La cour constitutionnelle du Burundi, un législateur-cadre positif

Abstract

This thesis examines the role of the Constitutional Court of Burundi as a “positive framework legislator” within the national constitutional order. Traditionally conceived, following Hans Kelsen’s theory, as a “negative legislator” limited to annulling unconstitutional laws, constitutional courts have progressively developed a more active normative function. They increasingly influence the legislative process through interpretative techniques, injunctions, gap-filling decisions, and the modulation of the effects of their rulings. Adopting the European (Kelsenian) model of constitutional review since the establishment of its Constitutional Court in 1992, and currently governed by the Constitution of 7 June 2018 and the Organic Law of 30 December 2024, Burundi provides a relevant context to analyze this evolution. Using doctrinal, exegetical, jurisprudential, empirical, and comparative methods, this study assesses whether and how the Constitutional Court of Burundi exercises a positive normative function. The findings demonstrate that the Court does not merely invalidate unconstitutional norms but actively frames and guides future legislative action. Through interpretative reservations, binding injunctions, and the control of legislative omissions, it structures the normative environment in which the legislature operates. However, this expanded role raises significant questions regarding democratic legitimacy, separation of powers, and legal certainty. The thesis concludes that the Constitutional Court of Burundi plays a central role in consolidating the rule of law. While its function as a positive framework legislator strengthens constitutional supremacy and the protection of fundamental rights, it requires balanced institutional safeguards to preserve democratic legitimacy and institutional balance.