News

Contra Nocendi welcomes investigation into Burundi

 

Contra Nocendi International was happy to learn about the decision to authorize a formal investigation into the situation in Burundi by the Pre-Trial Chamber III of the International Criminal Court (ICC) on 25 October 2017. Given that over 400,000 Burundians have been displaced, and over 1,000 have reportedly been killed, there is a very clear need for the people of Burundi to get answers with regards to what has happened. We truly hope that the victims of the alleged atrocities finally get their delayed justice.

 

While we welcome this development, we must stress that this is still only the beginning of what could be a very long and difficult process. The Court does not have a cooperation agreement with the Republic of Burundi. It is questionable as to what extent Burundian domestic law expressly grants security forces the authority to cooperate with any investigation. The international community must stand firmly behind the Office of the Prosecutor and encourage cooperation on the part of the Government of Burundi. Another element of the difficulties with this process is that victims and their loved ones may have to re-live their trauma. While this may ultimately lead to more answers and justice, we must always be mindful of the additional suffering that re-living trauma of this nature can have. We hope to see sufficient resources allocated in support of the victims.

 

We must also stress that the presumption of innocence must be maintained and respected at all times for any persons who face charges before the Court. The process must be fair, and additionally must fully embrace international human rights law and protections afforded to accused persons under international criminal law.

 

Contra Nocendi International will continue to monitor the situation in Burundi and the process before the ICC. Our hearts continue to go out to those who have needlessly suffered through the events in Burundi. We look forward to the day that the people of Burundi get the answers they deserve.

 

 

 

Contra Nocendi marks 10th anniversary of Katabazi judgement

 

Contra Nocendi on Wednesday November 1, marked the 10th anniversary of the judgement handed down by the East African Court of Justice in the case of James Katabazi & 21 others v Secretary General of the EAC and one other. This judgement was a key turning point in providing greater access to justice in the East African Community for human rights abuses.

 

The Court in Katabazi recognized its jurisdiction to matters indirectly related to human rights. While Article 27(1) restrains the Court from dealing with matters of human rights until the jurisdiction is vested in the Court via Article 27(2), however the Court held that:

“While the Court will not assume jurisdiction to adjudicate on human rights disputes, it will not abdicate from exercising its jurisdiction of interpretation under Article 27(1) merely because the reference includes allegation of human rights violation”. This opened the door for greater access to justice for human rights abuses in the East African Community.

 

While we mark this important decision and the wisdom of the Court in handing down this precedent, we must reflect upon the fact that 10 years later, the East African Community has yet to vest jurisdiction over human rights issues directly with the Court. The Partner States must take action and show that their commitments in the EAC Treaty to the African Charter on Human and Peoples’ Rights, and to the rule of law were not empty words. We at Contra Nocendi, urge the Partner States of the East African Community to put the necessary protocol into force to vest jurisdiction with the Court.

Notice of withdrawal of Burundi from the ICC comes into force

 

Contra Nocendi International is greatly saddened by the fact that the withdrawal notice of Burundi from the International Criminal Court (ICC) has come into effect, and all signs suggest that the Office of the Prosecutor will not be opening a formal investigation into this development in Burundi. We are heartbroken for the people of Burundi for many reasons. In particular, we feel that they deserve answers – they need to know what are the implications of this development on the protection of human rights within the country.  This is indeed a sad day for international justice and for the ICC itself.

 

Given that there has been no evidence so far that the government of Burundi has any intention of conducting an independent and transparent investigation into the current crisis, it does appear that the international community is permitting impunity for the horrific acts that have taken place. We hope that is not in fact the case. Over 400,000 Burundians have fled their homeland and many more have been internally displaced. Many human rights defenders, including our own friends and colleagues, have been forced to flee. Burundians of all political affiliations have suffered as a result of the situation. They all deserve better. We will continue to monitor developments over the next few days or weeks. We remain hopeful that the response we seek for the people of Burundi will be forthcoming, sooner rather than later.

