Appendix I

Explanatory Commentary on Protocol II

II. Comments on Individual Points in the Proposals

Preamble, paragraph 3

The obligations with regard to the transitional institutions are covered both in the present Protocol and in Protocols III dealing with "Peace and Security" and V on the "Guarantees on implementation".

Article 1

The fundamental values are intended to set out that blueprint for society ("projet de société") on which all parties are agreed.

Article 2, paragraph 1

After exhaustive debate, no agreement could be reached on whether the Baganwa are a separate community or a dynastic clan. Nor could agreement be reached as to whether the various groups should be classified as "a community", an "ethnic group", a "people", or a "tribe". While some drew attention to the absence of distinguishing characteristics between these groups or communities (there are no religious, linguistic, colour or reliable physical distinctions), others pointed out that the distinction is nonetheless prominent in the people's consciousness. In the end result, all but one party insisted on "ethnic group" or "community", and the Bureau's proposal leaves a notion of ethnic identity to be recorded without preferring any particular classification. All parties agreed that Burundi is one Nation.

Article 2, paragraph 4

Many parties did not support this provision, but as it is only permissive in nature the Bureau can see no harm in its retention. If anything it underlines that the matter is to be determined by the National Assembly.

Article 2, paragraph 5

The latest submissions have raised for the first time whether French should be a national language. There are reasons to believe that such a proposal may be practical (major juridical instruments, public administration drafts, projects, etc. are often drafted in French). But as this issue was raised only in the final submissions, the Bureau felt that it would be unjustifiable to include this proposal in the provision without a previous discussion on the matter. In any case this provision would not apply during the transition period, and the current provision for the use of language in courts and official documents has been dealt with in Chapter II, under the provisional arrangements.

Article 3

The rights listed here do not constitute an exhaustive list. These rights in approximately the same formulation as here have been included in numerous previous drafts and have never been disputed, save that this text, for completeness, also includes the rights to education and development. The 1992 Constitution already contains an elaboration of these rights, and we have proposed only general formulations; their precise formulation will be the task of those drafting the definitive constitution.

Article 3, paragraph 4, first sentence

Contemporary practice recognizes the need to underline specifically, by reference to the equality of both women and men, that women are covered by the commitment to treat citizens as being equal in worth and dignity. The French translation of "everyone" does not solve the problem.

Article 3, paragraph 6

One of the parties had asked that the Bureau include in this provision a proposal on the abolition of the death penalty. Taking into account the current world-wide trend, the Bureau would be tempted to include such a provision, except that:

1. The Constitution of 1992 does expressly contain it;
   
   
2. It may well be included in the right to life, and if there is doubt on this question it should be for parliament or for the courts to decide;
   
   
3. It can be dealt with by the transitional National Assembly when it drafts the definitive text of the Constitution;
   
   
4. This is a provision that covers the post-transition period and would not have any influence on the transition period.

Article 3, paragraph 20

The last sentence neither adds to nor detracts from the right to strike, because reasonable limitations are possible in accordance with article 3, paragraph 29.

Article 3, paragraph 27

Children in armed conflict were not specifically covered in the discussion in the Committee, but in the light of recent international conventions and the rising concern regarding the plight of children, the Bureau included this provision, in the belief that it would receive the support of all parties.

Article 3, paragraph 29

This formulation accords with current comparative "jurisprudential" approaches to the need to provide for and yet restrain the extent of limitations of and derogations from human rights norms.

Article 4

All provisions of this article have been treated in accordance with the agreement reached between the majority of the parties. The essential provisions in this article are based on the need for all political parties to co-operate in ensuring that the right to vote can be exercised.

Article 4, paragraph 3

The definition of political parties is not the Bureau's. The latter has respected this phrasing, as it is the product of an agreement reached within the working group made up of the G-7, the G-3, ABASA and INKINZO.

Article 4, paragraph 4

Initially, one party expressed a reservation concerning the requirement that all parties be national in nature, but this reservation was withdrawn during the April 2000 session of Committee II.

