Resolving presidential term limits in transitional justice processes: Revisiting the 2015 Burundi Crisis

• Citation: (2022) African Yearbook on International Humanitarian Law 1
• DOI: https://doi.org/10.47348/AYIH/2022/a1
• Published date: 28 May 2024
• Pages: 1-19
• Author: Iyi, J.
• Date: 28 May 2024

1

Resolving presidential term limits

in transitional justice processes:

Revisiting the 2015 Burundi Crisis

John-Mark IYI*

Abstract

The efforts t o resolve the conict in Burundi through the implem entation of

transitional justice have be en fraught with many challenges. The crisis in Bur undi

took a new twi st in June 2020 with the sudden passing of one of the major role-

players, President Pierre N kurunziza. However, this has not resolved the cr isis in

any signicant way so far, and it is imperative to revisit and examine som e of

the underlying legal issues and draw some lessons for t he future. In this article,

I argue that the Buru ndi crisis, arising from the t hird-term bid of then President

Nkurunziza, presented a con ict of two legal orders—the domestic constitut ional

order of Burundi and the Af rican Union legal order as embodied in a numbe r of

regional treaties, princ ipally, the African Union Constitutive Act and the Char ter

on Democracy and Gove rnance. This clash made it dif cult, if not impossible,

to achieve a different outcome when expe ctations came in direct conict with

decisions of the highest court in th e Burundian legal order. External actors should

be more circumspect and appro ach election-related legal processes more cautiously,

because, ultimately, it is the domestic court s that will decide such cases.

Keywor ds: Burundi, Arusha Peace Accord, transitional justice, presi-

dential term limits, Af rican Union, democracy, peace agreements.

PAR T I

INTRODUCTION

Burundi expe rienced an ethnic conict between 1993 and 2005 where

an estimated 300 000 people were killed and another 1.2 million

displaced.1 This brutal conict was brought to an end by the successfu l

negotiation of the Arusha Peace and Reconciliation Agreement for

* Associate Professor a nd Director of the Af rican Centre for Transnationa l

Criminal Ju stice, University of the Western Cape, C ape Town, South Africa.

Email: jiyi@ uwc.ac.za.

1 The number of casualties in t he conict have varied by d ifferent accounts.

See The Burundi Genocide’s Deat h Toll, University of South Florida Librar ies,

available at (accessed on 23 July

2023).

https://doi.org/10.47348/AYIH/2022/a1

(2022) African Yearbook on International Humanitarian Law 1

© Juta and Company (Pty) Ltd

2 AFRICAN YEARBOOK ON INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2022/a1

Burundi.2 This agreement, imperfect as it may be, created the basis

and enabling environment for democratic elections, disarmament,

demobilisation and reintegration processes in Bur undi. The negotiated

settlement brought the former rebel group, Conseil National pour

la Défense de la Démocratie et Forces de Défense de la Démocratie

(CNDD-FDD), into power, and its leader, Jean Pierre Nkurunziza,

became President in 2005 under a Presidential Constitution that

provides for a presidential term limit of two terms.3 Be fore his death in

2019, Jean Pierre Nkurunziza served two ve-year terms as President,

from 2005 to 2015, but he decided to stand for re-election again in

2015.4 Opposition political parties argued that he was ineligible

to contest the 2015 elections having already served two terms as

prescribed by the Burundian Constitution. Nkur unziza and his r uling

party, CNDD-FDD, argued that since he was elected by the National

Assembly in his rst term in 2005 rather than by ‘universal adult

suffrage’, as stipulated in the Arusha Agree ment, his rst term in ofce

should not count towards the two ve-year terms.

This decision was met with sti ff resistance from opposition political

parties and many Burundians, and civil society groups and human

rights activists organised street protests to register their displeasure.5

For several months, there were mass protests across the country,

and as the protests intensied, the government responded with

increasing crackdown and repression.6 The gover nment’s response

was characterised by w idespread human rights abuses—brutality by

security forces, arbitrary arrests and detention, torture, disappearances

and mu rder.7 In par ticular, the International Crisis Group, Human

2 ‘Arusha Peace a nd Reconciliation Agreement for Bu rundi’, available at tp s://

peacemaker.un.org/sites/peacemaker.un.org/files/BI_000828_ Arusha%20

Peace%20and%20Reconciliation%20Agreement%20for%20Burundi.pdf>

(accessed on 26 October 2 023).

3 See Willy Nindorera ‘The CN DD:FDD in Burund i: The Path from Armed to

Political Strugg le’ (2012) Berghof Transitions Series No 10, Resistance/Liberation

Movements and Transition to Politics 27; International C risis Group ‘End of

Transition in Burund i: The Home Stretch’ (5 May 2004) ICG Af rica Report

No 81 at 1.

4 BBC News ‘Burundi’s President, Pie rre Nkurun ziza conrm s third-term bid’

(2015), available at ps://www.bbc.co.uk/ne ws/world-afr ica-3246405 4>

(accessed on 27 November 2023).

5 Stef Vandeginste ‘Brieng: Bur undi's Electoral Cri sis-Back to Power-Sharing

Politics as Usual?’ (2015) 115:457 African Affairs 62 4–636; Inter national Crisis

Group ‘Burundi: A Da ngerous Third Term’ (20 May 2016) Africa Report No 2 35

6 Vandeginste (2015) op cit note 5.

7 Ofce of the UN Human Rig hts Council, Report of the Commi ssion of Inquiry

on Burundi, Huma n Rights Council, 36th ses sion, 11–29 September 2017,

A/HRC/36/54, 8–13. See also Hu man Rights Watch ‘Burund i: Deadly Police

Response to Protests’, available at w.hrw.org/news/2015/05/29/

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