BURUNDI : THE SENATE
The assassination of the first elected President in October 1993 triggered a civil war in Burundi .
The peace process initiated in 1998 led to the political agreement signed in Arusha on 28 August 2000 .
In November 2001, the transition Constitution was promulgated. It is intended to give support to the new government institutions set up in November 1st 2001.
Based on the 1992 Constitution and on the 1996 constitutional provisions, the transition Constitution integrates the recommendations of the Arusha Agreement and the compromise of July 23rd 2001.
The Constitution of the post-transition period was adopted by referendum on 28 February 2005 .
The elections of the Senate were held on 25 July 2005 .
The transition period ended officially on 26 August 2005 with the oath of the new President of the Republic, elected on the previous 19 August by both chambers in a joint session.
I - COMPOSITION
1) Two delegates from each of the 17 provinces elected by indirect suffrage, of different ethnic origins;
2) Three delegates from the Twa ethnic group;
3) Former Heads of State (currently 4)
Women shall occupy at least 30 % of the seats.
Extra members may be co-opted in order to respect the even Hutu-Tutsi repartition and the 30% quota of women.
In total, the Senate is currently composed of 54 members.
II - ELECTORAL SYSTEM
Three-round majority system: in the first two rounds, a two-third majority shall be required to be elected; in the third round, only the two leading candidates may stay and win with a relative majority.
In each province, the 2 representatives shall be chosen separately.
Electoral college: Members of city councils
Age of eligibility: 35 years old
Term of office: 5 years
First election: 29 July 2005
Incompatibility of the parliamentary mandate with a position as member of the Government.
III - SESSIONS SYSTEM
A - ORDINARY SESSIONS
3 ordinary sessions a year, lasting 3 months each.
B - EXTRAORDINARY SESSIONS
At the request of the President of the Republic, or of the absolute majority of the members of the Senate, with a specific agenda, and for a maximum duration of 15 days.
IV - RELATIONSHIP WITH THE OTHER CHAMBER AND THE EXECUTIVE BRANCH
The Senate shall normally decide with a two-third majority of senators - present or represented - like the National Assembly.
A - LEGISLATIVE POWER
Unequal bicameral system. The Senate has a general legislative competence but the Constitution gives it particular prerogatives, regarding organic laws, electoral right, and local authorities (art. 187, al. 1) and 3) ).
1) Legislative initiative
Belongs to the President of the Republic, together with the Government, the National Assembly and the Senate.
The Government shall decide on the priority agenda, but if a private member's bill has not been examined during two successive ordinary sessions, it shall be registered in priority on the agenda of the following session.
Nevertheless, the bills submitted by the deputies or senators are not admissible when their adoption would result in either a significant reduction in public resources, or the establishment of, or increase in, a significant public charge, unless they would be accompanied with the proposal of equivalent savings.
2) Right to amendment
Belongs to the Government, the National Assembly, and the Senate. However, amendments submitted by deputies or senators are not admissible when their adoption would result in either a significant reduction in public resources, or the establishment of, or increase in, a significant public charge, unless they would be accompanied with the proposal of equivalent savings.
3) Legislative procedure
a) Ordinary procedure (for all matters but art. 187, al. 1) and 3))
Public and private bills shall be submitted simultaneously to the National Assembly and the Senate.
The text is adopted in first reading by the National Assembly. It is then transmitted at once by the President of the National Assembly to the Senate, which examines it at the request of its Bureau or at least 1/3 of its members, within 7 days from the reception of the draft.
The Senate may either decide that there is no need to modify the bill, or adopt it after having amended it within 10 days at most from the request.
If the bill has been amended, the Senate shall transmit it to the National Assembly which decides, either by adopting, or rejecting all or part of the amendments adopted by the Senate.
If the Senate has not ruled within 10 days or if it has given the National Assembly its decision not to amend the draft, the President of the National Assembly shall transmit it within 48 hours to the President of the Republic for promulgation.
