UPDATE: The Burundi Legal System and Research

 

By Syldie Bizimana

Update by Jean-Claude Barakamfitiye and Janvier Ncamatwi

 

Jean-Claude Barakamfitiye, a human rights and intellectual property lawyer, holds a Masters’ Degree in Intellectual Property from Africa University (Zimbabwe), the Graduate Certificate in Peacebuilding and Conflict Transformation from the School for International Training –SIT (Vermont, USA) and a Bachelor of Law from the University of Burundi. Laureate of Burundi Janusz KORCZAK Award for the rights of the child, he is having a comprehensive experience in human rights and legal aid for his engagement with human rights NGOs such as International Bridges to Justice (IBJ), Burundi Bar Association and Trial International.

 

Janvier Ncamatwi holds a Master in Human Rights and Pacific Conflict Resolution. He has been a lawyer at the Burundi Bar Association since 2004. Prior to joining the Bar, Janvier Ncamatwi worked in the Burundian army, first as a major in the military and then as a military court judge. He has thus a thorough understanding of the Burundian criminal justice system, including the civil and military jurisdictions. Passionate about human rights, Janvier cooperates with several NGOs, including ASF, Ligue Iteka, the Christian Association Against Torture (ACAT) and is a Legal Fellow at International Bridges to Justice (Burundi office).

 

Published March 2017

(Previously updated in Nov./Dec. 2012)

See the Archive Version

Table of Contents

1.  Introduction

1.1  Population Information

1.2  Economic Indicators

2.  Historical Background

2.1  Pre-Colonial History

2.2  Colonial History

2.3  Post-Colonial History

2.4  Current State Structure

2.4.1  The Executive

2.4.2  The Legislative

       2.5. The Arusha Peace and Reconciliation Agreement

3.  Legal System

3.1  Background to the Legal System

3.2  Sources of Law

3.3  Judicial Structure

4.  Status of International Law and Ratifications of Relevant Treaties

5.  Status of Reporting

6.  National Human Rights Institutions

7. National Councils

8. New Developments in the Field of Human Rights

       8.1. Criminal Laws and Legal Safeguards of the Accused

        8.2 Freedom of Expression, Assembly and Public Demonstrations

9. Intellectual Property Rights Protection and Administration System

        9.1. Copyright and Related Rights Protection and Administration System

        9.2. Industrial Property Protection and Administration System

10. Additional Remarks

11.  Burundi Links

 

List of Figures

Figure 1:  Burundi’s Population Density and Growth

Figure 2:  A Schematic Attempt at Capturing the Economic Context

 

1.  Introduction

Burundi, a landlocked Republic in Eastern Africa, is bordered on the north by Rwanda, on the east by Tanzania and on the west by Lake Tanganyika and the Democratic Republic of Congo. It has an area of 27,834 square kilometres and is one of Africa’s smallest countries.

 

1.1 Population Information

 

Figure 1: Burundi’s Population Density and Growth

 

Item

Latest figures

Total population 

11,178,921 (2015)

Annual population growth rate

3.292% (2015)

Life expectancy at birth

56.692 years (2015)

Infant mortality rate/1000

54.1/1000 (2015)

% of population urbanised

12.057% (2015)

Total adult literacy rate (15+ years)

85.496% (2015)

Estimated adult HIV prevalence rate( 15-49 years)

1% (2015)

 

Source: World Bank, World Databank (Burundi)

 

The three major ethnics groups that comprise the Burundian population [1] are the Hutu (Bantu) 85%, Tutsi (Hamitic) 14%, Twa (pygmy) 1%, all recognised in the Burundi Constitution.

 

Since 2014, Burundi has three officially recognized languages: Kirundi, French, and English. Of these, only Kirundi is spoken by the vast majority of the population. It is recognized as the national language by the Burundian Constitution of 2005. [2]

 

1.2 Economic Indicators

The Burundian economy depends largely on agriculture and over 55% of the population is poor living under $1 USD a day which is considered below the poverty levels.

 

Figure 2:  A Schematic Attempt at Capturing the Economic Context

 

Item

Latest figures

GNI, Atlas method

2.9 billon (2015)

GNI per capita, Atlas method (current US$)

260 (2015)

GDP, Atlas method

3.085 billion

GDP per capita (current US$)[3]

736.012 (2015)

GDP growth (annual %)

-2.536 (2015)

Population below 1 $ a day

55%

Health expenditure, public (% of government expenditure)

13.185% (2014)

Public spending on education, total (% of GDP)

5.415% (2013)

 

 

Source: World Bank, World Databank (Burundi)

 

The budget allocated to the ministry of defence (only for the military, police is not included) in 2016 was 109, 850, 696, 189 BIF which is the equivalent of US $64, 357, 600 (as of the OANDA rates of 11/15/2016) and the total budget was 904, 737, 762, 618 BIF, the equivalent of US $ 530,054,000 (as of the OANDA rates of 11/15/2016). The defence budget represents about 12.14% while the total budget allocated to the Ministry of health represents 9.1% of the total budget. But, on the other hand, one can notice that education is getting an importance in a certain way because the budget allocated to education represents 25.45% of the total budget, an amount which is two folds of the defence budget. For more detail see Ministry of Finance, Budget, and Privatization at the Republic of Burundi. See also, Deloitte, Burundi Budget Insight 2016: The Story Behind the Numbers (2016).

