Are presidential term limits in East Africa checks and balances that don’t balance?

Pierre Nkuruziza, President of Burundi

With democratic checks and balances so frequently throwing up violent protests in East Africa, is it time to be self-critical and interrogate the way we apply democracy, and more specifically, term limits?

In July, Burundi, a speck on the Continent’s map, has become the focus of attention on the international stage thanks to a familiar story, “Democratizing Africa”. Burundi’s Nkurunziza has stepped into the famous role of the immovable African President. Like 007, this is a role that overshadows the actors that step up to play it; and we know that every time they do, politics–the metaphorical Martini–is going to get seriously shaken.

However, we must to look through the disguise: this isn’t a one-size-fits all get-up, and however tempting it may be to roll our eyes at Nkurunziza and start muttering about Mugabe, Kabila or Museveni, we must resist, for a very simple reason. These charismatic men have dominated the regions’ politics, all playing the same game, but all playing by very different rules.

It is these players’ individual appeal and intimate knowledge of which strings to pull in their respective countries that keeps them in place. To paint them all with the same brush at best oversimplifies and at worst neglects important political nuances in each of these nations. As we have witnessed in Burundi last summer and across the East African Community over decades, enforcing term limits is risky business when politics is a battle of personalities.

Add a spark of discontent to a barren wasteland of opposition politics, and you have a political wildfire on your hands. In Burundi this has mostly been confined to social media. But, with democratic checks and balances so frequently throwing up violent protests in the region, is it time to be self-critical and interrogate the way we apply democracy, and more specifically, term limits?

After three months of violent protests, the incumbent Nkurunziza draws over 70% of the vote in the provisional results. Protesters were in opposition to the President’s attempt to alter the Constitution and remove term limits, allowing him to remain in power for a further 5 years. The move was rejected by parliament by simple majority, led by one dissident MP. Despite opposition, Nkurunziza stood for election that finally took place on 21st July 2015 after being delayed several times and was officially re-elected as the country’s President.

In a region that is susceptible to the manipulation political circumstances, the outcry over Nkurunziza’s gross misinterpretation of democracy has been surprisingly meek. By contrast, opposition in neighbouring Rwanda backed the the removal of presidential term limits and have effectively making Kagame “president for life”. In West Africa, the Economic Community of West African States (ECOWAS) shelved plans to require all members to include term limits in their constitutions when some west African states were leaving office peacefully. So where are democracy’s standard-bearers on the continent? And perhaps more puzzlingly, why are the likes of Rwanda, East Africa’s “miracle”, keen to dump term limits, risking donor outcry?

So, what’s the situation in Burundi?

Burundi is a tiny country in East Central Africa. Ethnically speaking, its population resembles the dynamics of neighbouring Rwanda–whose ethnic makeup is more familiar and is composed of a Tutsi minority (around 14%) Hutu majority of 85%, not forgetting 1 % Twa- so barely talked about outside of EA that typing this article I realised that Microsoft doesn’t recognise the word.

Despite opposition to a re-run, elections took place on July 21st 2015 against the backdrop of a boycott and a peculiar absence of observers from the African Union. The arguments for and against the legality of Nkurunziza’s move term limits have been well and truly exhausted, and so I will only summarise them.

Emerging from civil war in 2005, Burundi signed a consensus known as the Arusha Accord. Acting as a symbol of transition from violence to positive change, the commission, amongst other things, sought to make clear the terms of the Presidency. For example, Article 7 (1) (a) states that “the [subsequent] Constitution shall provide that, for the first election of a president, the president … shall be elected by direct universal suffrage …” Article 7 (1) (c) prescribes that the National Assembly should elect the first post-transition president using the procedures described in Article 20 (10). Article 7 (3) prescribes that the constitution of Burundi shall provide that the president is elected for a term of five years renewable only once. The argument boils down to different interpretations of these articles, namely:

a) Nkurunziza was elected by the National Assembly for his first term (not national suffrage), therefore if he is elected again, he can still serve one more term in office.

b) Nkurunziza has already served his maximum two terms. It doesn’t matter whether he was elected by the National Assembly instead of universal suffrage, his time is up.

Whatever the conclusion, the Arusha Commission is not a treaty such as, for example, the Vienna Convention on Treaties. It serves as an agreement between parties’ consensus rather than a ratifiable legal instrument. It may be morally biding. However, states are ultimately governed not by constructions of morality, but law.

This lack of leverage has probably contributed to the silence of the international community, who, at state level, have not been very vocal. The implications of the politics of its neighbors have also influenced Nkurunziza’s compadres on the sidelines Museveni’s silence and later moving in “smooth operator” comes as no great shocker, given that he has also manipulated his constitution in order to extend his seat.

Rwanda and Tanzania have issued strong statements urging Nkurunziza not to run. None of the those leaders have waded into the Constitutional debate. Most likely is that this support comes in the form of worry for regional instability and thinly veiled concern for the inevitable boom in the number of refugees in their respective countries if Nkurunziza were to abandon power.

Eric Mugaju is a recent graduate of LSE MSc Social Policy and is a Ugandan writer and blogger. He studied Law and Development at SOAS, University of London. His interests include legal issues in Africa and political economy. You can follow him on Twitter @e-mugaju



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