Article 5, paragraph 4

The substantive proposals can be found in Chapter II of Protocol II, which provides that some aspects of the electoral process are to govern only the first election, and to lapse thereafter.

Article 5, paragraph 5

One group made a detailed proposal on co-opting mechanisms. To the extent that they are dealt with in this text, certain provisions and particular issues have been taken up in Chapter II of Protocol II.

Article 6, paragraph 2, first sentence

The figure of 100 is possibly large for a country of Burundi's resources, but is warranted on account of the need to provide for greater participation of its citizens in an inclusive political process (see Chapter II of Protocol II, art. 15, para.3).

Article 6, paragraph 3

A party had proposed that laws be actually adopted by way of referendum. The better approach is providing for the Legislature to be bound to pass a law as approved by referendum.

Article 6, paragraph 5

The original proposal was amended to bring the majority required in the National Assembly into line with that required in the 1992 Constitution. It does not seem appropriate to require the same very high majority in both the Senate and the National Assembly.

Article 6, paragraph 8

The current general trend is for the immunity of members of the Legislature to apply to their political activities, but not necessarily to general criminal affairs or failure to meet civic obligations.

Article 6, paragraph 10

The magnitude and exact modalities of enlarging the transitional National Assembly are specified in Chapter II of Protocol II. Within Committee II various options were discussed for a possible enlarging of the definitive National Assembly, but no agreement was obtained.

Article 6, paragraph 14, first sentence

The Bureau is mindful that some parties on one end of the spectrum reject the notion of a senate, holding that Burundi has no need for a costly second house, that the senate will frustrate the law-making process, and that as an ethnically balanced house it will emphasize ethnic divisions. At the other end of the spectrum a senate is rejected because it is not an effective substitute for intra-community or segregated political representation; "unrepresentative Batutsi" would be elected rather than Batutsi in whom only Batutsi have confidence. In the absence of any common ground between these extremes, the Bureau has opted for a system that relies on:

1. Democratic government;
   
   
2. Guaranteed multiethnic representation in the Assembly;
   
   
3. A second house with an ethnic balance to provide a confidence-building mechanism;
   
   
4. An approach that promotes nation-building rather than ethnic competition. The senate is a mechanism used widely in such circumstances, and can hardly be considered abnormal.

Article 6, end of paragraph 14

The most difficult issue regarding the senate is the method by which the senators are to be elected. As its explicit purpose is to provide a forum for regional concerns within an ethnically balanced framework - and yet the system has no geographically distinct ethnic communities or explicitly segregated ethnic elections, nor any means of ethnic identification or registration - indirect elections appeared to the Bureau the only method possible. Yet the text proposed may still give rise to objections that the ethnic representatives are really regional representatives, not persons representing an ethnic constituency. However, in the long term this in itself may contribute to overcoming the past divisions. The Electoral College, furthermore, is made up of persons whose concerns will be grass-roots developmental issues.

Article 6, paragraph 16

The powers and functions of the senate have been focused on the questions of particular concern to regions and ethnic communities.

Article 6, paragraph 16(c)

Unlike the President of the Republic, the ombudsperson has a non-party political profile, but a major responsibility for ensuring a proper and clean administration. Accordingly, to perform a watchdog role a very high non-partisan degree of support is indicated.

Article 6, paragraph 17

This cooptation mechanism ensures there is no ethnic exclusion at the level of local government. However, if there is a mono-ethnic character to the community, or where there is an appropriate multiethnic character to the council, this mechanism would not come into play.

Article 7, paragraph 1

No agreement was obtained on the mode of election of the President. The system of politically alternating presidents was considered unworkable, democratically unsustainable or even a source of instability. The proposals made were mutually exclusive:

1. One was that the President of the Republic should be elected by the National Assembly and the Senate;
   
   
2. The other was that the President of the Republic should be elected by direct universal suffrage.

Because of the political context within Burundi, the Bureau proposes a compromise by creating an initial exception that would reflect the importance of demonstrably wider support for the first President, and would help to stabilize the political institutions by not holding additional presidential elections at the end of the transition. The proposal of indirect elections for the very first election is premised on the need for more universal support for the first President. It is no less democratic and yields an accountable Executive. There is no evidence to support the argument that directly elected presidents are less vulnerable to a coup d'état than indirectly elected ones provided both are constitutionally sound and based on free and fair elections, The Bureau would propose that this be a unique case, with subsequent presidents being elected by direct universal suffrage.

