IV. Background

Long Road to Peace

From 1993 through 2003, the Tutsi-dominated government and army fought rebel groups generally identified with the Hutu, the majority people of Burundi. The two principal Hutu rebelgroups, CNDD-FDD and Palipehutu-FNL[2], sometimes fought each other as well as attacking government targets.[3] All parties to the conflict committed grave violations of international humanitarian law.[4]

After peace accords in late 2003[5], the CNDD-FDD joined the government and in elections in July and August 2005 won both a parliamentary majority and the presidency, installing Pierre Nkurunziza as president. He promised that Burundi would be a country with the rule of law where human rights are respected. However, by October 2005, the CNDD-FDD government had been responsible for the extrajudicial execution, torture, and arrest of members of Palipehutu-FNL, which had not yet joined a peace process. For its part, Palipehutu-FNL assassinated local CNDD-FDD officials and civilians suspected of supporting the government.[6] 

The government and Palipehutu-FNL signed a Comprehensive Ceasefire Agreement in September 2006. A Joint Verification and Monitoring Mechanism (JVMM) consisting of both parties and international stakeholders was established to support the implementation of the agreement.[7]

However, in July 2007 Palipehutu-FNL returned to the bush, dissatisfied with the progress of implementation talks, and the JVMM was dissolved. After months of inconclusive talks about resuming serious negotiations, in April 2008 the rebels attacked military posts on the outskirts of the capital, Bujumbura, setting off a month of combat that displaced thousands of civilians in Bujumbura Rurale and Bubanza provinces.[8]

Palipehutu-FNL came under heavy pressure to resume negotiations from international actors, including Tanzania where the movement’s leaders were based. The rebels and the government signed a new ceasefire, and in late May talks resumed. The ceasefire monitoring group was reconstituted, alongside a multinational Political Directorate to address political obstacles to ceasefire implementation.[9] South African peacekeepers, operating under the auspices of the African Union, were deployed to guarantee the security of the FNL delegation throughout negotiations.[10]

Talks soon stalled again, when Palipehutu-FNL refused to become a political party and enter the political process unless it could retain the ethnic reference in its name. The government argued that this demand could not be met because the 2005 constitution and a subsequent law on political parties prohibit parties that promote “ethnic exclusion.”[11] The movement also sought half of the government ministries, another demand impossible to satisfy because the constitution provides that ministry-level positions be delegated proportionally to a party’s electoral success.[12]

The peace process advanced when Palipehutu-FNL agreed in December 2008 to the former demand and in January 2009, changed its name to simply “FNL,” in order to begin the process of registration as a political party. The government, in turn, agreed to release FNL “political and war prisoners.”[13] Donors, principally Belgium, contributed to the construction of a large camp to house combatants as they enter the process of disarmament, demobilization, and reintegration (DDR).

In mid-April the government and the FNL reached an agreement according to which 3,500 FNL combatants would be integrated into the national police and army; 5,000 would benefit from a World Bank-funded DDR program; and 10,000 “militants” and 1,000 “associated women” would benefit from a small (US$80) “reinsertion package” and be sent home.[14] FNL members turned in 633 weapons and began the demobilization process, and on April 22, the Ministry of the Interior approved the FNL’s registration as a political party. The apportionment of government posts to the FNL was the major unresolved issue in the peace process at the time of writing.

During most of the period covered by this report, Burundi could not neatly be classified as a “conflict” or “post-conflict” country. Both the 2006 and 2008 ceasefires were violated by both parties. The FNL maintained control of significant otherwise uninhabited portions of the Kibira and Rukoko forests in which FNL members committed murders and abductions. Police and soldiers rarely entered these areas, in part due to fear of FNL ambushes, and in part due to an interpretation of the 2006 ceasefire agreement according to which this would constitute undue harassment of the FNL.[15] However, this limited the authorities’ ability to enforce the law and protect civilians.

In other, populated areas, most notably Bujumbura Rurale, the FNL effectively set up parallel administrations, in which they "patrolled" and at times arrested suspected criminals and meted out justice.[16] Residents also approached the FNL for conflict resolution. Police in these areas were also reluctant to pursue FNL members who committed crimes.[17] One official told Human Rights Watch, “The police don’t really do much about [the FNL]... they’re afraid to get involved. The police and army are afraid to circulate in the [hills] at night. They stay near their positions.”[18] The result has been a contradictory system in which crimes by armed combatants have often gone unpunished, while police and their proxies have subjected civilian members and supporters of the FNL—who make for easier targets—to beatings, arbitrary arrests, and other abuses.