 

 

Timeline of the withdrawal of Burundi from the ICC

  

Access to medical care in detention

 

 

The conditions in places of detention in some African countries are still far from being up to par with international human rights standards. One of the issues often encountered is the lack of proper medical care. Proper medical care would require an effective medical system, complete with qualified professionals, sufficient medical effective, accurate diagnosis and treatment, along with the respect of individuals’ consent to any medical procedure. The role of the State in providing medical care is even more crucial in places of detention as detainees’ well-being and health depends entirely on the authorities.

 

The African Commission on Human and Peoples' Rights clearly stated that denying access to medical care in places of detention constitutes a violation of both article 16 and article 5 of the African Charter. The communications dealing with the topic established the obligations placed by both articles on the State Parties. However, despite an effort from the Commission to bring a legal response to a complex problem, evident shortcomings undermine its efforts.

 

A) Medical care and article 16

 

The denial of health care has been established as a violation of article 16 by the Commission in several of its communications. In Media Rights Agenda, constitutional Rights Project, Media Rights Agenda and Rights Project v Nigeria (Media Rights Agenda), the Commission stated that States shall take the necessary measures to protect the health of their people and ensure that they receive medical attention when they are sick[1]. The Commission has made it clear that this responsibility is heightened in cases of detention as the integrity and well-being of the individual are completely dependent on the activities of the State[2]. In all the communications dealing with the issue, the findings were fairly similar.

 

The only communication that particularly stands out is the Purohit and Moore v Gambia (Purohit) communication as it deals with mental disabilities. In Purohit, the Commission stated that the right to health includes the right to health facilities, and access to goods and services to be guaranteed to all without discrimination of any kind.

 

Purohit dealt with the Lunatics Detention Act (LDA), a legislation governing mental health in Gambia, which was considered outdated, discriminatory and arbitrary in the way it regulated the detention of mentally disabled individuals. The legislation was enacted in 1917 and last reviewed in 1964. It did not offer any definition of the term “lunatic” except for “idiot or person of unsound mind”. The legislation did not specify any means of appeal or enough safeguards against abuse for people identified as “lunatics”.

 

In response, the communication emphasized the need to establish special treatment and conditions when dealing with people with mental disabilities, allowing them to maintain an optimum level of independence. The Commission added that mental health care should include an analysis and diagnosis of a person’s mental condition, the treatment of that mental condition and the rehabilitation of a suspected or diagnosed person with mental health problems[3]. All three elements that the Gambian government failed to provide.

 

Overall the Commission seems to emphasized the importance of the right to health which it considers a prerequisite to the realisation of other rights.

 

B) Medical care and Article 5

 

The denial of health services does not only constitute a violation of article 16 but has been held several times by the Commission as violation of article 5 of the African Charter. In all of its communications where the question was brought up, the Commission had no trouble recognizing that denying access to medical services to a detainee qualify as a cruel, inhuman or degrading punishment or treatment.

 

For the Commission the terms cruel, inhuman or degrading punishment or treatment have to be interpreted as to extend to the widest possible protection against abuses, whether physical or mental and therefore includes conditions of overcrowded prisons, beatings and other forms of physical torture, such as deprivation of light, insufficient food and lack of access to medicine or medical care[4].

 

Furthermore, the access to medical services is viewed by the Commission as an element of the protection of individuals against torture, cruel, inhuman and degrading punishment or treatment in places of detention. It stems from the dual obligation imposed by article 5 on State Parties. They should not only refrain from using torture and ill-treatment but also according to the Commission, take positive measures to effectively prevent it.

 

Hence, the necessity for State Parties to adopt certain safeguards such as access to counsel, courts and medical personnel. It is a key element of the protection of detainees as it brings accountability and ensures the inadmissibility of evidence obtained through torture[5].

 

C) Remarks

 

As it appears from the Commission’s communications, a lack of medical care in places of detention can engage the State parties’ responsibility under both article 5 and article 16 of the African Charter. The Commission does not seem to hesitate to conclude to a violation of either or both articles when a detainee is denied medical care.