Article 7, paragraph 4

Various proposals had been made on the Vice-Presidents. The proposal made by the Bureau is to be seen as a compromise suggestion between what the G-3, G-7 and G-8 had initially proposed. The Bureau believes that this option will function as an additional nation-building mechanism by enlarging the presidency so as to cover a wider political range, and therefore will also be seen as a mechanism that should reassure all citizens of Burundi. This is a mechanism that has been utilized elsewhere in deeply divided societies.

Article 7, paragraph 6, first sentence

There has been no objection to this initial Bureau proposal. This provision promotes the concept of a choice by the parties as to whether they participate in a Government of national unity or not. In deeply divided societies this mechanism is achieving ever wider application (see recently Nigeria, Indonesia, South Africa), as it promotes national acceptance of the Government, and hence stability.

Article 7, paragraph 8

This provision is not to be seen as a form of "vote of no confidence". The question of allowing a vote of no confidence will have to be studied by the Constitutional Commission that will be established by the National Assembly during the transition. The exact nature of the relationship of accountability between the President and the National Assembly will depend on the degree of separation of powers decided upon.

Article 7, paragraph 9

This proposal was made in conformity with the 1992 Constitution, which establishes that "The judicial inquiry may only be directed by a team of at least three magistrates from the general office of the Prosecutor of the Republic" (art. 81. 4).

Article 8, paragraph 1

The governors of the provinces fulfil administrative functions. In such a small country as Burundi, with limited resources, the Bureau felt that to submit the governors' posts to elections - or any other form of choice - would only complicate the electoral system and create certain forms of tension between the central power and the districts. In Protocol II, decentralized power within the districts has been provided for.

Article 9

The reforms of the Judiciary have been extensively discussed within the working group of Committee II on the subject. The Bureau has tried within this article to reflect the very different decisions that were taken or discussed. Many of the proposals made during the debates on the Judiciary were subject to general agreement. With reference to paragraph 6, the term "Supreme Council of the Magistracy" has been replaced, here and elsewhere, by "Judicial Service Commission", which is the translation of "Conseil Supérieur de la Magistrature" recognized by the Council of Europe. This is therefore not a substantive change.

Article 9, paragraph 5

Various new suggestions were made in the final submissions given in by the parties. Nevertheless, the Bureau felt it necessary to reflect the decisions taken by the working group on the Judiciary, and even if important suggestions were offered in the final submissions on such issues as the court system, the composition of the Chambers and the funding of the Courts, the Bureau felt that some of the suggestions departed from what had been discussed and agreed.

Article 9, paragraph 8

The aim of introducing the Ubushingantahe is to afford the national legislature a chance to provide for traditional justice as an institution at local level on matters affecting local communities. This proposal was backed by all parties, even though some parties stressed that the change in the nature of the Ubushingantahe justified their worries as to how this traditional institution would be used.

Article 9, paragraph 9

There was a mistake in the Bureau's initial proposal concerning the nomination of the magistracy. It has been modified to include the task of nominating magistrates in the functions of the Judicial Service Commission.

Article 9, paragraph 12

Widespread practice usually insists that there should be a link between public office bearers and judges; the linkage takes place in the Judicial Service Commission, and permits the other stakeholders to participate in the decision-making. Few, if any systems, allow the Judiciary to be completely insulated from accountability or influence from the people through their elected representatives.

Article 9, paragraph 17

The Bureau considered proposals which downgraded the Constitutional Court to a Council, which may serve to diminish its legal status and reduce accessibility to it by ordinary citizens. However, it was felt that this compact requires the firmest guarantees and, in line with the separation of powers doctrine, an institution of calibre and independence to enforce it. Such an institution would also strengthen the rule of law and a culture of legality.

