The republic of Burundi (Burundi)1 became an independent constitutional republic in 1962 and is emerging from a long period of successive conflicts and coups d’état. The three major ethnic groups are the Hutus, Tutsis and Twa (representing respectively 85%, 14% and 1% of the population). A civil war broke out in 1993 between the predominantly Tutsi army and various rebel groups, often Hutu-dominated. The war was officially ended with a South African-brokered peace agreement in 2006 and by 2009, all rebel groups had disarmed and most had registered as political parties.
President Pierre Nkurunziza, a member of the former rebel group CNDD-FDD, is both the Head of State and Head of Government. He was elected in 2005 and reelected, unopposed, in 2010, after all opposition parties withdrew from the 2010 elections on allegations of fraud and government intervention.
The human rights situation in Burundi has been fragile since the end of the war, and has been deteriorating in recent months.2 Common human rights violations include arbitrary arrests, long periods of pre-trial detention, dire conditions of detention, torture and other ill treatment of detainees, lack of independence of the judiciary, use of excessive force and killings by security forces, official impunity, corruption, mob justice, and gender-based violence, among others.3
Burundi’s Constitution was adopted by popular referendum in 2005. Its legal system is a mix of Belgian civil law and customary law. The country is divided into 17 provinces, which are divided into communes, themselves divided into collines. While civil matters can be heard at the collines and communes level, the lowest jurisdiction to hear criminal matters is the tribunal de grande instance, at provincial level. Criminal cases can be appealed to the provincial Courts of Appeal and to the Supreme Court. A Constitutional Court rules on disputes of a constitutional nature.4 The President plays a very influential role in the appointment of judges.5
The Burundi National Police Force (Police Nationale du Burundi, PNB) is divided into four specialised bodies, each headed by a chief commissioner, who answers to the director general of the National Police, himself or herself accountable to the Minister of Public Security.6 Several pieces of legislation regulate the police.7 Burundi has two other law enforcement structures, which are the National Defence Force and the National Intelligence Service. The latter body, along with the PNB, has often been reported as having committed human rights violations.8
The dire lack of state resources results in severe financial shortages at all levels of the state apparatus, including at the police, correctional and judicial level. This is reflected in poor or unpaid wages (in particular in rural parts of the country) and a lack of material and human resources (including transportation, communication devices and office equipment, including basic stationary).
In December 2010, the prison population of Burundi was estimated to be 9,844, 62.6% of which is pre-trial detainees. There are 11 detention centres in the country, with an official capacity of 4,050. Therefore, the occupancy level in December 2010 was at 243.1% of official capacity.9 Furthermore, the Burundian authorities have recognised the existence of unofficial detention centres, mainly within the National Intelligence Service.10
Burundi is party to most of the main international human rights treaties, including the UN Convention against Torture (UNCAT). However it has not yet signed or ratified the Optional Protocol to the UNCAT, although it had stated its intention to do so when reviewed by the UN Committee against Torture (Committee) in 2007.11 Under section 19 of the Constitution, the rights and obligations contained in international conventions ratified by Burundi automatically form part of the Constitution. It is however unclear to what extent this provision is used and applied by the courts.12
In general, the protection and safeguards to be afforded to people deprived of their liberty under international law are fairly well provided for under the Constitution and domestic laws. The Constitution recognises the right to human dignity, to be treated fairly and without discrimination, to privacy, to life and liberty, and to be free from torture and ill treatment.13 Following the examination of Burundi’s state report by the Committee,14 the Burundian Criminal Code was amended in 2009. Torture now constitutes a crime, the prohibition of which is non-derogable and cannot be justified by an order received from a superior.15 The definition matches that of article 1 of UNCAT. The penalty imposed for this crime varies between 10 and 20 years, depending on the aggravating circumstances.16 Torture is further criminalised as a crime against humanity and a war crime.17 Furthermore, legislation regulating the prison system prohibits prison governors and prison warders from committing acts of torture or ill treatment.18 However, no compensation fund or rehabilitation programmes for victims of torture and ill treatment have been developed, contrary to the recommendations of the Committee.19 In addition, although sections 246 and 260 of the Constitution guarantee that all security services personnel receive training on international human rights and humanitarian law, it is unclear to what extent adequate training is organised for judges, prosecutors, police officers and lawyers on human rights law and on the new provisions of the Criminal Code, including the prohibition of torture and ill treatment.
Other legal guarantees include the right of detainees to be treated with humanity, to complain about their conditions of detention, the right to counsel (however, this right only vests once the person is formally indicted), to have access to a doctor and an interpreter and to be informed of the charges against them.20 However, there is no legal aid system in Burundi, and considering the economic situation of most Burundians, access to a lawyer remains impossible for the majority of the population.