 

It seems, furthermore, that the Commission attaches a great importance to the right to health and strives to emphasize it in its legal practice. However, and albeit its effort, clear shortcomings make the identification of real standards applicable to health-care in places of detention difficult. The low number of legal cases dealing with this question makes it difficult to establish a definite pattern. The cases are also fairly similar when it comes to the issues raised. This lack of diversity leaves several questions without answers. For example, it appears that the question of unwanted medical procedures has yet to be tackled by the Commission.

 

Cover image credit: MSF

 

[1] 105/93-128/94-130/94-152/96 Media Rights Agenda, Constitutional Rights Project, Media Rights Agenda and Constitutional Rights Project v Nigeria, October 31, 1998, para 89.

[2] 137/94-139/94-154/96-161/97 International PEN, Constitutional Rights Project, Civil Liberties Organization and Interights (on behalf of Ken Saro-Wiwa Jnr) v Nigeria, October 31, 1998, para 112.

 

[3] 241/01 Purohit and Moore v Gambia (The), May 29, 2003, paras 81 and 82.

[4] 292/04 Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, May 22, 2008.

[5] 334/06 Egyptian Initiative for Personal Rights and Interights v. Egypt, March 3, 2011.

Corruption in Burundi

 

Burundi has not been spared the plague of corruption on the African continent, as it has positioned itself for many years in the group of the most corrupt countries in the world (in 2016, it placed 159th out of 175 countries assessed)[1]. These findings are confirmed by reports from many institutions from across the across the globe that investigate the incidence of corruption. For example, Transparency International (TI) declared Burundi to be the most corrupt country in East Africa, according to its most recent international report on Africa (2015)[2].

 

It is fair then to wonder if and to what extent this corruption spreads to the judicial system?

 

Judicial corruption

 

As has been reported by Human Rights Watch (HRW) in many of its reports, "the police and the judiciary have the highest rates of bribery." This is to be compared with the aforementioned TI report, which also advances that the police and courts rank really high on the corruption scale[3].

 

Regarding police corruption, many Burundians stress the fact that the some of the police accept bribes or money to arrest innocent people[4], or to free up convicts who were found to have committed offences or crimes. And within the judiciary, corruption can be evidenced by court officials and judges influencing verdicts, putting files ahead, freeing up convicts, or not executing judgments[5].

 

Corruption in the judicial system is not unknown to the government itself[6]. Indeed, in 2006 the Minister of Justice and Attorney General admitted it himself. Following his declaration, many legislative measures were taken to fight this phenomenon – both within the public as well as the private sector. Such measures included the creation of an anti-corruption court as well as an anti-corruption brigade. Some 10 years later, the incidence of judicial corruption remains apparently unchanged, as the new Minister of Justice admitted in 2016. He identified the main culprits as magistrates of the residence courts, administrative courts, labor courts, as well as ironically, those also from the anti-corruption court.

 

In effect, it is a pity to notice that cases of corruption occur within the institutions that are meant to best guarantee justice and security for citizens. Because of these occurrences, even though not constant, the population is negatively affected, as their trust in the police or justice system gets increasingly eroded. This can actually present a danger, as the assumption that all police or courts are corrupt can emerge. These perceptions and suspicions towards the judicial and police entities can consequently nourish the phenomena of corruption, as certain citizens – now convinced that all are corrupt – can start ‘using’ the latter to their advantage, further perpetuating the corruption.

Besides the disastrous consequences that corruption has on society in general, including on social cohesion, it is interesting to assess the implications of judicial corruption on those that are primarily affected – convicts.

 

Consequences of corruption on convicts' rights

 

The main consequence of this judicial corruption is the fundamental violation of human rights and freedoms. The simple fact of incarcerating innocent people in exchange for bribes is an abuse of the rights emanating from all[7]. From this come the feelings of injustice that falsely detained prisoners have from being refused hearing from judges, or being denied judicial investigation or access to proceedings by a corrupt police or prosecutor.

