A reader reacts to the opinion of Mr. Jean Marie-Ngendahayo on the judgment of the Burundian Constitutional Court which had shown that the amendment of article 85 of the Constitution of March 9, 1992, that allowed the election of Mr. Cyprien Ntaryamira to the Supreme Magistracy, was unconstitutional.
“Out of the abundance of the heart the mouth speaks” (Luke 6:45). Dear Mr. Ngendahayo, your statement reflects an unfair trial against judge and professor Gerard Niyungeko.
You claim that the Prime Minister, Sylvie Kinigi, with his closest collaborators, including you, informally consulted the President of the Constitutional Court at the time, Gérard Niyungeko, to sound out what the position of the Court was going to be with regard to Constitutionality.
Law No. 1/002 of January 13, 1994 amending article 85 of the Constitution of March 9, 1992, which allowed the election of Mr. Cyprien Ntaryamira to the Supreme Magistracy. Obviously, you do not forgive the President of the Court the fact that “By his words and his attitude, he confirmed his fears” as to this constitutionality.
In the wake of a suspicion, by the power of the time, that the Court was preparing to pronounce a judgment invalidating the election of Cyprien Ntaryamira as President of the Republic (Nindorera, E., No real reconciliation without justice, unpublished, Bujumbura, March 2006, p.18, footnote n° 5; Chrétien, J.-P and Mukuri, M., (dir.), Burundi, the identity fracture: Logics of violence and “ethnic certainties », Khartala, 2002, p. 65), the Government to which you belonged revoked the Court (Decree n° 100/001/94 of January 29, 1994).
Because the President of the Court, whom the Government had consulted informally to find out what his decision would be in a case which was regularly before it, would not have reassured the Government, you infer that the Court “was ready to complete the coup of State (…)”.
Apart from the fact that in a rule of law which respects the separation of powers, your approach is as unfortunate as it is reprehensible, do you measure the seriousness of your remarks?
You add that “With the death of Cyprien Ntaryamira” (…) the Constitutional Court had just taken advantage of the death of the Head of State to declare it “unconstitutional”. Mr. Ngendahayo, the Constitutional Court did not declare President Ntaryamira “unconstitutional” (I note in passing that a person or an authority cannot be unconstitutional).
Seizure, dated January 14, 1994, of a request from “The President of the National Assembly seeking to establish the regularity of the election which took place on January 13, 1994, that is to say ultimately have it validated” (RCCB 38), after noting, during the deliberation, that “the President elected on January 13, 1994 [had] died on April 6, 1994”, the Court decided the removal of the application from its list (RCCB 38).
I don’t know where you get that the Court declared President Ntaryamira unconstitutional.
In the RCCB 41 judgment, the Court was seized by the legal representative of an approved political party (in this case RADDES) on the unconstitutionality of Law No. 1/002 of January 13, 1994. It concluded that this law was not in conformity with article 182 paragraph 2 of the Constitution, any more than it was with article 182, paragraph 5 of the same Constitution.
Would you like to analyze the syllogism implemented to reach the conclusion and demonstrate its flaws? Allow me to remind you, in case it escaped you (and to recognize the benefit of good faith) that legal reasoning is different from political reasoning. At the time of the judgment (or judgments), you were a politician while Niyungeko was a judge.
Away from the character you portray a conscientious, competent, honest judge resorts to judicial syllogism to resolve the legal question (dispute) submitted to him.
In doing so, he strives to make a judicious choice of premises – the major (the rule of law) and the minor (the facts) – the bringing together of which leads to a pragmatic conclusion.
Instead of “baiting” against a person whom you may, for reasons that are personal to you, not carry in your heart, logic and your level of intellectual culture of the highest in Burundi would like you to make allowances : dissociate the person from his function.
Would it escape you that the decision of a court like the Constitutional Court is not that of its president? I am aware that you know that the decision is collegial, unless you advocate a Constitutional Court which formalizes the will of its president.
Do you know one? If so, is this the kind of Court you dream of for our country? The one whose president is informally consulted by the government about a case pending before it and in which the government is interested?
Mr. Ngendahayo, while it is true that Judge and Professor Gerard Niyungeko “is big enough to defend his actions”, to borrow the words of a reader reacting to your opinion, other voices are also entitled to speak in his defence.
Mr. Niyungeko has a rich background that you know very well. Believe me, you are among the few (if there is another) who can question his competence, integrity and impartiality.
The reactions to your exit are a serious indicator. If you want to criticize any of the judgments that were delivered by the Court when he was its president, please do so intellectually.
I know you can. Please, I beg you, stop personalizing a judgment rendered collectively. Avoid confusing the position of a judge (expressed during a consultation that I described as unfortunate and reprehensible) and a judgment rendered collectively.
Especially since you are not claiming that the President of the Court imposed his views on the other members of the Court. According to the information I have (and from good sources), it was not in this style that Mr. Niyungeko presided over the Court.
If you are passing through Arusha, where the African Court of Human and Peoples’ Rights sits, which Professor Niyungeko has directed twice, find out about the character.
He is the opposite of the character you are portraying. In addition, stop making a court decision say what it does not say. Be fair and not resentful.
I would have liked you to devote yourself to a critical analysis of the judgment, to rehash its motivation in order to point out the unwise character of the syllogism implemented, the possible inconsistencies… If you do not know how to do it, the reader is allowed to assume that it may be personal scores you want to settle with a person.
This translated article is adapted from Burundi’s Iwacu publication