If, in second reading, the National Assembly adopts a new amendment, the public or private bill shall be returned to the Senate which comes to a conclusion about the amendment. It may, within 5 days from the date of the referral, either decide to adopt the public or private bill without modification, or adopt it including the modifications.
If the bill has been amended again, the Senate shall transmit it to the National Assembly which decides once and for all, either by adopting it or modifying it.
b) Specific provisions regarding art. 187, al. 1) and 3) of the Constitution
The texts submitted in these matters, initially examined by the National Assembly, shall automatically appear on the Senate agenda which has 30 days to examine them.
If it does not amend the text, it returns it to the President of the National Assembly who shall transmit it within 48 hours to the President of the Republic for promulgation. Otherwise, the President of the Senate shall return the text to the National Assembly for another examination.
In case of dissension between the two chambers, both their Presidents may create a joint committee in charge of proposing a text on remaining provisions within 15 working days.
The text worked out by the joint committee shall be submitted for agreement to both chambers, separately. No amendment is admissible.
If the joint committee fails to adopt a text or if the text is rejected by one of the chambers, the President of the Republic may either ask the National Assembly to rule once and for all, or declare the bill null and void.
4) Enabling legislation
In order to execute its programme, the Government may ask the Parliament for the right to take through decrees, for a limited duration, some measures which are usually part of the legislative domain. These government decrees shall be ratified by the Parliament during the following session. Without any ratification bill, they shall become null and void.
5) New deliberation
Before the promulgation deadline (30 days from the transmission of the text), the President of the Republic may ask for a second deliberation of the whole or part of the text (or refer to the Constitutional Court for unconstitutionality).
The text shall then be adopted with a majority of of deputies and of senators.
6) Specific provisions for organic laws
Organic laws shall be adopted with a majority of 2/3 of senators, present or represented, and this majority cannot be inferior to the absolute majority of the members composing the Senate. The Constitutional Court shall verify their conformity with the Constitution only if referred to by the President of the Republic.
7) Voting budget
If the National Assembly has not given its decision before December 31st, the previous year budget shall be used by 1/12 on a provisional basis.
At the request of the President of the Republic, the Parliament shall sit in congress within 15 days to examine once again the finance draft bill.
If the Parliament has not voted the budget before the end of this session, it is then decided once and for all by a government decree during the Council of Ministers.
B - CONTROLLING POWER
Excepting the vote of a motion of censure and a vote of non-confidence, the Senate shall have the same powers than those of the National Assembly. However, the Constitution gives it other specific competences.
The Senate may discuss about the government's action and policy.
Senators may ask oral or written questions to the government members to get some information about their activity.
A weekly session shall be dedicated in priority to senators' questions and to the government's answers.
The Government shall provide the Senate with all the explanations requested about its management and its actions.
3) Budget oversight
The Parliament shall be assisted by the National Audit Office to monitor the execution of the finance bill.
The National Audit Office shall present to the Parliament a report on the correctness of the State general account and on the compliance of funds use with established procedures and with the budget voted by the Parliament.
The Senate may set up inquiry committees on specific issues concerning the Government action.
5) Monitoring defence and security operations
a)Maintaining national security and defence is controlled by the Parliament.
b) Ad hoc parliament committees shall be in charge of supervising the work of defence and security corps.
6) Informing Parliament
a) In matters of defence and security
1° - Whenever the national defence force is used (army) to protect the State, restore order and public security or honour international obligations and commitments, the President of the Republic shall inform the Parliament rapidly and in details about the motives, the place and the duration of this use.
If not in session, the Parliament may be convened by the President for an extraordinary session within 7 days from the use of force.
2° - The Senate, like the National Assembly, shall be informed within 7 days at the most about the participation of defence and security corps in international operations of peace-keeping throughout the world.
b) National councils created to involve the citizens in the management of public affairs
- The National Council for the national unity and reconciliation;
- The National Institute to prevent and eradicate genocide, war crimes and crimes against humanity;
- The National Council for Security ;
- The Economic and Social Council;
- The National Council for Communication.
shall each of them submit an annual report to the President of the Republic, the government, the National Assembly and the Senate.
c) The ombudsman shall submit each year a report to the Senate and the National Assembly.
d) The Higher Council of Judgesshall issue each year a report on the state of justice, addressed to the government, the National Assembly and the Senate.
