A world ranking of countries according to the Index of Economic Freedom carried out each year by The Heritage Foundation takes into account the score obtained after weighting the 12 variables distributed in 4 areas of the country’s life. These include: the rule of law (property rights, integrity of government, judicial efficiency); the preponderance of government (public spending, tax pressure, fiscal health); regulatory efficiency (business freedom, labour freedom, monetary freedom); open markets (commercial freedom, investment freedom, financial freedom). The 2018 report ranks Burundi 157th in the world with a score of 50.9.
The rule of law area is of great interest to us in this article, in particular reference to Burundi.
We cannot approach the concept of the rule of law without understanding its scope. This concept goes hand in hand with another concept which is the ‘state’, which is allowed to keep the monopoly of force in our societies. The question therefore becomes, when in a free society is the power of the state justified? Defenders of the libertarian philosophy often answer that it is when it comes to “protecting individuals against fraud and theft“. In other words, against those who exceed the law by their personal ambitions and/or interests and those who usurp the property of others without their consent. The second argument stems from private property and the first from the rule of law, which will be discussed in this article. This article will also sketch this notion and see how it affects the economy of the country. By the rule of law, we mean a guarantee of justice through rules such as equality before the law and an independent judiciary.
Equality before the law
What about equality before the law in Burundi? The issue deserves special attention. We are confining ourselves here to the finance law. Even though article 70 in the Constitution recognises that all citizens are equal before the public offices, it also recognises a legal exemption: “Exemption can only be established by law“. Any natural or legal person who meets the legal requirements may benefit from the exemption, as read in a document of OBR : GUIDE DU CONTRIBUABLE. By this statement, we find that whatever the motivations, exoneration is a phenomenon of unequal treatment of citizens before the law. Worse still, is that it does not put economic agents in the same line of competition. In the market, these economic agents cannot compete together, which makes it easy to stifle newcomers to the economic circuit and thus hampers entrepreneurship and innovation. Not only does it block entrepreneurship, it makes the state a lost norm and the citizen a burdensome norm without his consent. As an example, the State budget for 2019 shows a sum of more than 17 billion in exemptions, as found in Law n°1/14 of June 30, 2019 setting the general budget. The result has been rising food prices, as this shortfall in government revenue makes up for it with the increase in other taxes. This is important for citizens because with the amount the state seems to be reducing, it inflates the taxes of a citizen per capita to be paid.
The independent judiciary
A rule of law needs a framework for the implementation of laws that come from the executive branch and are passed by the highly independent legislature. This framework is a justice system that works for all. So what about the judicial system in Burundi? Although the texts say that the judiciary is an independent and impartial power, as stipulated in article 214 of the constitution (Burundi’s constitution), there are some shortcomings. The modalities for recruiting and appointing members of the judiciary must comply with ethnic, regional and gender balance criteria, as we find in the same text. This is what the Libertarian philosophy regards as “positive discrimination”, a form of preference to minority groups through the imposition of quotas for participation in the life of the country. In addition to this, the appointment of senior judicial officials is made on the basis of political criteria. This does not guarantee independence and impartiality in their functions.
The Constitution of Burundi gives the President of the Republic the function of “Guarantor of the Independence of the Judiciary” and therefore he is the “Supreme Judge”. He is assisted by a higher disciplinary body of the judiciary. Thus, the way in which the judicial system is composed and the way in which the appointment to the functions of the system makes it dependent on the executive and acts in accordance with the current political context. This is demonstrated by the change in the jurisdictions pronounced according to such and such a power.(Burundi’s constitution, article 2014)
The relationship between the rule of law and the country’s economy
The rule of law is only necessary for the cohabitation of individuals within a society. It is also important in the economic life of these individuals. Attracting companies and investments from abroad, and making domestic exchange more accessible to individuals, are of course important factors for the economic development and prosperity of the population. And this is a matter for the law and the judicial system to enforce. So every year; the World Bank ranks countries according to how easy it is to do business there. The index looks at the transparency of the tax system and regulations, levels of corruption among public officials, and the ease with which individuals can start a business, the registration of assets, international trade and bankruptcy law.
We can therefore conclude that the distinction between a free society and a non-free society refers to the rule of law. “This idea that citizens should be governed by clear and general principles of law, rather than by the arbitrary whim of monarchs and politicians. Legislators cannot just do whatever they want. Their laws must apply equally to everyone, including themselves. (p.103)