 

2.  Historical Background

2.1 Pre-Colonial History

From the sixteenth century, the region was organised as a kingdom, under the authority of a king (mwami) who was believed to be possessed of both secular and spiritual authority. Hutus, Tutsis and Batwa cohabited in this kingdom under a system of administration consisting of both Hutu and Tutsi chiefs. The two groups became homogenised, and adopted the same language (Kirundi). There was territorial expansion and conquest, and the vanquished party was made to pay tribute to the King. The Batwa who lacked a centralized system of governance and were only organized at family level, were almost always on the receiving end of these conquests.[4]

 

An examination of the way in which the monarchical system operated during the pre-colonial period, based on oral sources, reveals positive and negative aspects of the system. On the positive side, it may be said that monarchism succeeded in forming a nation and in preserving national unity and social peace. In addition, it established an essentially democratic institution, the ubushingantahe.[5] Lastly, power was perceived as being exercised in the interests of the population at large and for the maintenance of order in society. On the other hand, the monarchical system had inequalities and ethnic differentiation originating from the privileges enjoyed by the ruling class and institutionalization of the monarchy. Moreover, the power of the monarchy could be arbitrary, despite the existence of institutions for social regulation as the Mwami had an absolute power on life of all people living in his kingdom and even on their goods.

 

2.2 Colonial History

The first contact between barundi and the Europeans was with explorers and missionaries. In 1890, the Germans brought Burundi (then called Urundi) under their control. Together with Rwanda (Ruanda) and Tanganyika, this region became known as German East Africa. Adopting a system of ‘indirect rule’, the impact of German colonisation was insignificant.  After Germany’s defeat in the First World War, the territory of Ruanda-Urundi was given to Belgium to administer under the League of Nations mandate system. From the outset of its administration in 1916, the Belgians continued a policy of indirect rule. From 1925, it converted the informal societal hierarchies into rigid structures of government.

 

2.3 Post-Colonial History

When Burundi became independent in 1962, it adopted a constitutional monarchy before becoming a republic after a military coup d’état of 1966. Independence ushered in a period of serious destabilisation in the region, characterised by inter-ethnic strife. Large-scale massacres took place in 1965, 1972, 1988, and 1993.

 

After many years of turbulence, 1993 saw the holding of the first multi party national elections on the basis of a new constitution, which provided for an inclusive government under a presidential system. Ndadaye Melchior, a Hutu, won the Presidential elections, becoming the first member of his community to hold the highest office in the land. His term of office was short-lived and he was killed 3 months after ascending office in a coup d’Etat, which plunged the country to civil war and anarchy. His predecessor, Cyprien Ntaryamira, another Hutu, died in a plane crash with his Rwandan counterpart, Juvenal Habyarimana, which ushered in a period of darkness in the two neighbouring countries.

 

2.4 Current State Structure

2.4.1 The Executive

The executive power is exercised by a President of the Republic assisted in the execution of the mandate by two Deputy Presidents. The President of the republic is both the head of state and government.[6] He is also the Commander in Chief of the army, the guarantor of the National Unity. He exercises the statutory power and the execution of the laws.

 

The current head of state Pierre Nkurunziza, the sole candidate to the 2010 elections, has been re-elected by the population after a first five year mandate for which he had been elected by the parliament in a vote under the Constitution of the Republic of Burundi approved in a plebiscite in February 2005.[7] In 2015, while the Constitution and the Arusha Agreement stipulates a two-term limit to any elected and re-elected President, President Nkurunziza Pierre has been re-elected for a third term after an interpretation of the Constitution given by the Constitutional court legitimizing his candidacy.[8]

 

The first deputy president is in charge of the coordination of the political domain, whereas the second coordinates the economic and social domain. Both are appointed by the Head of State after a consultation of the National Assembly. The ethnic composition of the Council of Ministers, which makes up the executive arm of the government and the civil service, is of Hutu and Tutsi by quotas of 60% and 40% respectively. It is also taken in consideration the gender sensibility. At least 30% of the members of the government must be women.[9]

 

2.4.2 The Legislative

Burundi Parliament is bicameral. The National Assembly together with the Senate undertake the legislative function of the state.[10] They also control and monitor the Government’s action.[11] Nine matters are under the domain of the law:[12]

1.     Safeguards and fundamental obligations of the citizens: including safeguarding individual freedom; protection of civil liberties; constraints imposed in the interest of national defense and public security to citizens in their person and their property.

2.     The status of persons and goods: this comprises nationality, status and capacity of persons; matrimonial regimes, inheritance and gifts; property ownership, real rights and civil and commercial obligations.

3.     The political, administrative and judicial organisation;

4.     The protection of the environment and up keeping of natural resources;

5.     Financial and patrimonial matters;

6.     Nationalisation and privatisation of companies;

7.     Education and scientific research regimes;

8.     The goals of economical and social action of the State;

9.     Legislation on labor, social security, trade union rights, including conditions for exercising the right to strike.

 

The matters which are not listed above belong to the domain of rule.

 

However, Parliament’s law making function is not absolute. The President may on the advice of the constitutional Court issue a presidential decree which modify an act of the legislative[13] The extent of the modification is however not clearly defined under the constitution. It leaves one to wonder if there exist the possibilities of a Presidential decree completely annulling the objects of legislation.

 

2.5 The Arusha Peace and Reconciliation Agreement

Nowadays, Burundi is weathering from a 15-year civil war. In order to recover a safe and peaceful state, many peace and cease-fire settlements have been concluded by politicians from both Hutus and Tutsi political parties. The Arusha Peace and Reconciliation Agreement of 28th August 2000 is the key and fundamental covenant that has brought a lot of changes in Burundi legal system and continue to guide peace and reconciliation policy. It is the first settlement which introduced sharing process of political power between the two main ethnic categories in Burundi by introducing quotas in the composition of the army, the government, the parliament and even in local administration and public services. It integrates a high gender sensibility by assuring to women at least 30% of representation in all instances of decision.  Thus, this instrument inspired all the constitutions and acts adopted since 2000.[14]

 

The Arusha settlement is made of five main protocols:

·       Protocol 1: The Nature of Burundi conflict, problems of genocide and exclusion and their solutions

·       Protocol 2: Democracy and Good governance

·       Protocol 3: Peace and Security for all

·       Protocol 4: Rebuilding the country and development

·       Protocol 5: Safeguards for implementation of the agreement

 

There are also appendices that contain obligations and duties to be observed by signatory parties.

