On December 17 and 18, 2015, Rwanda held a referendum to confirm or deny the amendment to the constitution including a provision giving President Kagame the right to stand for a third time. The former is the date Rwandans in the Diaspora cast their ballot while the latter is when Rwandans within the country did.

In particular, the referendum was about two articles and two issues. These articles are 101 and 172. The former proposed to reduce the number of years a presidential term can last from seven as provided for in the 2003 constitution to five years while the latter sought to give President Paul Kagame a privileged right to seek a third term of seven years in office after the expiry of his current mandate.

Kagame’s current term expires in 2017, around October and presidential elections must be held around August or September of the same year.

In reality therefore, the constitutional amendment did not involve increasing or decreasing the number of presidential terms; they remained two but years for each reduced to five. 

At the end of the voting exercise, the electoral commission announced that 98.3 percent of eligible voters cast their ballot in favour of the amendment to the constitution. Subsequently, the new constitution was signed by the president and adopted before the end of 2015.

Consequently, in his New Year message to Rwandans on January 1, 2016, president Kagame announced that he would seek a third presidential mandate due to popular demand.

The President told Rwandans in a televised speech: “You requested me to lead the country again after 2017. Given the importance and consideration you attach to this, I can only accept. What remains is to follow the normal laws and procedures when the time comes”

The timing of Kagame’s announcement was a surprise but not the substance as it had been widely expected that he would seek a third term. The announcement however ended months―even years―of speculation on whether, like many of his peers on the African and South American continents, he would change the rules to remain in office or stick to the provisions of the 2003 constitution.

The question of whether or not president Kagame would seek a third term surfaced in the evening of his second term re-election in 2010 during in a talk-show on CFM radio moderated by Ugandan journalist Andrew Mwenda. During the show, the journalist asked the newly re-elected president whether or not he would seek to amend the constitution to stand for a third term, to which he said NO; adding that he would respect the constitution.

In the intervening years, he was asked the same question; yielding the same answer until the evening of January 1, 2016; despite the fact that, for the past two years, some Rwandans had been agitating for it.

Probably anticipating accusations from his critics that he had endorsed the idea of a president for life, the president clarified to Rwandans: “But I do not think our aim is to have a President for life, nor is it what I would want. Sooner rather than later, this office will be transferred from one person to another in a manner that will serve a purpose, not merely set an example, whether for ourselves or others”

While many Rwandans applauded the outcome of the referendum and the president’s offer to run for a third time, western powers, particularly the United States and the European Union (EU) expressed disappointment.

For instance, the US, through its State Department spokesperson, John Kirby announced, following President Kagame’s pronouncement that his government was “deeply disappointed” with the president’s decision to run for a third term. He added, "With this decision, President Kagame ignores an historic opportunity to reinforce and solidify the democratic institutions the Rwandan people have for more than 20 years laboured so hard to establish."

And then Kirby specifically, added, “"We are particularly concerned by changes that favour one individual over the principle of democratic transitions". This was in reference to Article 172 that gives the president the exclusive right to seek a third term of seven years due to popular demand.

Besides the US, the EU, through Ms Federica Mogherini, its Vice President and High Representative for Foreign Affairs and Security Policy said in December in reference to the referendum that: “The adoption of provisions that can apply only to one individual weakens the credibility of the constitutional reform process as it undermines the principle of democratic change of government enshrined in Article 23 of the African Charter of Democracy, Elections and Governance.”

The article in the constitution being referred to here as “only” applicable “to one individual” is 172, paragraph two which states that: “Without prejudice to Article 101 of this Constitution, considering the petitions submitted by Rwandans that preceded the coming into force of this revised Constitution, which were informed by the particular challenges of Rwanda’s tragic history and the choice made to overcome them, the progress so far achieved and the desire to lay a firm foundation for sustainable development, a seven (7) year presidential term of office is established and shall follow the completion of the term of office referred to in the first paragraph of this Article”. The first paragraph of this article refers to the current serving president―who is Paul Kagame.

Paragraph three of the same article adds, “The provisions of Article 101 of this Constitution shall take effect after the seven (7) year term of office referred to in the second paragraph of this Article”.

In effect, this means that legally, president Kagame has the right to stand again 2017 and serve for seven years. In addition, if he so wishes, the constitution also allows him as any Rwanda to stand again in 2014 and 2019 under Article 101. If this happens and he is reelected on all these occasions, he will remain president until 2034.

But as noted, while majority of Rwandans endorsed, through a referendum this possibility, Rwanda’s western partners are against it calling the development undemocratic. In fact, the United States Ambassador to the United Nations, Ambassador Samantha Power referred to the process the led to the referendum as “parliamentary maneuvering”. This means some western powers believe the result of the referendum were through manipulation rather than a freely imagined democratic exercise.

The clear divergence of views between Rwandans on the one hand and western powers on the other about on whether or not the process and outcome of the referendum were democratic give rise to three questions: (a) when is a referendum a legal and democratic exercise that expresses the will of the people? Secondly, can a third presidential term be democratic or it’s always undemocratic? Finally, are foreigners free to comment on, reject or accept an outcome from a political exercise in another country, such as a referendum?  