Article 10

The proposals put forward in this article were subject to only limited debate. In the submissions made by the parties in April, most of the contrary proposals put forward related to the wording or fine details of the provisions in question. The Bureau has therefore taken into account those proposals on the structure or wording of the sentences which did not alter the sense of the provisions. Most of the provisions include the main precepts of good governance.

Article 10, paragraph 10

The principle of an Ombudsperson was agreed upon during the April 2000 session of committee II. During the same session various suggestions such as the creation of an Ombudsperson within the army were discussed, but no decision was taken. Nevertheless, the three-fourths approval of the nomination by the National Assembly and the requirement of the approval of the Senate are proposals put forward by the Bureau. It was felt that the Ombudsperson should possess extraordinary credibility - or legitimacy - to fulfil her/his function, especially if she/he is expected to play a conciliatory role.

Article 11, paragraph 3

The military matters dealt with here have been taken from the reports of the Bureau of Committee III, but here may be subject to arrangements that have emerged from the guarantees consequent upon adopting the electoral system set out herein. The issues referred to in Protocol II, though they deal with military matters agreed in Committee III, remain fundamental constitutional issues. Also, only Committee II can identify the final form of the political institutions which supervise certain military appointments and deployments.

Article 11, paragraph 4(e)

One of the groups proposed that this provision be extended to give jurisdiction to civilian courts over military personnel who have committed offences under the "general" or civilian law. There is some merit in this proposal. However, the Bureau feels that it should include such a provision only in consultation with Committee III.

Article 12, paragraph 2(c)

See the definition given in Protocol IV, article 1.2.

Article 13, paragraph 1, first sentence

There is a need to establish the shortest period possible between the signature of the Agreement and its implementation. At an institutional and political level, the Bureau believes that within a month most of the administrative prerequisites to start the transition period can be met. It is conscious that other factors and imperatives coming from the other committees, especially Committee III, must be taken into account, and the time-frame might be modified, especially if an international military and observer presence is a precondition. If that force is a United Nations force, 6 months is a realistic outer limit.

Article 13, paragraph 1, second sentence

The necessary conditions may include: some of the statutory measures to be adopted; establishing reception arrangements for returnees, refugees and displaced people; providing security for the returning political leaders; establishing reception areas for armed groups; insertion of monitors and peacekeepers; confinement to barracks where appropriate; meeting benchmarks for cessation of hostilities if agreed; establishing the mechanisms to receive arms if agreed upon; providing security for armed groups; establishment of international or national bodies; closure of regroupment camps; release of political prisoners.

Article 14, paragraph 5

This provision is subject to a sunrise provision so that parties which do not yet comply with this requirement can subscribe to the Agreement and participate in its structures, and formally adjust their constitutions and structures later. The political parties must be given the opportunity to fulfil the necessary requirements established in the Protocols to the Agreement. The present situation makes it impracticable for some of the political parties to consult their constituencies and their militants before major decisions can be taken. The Bureau therefore proposes a suspended period of nine months so as to be able to allow such parties to adapt to the new requirements.

Article 15, paragraph 2, first sentence

The purpose of this provision is to ensure that any matter that has not been foreseen or considered will still be regulated by the law pending the adoption of the relevant laws by the transitional legislature. It does not affect or delay the entry into force of the Agreement, but merely serves to place an obligation on one of the Parties, the effect of which is to incorporate the obligations under the Agreement, which are effective upon its signature, into domestic law. This is a separate issue from the entry into force of the Agreement.

