of the seats in the National Assembly, it is not out of the woods.
Antoine Kaburahe, the founder and director of the Iwacu Press Group, has followed Burundian politics for more than 25 years. Jean François Bastin spent most of his career at the Belgian official television station, RTBF, for which he covered many African conflicts, including those in Rwanda and Burundi.