Despite legislation generally matching international standards, the preliminary research findings of the Article 5 Initiative suggest that there is a disparity between what the law provides and what occurs in practice. Over the years, international human rights bodies have expressed concern regarding the widespread occurrence of torture and other ill-treatment in Burundi and the treatment of persons deprived of their liberty. Burundian authorities themselves conceded that acts of torture and ill treatment were taking place in various custodial settings, and committed to address the problem.21 Numerous reports also mention allegations of arbitrary arrests, prolonged detention in police custody, lengthy pre-trial detention, no separation of pre-trial detainees and convicts, incommunicado detention, illegal detention, abuse of power by administrative authorities, non-registration of detainees, and no systematic review of the legality of detention.22
If the judiciary was better equipped to handle its case load and received adequate human rights training, the situation of detainees would certainly improve.23 An illustration of a lack of a rights-based approach of the Bench in relation to criminal proceedings is a 2002 ruling by the Supreme Court that statements obtained under duress were admissible if they were corroborated by other evidence, although the Criminal Code prohibits the use of such statements.24 Although the Committee criticised this judgment during the review of the State report, there is no indication that any court overruled it.
Conditions of detention do not generally meet international standards, and include overcrowding, a lack of ventilation, dirty cells and limited or no access to food and medical care.25 However, the financial constraints faced by the state must be kept in mind when examining conditions of detention.
Burundi lacks adequate detention facilities for vulnerable groups. Only one detention centre has separate facilities for women. Pregnant women and women with young children are not accommodated for.26 There is no juvenile justice system in Burundi. Furthermore, children have dedicated dormitories in some detention facilities, but are usually not separated from adult detainees during the day.27 As a result, numerous reports allege of sexual abuse against women and children in prison.28 Homosexuality has been criminalised in 2009,29 and no national or international reports mention sexual violence towards male detainees. There does not seem to be provision for persons with disabilities, with mental health problems or suffering from HIV/Aids or other severe diseases.
Although several national and international civil society organisations can have access to some, if not most, prisons and detainees, there are no effective internal or external oversight mechanisms to visit places of detention or receive complaints of allegations of torture or ill-treatment. The Constitution mandates Parliament (section 243) to oversee the work of the police, the intelligence services and the army and provides for the creation of an Ombudsman (sections 237 to 239), but it is unclear whether these two institutions fulfil their mandate at all. The Commission called for the establishment of a national system to monitor places of detention.30 Recently, a National Commission on Human Rights was set up, but has been accused of political bias and lack of independence. The government has also been trying to set up a Truth and Reconciliation Commission since the end of the war and might have recently reached a political compromise, which would see the Commission starting to operate in 2012.31
In conclusion, there seems to be political willingness to improve conditions of detention in Burundi. Burundian authorities often recognise the dire conditions of their detention facilities and the frequent human rights violations suffered by prisoners. Also, the recent amendment of the Criminal Code criminalising acts of torture and ill treatment is to be welcomed, and although some improvements to the current legal framework would be necessary, numerous rights and guarantees are already contained in this framework. However there would appear to be a failure to realise many of these safeguards in practice and torture and poor conditions of detention continue to be a concern. The Article 5 Initiative looks forward to working with the Burundian government towards filling the remaining gaps in the legal protection afforded persons deprived of their liberty and addressing the disparity between the law and practice.
- Due to the desktop nature of this research, it has been difficult to establish the practical situation in the country. Many important documents (including up to date legislation) are not available online or in South African libraries, from where the research was done. For example, no annual reports of State institutions monitoring places of detention and ensuring respect for human rights are published online. Thus, much crucial information, such as the exact number of places of detention both under civil and military control, the number of detainees currently held in detention facilities other than state prisons, conditions of detention for vulnerable groups, practices of recording and monitoring interrogations, and what means of restraint are used in Burundian prisons, is not available.
- See, for example, the recent bar shooting in Gatumba, near Bujumbura, where 41 persons were killed. The government promised that the perpetrators would be brought to justice. The Guardian, “More than 40 killed in Burundi massacre”, 26 September 2011. Available at http://www.guardian.co.uk/global-development/2011/sep/26/burundi-massacre-40-killed/print (last accessed 13 October 2011).
- US State Department, Burundi Country Report 2010. Available at http://www.state.gov/documents/organization/160111.pdf (accessed 13 October 2011). See also Human Rights Council, Compilation Prepared by the Office of the High Commissioner for Human Rights, in Accordance with Paragraph 15(b) of the Annex to Human Rights Council Resolution 5/1, Burundi, 3 October 2008, A/HRC/WG.6/3/BDI/2, paras 15 and 66.