7) Special controlling powers of the Senate
The powers given to the Senate aim at respecting an equal repartition of public positions among ethnic groups, gender, regions, especially according to the constitutional provisions.
a) The Senate may carry on investigations in the public administration and, if the case arises, formulate recommendations to make sure that no region or group is excluded from the advantages of public services.
b) The Senate controls the application of the Constitution provisions requiring the ethnic and gender representation as well as the balance within all the structures and institutions of the State, especially in the public administration and in the defence and security corps.
C - RELATIONS WITH THE GOVERNMENT
Government members may attend the Senate sessions (like at the National Assembly).
They may be heard each time they wish to. They may ask experts for help.
D - RELATIONS WITH THE PRESIDENT OF THE REPUBLIC
Le President of the Republic communicates with the Parliament in Congress through messages which do not give rise to any discussion.
E - ADVISORY ROLE
The Senate shall advise the President of the Republic and the President of the National Assembly on any question, notably in the legislative domain.
V - OTHER PROVISIONS
A - POWER OF NOMINATION
The Senate approves the following nominations:
a) chiefs of defence and security corps;
b) governors of provinces;
c) ambassadors ;
d) the Ombudsman ;
e) members of the Higher Council of Judges;
f) members of the Supreme Court;
g) members of the Constitutional Court;
h) the Head of Public Prosecutions and judges of the Public Prosecution Department;
i) the President of the Court of Appeal and the President of the Administrative Court;
j) the Attorney General for the Court of Appeal;
k) the Presidents of the higher civil courts, the commercial courts and the labour court;
l) the Public Prosecutors;
m) members of the independent national Electoral Commission.
The President of the Republic shall carry out these nominations after the Senate approbation, with the exception of the Ombudsman, who is appointed by the National Assembly with a majority of its members after the Senate has approved the proposal of his/her name.
B - REVISION OF THE CONSTITUTION
Belongs to the President of the Republic, after consultation of the government, together with the National Assembly and the Senate, which respectively take their decision with the absolute majority of their members.
The public or private bill shall be adopted with a majority of 4/5 of the National Assembly members and 2/3 of the Senate members.
The President of the Republic may submit a draft amendment of the Constitution to a referendum.
The revision cannot affect the national unity, the cohesion of the Burundi people, the State secularity, the reconciliation, the democracy, and the territorial integrity of the Republic.
C - CONTROL OF CONSTITUTIONALITY AND INTERPRETATION OF THE CONSTITUTION
1) Controlling methods
a) Compulsory control for organic laws before their promulgation, as well as intern rules and procedures of the Senate and the National Assembly along with their implementation.
b) Control on reference to the President of the Republic, the President of the National Assembly, the President of the Senate, 1/4 of deputies, 1/4 of senators, of the Ombudsman.
When the Constitutional Court has declared that an international commitment includes a clause which is contrary to the Constitution, the agreement to ratify it can only take place after amending or revising the Constitution.
The Court may be referred to about the constitutionality of laws through action or through the exception of unconstitutionality procedure, by any natural or artificial person interested as well as by the public prosecutor's office.
2) The Constitutional Court has the competence to interpret the Constitution at the request of the President of the Republic, the President de the National Assembly, the President of the Senate, 1/4 of deputies or 1/4 of senators.
D - REFERENDUM
The President of the Republic may, after consulting the Vice-Presidents of the Republic, the Presidents of the National Assembly and the Senate, put to the referendum any constitutional or legislative draft which may have important effects on the life and the future of the nation, or about the nature and the functioning of the Republic institutions.
E - The formation of parliamentary groups is forbidden in the Senate.