Provisional Immunity

In 2003, when CNDD-FDD was still a rebel movement, it negotiated with the government an agreement that provided both CNDD-FDD combatants and members of the state security forces with “temporary immunity” from prosecution, but gave no further explanation of the concept.[19] A subsequent law, which applied to political leaders returning from exile, clarified that temporary immunity (more often referred to in Burundi as “provisional immunity”) applied to “politically motivated crimes” committed between independence in 1962 and the signing of the ceasefire in November 2003. The law provided no further definition of “politically-motivated” crimes; however, it explicitly excluded the crime of genocide, war crimes, and crimes against humanity from provisional immunity.[20]

Similarly, as a result of negotiations between the CNDD-FDD government and the FNL, a November 2006 law and subsequent presidential decree guaranteed “provisional immunity” from prosecution to FNL members who had committed politically-motivated crimes from 1962 through the signing of the September 2006 ceasefire, excluding genocide, war crimes, and crimes against humanity.[21] The law specifies that provisional immunity remains in place until the establishment of a Truth and Reconciliation Commission and a Special Tribunal in Burundi. The Government of Burundi is in principle committed by the 2000 Arusha Agreement and subsequent talks with the UN to establishing a Truth and Reconciliation Commission and a Special Tribunal, but progress has stalled due to lack of political will.[22]

Provisional immunity does not apply to crimes committed by any group after the September 2006 ceasefire. However, a lack of awareness of the law’s provisions has led some FNL members, victims, and law enforcement officials alike to believe that crimes committed by the FNL even after the ceasefire cannot be prosecuted.[23] This misperception has contributed to impunity for crimes committed by the FNL.

Electoral Stakes

The slow progress of the peace process means that it is now overlapping with the informal start of the 2010 election campaign. The campaign does not officially begin until a date yet to be determined by the national electoral commission, but as early as 2008 parties began to hold mass meetings and undertake mass recruitment of new members.

The multiparty system is still new to Burundi. The country was a one-party state under the Union for National Progress (Union pour le Progrès National, UPRONA) from independence until 1992, and was controlled by a series of Tutsi-run military dictatorships until 2001, with a brief hiatus from 1993 to 1996.[24] The electoral success of FRODEBU, a predominantly Hutu party, in 1993 set the stage for future electoral contests in which UPRONA (still predominantly Tutsi) became increasingly marginalized and parties competed for the majority Hutu vote.[25]

CNDD-FDD won a sweeping victory in 2005 elections, organized in large part by the United Nations Operation in Burundi (Opération des Nations Unies au Burundi, ONUB), a peacekeeping mission. In late 2006, ONUB troops left the country and the UN mission transitioned into a predominantly civilian operation, the United Nations Integrated Office in Burundi (Bureau Integré des Nations unies au Burundi, BINUB). BINUB’s mandate includes the promotion of both democracy and human rights.[26] A political section works with the government and political parties on strengthening democratic institutions, while a human rights section, fused with a pre-existing mission of the Office of the High Commissioner for Human Rights (OHCHR) in Burundi, monitors rights abuses.[27] Another section is dedicated to security-sector reform.

Despite largely peaceful elections in 2005 and ongoing international involvement in the lead-up to the 2010 elections, a number of developments in Burundian politics create a potentially more volatile and unpredictable situation than in the last elections. The electoral outcome in 2010 is much less certain than in 2005, with the largely Hutu electorate up for grabs due to splits within CNDD-FDD, and the FNL’s transition into a political party capable of competing for votes. Several new political movements have emerged, among them the Movement for Solidarity and Democracy (MSD), a group which has attempted unsuccessfully to register as a political party since February 2007. Both MSD and FRODEBU have successfully recruited large numbers of demobilized FDD combatants, some of whom have expressed frustration over CNDD-FDD’s inability to bring about concrete improvements in their lives.[28] Meanwhile, the membership and political influence of UPD-Zigamibanga, a previously minor party, has grown following the absorption of a number of other former CNDD-FDD members. Analysts have argued that in a climate of electoral uncertainty, both the CNDD-FDD dominated government and the FNL may resort to abuses in efforts to gain the upper hand.[29]