 

3.  Legal System

3.1 Background to the Legal System [15]

Since the colonial period, the judicial system moved from customary law to positive law and it adopted civil law system following the example of the Belgians who were the colonialists. At independence, positive law covered all branches of law, with the exception of some private, civil law issues. After independence, positive law has come to govern almost all the fields of society, with important exceptions related to inheritance, marital property, gifts/liberalities, acquisition and sale of non-registered land and relationships between employers and workers of the traditional or unstructured sector. A new code of land has been recently adopted. This code states new provisions to allow an easy registration of land. In this way, it is hoped that the field of customary law will decrease. Also, there are bills[16] which have been proposed to codify the remaining areas covered by customary law.[17]

 

The Burundian Legal System

The judicial system is organized through the Code of Organization and Judicial Competence of 17 March 2005.[18] The independence of the judiciary is guaranteed by the constitution, which separates the judiciary, the executive and legislative body. There are formal and informal mechanisms of conflicts management provided under the Code.

 

At hills level,[19] there are kinds of Courts of Hills "intahe yo ku mugina“ in which elders “abashingantahe“ and elected people on the hills, comprise the bench; the current communal law[20] has conferred upon them the power to reconciliate  the parties. However, they do not have the right to impose punishments.

 

At the Commune level in the rural provinces and at the Zone level in the town of Bujumbura, there are the “Courts of Residence” or Magistrate Courts Tribunal de Residence” which handle both criminal and civil cases. The Courts of residence has criminal jurisdiction to impose jail sentences for up to 2 years, and in its civil jurisdiction, a fine of up 1,000,000 Burundi Francs (an equivalent of US $ 605.03 (as of the exchange rates of 11/15/2016). It also has jurisdiction over land matters, matters relating to evictions, family and persons related matters and infractions against the Highway Code. In this last case, the court of residence can attribute to victims of accidents a compensation which goes beyond 1,000,000 BIF. At the level of “Courts of residence” the role of prosecutor in criminal affairs is played by judges who comprise the bench, while the Prosecutor of Republic omitted to nominate a prosecutor or a police officer to play this role.[21]

 

At the rural province level and at the Commune level in the town of Bujumbura, there are county courts/high courts: Tribunaux de Grande Instance with the prosecutions: Parquets de la République then followed by four Courts of appeal with four General prosecutions based at Bujumbura, Ngozi, Gitega and Bururi. The Supreme Court aside which there is the General Prosecution of the Republic: Parquet Général de la République stands at the Apex of judicial authority, and has both original and appellate jurisdictions over civil and criminal matters. The Supreme Court comprises three chambers: The Judicial chamber, the Administrative chamber and the cassation chamber.  The Constitutional Court is a sui generis court that presides over matters of a constitutional nature such as providing right interpretation of provisions of the constitution, validate presidential and legislative elections, plebiscites and proclaim their results. The constitutional court also decides on issues relating to human rights violations.[22] Together with the Supreme Court, they constitute the High Court of Justice, which has competence to try a seating president and other senior members of the government of high treason.[23]

 

Specialized courts including commercial, administrative, labor and court martial also exist. The Anti-Corruption court together with a prosecution and a special brigade have been   settled in 2006 as new mechanisms to deal with corruption and public wealth mismanagement matters. This court operates on the same level as Courts of Appeal.[24]

 

Another sui generis court newly created is the court of land and other properties created to judge affairs that pertain to disputes about land and other properties taking rise in the former civil wars and political crisis. These are for example the lands or properties of persons that fled the country for many years and who, after returning, found them occupied by other persons. The Court is competent to judge for first and last resort the appeals lodged against decisions taken by Commission on Land and Other Properties.[25] The court is mandated to work for 7 years[26]; then, it will operate, unless its mandate renewed, until 2021.

 

3.2 Sources of Law

The operative supreme law is the Burundi Constitution adopted through a referendum in 2005.[27] The Constitution empowers parliament to make organic laws as well as statutory laws to give effect to the Constitution and facilitate conduct of public life within the state.[28]

 

International instruments specifically incorporated by the Constitution are equally directly applicable in the country. However, Burundi has adopted both monist[29] and dualist[30] systems to integrate international instruments.

 

Regulatory frameworks are envisaged to be developed by administrative bodies and may be modified by legislative procedure upon advice of the constitutional court.[31] It is explicitly provided also that Presidential Decrees duly advised by the Constitutional court can modify legislation.[32] The position of customary law however remains uncertain, since the constitution is silent on this issue. However, the practice is that at the local level, particularly matters of succession and inheritances are governed by customs.  Other sources are treaties and international conventions, jurisprudence and doctrine. There is a more recent compendium of Burundi codes and laws that has been published by the Ministry of Justice with the help of its key partners in 2010. This compendium consists of three tomes that can be found either in printed edition format or on the official web site of the Burundi Ministry of Justice (http://justice.gov.bi/). It has been completed in 2013 by an addendum of two tomes.

 

Apart from that document, after promulgation, all legal instruments are published in an official gazette: BOB (Bulletin Officiel du Burundi) which is published on a monthly basis. There are also other institutions that have their projects of gathering of legal instruments such as Reseau documentaire de l’ Afrique des Grands Lacs, Centre d'Etudes et de Documentation Juridiques (CEDJ), Main Library of University of Burundi, Department of Judicial and Contentious Affairs of Ministry of Justice, Global Rights. As far as case law is concerned, there is no compendiums of cases as such. However, two tomes of a magazine of jurisprudence have been published in 2012 by the Supreme Court and the Centre d’Etudes et de Documentation Juridique with the support of the Belgian Technical Cooperation. In addition, some cases dealing with special issues (sexual matters) can be found in some NGO like, Avocats Sans Frontieres and Association des Femmes Juristes.