Article 15, paragraph 3

The transitional National Assembly is to be expanded to include the political parties not included therein, while ensuring that there arc balances and that it has a popular character. The Bureau proposes that the starting point be the National Assembly which was disrupted by the assassinations of 1993, the ensuing violence and the coup which later followed it in 1996. To start on another basis would not be consistent with the last indicator of popular sentiment, even though the term of this legislature has now expired. On the other hand, the demands of the transition require, temporarily, an expanded and inclusive legislature. However, the mathematics preclude a simple extension if the resultant Assembly is not to provide for a simple rubber-stamping of a draft text prepared by one of the three clusters. This proposal thus marries three arguments:

1. It must in part reflect the last election (and thus be legitimate);
   
   
2. It must include all the parties to the Burundi Peace Negotiations (and thus be inclusive) and
   
   
3. It must facilitate true give-and-take in discussions (and thus not allow any one grouping more than two-thirds dominance).

The parties themselves could not agree on these principles, choosing to insist on either the first or only the second, and the Bureau received no assistance in this regard from them.

Article 15, paragraph 3(a)

In the 1993 elections FRODEBU won 65 seats, UPRONA 16, for a total of 81 members. The surviving original members will be offered their seats back even if they now belong to new political parties. If they decline or are nominated to the Executive, or are no longer alive, the political party they belong to, or belonged to at the time of their death, will elect to fill the seat or allow the current replacement to continue in office.

Article 15, paragraph 3(b)

There are 19 parties to the Burundi Peace Negotiations. Two of them are not political parties (Government/National Assembly). The Bureau assumed that two parties will join the Negotiations as additional members (if not, the figures will change slightly). This leaves 19 political parties in total. Of those 19 political parties, two will not be attributed additional seats (FRODEBU and UPRONA). One party (CNDD) is probably represented by its original members. This leaves 16 political parties to which seats must be attributed: 16 x 3 = 48 new seats. The total adds up to 129 members of the National Assembly (81 + 48 = 129). At the G-7 level, the figures are as follows: (65 FRODEBU) + 7 x 3 = 86 or + 8 x 3 = 89. This gives G-7 two-thirds or more. The third principle requires that additional representation be provided for, which demands that we add some 15 members who do not belong to the G-7 parties. The unknown element of this equation remains the two political parties who could join the Burundi Peace Negotiations. It is impossible to know if there are members of the 1993 National Assembly amongst their militants, so the Bureau has calculated as if there were not, though this could be modified at the required moment.

Article 15, paragraph 3(c)

The Bureau considered increasing the number of seats per party to give effect to the principle that no group has more than two-thirds. However, it would need 5 or 6 seats per party and a legislature of +/-180 to do this, as parties on both sides would obtain additional representation. By taking the balancing group from sitting civil society members, this provision also reduces the opposition to the transition from the civil society sector within the current National Assembly. This brings the total potential number to 157 and demonstrably balances the political composition of the transitional National Assembly, especially in regard to the decision-making majority required.

Article 15, paragraph 5, third sentence

This provision is necessary to underwrite the principles in Chapter I of Protocol II. Making the draft Constitution subject to judicial scrutiny does not affect the sovereignty of the "people". The Transitional National Assembly is an unelected body. The constitution to be approved by the people will not be adjudicated upon once approved by referendum.

Article 15, paragraph 6

A referendum is necessary because the constitution-making body is not an elected one.

Article 15, paragraph 7

This provision is intended to function as a last-resort measure, to break deadlocks and ensure that the time-frames are complied with.

Article 15, paragraph 13

The exact composition of the transitional Government is to be negotiated between the clusters of political parties at Arusha once the broad framework is agreed on. The G-7 at the Burundi Peace Negotiations consisted CNDD, FRODEBU, FROLINA, PALIPEHUTU, PL, PP and RPB. However, the group is taken here to include, if they eventually participate, the armed groups not at Arusha but which originate from or claim to represent parties in the G-7. In the interests of appropriate appointments on the basis of suitability and competence, the Bureau believes that candidates should come from clusters, not pro rata from 19 parties.

Article 15, paragraph 20

These matters were raised in earlier discussions but did not find expression in the earlier draft protocols. The Bureau believes that all parties welcome such a measure.

Article 16

To prevent disruption, any unforeseen breakdown in law and order, or judicial mismanagement, the Bureau considers it necessary to include the provisions listed in this article. These provisions do not preclude legislative and executive action to remedy the defects of the past or to conduct judicial and administrative reforms, but are rather directed at permitting an ordered reform process without disruption caused by legal challenges, legal vacuums or administrative chaos.