 

Another consequence is the fact that corruption can limit and make justice hard to reach, and somehow prohibitive for prisoners. Indeed, for detainees, this invariably means that they are not in a position to pay the bribe that would have made them free. Indeed, many HRW reports have collected testimonies where magistrates ordered convicts freed in exchange for bribes[8]. Hence, as Charles Nguini expressed and rightfully so, “when judicial systems are corrupt, everybody loses. Particularly the most impoverished, that find themselves forced to pay bribes when they cannot afford them”[9].

 

Corruption then also affects the prison environment, where only those convicts with means can make their cases move forward or obtain ‘preferential’ treatment from corrupt guards. The incarcerated persons may not therefore be the most criminal inmates but rather the most impoverished.

 

From a human rights’ perspective, the principle of equality for all is completely undermined, considering the fact that only those who are well off would be able to guarantee their own freedom when confronted with corruption. In addition to the violation of both principles of equality and freedom – rights granted to all – Burundian convicts that are victims of corruption can see their rights to the presumption of innocence, to an independent and impartial tribunal, along with not to be arbitrarily arrested and detained, be taken away. The condition of human rights is therefore truly affected by the practice of corruption in Burundi.

 

Concluding remarks

Corruption is like gangrene, which affects the entirety of any state system: from the economical to the political, and through to the social and judicial aspects. In particular, judicial corruption “brings about impunity and undermines the rule of law” [10]. In the case of Burundi, the government is aware of judicial corruption and is trying to fight the issue, even though improvements still remain to be seen. More measures should be implemented in order to remedy to the problem at hand and avert its many consequences – the main victims of this being Burundian citizens. Indeed, the latter see their freedoms being taken away when incarcerated, or their condition of life impoverished as they give away their meager resources to secure ‘protection’ through bribes. From a judicial point of view, many rights are undermined, such as the right to presumption of innocence and to an independent and impartial tribunal.

Corruption has consquences that go way beyond what we may think of, even more so when considering it from the human right’s perspective. Another important aspect to consider is the effect an  ‘endless circle’ of corruption provokes. Corruption is not an institutional problem but rather one created at the individual level. As more cases of corrupt police or courts go unreported, indeed citizens engaging with these institutions might use the phenomena of corruption to get out of trouble, therefore making the personnel corrupt, and in turn reinforcing and propagating the practice of corruption within Burundian society.

 

 

 

[1] https://tradingeconomics.com/burundi/corruption-rank

[2] https://www.transparency.org/news/pressrelease/20111020_EABI

[3] http://www.corruptionwatch.org.za/wp-content/uploads/2015/12/Africa-survey-2015-Global-Corruption-Barometer.pdf

[4] https://www.hrw.org/fr/report/2007/03/15/un-lourd-fardeau-porter/les-violations-des-droits-des-enfants-en-detention-au

[5] http://burundinews.fr/actualites/enquetebonnegouv.pdf

[6] https://www.uantwerpen.be/images/uantwerpen/container2143/files/DPP%20Burundi/Pouvoir%20judiciaire/Politques%20sectorielles%20Minijust/Polit_Sector_2006-2010.pdf

[7] http://sostortureburundi.over-blog.com/2017/02/rapport-n-63-de-sos-torture/burundi-publie-le-25fevrier2017.html

[8] https://www.hrw.org/fr/report/2010/03/26/la-justice-populaire-au-burundi/complicite-des-autorites-et-impunite

[9] https://www.transparency.org/news/pressrelease/20071002_la_corruption_dans_les_systemes_judiciaires_engendre_limpunite

[10] id.