 

3.3 Judicial Structure

 

 

There is no system of compilation of cases and other judicial decisions. Each court and tribunal has its own system of keeping information and cases which can be found in the relevant court or tribunal. There have been projects of gathering national jurisprudence that have not so far yielded significant results.

 

4.  Status of International Law and Ratifications of Relevant Treaties

The Burundi constitution, unlike National Constitutions of neighboring countries, has specifically incorporated key human rights instruments. Article 19 of the Constitution provides thus:

 

The rights and duties proclaimed and guaranteed, among others, by the Universal Declaration of Human Rights, the International Covenants on Human Rights, the African Charter on Human and Peoples Rights, the Convention on the Elimination of all Forms of Racial Discrimination against Women and the Convention on the Rights of the Child are an integral part of the constitution of the Republic of Burundi.”

 

It is submitted that the provisions of article 19 of the Constitution are radical and far reaching as the main international and regional human rights instruments have the force of law, capable of being relied upon in domestic litigation and policy development. Incorporation in this case therefore amounts to domestication, and potentially makes Burundi a monist state with respect to these specific instruments. This progressive prima facie status has however not been tested in courts which may render a different opinion.

 

Treaties other than those specifically domesticated by the constitution require ratification and domestication.[33] The ratification power of the executive is further limited with respect to treaties that have the effect of engaging state resources, in which case, a specific legislation is required.[34]

 

5.  Status of Reporting

Burundi’s reporting record has been far from satisfactory. A few examples will demonstrate this assertion.  In July 2005, Burundi submitted its initial report under the Convention Against Torture, ten years later than it was expected; its initial report under CEDAW submitted on 1st June 2000 was seven years late; its initial report on the Convention on the Rights of the Child submitted on 19th March 1998 was six years late[35] while its initial report on the International Covenant on Economic, Social and Cultural right, which was due in 1992, has been submitted 21 years later, on 16 January 2013.[36] However, reporting under the International Covenant on Civil and Political Rights has been fairly timely and the International Convention for the Elimination of Racial Discrimination, quite regular.[37]

 

State implementation of Concluding Observations of treaty bodies has not been systematically pursued. While there is evidence that some of the recommendations have been partially implemented, it is also obvious that some recommendations have not been taken seriously by Burundi. This differential approach to implementation reveals a disconnection between the political commitments made by the state and the policy imperatives being pursued. For instance, it can be said that recommendations relating to women have been taken a little more seriously, while that relating to indigenous communities, particularly the Batwa, and remain in abeyance. The CERD’s concluding observation recommended thus:

 

“[that] when introducing quotas for ethnic groups, the Government also consider introducing measures, as permitted under article 4, paragraph 1, of the Convention and outlined in the Committee's general recommendation 23 on women in public life, to increase the participation of women in decision-making at all levels. It emphasizes the importance of strict adherence to principles of gender equality in all reconstruction efforts.” [38]

 

It can be said that the provisions of article 164 of the current constitution that guarantees a minimum of 30% women in the national assembly, is for instance a response to CERD’s recommendation. This contrasts sharply with the total failure by the state to implement recommendations, such as the concluding observations by the Committee on the Rights of the Child,[39] touching on indigenous minorities such as the Batwa.

 

6.  National Human Rights Institutions

Apart from the Constitutional court, whose mandate is to interpret the bill of rights,[40] the other main public institution seized with human rights protection and promotion purpose is the Ministry of Solidarity, Human Rights and Gender ( the Ministry), the creation of which is viewed as the highest level of political commitment by the government of Burundi in protecting and promoting human rights. Up-to-now, the ministry has however failed to undertake any meaningful measures aimed at promoting the constitutional provisions on human rights. Reports of abuse of rights by military forces and police are still rampant, and the existence of the ministry does not seem to have made any differences.[41] Cases of extrajudicial killings have been reported these last days by either Burundian civil society organizations, international NGOs like Human Rights Watch or the United Nations Office in Burundi (BNUB)

 

Despite this, the country has established in 2011 the National Independent Commission of Human Rights to monitor state compliance with international standards as well as constitutionally protected rights. Furthermore, the institution of an Ombudsman which is constitutionally sanctioned to receive complaints of state maladministration; including instances of human rights violations[42] is another national relevant institution that plays an important role for the sake of human rights in Burundi.

 

Moreover, even though in a mood of misunderstanding between multiple stakeholders, the Truth and Reconciliation Commission (TRC) has been established on December, 4, 2014 according to an Act of the parliament that was promulgated on May, 15, 2014. This law has got dissenting opinions from the opposition and many civil society organizations and NGOs. Among others, one can note the comments formulated by Impunity Watch a day before promulgation of the law. They were concerned with the fact that the law did not include among its key provisions, numbers of recommendations from national consultation held in 2009. According to Impunity Watch, it was regrettable that the law did not provide for judicial mechanisms to deal with international crimes as this was requested by the population.[43] Thus, they were fearing that the work of the TRC amounts to a blanket amnesty since the TRC law do not provide expressly for any use of the final report in judicial proceedings against authors of atrocities perpetrated from 1st July 1962 to 4 December 2008 nor does the TRC have linkage to any special court to be created.  That was also the concern of the UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence as reiterated by the UNIIB who viewed the mandate attributed to the TRC as a way of de-prioritization of the "truth seeking" function in favor of the pardon process.[44] Another concern expressed was about the composition of the TRC. Through national consultation, the population has expressed a desire of inclusion of foreigners[45] but the TRC does not include any member from a country other than Burundi. 