- Sylbie Bizimina, The Burundi Legal System and Research, New York University, Globalex, 2007, Available at http://www.nyulawglobal.org/Globalex/Burundi.htm (accessed 30 September).
- See sections 214, 215, 218 and 219 of the Constitution.
- Human Rights Watch – Mob Justice in Burundi Official Complicity and Impunity – March 2010, pp. 12-13.
- Including the Loi n° 1/06 du 2 mars 2006 portant statut du personnel de la Police National du Burundi and the Loi n° 1/23 du 31 décembre 2004 portant création, organisation, missions, composition et fonctionnement de la Police Nationale.
- Human Rights Council, A/HRC/WG.6/3/BDI/2, paragraphs 15 and 28.
- International Centre for Prison Studies World Prison Brief, Burundi, 2010. Available at http://www.prisonstudies.org/info/worldbrief/wpb_country.php?country=6 (accessed 30 September 2011). To fully reflect the level of overcrowding of Burundian prisons, one must look at occupancy levels in each detention centre.
- Committee Against Torture, Consideration of Reports Submitted by States Parties under Article 19 of the Convention, Initial reports of States parties due in 1994, Burundi, 13 March 2006, UN Doc No. CAT/C/BDI/1, para. 13.
- Committee Against Torture, Consideration of Reports Submitted by States Parties under Article 19 of the Convention,Conclusions and recommendations, Burundi, 15 February 2007, UN Doc No. CAT/C/BDI/CO/1, para. 6.
- Report of the United Nations High Commissioner for Human Rights on the situation of human rights and the activities of her Office in Burundi – Technical Assistance and Capacity-building – A/HRC/12/43-31 August 2009, para. 10.
- Sections 21, 23, 22, 28, 24 and 25 of the Constitution.
- Committee against Torture, UN Doc No. CAT/C/BDI/CO/1, para. 8.
- Sections 204 and 208 of the Criminal Code (Loi n° 1/05 du 22 avril 2009 portant révision du Code Pénal). The same legislation abolished the death penalty.
- Sections 205 and 206 of the 2009 Criminal Code.
- Sections 196 to 198 of the 2009 Criminal Code.
- Section 3 of the Loi n° 1/016 du 22 septembre 2003 portant Régime Pénitentiaire.
- Committee against Torture, para. 23.
- Sections 3 and 42 of the Loi n° 1/016 du 22 septembre 2003 portant Régime Pénitentiaire; Sections 92, 97 and 61 of the Criminal Procedure Code.
- Committee Against Torture, UN Doc No. CAT/C/BDI/1, para. 12.
- Human Rights Council, A/HRC/WG.6/3/BDI/2, paras 17 and 21; Report of the United Nations High Commissioner for Human Rights on the situation of human rights and the activities of her Office in Burundi, A/HRC/12/43, 31 August 2009, paras 30 and 33;
- Report of the United Nations High Commissioner for Human Rights, A/HRC/12/43-31, August 2009, para. 30. Committee Against Torture, UN Doc No. CAT/C/BDI/CO/1, para. 16.
- Section 27 of the Code of Criminal Procedure; Committee Against Torture, UN Doc No. CAT/C/BDI/CO/1, para. 24.
- Committee Against Torture, UN Doc No. CAT/C/BDI/1, para. 14.
- ACAT Burundi, Association des Femmes Juristes du Burundi, Ligue Burundaise des Droits de l’Homme Iteka et Organisation Mondiale contre la Torture, rapport alternative sur la mise en œuvre de la Convention contre la Torture et autres peines ou traitements cruels, inhumains ou dégradants, Examen de la situation au Burundi, November 2006 (in French only), p. 40 and 53.
- Committee Against Torture, UN Doc No. CAT/C/BDI/CO/1, paras. 13 and 17.
- Committee Against Torture, UN Doc No. CAT/C/BDI/1, para. 36.
- Section 567 of the Criminal Code.
- Committee Against Torture, UN Doc No. CAT/C/BDI/CO/1, para. 19.
- Human Rigths Council; Report of the Independent Expert on the situation of human rights in Burundi, Akich Okola, 29 September 2010, A/HRC/16/CRP.1, paras. 19 to 22; Amnesty International, “Burundi. Il faut renforcer le soutien à la Commission nationale des droits de l’homme”, 6 October 2011, AFR 16/009/2011 ; AFP “Burundi slates truth and reconciliation panel for 2012”, 27 July 2011.
- Universal Periodic Review documents