Burundi’s thugocracy and the International Criminal Court

President Pierre Nkurunziza’s latest political manoeuvres are suggestive of a premeditated strategy to insulate his office from domestic and external threats. On the domestic front, his despotic streak has earned him political foes with the capability to destabilise his government and curtail his tenancy at the helm. His nemeses in exile similarly present another front of opposition to his government. Most recently, the International Criminal Court (ICC) has instigated a preliminary probe into possible crimes against humanity in Burundi. Evidently overwhelmed, Nkurunziza’a immediate recourse to counter these threats is to seek an extension to his rule.

BURUNDI’S TURBULENT PAST

Burundi is reeling from yet another bloated cycle of instability that has so far eluded the implosion of a full-blown conflict. Between 1993 and 2006, the country was embroiled in civil strife that pitted ethnic Hutus against the Tutsis. In 2000, the protagonists ratified a peace accord with the proviso for an ethnic power-sharing arrangement. Notably, the agreement instituted a two-term presidential term limit. Though marred by erratic low-level conflict, Burundi enjoyed a period of relative amity between 2006 and 2014.

President Nkurunziza’s brazen bid to seek a third term in office in 2015 effectively thrust the country into the latest political turmoil. Though he survived a coup attempt, Burundi has continued to experience mass protests and forced displacements. Nkurunziza subsequently won an election that was boycotted by the opposition, who campaigned on the unconstitutionality of his candidature.

The ruling party has since been involved in systematic human rights infractions in a bid to quash dissent arising from the controversial re-election. Some of the alleged crimes under preliminary ICC examination include the imprisonment, torture and murder of political opponents, enforced disappearances, sexual violence and persecution. Nkurunziza’s burgeoning repressive resume has earned him membership in the regional elite club of rulers who have pursued unconstitutional means to cling to power.

CAT AND MOUSE TACTICS

Burundi withdrew from the ICC in 2016 in an attempt to evade accountability. The move was a protest gambit over the perceived partisan role of the ICC, partly aimed at delegitimising the institution. It is also likely that the move was intended to galvanise other regional states that have openly disparaged the court and threatened to revoke their membership.

The vision for justice between the AU and regional leaders on one hand, and victims of atrocities and human rights defenders on the other, is incongruent. In terms of the political ramifications for Burundi, the former have served as enablers of injustice and have in effect legitimised and provided Nkurunziza a wide berth to continue to operate with unbridled impunity. In riding this political wave, Burundi has introduced some constitutional amendments that could potentially legitimise Nkurunziza’s continued grip on power in the event he vies to retain the presidency. The president’s masterstrokes and his enablers have further bolstered Burundi’s thugocratic credentials.

Burundi presents an opportunity for the ICC to redeem its image as an institution that delivers fair justice. In the aftermath of a botched case against Kenya’s political leaders, the court has been accused of indiscriminately targeting African countries and advancing an agenda for regime change. Defective investigation processes, weak prosecutorial strategies and the court’s perceived lack of independence from Western influence have tainted perceptions of justice among victims and perpetrators alike.

MUDDLING THROUGH APATHY AND INJUSTICE

Despite Burundi’s withdrawal from the ICC, the Rome Statute states that non-member countries remain within the remits of UN Security Council investigations. This implies that the jurisdiction of the court holds over the period of alleged crimes when Burundi was a party to the agreement. If the preliminary ICC examination presents sufficient evidence to warrant the issuance of summonses or arrests, Burundi’s ICC withdrawal is likely moot unless charges are dropped in future. Burundi’s withdrawal further suggests a scheme to pursue a non-cooperative approach and employ underhand tactics to obstruct the course of justice.

As a regional lone voice with modest geopolitical significance, Burundi may lack the leverage to rally African partners and the broader international community against the ICC. Kenya was the first country in Africa to have mounted an aggressive campaign against the ICC after the indictment of its current president and his deputy, but once the court withdrew charges, the anti-ICC agenda was relegated to the back burner.

Similarly, South Africa rescinded its withdrawal after the country’s high court ruled the move unconstitutional. Under a new administration, the Gambia has also retraced its steps. Clearly, the nonbinding AU resolution for a mass ICC withdrawal has had little if no impact. A future mass withdrawal is similarly not foreseen. Burundi’s potential ally is Sudanese President Bashir, an ICC fugitive who has so far eluded the court’s grasp and may have inspired Nkurunziza’s domestic tactics.

Burundi’s grim outlook is likely to hold unless concerted efforts are made to address the governance challenges afflicting the country. The peace talks between government and opposition have not been fruitful so far. As long as Burundians have lost confidence in state institutions’ capacity to deliver justice, the ICC remains a viable option for redress. However, at the grassroots, civil society is likely to explore restorative justice mechanisms that have been effective in other contexts. Meanwhile, the ICC will continue to grapple with its image as an agent for regime change.

The political chicanery that has advanced the politics of self-preservation among elites culpable of crimes against humanity will seek to reconstruct the ICC’s image and weaken its credence in the public eye. Consequently, diverse perceptions of justice in Burundi may determine the population’s level of confidence in domestic justice systems vis-à-vis international criminal justice instruments. In Kenya for example, the ICC crusaders were eventually frustrated with the institution’s incompetence while the court’s critics – even though satisfied with the ‘delivery of justice’ – vindicated their claims of partiality.

Expect the mixed perceptions and results in the pursuit of justice, coupled with a constituency of ICC obstructionists, to embolden Nkurunziza’s continued dalliance with impunity.