F - PARLIAMENT JOINING IN CONGRESS
Both chambers join in Congress to:
- receive a message from the President of the Republic;
- deprive the President of the Republic of his functions because of gross misconduct, serious abuse or corruption, by a
resolution adopted with a majority of 2/3 of the Congress members;
- indict the President of the Republic for high treason through a secret vote with a majority of 2/3 of Congress members;
- reconsider the finance draft bill (see above III - A - 7) ;
- elect the first post-transition President of the Republic;
- evaluate the implementation of the government programme, every 6 months;
- receive the oath of the independent national Electoral Commission (whose members are appointed by decree after being
approved separately by both the National Assembly and the Senate).
G - PARLIAMENT CONSULTATION
1) Declaration of war
The President of the Republic declares war and signs the armistice after consulting the government, the bureaux of the National Assembly and the Senate and the National Council for Security.
2) State of exception
When there is a serious and immediate threat against the Republic institutions, the State independence, the territorial integrity or against the execution of his international commitments, and that the normal functioning of the public authorities has ceased, the President of the Republic may proclaim the state of exception by a government decree and take all the measures requested by the circumstances, after consulting the government, the bureaux of the National Assembly and of the Senate, the National Council for Security and the Constitutional Court.
H - NOMINATION OF VICE-PRESIDENTS
They are appointed by the President of the Republic after the approval of their candidature by both the National Assembly and the Senate, through a separate vote in the majority of their members. They shall be chosen among elected people.
I - HIGH COURT OF JUSTICE TRIALS
The High Court has the competence to try the President of the Republic (see above), as well as the President of the National Assembly, the President of the Senate and the Vice-Presidents of the Republic for crimes and offences committed during their term of office.
In the event of a conviction, they shall be dismissed.
J - COMPOSITION OF DEFENCE AND SECURITY CORPS
During a period determined by the Senate, the defence and security corps do not include more than 50% of members from a particular ethnic group, considering the necessity to ensure the ethnic balance and to prevent acts of genocide and coup d'état.
AS A REMINDER:
INSTITUTIONAL EVOLUTION SINCE THE END OF THE CIVIL WAR
The 2005 Constitution is in line with the peace agreement and the transition institutions on the one hand, by providing for a bicameral Parliament, and on the other hand by entrusting the Senate with the mission to make sure that the multi-ethnic aspect is respected in public circles.
A - THE ARUSHA AGREEMENT
The Arusha Agreement for peace and reconciliation in Burundi, which has been torn by several years of political instability and civil war, was signed by all political parties on September 20th, 2000. It was ratified by the National Assembly.
Among other things, the Peace Agreement lays down the principles according to which the future institutions should be organised.
The new State institutions must be organised so as to "be able to integrate and reassure every category of Burundi society".
The main principle governing the Agreement is respect of ethnic and religious diversity. It acknowledges the Bahutu, the Batutsi and the Batwa as categories of Burundi national society.
The Agreement provides for the creation of a bicameral system, where the Senate would represent and safeguard the multi-ethnic nature of Burundi society (I).
During the transitional period before the new institutions are set up, a Senate will also be instituted. (II).
Organisation of the legislative power
The legislative power is exercised by the National Assembly and, in the domains provided by the Peace Agreement, by the National Assembly and the Senate.
I - THE SENATE
The Senate is composed of two delegates from each province, elected by an electoral college composed of members from the district councils in the province concerned, deriving from the various ethnic communities and elected by separate elections.
Former presidents are entitled to sit in the Senate. The Senate may co-opt up to three members of the Batwa to ensure that this community is represented.
The Senate bureau will be multi-ethnic.
a) To approve the amendments to the Constitution and organic laws, including laws governing the electoral process :
- the Constitution may be amended only by a majority of four fifths of the National Assembly and two thirds of the Senate ;
- organic laws may be amended only by a majority of two thirds of the National Assembly, with the agreement of the Senate.
b) To be sent the ombudsman's reports on any aspect of State administration.
c) To institute enquiries into State administration and, as the case may be, to make recommendations to ensure that no region or group is excluded from the benefits of State services.
d) To check the application of the constitutional provisions in respect of representation, or balanced composition of any section of the civil services or defense and security organizations.
