Appendix I

Explanatory Commentary on Protocol I

I. Summary of Constitutional and Transitional Proposals for Burundi

A. General Remarks

1. Background

The proposals contained in Protocol II represent a more complex and interrelated set of propositions than they may appear when considered individually.

With this in mind, the Bureau of the Committee felt that there was a need to provide an outline of this "package" of proposals, if only to illustrate the overall balance the Bureau sought to achieve. It would also serve to illustrate that these proposals emanate from and have been canvassed in over a thousand hours of debate, negotiations and consultations with the parties since April 1999. Furthermore, the proposals themselves are directed at the actual concerns raised by all the parties. It is these concerns rather than the precise proposal formulations that parties have adopted that the Bureau's proposals have been fashioned to address. No party should have expected to have all its proposals incorporated, and certainly not in the identical form in which they were proposed.

The mandate given to Committee II, back in October 1998, was to establish an institutional setting for a future government of Burundi considered as "acceptable to all".

The Committee based its initial agenda on those aspects of the popularly endorsed 1992 Constitution that appeared to be uncontentious, and attempted to set out those that were subject to dispute. Once the parties' responses were obtained on the issues in dispute, the Bureau established a nine-point working agenda for the Committee and duly conducted in the Committee debate lasting over 720 hours. The sessions ended on 15 April 1999.

Thereafter the Bureau established a first draft of a protocol for discussion. The initial draft, like the present protocol, was divided into two chapters. The first chapter dealt with the institutional setting and fundamental values that would have to figure in a definitive constitution to be drafted by the future transitional National Assembly. The second chapter covered the issues of the transition. Between April 1999 and April 2000 the protocol was updated seven times, in accordance with the debates, which took place either amongst or with clusters, individual parties or regrouped clusters, highlighting the points of disagreement and the options proposed by the groups to resolve them. It was the seventh draft which served as a basis for the final proposal. On the 10% of the text that remained in sharp dispute, the parties concluded that they would not find agreement no matter how much time was allocated for further negotiations. They requested the Bureau to make compromise proposals in regard to these outstanding items. The protocol thus represents both the uncontested text and also those proposals which were themselves fashioned from the options suggested by the parties.

There has been occasional confusion regarding the exact mandate of Committee II. Some have thought that the Committee's task was to write a new constitution for the Republic of Burundi. In fact, our mandate was to establish only such principles as the Burundi believed were necessary for the re-establishment of a democratic system within their country. It is the task of the Burundi to draft their own constitution in due course, to put the flesh on the constitutional skeleton.

B. Summary of Proposals

1. Electoral system

The "electoral system" does not merely concern the system of voting, but must be understood in the context of the full variety of the institutional and other mechanisms providing for inclusive and multi-ethnic participation in the structures of government and the Senate.

2. Ethnic over-representation

The electoral system set out in the Agreement is premised on the principle of universal suffrage (supported by every one of the parties) with a common voter's roll (supported by at least 12 and possibly more of the parties). The electoral system envisages that voting will be in respect of party lists in a proportional representation system in which the lists are required to reflect a high degree of representation of minorities. A system of multi-ethnic lists was supported principally by the centrist parties, including the Government, and opposed only by a minority of parties which had proposed segregated political structures. Some parties have called for as many as 50% of the members of the National Assembly to come from the approximately 15% of the population made up of minorities. The electoral system as proposed here will yield a National Assembly in which, before co-optation as described below, approximately 38% of the members are from the minorities.

3. Additional co-optation to the National Assembly

The proposals allow for the possibility of additional minority representation in the first elections by a co-optation mechanism which grants enhanced representation for opposition parties by allocating an equal proportion of a further 20 seats to all qualifying parties regardless of their popular support. In effect this would mean that members of minority groups (some 15% of the population including the Batwa) should fill some 40% or more of the seats in the National Assembly. It would also mean enhanced opposition representation in the Assembly, and would partially allay fears of a dominant single party.