The Role of Police and Security Operations in the Protection and Promotion of Human Rights

International human rights law is binding on all States and it is incumbent upon the States to ensure the protection and promotion of all human rights. Under international human rights law, the obligations of States involve the duty to respect, protect and fulfil human rights obligations and ensure non-discrimination[i]. This signifies that the State should refrain from interfering with the enjoyment of human rights, prevent others from interfering with the enjoyment of said rights, and adopt appropriate measures towards the realization of same. Police and other security operations as law enforcement officials form one group of State actors who are expected to observe these State obligations under international law. The rule of law is the foundation of the protection of human rights which begins with the adaptation of national legislation to acceptable human rights standards. Key institutions such as the police and army represent the responsibility of the State to uphold this rule of law.

Law enforcement officials are an important element of the promotion and protection of human rights in any given State. Not only are they required to actively put an end to situations of abuse of human rights, they also have the duty to investigate human rights abuses and to seek justice for the victims. Although they are often heavily criticized for violations of which they may be guilty, they are also the source of solutions as one of their primary functions is to guarantee the rights of every individual. They also play an important role in the justice system; when violations occur, they initiate and conduct investigations and sometimes have to implement judgements taken against perpetrators of human rights violations.

Law enforcement officers ensure security and public order; their mission is to prevent the commission of offences and violations of the rights of persons. The judiciary and law enforcement ensure the compliance of the law and work to guard the rights, integrity and property of individuals. They carry out investigations to verify violations of human rights and can perform arrests and detentions where possible to serve the purpose of justice.

Law enforcement officials are a key factor in the administration of justice. Their work encompasses preventive and protective roles in the course of maintaining law and order. They could play a positive role in the protection of human rights in the following ways:

-                 contribute to the liberty, equality and fraternity in human affairs;

-                 reconcile freedom with security and uphold the rule of law;

-                 uphold and protect human rights of the citizens;

-                 build up the faith of the people in their protection of human rights by the State;

-                 investigate, detect and prevent offences; and

-                 understand the human rights in true spirit and uphold them[ii].

However, in most parts of the world, law enforcement officials also demonstrate the most obvious disregard for human rights. The most flagrant cases of torture for example take place while the victims are under police custody or whilst being incarcerated in prisons. Everyone has the responsibility to uphold the rule of law and this does not exclude State agents like the police or military. At all times, they have the responsibility to uphold necessary human rights standards except in certain situations provided for by the law. Factors such as corruption, impunity and lack of accountability contribute to police and military abuse where there is a lack of adequate safeguards to check human rights violations from legal mechanisms.

In the light of recent events in Cameroon on the 1st of October 2017, there have been allegations of misconduct and arbitrary killing of peaceful protesters in various places in the South-West and North-West regions of Cameroon, protesting the ill treatment of the anglophone minority in Cameroon. There are also allegations of military persons breaking and entering houses and assaulting persons amongst other things. Situations like these may cause one to ask the question to know if the notion of human rights which the police and military have is different from what everyone else believes them to be. They are most prone to trampling upon human rights. This usually demonstrates a poor understanding of human rights standards and their implementation especially in situations of emergency. Even though limitations to certain human rights are possible, they are only permissible by the limitations specified within the right itself, by law or in times of emergency. Any use of power or authority by State agents must pass the tests of legality, necessity, proportionality and accountability.

For the fundamental role law enforcement officials play in the protection and promotion of human rights to be evident, it is the duty of the State to seek solutions to the problem of human rights abuses by these legal mechanisms, to check irresponsible actions and impunity. This could be by setting up a system, which holds every agent accountable for their actions, in normal times or in times of crises. The State also has the duty to prevent violations perpetrated by their agents by ensuring that they have a good grasp of both national laws and international laws. They also need to acquire and maintain skills and techniques to ensure an adequate and constant application of requirements laid down by law to be able to respect and protect individual rights and freedoms[iii].

 

 

[i] OHCHR. 2004. Human Rights Standards and Practice for the Police. United Nations Publication

[ii] CLEEN Foundation. 2009. Review of the Nigerian Police Act, 1943. Cleen Foundation

[iii] ICRC. 2014. To Serve and Protect. Human Rights and Humanitarian Law for Police and Security Forces. ICRC Publication

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