Article 17, paragraph 2(b)

In relation to the judicial sector, reference was made to the need for training colleges for "employees". The Bureau has extended the original formulation to cover all sectors of the judiciary, whether administrative employees, judiciary and prison personnel, lawyers, or prosecutors, as well as judges.

Article 17, paragraph 7

The Bureau felt that there was a need to establish a form of rotation within the Constitutional Court so as to ensure representation of diversity amongst the appointees. This form of rotation enables the composition of the Constitutional Court to change periodically but to retain the necessary continuity by designating half of its membership who will remain members of the Court for six years.

Article 17, paragraph 10

One initial proposal stated "foreign judicial personnel shall be appointed on an exceptional basis to form part of the courts and prosecutors' offices in order to create a climate of confidence between the judicial services and litigants". This provision as formulated here will allow for such appointments, but will not prescribe them unless the availability of persons for appointment has been established and the appointment mechanism agrees thereto.

Article 20, paragraph 3

One of the options proposed was that the Independent National Electoral Commission should be made up of representatives of the political parties, civil society and the State, including the Ministry of the Interior. In accordance with international trends, particularly in conflict-ridden societies, we have opted for a truly independent commission.

Article 20, paragraph 7

The exceptional co-optation mechanism:

1. Ensures additional representation of all parties equally, thus providing for greater balance in debates when one party is overwhelmingly dominant. It does so by distributing the seats equally, by avoiding an arbitrary co-optation process or mechanism, and by confining co-optees to those who appeared on the electoral lists;
   
   
2. Is not intended to apply after the first election or if there is a balanced spread of parties;
   
   
3. Is warranted, despite its limited distortion of the electoral result, which would not drastically alter the outcome, because of the exceptional degree of conflict and insecurity in Burundi.

Article 20, paragraph 8

The Bureau is mindful that some parties oppose the system of blocked lists with proportional representation. The Bureau seriously considered the many options put before it, as well as some that were not advanced (such as alternative preference voting; simple and multi-member constituencies; open list, preferential voting). For some, weighting "Tutsi" votes to achieve parity would provide the best system. However, where this type of weighting has worked, e.g. in the United Republic of Tanzania, it has been on the basis of geographical division, and never to the extreme extent proposed here. There was a belief amongst others of the need to conduct elections within the ethnic communities, on the basis of parity of representation between the two main ethnic groups, or using an alternative formula yielding the same result. This system would have been implemented directly or by indirect suffrage from the local level to the summit. However:

1. Such a proposal could find no common ground;
   
   
2. The risk exists that such an electoral system would exacerbate ethnic tensions and make the divisions within the ethnic communities rigid;
   
   
3. It might thus promote more extreme ethnic problems; and
   
   
4. It would be extremely complicated to organize owing to the fact that the communities within Burundi are not geographically separated.

The Bureau has therefore made its current proposal in the belief that an electoral system based on proportional representation with blocked lists together with a series of other mechanisms can guarantee the representation of both major ethnic groups. Nevertheless, a limited co-optation method has been included as a necessary balancing mechanism for the first elections.

Article 20, paragraph 13

Various parties supported the idea of electing the commune administrator. The proposal did not obtain the necessary support of the others, and the Bureau has opted to exclude this possibility, owing to the problems of accountability and control that such a proposal could create:

1. The commune administrator must be attached to a legislative body, to whom he is accountable;
   
   
2. In case of corruption or other problems, the legislative body (in this case the commune council) should have the power to suspend him and nominate a replacement.

It is no less democratic for the administrator to be indirectly elected, and furthermore at an initial stage the Bureau is not sure there is a need to overload the electoral system by electing the colline councils, indirectly electing the commune council, and directly electing the commune administrator (to be followed by a referendum, and later national elections). Nevertheless, measures will have to be taken within the organic law on commune administration to protect the administrator's obligations and rights.