{The African Union (AU) was established in 2001 and launched in 2002 as a successor to the Organisation of African Unity (OAU), which was largely criticized for failing to intervene in order to stop the gross and massive human rights violations witnessed in Africa in the past, including the 1994 genocide against the Tutsi in Rwanda.}

The OAU’s failure was due to its doctrine of non-interference in the internal affairs of member states. It is against this background that the AU embraced a paradigm shift by making a significant move from a culture of non-intervention to a culture of non-indifference”, which gives the Union the rights, prescribed under Article 4(h) of its Constitutive Act, to intervene in a member state in respect of “grave circumstances, namely: war crimes, genocide and crimes against humanity.”

Despite this legally binding commitment, the AU continued to receive harsh criticism for failing to respond to security threat on the continent, especially when it comes to the situations that call for the invocation of Article 4(h) of its Constitutive Act.

This article focuses on the ongoing crisis in Burundi and the AU’s response. Its purpose is threefold: First, it briefly glances at the root causes of the crisis. Second, it examines whether the Burundi crisis meets the threshold criteria, which requires an AU military intervention. Third, it looks at how the AU responded.

The ongoing crisis in Burundi is rooted in President Pierre Nkurunziza’s decision to run for a third term. This was not only against the will of many Burundian people but also violated the Arusha Peace and Reconciliation Agreement for Burundi (the basis of the Burundi Constitution). The second cause can be associated with poor governance, which characterized Nkurunziza’s reign. Under his leadership the country suffered from public mismanagement, corruption especially in public sector as well as rampant nepotism by the ruling party.

To understand whether the humanitarian crisis in Burundi meets the threshold criteria for the AU military intervention, I deem it necessary to apply three crimes described under Article 4 (h) of the AU Constitutive Act to the situation in Burundi: {{1) War crimes:}} The situation in Burundi does not fall into this category of offense because war crimes involve armed conflict between two or more states or between government forces and non-governmental armed groups or between such groups only. {{2) Genocide: }} It is still early to consider the situation in Burundi as genocide.

However, there are significant amount of early warning signs of such heinous crime that cannot be ignored. These include recruiting, training and arming Imbonerakure militia who are pararellel to Interahamwe militia who committed genocide against the Tutsi in Rwanda, hate speeches as well as discrimination against certain groups (Tutsi and members of the opposition). {{3) Crimes against humanity:}} There cannot be doubt that crimes against humanity have been committed and still being committed in Burundi. Both international human rights defenders and international community have been consistently reporting serious human rights violations, including extrajudicial killings, arbitrary arrest and detentions, torture, and attacks committed by imbonerakure militia and government Security forces with total impunity.

In light of the above, it is clear that the crisis in Burundi meets the threshold conditions for the AU military intervention.

{{The AU’s response to the crisis in Burundi}}

At different occasions, the Chairperson of the Commission of the AU, Dr. Nkosazana Dlamini Zuma expressed the AU’s strong condemnation of all acts of violence and violations of human rights and all inflammatory speeches. The Organisation deployed a fact-find mission with a mandate to investigate among other things all human rights violations and abuses. The mission reported back to the AU that the situation of violence was of great concern. Simultaneously, the AU continued to support the mediation efforts led by President Yoweri Museveni of Uganda, on behalf of the East African Community (EAC). However, this mediation did not bear fruits.

Following the report by the fact-finding mission, the AU Peace and Security Council (PSC) approved to deploy 5000 troops under an African Prevention and Protection Mission in Burundi (MAPROBU). To no one’s surprise, the government of Burundi rejected MAPROBU initiative and described it as an invading force. Article 7 (1) of the Protocol Relating to the Establishment of the Peace and Security Council articulates that the “AU Assembly considers a decision under Article 4 (h) of the Constitute Act on the recommendations of the PSC”. In this context, the PSC’s decision to deploy MAPROBU was put to the agenda of the AU Assembly to receive a blessing. The Assembly however voted against it. A decision which has been celebrated by the government of Burundi.

As stated in the Communiqué of the 571st meeting of the PSC, at the level of heads of state and government, on the situation in Burundi, the Council decided “not to deploy MAPROBU because it considered it premature to send such a force to Burundi and that an inclusive political dialogue must be supported under the auspices of the President Yoweri Museveni of Uganda”.

Instead, the AU decided to dispatch the high-level delegation (representing all regions), to Burundi composed of the presidents of Mauritania, South Africa, Gabon, Senegal and Ethiopia. Their mandate was to consult with the Government of Burundi, as well as with other Burundian actors, on the inclusive dialogue and the deployment of MAPROBU, if accepted by the Government of Burundi. Sadly, despite these efforts, it appears that the situation has not yet improved and the government is not willing to negotiate with all members of the opposition. Instead, it prefers to select those it wishes to negotiate with. A genuine dialogue must include all peoples affected by the crisis without discrimination.

One may argue that the findings of the AU fact-finding mission and the subsequent decision of the AU PSC to deploy MAPROBU was another clear evidence on how the situation in Burundi met the threshold criteria under Article 4(h) of the AU Constitutive Act. It is therefore hard to believe why MAPROBU plan was strangled at the Assembly level while the people of Burundi continue to suffer. This decision is confusing and constitutes one of the key challenges facing the continent in translating into action not only the notion of “African solutions to African problems “but also its stance of “non-indifference.”

Following the AU reluctance in responding to the crisis in Burundi, one may wonder if the organisation needs more instruments to better respond to the crises. I am of the opinion that the AU is equipped with numerous legal Instruments, which can help in maintaining peace and security on the continent, once properly implemented. Moreover, unlike any other regional treaty, the AU’s Constitutive Act provides the rights of intervention in a member state pursuant to the grave circumstance. Regrettably such engagement has rarely been translated into action.

In fact, it may be disclosed that the Organisation suffers from internal divisions among its members and lack of unity and political will on how to respond to security threat. Burundi is not the only example. There are other cases where the AU failed to intervene such as in Darfur, Libya and South Sudan. If the AU intervened on time, many lives could have been saved in these places.

Some analysts believe that the rationale behind the AU’s rejection of MAPROBU plan was the fear to set a precedent of deploying troops without the consent of the concerned state (Burundi). The key question therefore would be how can a state (killing its own people) be begged to consent to a military deployment. On contrary, the worse precedent is a failure to intervene due to the lack of consent by a state, which has failed its primary responsibility to protect its population.

The AU’s rejection of MAPROBU was a failure in exercising its rights of intervention under Article 4(h) of its Constitutive Act. This has contributed in damaging more the already damaged reputation of the organisation in terms of responding to security threat and has left little hope for future military intervention. If AU member states were to take the Constitutive Act seriously, they should have authorized MAPROBU in order to restore peace and stability in Burundi. This would have been a powerful signal to any member state for future intervention where grave circumstances might occur.