 

It is hoped that within this new framework, the Batwa in Burundi would be able to expose the atrocities they have suffered in the context of genocide.[46]

 

7. National Councils

The constitution of the Republic of Burundi has established different councils that play key roles related to some particular issues. These councils have been set up in order to allow the citizens to largely take part in management of the affair of the nation.[47] They are:

 

The National Council for Unity and Reconciliation

It is a consultative committee. Among its main tasks this council gives advices upon unity, peace and reconciliation related issues. It follows carefully Burundi society in the whole process of unity and reconciliation recovery and initiates activities aimed to rehabilitation of the traditional institution of Bashingantahe. The members of this council are nominated by the President of the Republic collaborating with the two deputy presidents. To choose them, two criterions are applied: one must be publicly known for his integrity and his high sensitivity to the welfare of the nation and its unity.[48]

 

The National Observatory for the Prevention and Eradication of Genocide, War Crimes and Crimes against Humanity

It is also a consultative committee which regularly monitors Burundi society’s evolution in terms of genocide, war crimes and other crimes against humanity related issues. This is done to prevent and eradicate the crimes in question. It also promotes the legislation against genocide, war crimes and crimes against humanity and monitors its strict implementation. This council is organized by an organic law which determines its missions, composition and organization.[49]

 

The National Council for Security

This consultative committee helps the president of the republic and the government to conceive policy in security matters, follows the country in terms of security and in conception of strategies of defense, security and the up-keeping of order in case of crises. Its members are nominated by the President of the Republic.[50]

 

National Economic and Social Council

 

With a consultative status, this corps’ competence involves all economic and social development features of the country. It must be consulted upon every development plan, environment and natural resources conservation, regional and sub-regional integration.[51]

 

National Council of Communication

This is a more technical council which, beside its consultative role, can lay decisions to promote and safeguard the free press and to allow the equal access of all opinions to public Medias.  Its members come from press milieu and news consumers.[52]

 

Te Great Council of the Judiciary (Conseil Supérieur de la Magistrature)

This council is far different from the five others listed above. Its mission is closely connected with the justice sector. The Great council of the judiciary plays a key role for a good administration of justice. This council, according to the Constitution of the Republic of Burundi, is guarantor of the independence of the judiciary. This is the upper disciplinary instance of the judiciary. It receives complaints of citizens or the Ombudsman against professional behaviors of magistrates. Also, pleas of magistrates concerning their carrier or appeals against disciplinary actions to magistrates are addressed to this council. The dismissal of magistrates for professional misconducts or incompetency can be done under the only request of this council.[53] 

 

However, the setting up of this council has been denounced as the handicap of the independence of the Judiciary. For the opinion, a council like this one cannot play efficiently its role of safeguarding the independence of the judiciary while chaired by the President of the Republic assisted by the Minister of Justice.[54]

 

8. New Developments in the Field of Human Rights

8.1. Criminal Laws and Legal Safeguards of the Accused

In 2009, Burundi has adopted a new penal code that has abolished the death penalty. It enshrines provisions against torture and other ill-treatments,[55] made a step forwards in complying with the provisions of the Rome Statute by punishing international crimes which are defined in the same way as in the Rome Statute.[56] However, this same code criminalizes the homosexuality.[57] This provision has been denounced as discriminatory and either international or local human rights organizations claimed for its withdrawal in the criminal code. In addition, the promulgation of the law n°1/14 of 18th, October 2016 on the withdrawal of the Republic of Burundi from Rome Statute establishing the ICC gives to think of regression as far as the fight against impunity is concerned.

 

Following this penal code, a reviewed criminal procedure code has been promulgated on April, 3, 2013. The code improves juvenile justice by making it an obligation to any child in conflict with the law to be provided with legal representation, by obliging in-camera hearings and by institutionalizing special chambers of children in each high court. In addition, the code integrates a lot of principles to protect human rights. Most importantly as far as legal safeguards of the accused are concerned the code enacts that “freedom is the rule and detention is the exception”. This principle has been stated in the criminal code procedure for two times[58] so to highlight how it a fundamental right of anyone to enjoy freedom. Moreover, complying with the criminal code provisions criminalizing torture, the criminal procedure code provided for nullity of procedure and any confession obtained under duress.[59] In this way, the new criminal procedure convey an intention of humanization of the criminal justice by enshrining a certain number of legal safeguards of the accused. However, it is becoming a challenge for the country to overcome violations of human rights. Several cases of arbitrary detentions that amplify the challenging overcrowding of prisons[60] continue to be observed and the practice of torture strives to be abandoned despite the provisions of the criminal code making it clear that no circumstances, including the state of war or political turmoil can justify the use of torture. 

 

While talking of torture, it should be noted that on 28 and 29 July 2016 the UN Committee against Torture undertook a special examination of Burundi under article 19, §1 of the UN Convention against Torture; Burundi being the third country, after Israel and Syria, the UN torture watchdog has ever asked to submit a special report ahead of the scheduled four years.[61] It has been done after the UN Committee against Torture received allegations that torture was widespread and systematically practiced against people who were opposed or perceived to be opposed to the third term of President Nkurunziza. These allegations were consistent with the findings of the United Nations Independent Investigation on Burundi (UNIIB) established pursuant to Human Rights Council Resolution S-24/1.

 

The UNIIB, in their final report (a report that has been rejected by Burundi Government) found that “No one can quantify exactly all the violations that have taken place and that continue to take place in a situation as closed and repressive as Burundi during the period covered by UNIIB’s mandate”.[62] Somewhere else, in the same report, in their conclusion, the UNIIB assert that they “found abundant evidence of gross human rights violations as well as human rights abuses by the Government and people whose actions can be attributed to the Government…”.[63] It can be mentioned the human rights violations found by the UNIIB include inter alia torture and other ill-treatments, arbitrary and unlawful detention as well as mass arrests, sexual and gender based violence... The Government of Burundi has however denied all these allegations which are viewed as unfair and exaggerated. 

