Chapter 6 - Applying International Law and Reducing Political Expediency Through Constitutional Adjudication

Summary

While the first part of this monograph adopted a largely inductive, empirical perspective, this final chapter is fundamentally based on two normative foundations. First of all, it reflects a preference for a transitional justice process that is determined by and shaped in accordance with the relevant international legal framework as it applies to Burundi. This is in turn related to a more general normative preference for a political transition that results in States being governed increasingly by the rule of law (both in its formal and its substantive dimension) and decreasingly by the arbitrary rule of power. Secondly, in line with the jurisprudence of international human rights bodies, it reflects a preference for law – in particular international human rights and humanitarian law, including insofar as they are incorporated or reflected in constitutional and overall domestic law – to produce its intended effects rather than for law to be (systematically) ineffective, neglected, violated and/or circumvented. Though focusing on the question of how to increase the impact of international law on Burundi's transitional justice law, policy and practice, we acknowledge that calling upon international law may not be the most efficient way of promoting a more equitable transitional justice process for Burundi. Indeed, other perspectives, such as those focusing on the impact of civil society, the input of religion, the role of enlightened political leadership, the impact of carrots and sticks at the disposal of international donors, etcetera, may deal with factors that have a higher potential leverage than the one adopted here. However, because of the dominant (legal) disciplinary perspective of this study, and while again calling for ‘legal humility’ and acknowledging the dominant impact of other determinants, this Chapter addresses the question how, through constitutional adjudication, Burundi's transitional justice process can be more in line with international law and less determined by political expediency.

A FOCUS ON CONSTITUTIONAL ADJUDICATION

What are the ‘comparative advantages’ or other reasons that justify our attention for the role of constitutional adjudication as a way of enhancing the impact of international law on Burundi's transitional justice process?