Contra Nocendi views on recent commission of inquiry report on Burundi

 

 

Introduction

The latest report of the UN Commission of Inquiry on Burundi, released on September 4th 2019, denounces a situation of increased political violence in the country since the 2018 referendum which allowed President Pierre Nkurunziza to run again for office and extended the presidential mandate.[i] Severe human rights violations have occurred in the country since 2015, when protests started as a reaction to Nkurunziza’s decision to run for a third term in office. Still, the current frequency of abuses appears to be the highest in four years and it is likely to increase as the 2020 elections approach.

 

Most of the human rights violations which are reportedly taking place in the country are essentially political in nature and occur in a climate complete impunity. The rights which have predominantly been affected by the violence and disregard for the human rights norms have been the right to life, the right to liberty and security of person, the right not to be subjected to torture and inhumane or degrading treatment. Episodes of sexual violence have also been denounced, and the premises for the realization of fundamental rights such as freedom of speech and association have been severely undermined.

 

The victims of the violations are often members of the opposition of individuals accused to be. In particular, members of the CNL (Congrès National pour la Liberté), have been heavily targeted since the registration of the party in February 2019. Depriving individuals of their liberty or committing acts of violence against them on the basis of their political ideas or affiliation to a political parties are not only violations of the principle of non-discrimination, and can amount to human rights violations per sé, but also undermine the right to participate in the political process.

Still, human rights violations have also occurred against family members of real or alleged members of the opposition, and individuals accused of having voted ‘no’ at the 2018 Referendum. At the same time, human rights defenders remain major targets of violence.

 

Both the UN Commission of Inquiry and different international organizations have identified members of the Imbonerakure, the youth wing of the ruling CNDD-FDD party, the National Intelligence Services, and local government officials as the main perpetrators of the acts of violence. Fear and lack of trust in the notably dysfunctional judicial system lead victims to be reluctant to bring complaints, making achieving justice even more complicated.

 

Contra Nocendi International has been working to provide support for individuals deprived of their liberty through its treatment in detention monitoring work and access to counsel programming. However, the current situation in Burundi threatens the possibility of carrying out this type of activities which would highlight the lack of procedural guarantees of access to counsel for individuals in detention as well as the conditions in which individuals are detained.

 

Arrests and Detention in Burundi

In recent months many individuals have allegedly been arbitrarily arrested and detained in Burundi. In most cases the families of the victims have not been informed of the whereabouts of their relatives and the grounds on which such deprivations of liberty have occurred remain unclear. Members of the CNL have been arrested under the accusation of organizing illegal meetings, while it appears that others have been arrested either because accused of being part of the opposition or of having opposed the 2018 referendum. Testimonies suggest that the arrests have been carried out by the police, the National Intelligence Service, the Imbonerakure and administrative officials. After being arrested, individuals are often allegedly detained by the police od the National Intelligence Service either in official or unofficial places of detention.

 

Access to Counsel

In most cases of detention, one of the basic procedural guarantees for individuals deprived of their liberty, access to legal counsel, is not adhered to. The right to access to legal counsel is a fundamental human right and it constitutes a basic requirement to be fulfilled for the right to liberty and security of person of individuals deprived of their liberty to be fulfilled.

 

Article 14 of the International Covenant on Civil and Political Rights specifies that ‘in the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (…) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing’.[ii] Similarly, Article 7 of the African Charter on Human and People’s Rights indicates that ‘every individual shall have the right to have his cause heard’[iii] and that this comprises ‘the right to defence, including the right to be defended by counsel of his choice’[iv]. The UN Human Rights Committee, a body of independent experts monitoring the implementation of the ICCPR, has indicated that the right to access to counsel requires that the individual is able to meet with a legal counsel in conditions that respect confidentiality and that counsel should be able to advice the individual without any interference or external pressure.[v] The Human Rights Committee has further specified that access to counsel is a requirement to be fulfilled for any detention to be legal and that, as a result, failure to ensure such guarantee can result in a violation of the right to liberty and security of person guaranteed by Article 9 ICCPR.[vi] Such right is also guaranteed by Article 6 of the African Charter on Human and Peoples Rights.

According to the testimonies provided by individuals arrested and detained and/or their families, the individuals deprived of their liberty not only are not granted access to counsel, but in most cases, they are not even informed of the criminal charges brought against them, or their detention is kept secret altogether. Still, even when official charges are raised, access to counsel is often denied or the work of counsel is obstructed by the authorities. Such acts constitute clear violations of the provisions described above and further contribute to undermining the right to a fair trial in a situation in which an independent judiciary is absent.

When an individual is detained by official authorities such as the state police or the National Intelligence Service, and he or she is denied access to counsel, the responsibility for such violation directly falls on the state as the obligation to respect such right, which means refraining from restricting its exercise, falls on all the branches of government and public authorities.