 

 8.2 Freedom of Expression, Assembly and Public Demonstrations

In 2013, Burundi adopted a new very restrictive press law ever seen in Burundi. Here is how the 2015 FreedomHouse report described the law:

 

“The 2013 media law, which amended a 2003 version, was a serious setback for press freedom. It prescribes punishments including high fines, suspensions of media outlets, and the withdrawal of press cards for several broadly worded offenses, such as publishing or broadcasting stories that undermine national unity and public order, or that are related to issues such as national defense, security, public safety, unauthorized demonstrations, and the economy. The law also limited the protection of journalistic sources, required journalists to meet certain educational and professional standards, and increased the enforcement powers of the National Communication Council (CNC), the media regulator …”[64]

 

Following promulgation of the 2013 press law, relationships between private media and the Government worsened since number of journalists have been arrested, others called before the prosecutors for investigations purposes.

 

Without addressing the problems of constitutionality posed by the 2013 press law, the Burundi Constitutional Court on 7 January 2014, after a lawsuit filed by the Union of Journalist, only found that the process according to which fines for press offenses would be assessed was unconstitutional.[65] Unsatisfied by the decision of the Constitutional Court of Burundi, the journalists seized the East African Court of Justice (EACJ) under the Treaty of EAC. The EACJ ruled that the 2013 press law was violating the key provisions of the EAC treaty on freedom of press and expression and urged Burundi to repeal the law or amend in accordance with Burundi’s obligation under the EAC Treaty.[66]

 

Following this decision of the EACJ, the press law has been amended and new press law n°1/15 has been promulgated on 9th, May, 2015 four days before an attack with heavy weapons that destroyed four radio stations in conditions that are hitherto unclarified.  Such destruction of private radio stations has been an eloquent sign of regression in term of enjoyment of freedom of press and freedom of expression.

 

In what relates to freedom of association, assembly and public demonstrations, after the Constitution of the Republic of Burundi which guarantees those freedoms [67], the law n°1/28 of 5th, December 2013 regulates public demonstrations and assemblies. This law enounces a principle that assemblies and public demonstrations are free in Burundi without being less restrictive as such.[68] It gives strong power to administrative authorities to appreciate whether the public demonstrations or meetings would endanger public order and then decides to suspend or cancel them.[69] The undefined concept of “public order” together with these powers vested in administrative authorities have been used for several times as ground of refusal of public protests as well as meetings organized by political parties or civil society organizations; what undermined enjoyment of freedom of meetings and demonstration.

 

In addition, this law obliges any grouping wishing to conduct an assembly or public demonstrations to make a declaration to the competent authority four days before the date of the event, the time during which the competent authority will decide whether to  delay or ban the assembly or public demonstration if there is a likelihood for the events to endanger public order.[70] In another sense, a declaration to which a ban can be imposed becomes rather an authorization and such a requirement is contrary to the best practices according to which the right to freedom of peaceful assembly does not require the issuance of a permit to be held.[71] It should therefore be noted that spontaneous assemblies or demonstrations are not possible in Burundi because of the aforementioned requirements to be complied with prior to conducting an assembly or public demonstration.   

 

9. Intellectual Property Rights Protection and Administration System

As a member state of the World Intellectual Property Organization (WIPO) from 1977 [72], Burundi is progressively  modernizing its system of intellectual property rights (IPR) protection and administration. Two newly promulgated laws are the cornerstone of IPR protection in Burundi: The Law No. 1/021 of December 30, 2005, on the Protection of Copyright and Related Rights in Burundi and the Law No. 1/13 of July 28, 2009, on Industrial Property in Burundi. In order to complement protection given by these laws, a law on juridical regime of competition has been promulgated in 2010.   

 

9.1. Copyright and Related Rights Protection and Administration System

Copyrights and related rights are protected automatically with no formality in Burundi.[73] Burundi law protects both moral rights [74] and economic rights [75] of the author. The legal framework of protection of copyrights in Burundi has been strengthened by ratification, April 12, 2016, of the Berne Convention for the Protection of Literary and Artistic Works and the WIPO Copyright Treaty.

 

However, Burundi is striving to make effective the protection of Copyrights and related rights since piracy remains among the serious problems that hamper achievement of an acceptable level of copyright protection.

 

In 2011, the Government of Burundi created a copyrights and related rights office, the Office Burundais des Droits d’Auteur (OBDA). This office has among other tasks collective management of copyrights. Even though it is still facing some organic challenges, the office has started with awareness raising activities giving a hope of tracking the new era of development of Burundi cultural industry in the near future.

 

9.2. Industrial Property Protection and Administration System

The Law No. 1/13 of July 28, 2009, on Industrial Property in Burundi puts in place a comprehensive system of protection of patent, utility models, industrial designs, trademarks, geographical indications, lay out designs of integrated circuits and traditional knowledge. Inventions are protected through a formalized system of filing an application for patent or utility models. The applications are filed with the department of industrial property of the Ministry of Trade and Tourism. Other industrial property rights enjoy protection through registration system.

 

There is not yet an autonomous intellectual property office in Burundi. A new intellectual property policy is under discussion. It is hoped that this policy will comprise among other orientations creation of an Industrial Property Office.

 

As far as patent protection is concerned, it should be noted that Burundi, having ratified the Paris Convention for the Protection of Industrial Property, is not yet member of the Patent Cooperation Treaty or any regional harmonized filing system. It is waited that Burundi joins the African Regional Intellectual Property Organization (ARIPO) since it cooperates with ARIPO with a status of observer.[76]

 

Also, Burundi has not yet joined the International Trademark Protection organized by the Madrid Agreement and the Madrid protocol concerning the International Registration of Marks. Again, the country has not yet ratified The Hague Agreement concerning international registration of designs.