4. Ethnically balanced Senate

In addition the proposals envisage a second chamber in which two representatives, one Hutu and one Tutsi, will be indirectly elected from each province. This chamber, the Senate, thus has parity in respect of the ethnic membership of its provincial representatives. The Senate is given important powers to confirm or approve strategic appointments and laws of an important nature. It should be stated that the proposals regarding the establishment, powers and composition of the Senate were strongly supported by many of the parties purporting to represent minority concerns - and strongly opposed by the G-7 group of parties. The electoral college for the Senate is comprised of local-level councils constituted on a non-party basis. It need hardly be repeated that this proposal involves parity of membership between members of ethnic groups that constitute 85% and 13% of the population respectively. They will, however, be popularly elected.

5. Co-optation at the local level

In addition, the proposals provide for indirectly elected commune councils and appointed commune administrators, with a safety mechanism to ensure that minorities are adequately represented on the councils. These elections may not be conducted on a party political basis. Again, these proposals flow directly from concerns raised by groups purporting to represent minority concerns.

6. Multi-ethnic presidency

In addition, the proposals envisage that there will be two vice-presidents, each coming from a different political and ethnic group. These proposals also emanate from parties representing minority concerns.

7. Government of national unity

In terms of the proposals, opposition parties with more than 5% of the popular vote will be entitled to choose to serve in the cabinet. This proposal ensures an inclusive government and blunts the winner-take-all nature of party politics in Burundi.

8. Indirectly elected President

Although the President will in the longer term be directly elected, to accommodate minority concerns in the short term it is proposed that the President be indirectly elected with a high degree of support in the National Assembly. This proposal is also a response to proposals along such lines by parties purporting to represent minority concerns.

9. High decision-making majorities

In regard to decision-making majorities that are required for important matters and certain appointments, high, and some very high, majorities of support are required in the National Assembly. Again, these proposals emanate from the concerns of parties representing minorities. In particular, many important executive appointments are made subject to Senate and National Assembly approval.

10. Security forces guarantee

So as to provide an overall constitutional and security environment in which anxieties raised by the parties can be accommodated, the proposals include as an element of the constitutional framework a security guarantee on the composition of the armed forces. This guarantee requires that at least 50% of the security forces shall be members of minority ethnic groups.

11. Strong Constitutional Court

In addition, against the opposition of the G-7 group of parties the Constitutional Court has been given full judicial power to enforce the Constitution and to act as its guardian even against the Executive and the Legislature. The ethnically-balanced Senate is to confirm appointments to this and other important courts.

12. Extensive Bill of Rights

In this regard the Constitution also sets out a Bill of Rights and a blueprint for society which were supported by all parties. These provisions provide a broad framework for enforceable individual rights and freedoms and group security. The Bill of Rights itself is a progressive and generous charter of all the most important rights and freedoms.

13. Numerous prohibitions against discrimination, exclusion and ethnic hostility

The proposals include various provisions to prevent the fomenting of ethnic violence, hatred or any form of ethnic discrimination or exclusion. The provisions are strict and are to be found in all parts of the Protocol dealing with political life and public administration. Special provisions exist to ensure the participation of the Twa in the Senate.

14. Promoting interest-based, not group-based, political parties

The proposals thus attempt to marry the need for an overall framework of democratic accountability with a system that caters for the fears of minorities by allowing for their considerable over-representation in the institutions of government. It is a system which would, it is envisaged, minimize the potentially disastrous consequences of the correlation between ethnic boundaries and political party by requiring the parties to present a multi-ethnic façade, and yet ensure that the ethnic minorities are represented not only in the Legislature, but in the Presidency and in the Cabinet. In the longer term all parties have agreed that Burundi is required to develop a political party system founded on the aggregation of political rather than group interests.

15. Physical security and political rights

The proposals have been criticized for not ensuring that the members of the National Assembly coming from minority ethnic groups represent those minority groups only. In other words, as it was explained, under these proposals the "wrong sort of Batutsi" will be elected. Tendencies within minority groups will be represented in accordance with their numerical electoral support only. The proposals do not ensure that those ethnic minority groups whose members are over-represented in the National Assembly and in the Senate will achieve such over-representation through ethnically exclusive mechanisms. This criticism has an element of truth in it. The groups of parties which had argued in favour of segregated representation also demanded that the results of such a segregated system must yield parity of power and representation between the representatives of the Bahutu and Batutsi, including alternating Presidents. This was necessary so as to ensure the physical safety of minority groups. The Bureau would have been quite happy to have made provision for such explicitly ethnically segregated mechanisms of representation had the Barundi as a whole agreed to such a proposal.