 

Treatment in Detention

A large number of individuals arrested and detained in Burundi has allegedly been subjected to physical and psychological violence while in detention including acts that may amount to torture. According to testimonies such acts have often occurred in unofficial detention facilities and have also taken the form of sexual violence. Allegations have been raised that in some instances such acts have led to the death of the victims.[vii]

 

Individuals deprived of their liberty, especially those arbitrarily deprived of their liberty, are particularly vulnerable to becoming victims of torture and other inhumane and degrading treatment. The Convention Against Torture guaranteeing the right not to be tortured, defines torture as ‘any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity[viii]. The right not to be tortured or subjected to inhumane or degrading treatment or punishment is further guaranteed by Article 7 ICCPR and Article 5 of the African Charter on Human and Peoples Right. Moreover, Article 10 ICCPR specifically focuses on the right of individuals deprived of their liberty by indicating that ‘all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person’[ix]. The Robben Island Guidelines constitute another important instrument protecting the right not to be tortured or subjected to inhumane or degrading treatment of individuals deprived of their liberty by providing indications to African States on how to meet their international obligations under the instruments described above.[x]

 

According to reports and testimonies, individuals arrested and detained either by the police, the National Intelligence Service, the Imbonerakure or other administrative officials, have been subjected to acts of extreme physical violence such as beatings and sexual violence. Such acts have allegedly been carried out either as a form of punishment for being accused of having politically opposed the government, or as a way to extract confessions for the purpose of trials. The 2018 UN Commission of Inquiry Report has in fact denounced that judges often use ‘confessions made under torture as a basis for convicting defendants’.[xi] It emerges that these acts not only amount to a violation of the right to be treated with humanity and respect, but also of the right not to be subjected torture as defined in the Convention Against Torture.

As discussed above, when official authorities commit acts amounting to a human right violation, the state is directly responsible for violating such rights. Thus, in a situation in which the National Intelligence Service agents, the police, or other official authorities commit acts amounting to torture the state is to be considered responsible.

 

On the other hand, the Imbonerakure members, which are allegedly responsible for a large number of acts of violence amounting to torture, are not state officials. Nevertheless, it has been broadly reported that Imbonerakure members often acts under the instructions of state agents which exercise effective control on them.[xii] In these circumstances, the state is directly responsible for any act constituting a human right violation carried out by the members of the youth group. Still, even when the Imbonerakure is not acting under state agents’ control, there are grounds for the state to be considered responsible of violating the rights of the individuals by failing to ensure the right. In fact, under International Human Rights Law, and in particular the ICCPR, the state must not only refrain from violating the rights guaranteed through the actions of its agents but also take all the appropriate steps and measure to ensure that the right is not violated.[xiii] A failure to do so creates responsibility. In Burundi the Imbonerakure has been openly supported by the government and no significant action appears to have been taken to restraint its members from carrying out acts of violence despite the extremely high number of allegations. It thus appears that even in situations in which the state has not directly violated the right not to be tortured or subjected to inhumane or degrading treatment or punishment, it has nevertheless violated it by failing to take measures to ensure it. This is further suggested by the fact that no investigations appear to have been opened on cases of alleged torture carried out either by Imbonerakure members or state officials. The duty to investigate is one necessary measure which the state must take to ensure the rights.

 

Conclusion

Contra Nocendi International is extremely worried by the continuous human rights violations to which individuals deprived of their liberty are subjected. Individuals deprived of their liberty are often subjected to torture and other inhumane or degrading treatment while lacking access to basic procedural safeguards such as access to counsel. These constitute severe human rights violations which must stop and on which the government of Burundi must ensure that investigations are opened. The government further needs to provide remedies for the victims of human rights violations which is one of its duties under International Human Rights Law.

Still, the reports of the UN Commission of Inquiry on Burundi and the information received from our partners on the ground raise serious questions on the government of Burundi’s respect for its obligations under International Human Rights Law. The continuous perpetration of violations in a climate of impunity carries the potential of fuelling tensions ahead of next year’s elections and strains the possibility of a fair and impartial election.

 

 

 

 

[i] Human Right Council ‘Report of the Commission of Inquiry on Burundi’ (6 August 2019) UN Doc A/HRC/42/49.

[ii] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR), art 14(3)(b).

[iii] African Charter on Human and Peoples' Rights (Banjul Charter) (adopted 27 June 1981, entered into force 21 October 1986) OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58, art 7.

[iv] Ibid.

[v] UNHRC ‘General Comment 32 on article 14 of the International Covenant on Civil and Political Rights on the right to equality before courts and tribunals and to a fair trial’ (23 August 2007) U.N. Doc. CCPR/C/GC/32 (2007) para 70-71.

[vi] UNHRC ‘General Comment 35 (2014) on article 9 of the International Covenant on Civil and Political Rights, on the right to liberty and security of person’ (16 December 2014) UN Doc CCPR/C/GC/35.

[vii] BBC, ‘Burundi: Inside the Secret Killing House’. Available at: https://www.bbc.com/news/av/world-africa-46428073/burundi-inside-the-secret-killing-house

[viii] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) UNGA Res 39/46, art 1.

[ix] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR), art 10.

[x] To learn more about the Robben Island Guidelines: https://www.contranocendi.org/index.php/en/news-press/217-the-importance-of-the-robben-island-guidelines

[xi] Human Right Council ‘Report of the Commission of Inquiry on Burundi’ (8 August 2018) UN Doc HRC A/HRC/39/63.

[xii] Human Right Council (n i).

[xiii] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR), art 2.