 

10. Additional Remarks

Actually there is a negative vision of justice that may be attributed to an ethno-political perception of the Burundian system, particularly in criminal matters. The magistrates and the police are thus first of all perceived according to their ethnic group and seen as biased in favour of it. They are perceived by opinion as working more for the benefits of the executive and the political parties than working for the goals of justice.   

 

Moreover, the formal system is severely jeopardised by perceptions of impunity and the lack of enforcement of judiciary decisions. In general, the formal judicial apparatus did not manage to deal efficiently with the crisis of 1993 and its effects.

 

One hears of people saying that the prosecution of the murders and assassinations related to the crisis concern only ‘small fish’ and the ‘big fish’ get away. Public outcry is specifically directed against cases such as the assassination of President Melchior Ndadaye, or crimes against humanity or genocide that are not dealt with even if their final settlement would have gone a long way towards restoring the rule of law.[77]

 

The impunity in Burundi is a result of the wrong ruling of the country during the last 50 years. Impunity has been denounced by all parties but in different manners according to ethnic sensibilities. In as much as the Hutu community condemns the repression that took place in 1965, 1972, 1988 and 1993, the Tutsi community also denounced the amnesty given by Buyoya following the events of Ntega and Maragara in 1988 as well as those who committed acts of genocide with the support of FRODEBU in 1993. Also ‘mob justice’ takes encouragement from the impunity for offences and crimes, and is a negation of the justice system. However, it is obvious that some judges are guilty of corruption and other abuses of office. The reconstruction and reconciliation of the communities require that all accused persons should be arrested and brought to trial.

 

Finally, it must be mentioned that the formal system is severely lacking funds. The economic sanctions on the country taking rise in the political crisis that started in April 2015 came in to worsen the situation.

 

11.  Burundi Links

Government

For further information on Burundi’s Government Institutions, Parliament, the National Commission, and Judicial courts, visit the Burundi government official site.

 

Media, News, and Information

·       Université du Burundi (History of the University, the library, research centers, etc.)

·       University of Pennsylvania Burundi Page

·       Burundi news, as well as regional news and exclusive interviews

·       Information on Burundi

·       Portail Internet sur le Burundi

·       Studio Ijambo and Radio Isanganiro (radio sponsored by Search for Common Ground-Burundi, formed with the goal of reducing ethnic conflict and encouraging reconciliation

·       Burundiyouth.com (A movement of youth that tries to understand the causes of the crisis that our country is going through. The movement is a kind of news group for those who love Burundi and look for ways to put an end to the actual situation and offer all Burundians a prosperous and peaceful country.)

·       Site for News in English and French

·       Site for the Burundi Human Rights league "ITEKA"

·       Detailed analysis of Burundian situation through different original and interactive rubrics

·       Africa news

 

Nonprofit NGOs and Foundations

·       Search for Common Ground - a NGO based in Washington, D.C. working to reduce ethnic conflict and encourage reconciliation)

·       NDI.org (a nonprofit organization which seeks to promote democratic institutions in new and emerging democracies. It has 33 pages on how to live in democracy in Burundi)

·       International Foundation for Elections Systems - IFES has a project in Burundi to support the implementation of the Arusha Peace and Reconciliation Accords (APRA) and promote community reintegration and stabilization through a sub-grant program-Burundi Initiative for Peace (BIP)

·       Human Rights Watch - This Web site has a lot of reports about Burundi - click on Info by Country - then click on Burundi

·       GenocidePrevention.org

·       United States Institute of Peace: Preventing genocide in Burundi, lessons from International Diplomacy

·       International Crisis Group

·       Woodrow Wilson International Center for Scholars

 

Economy, Business, and Trade

·       Burundi Coffee Company

·       Interbank Burundi s.a.

·       Intercontact Services s.a.

 

Churches

·       National Council of Burundi Churches

·       an Evangelical Christian Mission Agency working in partnership with the Anglican Church in Burundi, Rwanda, south-western Uganda and the Democratic Republic of Congo

 

Others

·       Site for information sharing for women

·       US Agency for International Development - USAID assistance to Burundi

·       Information by country - Burundi

 



[1] However, the definition of an ethnic group cannot be applied to the Burundian context. This because apart from Batwa ethnic group that exhibit some differences making them to be known as indigenous people, all the three groups share the same territory, the culture and language.

[2] See, Languages of Burundi, Wikipedia (accessed on March 9, 2017), https://en.wikipedia.org/wiki/Languages_of_Burundi.

[3] GDP per capita Gross Domestic product (GDP) is the sum of value added by all resident producers plus any product taxes (less subsidies) not included in the valuation of output. GDP Per Capita is Gross Domestic Product divided by mid-year population. Growth is calculated from constant price GDP data in local currency.( see source as indicated on the table above).

[4] Lewis J, The Batwa Pygmies of the Great Lakes Region 5 (2000).

[5] It is a traditional institution of elders which was handling disputes.

[6] Article 95 and 109 of the Constitution of the Republic of Burundi (2005 ).

[7] The Arusha Peace and Reconciliation Agreement for Burundi signed in 2000 under the mediation of Presidents Nyerere and later Mandela provided the link during the period of constitutional crisis in Burundi. See for instance here (assessed 20-2-2007).

[9] Article 129 of the Constitution of the Republic of Burundi (2005).

[10] Article 147 of the Constitution of the Republic of Burundi (2005). Oversight of exercise of presidential power is another function of parliament.

[11] Article 158 of The Constitution of the Republic of Burundi (2005).

[12] Article 159 of The Constitution of the Republic of Burundi (2005).