For a period fixed by the Senate, not more than 50% of members of the army may belong to a single ethnic group.
e) To ensure that the district councils reflect the ethnic make up of their electoral roll as a general rule. In the event that the composition of a district council does not reflect this ethnic diversity, the Senate may order the co-optation of persons from an under-represented ethnic group to the council, provided that such persons do not represent more than one fifth of the members on the council. The persons to be co-opted are nominated by the Senate from a list of names provided by the district council or by a hill chief from the district concerned.
f) To advise the President and the National Assembly on all issues, more particularly legislative issues.
g) To supervise the application of the Arusha Agreement.
h) To make observations or suggest amendments to legislation voted by the National Assembly, and draw up and introduce bills for examination by the National Assembly.
The National Assembly must examine the draft amendments and may, if it so decides, include them in the bill submitted for the approval of the President.
i) To approve bills on the definition and allocation of power to the provinces, districts and hills.
j) To approve nominations :
The Senate approves the following nominations :
a. Chief of the defence forces, police and intelligence services ;
b. Governors of the provinces nominated by the President of the Republic ;
c. The Ombudsman ;
d. Members of the Higher Council of Judges ;
e. Members of the Supreme Court ;
f. Members of the Constitutional Court (with a 2/3 majority) ;
g. The Head of Public Prosecutions and the judges of the Public Prosecution Department ;
h. The President of the Court of Appeal and the President of the Administrative Court ;
i. The Attorney General for the Court of Appeal ;
j. The Presidents of the higher civil courts, the commercial courts and the labour court ;
k. The Public Prosecutors ;
l. The Vice-Presidents of the Republic (two) (this power is also vested in the National Assembly, but the two chambers vote separately).
II - THE TRANSITION SENATE
During the transitional period, to begin 3 to 6 months following signature of the Arusha Agreement, and to end when the new President is elected, the transition legislature will be composed of a National Assembly and a Senate:
1) Composition of the transition Senate
The Senate is to be set up by the President of the Republic and the Bureau of the National Assembly, paying careful attention to political, ethnic and regional balances.
It is to comprise, among others, former Heads of State, three persons from the Twa people, and members from the transition National Assembly co-opted by the President of the Republic and the Bureau of the transition National Assembly.
Those members of the transition National Assembly that have been co-opted for the transition Senate will not be replaced.
2) Powers of the transition Senate
The Transition Senate will exercise the powers expressly provided in the constitutional principles laid down by the Agreement.
3) Adoption of the Constitution
The transition National Assembly and Senate will adopt a post-transition Constitution, as provided for by the principles in Chapter I of the Arusha Agreement, keeping the same terms, not later than eighteen months following their creation, by a two-thirds majority
B - THE TRANSITION CONSTITUTION
It will adopt the provisions of the Arusha Agreement concerning the transition Senate, giving more details.
The transition Senate
1) Constitutional provisions
Senators shall be appointed by the President of the Republic, the Vice-President and the Bureau of the transition National Assembly. The number of senators - respecting ethnic and political parity - shall not exceed 54.
The Senate comprises former Heads of State and three persons from the Twa people as well as two citizens from each province in order to represent the various ethnic groups.
Charged with of monitoring the constituent bodies are represented and to prevent any situation of exclusion, the Senate approves the appointment of senior officials in the departments of Defence, Justice (judges of the Supreme Court, and the 7 members of the constitutional Court) and heads of the administration in provinces (governors).
Every year, the Parliament shall meet during 3 ordinary sessions and may convene for short extraordinary sessions to be opened and closed by an order of the President of the Republic.
The President and Vice-presidents of the Senate (like those of the National Assembly) must come from two different political parties.
2) The 53 senators of the transition period were appointed on January 25, 2002.