Parties in the centre of the spectrum and the parties arguing for an ethnicity blind democracy argued that such a system would be undemocratic, would entrench the legacy or existing pattern of inequality and privilege, would provide for two classes of citizenship and, more centrally, would constitute a permanent source of resentment and tension between the ethnic groups while frustrating the development of a national identity. Most parties agreed that demands to provide mechanisms, constitutional or otherwise, to reassure minorities and to guarantee physical security were legitimate and warranted. But, they argued, mechanisms guaranteeing a special and privileged hold over political and economic power by the political elite of a relatively small minority could not be the basis for stability. It was, they claimed, itself "unbalanced" and proposed by parties with no record of popular support, at least according to the last election. The same comments were directed to the proposal that sought, on a common voter's roll, to accord a Tutsi vote six times the value of a Hutu vote. In effect, the two proposals constituted different approaches to achieving the same result.

16. Balance

The question has arisen whether the proposals are "balanced". The proposals certainly tilt the democratic framework in favor of Tutsi participation and security. There are indeed cases elsewhere in the world where minorities are accorded special status or additional representation in national political structures, though none to the extent or manner proposed here. It was for this reason that most of the elements of the "package" cited above were opposed by adversary parties, yet ironically it has been the other parties in whose favour the proposals work which have objected to the lack of balance. When questioned informally some of these parties, claimed that such balance could only be achieved by a system that accorded the Tutsi minority (-/+ 13%) parity of power in all institutions with the Hutu majority (-/+ 85%). Whether this proposal would provide "balance" was not for the Bureau to decide. The real question for the Bureau was not whether such a proposal was undemocratic, or even whether there was any precedent elsewhere for such an arrangement. It was whether the Barundi, given the circumstances and history of Burundi, would support it. Despite close interrogation and extensive negotiations, the other parties indicated that they could not.

C. Transitional Arrangements

The transitional arrangements and the basis for the compromise proposals in regard thereto are fully explained in section II below. It is necessary, however, to draw attention to the matters set out in 22 dealing with the implementation of the Agreement.

These matters were not tabled for discussion in this form, but were included when experts drew attention to the necessity to deal with the period between the signature of the Agreement and the actual installation of the transitional Government. These provisions are not exceptional. Most parties have agreed in private consultations that measures are necessary to protect the public assets of Burundi during this fluid and volatile period. While some have characterized these provisions as a limitation of Burundi's sovereignty, they are not. They merely limit the freedom of one of the parties, the Government, in respect of its actions which could affect the transition. The concrete measures described are analogous to the restraints on an outgoing administration in an electoral democracy.

What remains unspecified is the exact way in which the Barundi are to agree on determining the identities and political apportionment of the leaders and members of cabinet in the transitional period. This, however, was left as a matter for the Barundi themselves to decide.

There was also an expectation by a few parties that the Bureau would draft a complete transitional Constitution. Its brief, however, was to set out the special arrangements that would apply during the transitional period, and to leave those 1992 constitutional details that are unaffected by these proposals intact. In regard to these arrangements, the Bureau has sought to establish a balance based on three principles: inclusion of all parties; no one group to have a decision-making majority; and restoration, as far as possible, of the members and parties dislocated by the assassination of the elected President and the National Assembly members in 1993. The parties on both sides which have challenged this balance have argued for one or other of these balancing principles to be removed.

D. Amendment of the Proposals

Finally, it needs to be emphasized that neither the principles nor the transitional arrangements are rigid or cast in stone. Indeed, the Agreement specifically allows for its amendment after signature if 90% of the transitional National Assembly so agree. This is a more flexible provision than that applied at the Burundi Peace Negotiations.