[13] Article 161 of The Constitution of the Republic of Burundi (2005).

[14] One can refer to the preamble of the Constitution of the Republic of Burundi (2005).

[16] The bill related to inheritance has been submitted to the Parliament from 2005, no decision has been yet taken upon.

[17] Ntahombaye, PhD. and Kagabo, L, ‘Mushingantahe Wamaze Iki? –The Role of the Bashingantahe during the crisis’, University of Burundi (2003).

[18] Promulgated pursuant to article 205 para.3 of the Constitution of the Republic of Burundi (2005).

[19] This the basic administrative unity.

[20] The Law N°1/02 of 25th January 2010 revising the Law N°o1/ 016 of 20th April 2005 on the Organisation of Communal Administration.

[21] Article 11 of the Code of Organization and Judicial Competence of 17 March 2005.

[22] Article 228 of the Constitution of the Republic of Burundi (2005).

[23] Article 234 of the Constitution of the Republic of Burundi (2005).

[24] Law N°1/36 of 13th December 2006 creating the Court Against Corruption.

[25] Article 14, Law n°1/26 od 15th September 2015 on the special court of land and other properties and the procedure applicable before it; accessible at http://presidence.gov.bi/IMG/pdf/loi_1_26_du_15-09-2014.pdf.

[26] Article 3, Ibid.

[27] While there is no explicit provision to on the supremacy of the constitution, the same can be inferred from article 228 of the constitution, which empowers the constitutional court to determine the constitutionality of laws and regulatory Acts. It is thus assumed that inconsistency with the constitution will invalidate the other laws, which by parity of reasoning rank lower than the constitution.

[28] Article 159 of the Constitution of the Republic of Burundi (2005).

[29] Article 292of the Constitution of the Republic of Burundi (2005).

[30] Article 290 of the Constitution of the republic of Burundi (2005).

[31] Article 160 of the Constitution of the Republic of Burundi (2005).

[32] Article 160 of the Constitution of the Republic of Burundi (2005).

[33] Article 292of the Constitution of the Republic of Burundi (2005).

[34] Article 129of the Constitution of the Republic of Burundi (2005).

[35] See here (assessed on 20-4-2007) for information on Burundi’s reporting under various treaty bodies.

[37] The initial report under ICCPR was submitted on time on 4th November 1991 while the 7th and 8th Report under ICERD was submitted on 9th March 1994.

[38] Concluding Observations of the Committee on the Elimination of Discrimination Against Women : Burundi. 02/02/2001.accessed from here (assessed on20-4-2007).

[39] Concluding Observations of the Committee on the Rights of the Child: Burundi. 16/10/2000 CRC/C/15/Add.133. (Paragraph 77 & 78).

[40] Article 228 of the Constitution of the Republic of Burundi (2005).

[41] See Lemarchand R, Burundi’s Endangered Transition (2006) here (assessed 20-2-2007).

[42] The office of the Ombudsman is established by article 237 to receive complaints of administrative maladministration, including human rights violations.

[43] Impunity Watch, Press Release of May, 14, 2014 which can be accessed at http://www.impunitywatch.org/docs/IW_Communique_de_Presse_CVR.pdf.

[44] A/HRC/33/37, p. 17.

[45] 77% of the population consulted supported this idea. See Rapport des consultations nationales sur la mise en place des mécanismes de justice transitionnelle au Burundi, p.73.

[46] Batwa victimization in the context of the genocide has been documented by Minority Rights Group International, among others. See for instance here (assessed 30-2-2007).

[47] Article 268 of the Constitution of the Republic of Burundi (2005).

[48] Articles 269-273 of the Constitution of the Republic of Burundi (2005).

[49] Articles 274-276 of the Constitution of the Republic of Burundi (2005).

[50] Articles 277-279 of the Constitution of the Republic of Burundi (2005).

[51] Articles 280-283 of the Constitution of the Republic of Burundi (2005).

[52] Articles 284-288 of the Constitution of the Republic of Burundi (2005).

[53] Articles 210-212 of the Constitution of the Republic of Burundi (2005).

[54] About the presidency of the Great Council of Justice, see the Article 219 of the Constitution of the Republic of Burundi (2005).

[55] Article 204 to 209 of the penal code of Burundi (2009).

[56] Article 195 to 203 of the penal code of Burundi (2009).

[57] Article 567 of the penal code of Burundi (2009).

[58] Article 52 and Article 110 of the Criminal Procedure Code (2013).

[59] Article 180, §2 of the Criminal Procedure Code (2013).

[60] The occupation of prisons is rated over 200% of the regular welcoming capacity of all the 11 prisons.

[63] A/HRC/33/37, p.19.

[65] Decision of the Constitutional Court of Burundi of 7 January 2014, pp.10,12.

[66] Burundian Journalists’ Union vs. the Attorney General of the Republic of Burundi, Reference No. 7 of 2013, http://lawyersofafrica.org/wp-content/uploads/2015/02/Ref.-no-7-of-2013-Burundi-Journalists-v.-The-Attorney-General-of-Burundi.pdf.

[67] Article 32 of the Constitution of the Republic of Burundi (2005).

[68] Article 1, Law n°1/28 of 5th, December 2013.

[69] See inter alia, article 4 §4; article 8 §2in fine, article 10 §1, Article 12 § 3.

[70] Article 4 and Article 7.

[73] Article 3§2 of Law No. 1/021 of December 30, 2005, on the Protection of Copyright and Related Rights in Burundi (2005).

[74] Chapter IV of Law No. 1/021 of December 30, 2005, on the Protection of Copyright and Related Rights in Burundi (2005).

[75] Chapter V of Law No. 1/021 of December 30, 2005, on the Protection of Copyright and Related Rights in Burundi (2005).

[77] Ntahombaye, Ph. and Kagabo, L as above.