By George Omondi
Out of about 48 new constitutions in Africa, enacted in the 1990s, 33 of them provided for term limits for the office of the president. The limit is, for the most part, maximum two terms in office. Before that period of 'transition', only 6 African countries carried the presidential term limit in their constitutions. Interestingly, nearly 30 countries have contemplated the removal of term limits since 1998. In most of these countries, incumbents who had served two terms attempted to change the constitution to make themselves eligible for re-election for a third term, on the path to lifetime presidency. Some succeeded - for example Yoweri Museveni of Uganda and more recently Rwanda's Paul Kagame. Others, like Zambia's Fredrick Chiluba and Malawi's Bakili Muluzi did not succeed to effect necessary constitutional changes. Usually, the leaders do not extend their terms of office without an election. In most cases, elections are held and incumbents win with ease. Two issues are of interest. First, the negation of presidential term limits by amendment or interpretation of the constitution. Secondly, the management of elections with predetermined results. Our attention is directed at the first issue.
The case of Burundi is intriguing. After failing to achieve the constitutional amendment to allow him run for a third term, president Pierre Nkurunziza resorted to a self-serving interpretation of the constitution. Article 96 of the constitution of Burundi (2005) provides that a president shall be elected by universal suffrage for a mandate of five years, renewable one time. President Nkurunziza and his supporters maintained that the president's election in 2005 by parliament doesn't count in the two terms. They argued the president had only been elected once by universal suffrage and was eligible for a second election by the same process. The opposing argument is anchored on the Arusha agreement. The protocol on democracy and good governance within the Arusha agreement stipulates that the president shall be elected by universal suffrage, except in the first election of president after the agreement. It means that the agreement recognizes the first election of president as regular rather than transitional. In this interpretation, the first term of the president started in 2005. The question of whether opposition to the president's plan was in self interest of leaders or in national interest need not detain us. Presidential terms limits act restraints to overzealous action by politicians aspiring to be presidents. Uncertainty over the possibilities of leadership change bred political tension in Burundi since the dialogue between opposition and ruling party collapsed in 2012.
The pertinent question is this: how does the Arusha agreement relate to the constitution of Burundi (2005)? There are at least two ways of looking at this relationship. First, that the Arusha agreement was a transitional document whose life ended once the country enacted a constitution. It formed the basis for the development of governance institutions in Burundi in the post-conflict period, but it's life ended upon enactment of the constitution. The other view is that the agreement and the constitution have to be read together. The governance vision and aspirations in the agreement live alongside the constitution and remain a point of reference in governance debates and decisions. As has happened elsewhere - recently in Kenya, with the signing of the National Accord (2008) - peace agreements engrain governance principles and programmes that have to be implemented alongside the constitution. Granted, the constitution is supreme law, but it always has to be (re)produced to accommodate the imports of a peace agreement. In any case, the constitution of Burundi is not silent on the presidential term. Article 302 in the provisions for the first post-transition period is explicit that the election of the first president after the transition will be exceptional. The president would be elected by the national assembly and senate. That election, without any doubts, launches the first presidential term. Therefore, constitutional court erred in negating the Arusha agreement from current governance processes and in their finding that constitutional provisions on presidential term limits are vague.
There is an important element in the debate on presidential term limits brought out in the case of Burundi. It is the proposition that presidential term limit (or the lack of term limit) is a domestic policy issue. President Nkurunziza urged the international community to stay out of the issue and let the government and people of Burundi reach a sovereign decision. Not long after Burundi's elections in July 2015, president Yoweri Museveni of Uganda told a visiting Kenyan delegation, including Kenya's president Uhuru Kenyatta, that Uganda had gotten rid of term limits. In Burundi, just like in Uganda, control over both state and non-state instruments of violence by the incumbent is the single most important factor in the enforcement of the leaders' insistence on third and more terms. Although divisions existed among the military ranks in Burundi, leading to the coup attempt, president Nkurunziza appeared to have succeeded in consolidating military support. The ruling CNDD-FDD party youth wing, the imbonerakure, sustained intimidation and violence against individuals and groups opposed to the president's third term manoeuvres. Additionally, the president relied heavily on his rural support base, casting opposition as urban-based. However, repression of civil society organizations and the media prevented possible popular campaign and mass nationwide revolt.
The East African Community (EAC) and the African Union (AU) missed momentous opportunities to strengthen the governance agenda in the region and the continent. In the summits held by both the EAC and the AU over/during the Burundi crisis, no strong and/or clear position was taken against extension of presidential terms. At the EAC, three out of the five partner states - Burundi, Rwanda and Uganda - have abandoned the practice of presidential term limits. This partly explains the EAC's inability to make a strong pronouncement on the matter. Similarly, the AU is hindered from decisive action on presidential term limits by the presence of many member states (and individual leaders) that have either scrapped off term limits from national constitutions or contemplate doing so. Ironically, the AU Charter on Democracy, Elections and Governance reigns. The AU suspends the membership of countries where coups occur and refuses to recognize regimes that come to power through such coups. That is a commendable ideal. Yet the AU has not taken a strong stance against extension of presidential term limits. There is more to it than rule establishment against term extensions. As the case of Burundi has shown, two other governance dimensions are key to building inhibitions and responses to term extensions at the national level. In the first place, safeguarding people's individual and collective rights and political freedoms. Secondly, promotion of free media and civil society. Although the civil society and media in Burundi mounted forceful resistance to president Nkurunziza's plans, the eventuality of a Nkurunziza third term is partly attributable to the limitations in the two sectors.
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