Let us start with the legality of the referendum and the “third term”. To start with, we should remind that some opposition parties especially those outside of Rwanda and the Green Party of Rwanda also held the view that amending Article 101 of the constitution was illegal. Subsequently, the Green party petitioned the Supreme Court on June 3, 2015 requesting it to cause parliament to abandon its quest to amend the constitution. Parliament had embarked on this exercise after it received petitions from 3.7m Rwandans who wrote to it demanding the removal of term limits in the constitution to allow President Kagame to stand again.

The party contended that Article 101 of the constitution couldn’t be amended on the grounds that, paragraph two of the same article stated that: “Under no circumstances shall a person hold the office of President of Republic for more than two (2) terms”

However, after months of listening to the plaintiff and the defendant, on October 8, 2015, the Supreme Court delivered its verdict dismissing the Green Party’s assertion and clarifying that the constitution provided for the amendment of Article 101. The court added that the only article that couldn’t be amended was article 193 that provided for modalities for amending the constitution.

Nonetheless, while the court’s verdict cleared parliament to continue with the process of amending the constitution in what it said was due to popular demand, analytically, one could legitimately add that in the way article 101 was written―that “under no circumstance” can anyone hold more than two terms as president directly contradicted Article 2 of the 2003 constitution that states that all power and authority comes from the people. The point here is, if all power and authority emanates from the people, including the power to make or remake the constitution or any part of it, how can any article in the same constitution say “under no circumstance” can the same article be amended? How about the people so wish?

Alternatively, we could add, that such limits are added to ensure the entrenchment of legal provisions judged to be sacrosanct to the defence of rule of law and protection of adopted democratic values―such as guarding against the entrenchment of any individual or group in power or imperial rule. In that case therefore, having the article that says all power emanates from the people would directly contradict and underwrite such protection in the constitution.

Thus, if amending the constitution was legal, is it admissible to claim that the referendum and its outcome were not democratic?  If so, what’s the evidence? And when is a referendum democratic?

So far, those who have claimed that the referendum wasn’t democratic, such as sections of the opposition and western powers have done so on three grounds: claims of manipulation of the process and a provision that allows president Kagame to stand again as discussed above; limited campaign time and not letting laws stand test of time.  

However, in reality, those who have claimed that the process leading to the referendum was manipulated haven’t given any substantive evidence beyond making the claim. Yet, those claiming it was democratic have written petitions from over 3.7m Rwandans demanding that term limits be removed to allow president Kagame stand again. Unless democracy has another meaning, and until we have concrete evidence that these petitioners are fictitious or were coerced to make the demand, I haven’t found any reason why listening to their demands is undemocratic.

This, by all means, opened or should open a debate on two fronts: first, when is a vote, say on the constitution a democratic exercise or undemocratic. Secondly, are nations allowed to be “disappointed” or “appointed” or regret what other nations are doing internally? Or are there countries that can do that while other can’t? If so, what it the source of such right?

  Secondly, yes, there wasn’t enough time between announcing that a referendum would take place and the actual date it took place. There was approximately ten days in between. With this, one could say that, of course, this wasn’t enough time to campaign for or against the referendum nor were the issues at stake clearly explained within that timeframe. However, there was about twenty months of debate leading to the referendum where pro and anti constitution amendment explained to Rwandans their positions and as we explained, over 3.7m Rwandans had already petitioned parliament to amend the constitution and therefore, one could argue that, by the time the referendum was announced, people knew what was at stake.

Therefore, if democracy means the will of the people expressed through a popular vote; if we accept that this means that the people, in a democracy decide who governs them, when and how; including holding leaders accountable through rewarding or punishing them at the ballot, how can we claim that the referendum was undemocratic? This is especially in view of the fact that Article two of the now revised constitution at the time stated  that “All the power derives from the people’; with paragraph three adding that, “National sovereignty belongs to Rwandans who shall exercise it directly by way of referendum or through their representatives.” If this is what happened, and Rwandans willingly demanded for and voted YES to the referendum giving President Kagame a third term, how can we say this isn’t democratic?

Except of course, as we argued, if evidence can be adduced to the effect that neither the petitions or the vote were genuine and a free expression of the will of Rwandans can we accept that the outcome wasn’t democratically arrived at. Until such evidence is provided, all we are left with is arguing democracy as a theoretical ideal removed from the day-to-day wishes and lives of the people. For what do you do if that’s what the people want? For even the third term isn’t a democratic element but a check on the probable abuse of power and possibility for life presidencies. But, again, the million dollar question is, what if the people want a third term?

When can people decide? 

Dr. Christopher Kayumba is a researcher. He has a PhD in Peace and Development Research from the University of Gothenburg, Sweden, MA in Conflict studies from the University of Ulster, Northern Ireland, UK, a BA in Mass Communication and journalism, an Associate Degree in Journalism and a Diploma in Senior Media and Communications Management from Stockholm University. Dr Kayumba is a Senior Lecturer at the University of Rwanda, School of Journalism and communication (SJC). Between 2005-2010, he was a guest lecturer at the Center for African Studies, University of Gothenburg, Sweden.