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Paying a steep price for same sex relations in Burundi

 

 

In 2009, Burundi joined the list of countries that criminalize sexual relations between consenting adults of the same sex. Legislation number 1/05, article 567 of the penal code states that from 22 April 2009, “anyone who has sexual relations with a person of the same sex is punishable by 3 months to 2 years in prison or a fine of BIF 50 000 to 100 000 or one of these sentences only”. Sadly, this evidences the non-existence of protection of the rights of the LGBT community within the Burundi legislative system, especially regarding the right of non-discrimination.

 

Everyday life

Ironically, following the 2009 proposition, a protest gathering over 10,000 people was organized by the political party in power, the CNDD-FDD, to show their support for the criminalization of homosexuality[1]. The protesters’ chants and slogans referred to homosexuality as a “crime” [2]. This popular movement only amplified the existing tensions towards the LGBT community. Contra Nocendi International's Advocacy Associate for Burundi, Maylis David believes the organization of this protest by politicians reiterated their divisive rhetoric and somehow validated and fed already existing homophobic tendencies in the country. Ever since the legislation was adopted, insults, threats, acts of violence and discrimination became the daily experience of members of the LGBT community – these actions thus being sanctioned. This is because the individuals perpetuating these homophobic acts no longer have to fear legal repercussions, as the 2009 law gives them the right.

 

Testimonies collected by Human Right Watch[3] highlighted the plight of gay Burundians. One victim revealed how their own parents or neighbors would subject them to severe beatings, how they would get evicted from their apartments, or how they would get fired from their jobs. In the rural areas, discriminatory acts are even more intense, and according to MUCO – an organization advocating for LGBT rights in Burundi - “the pre-conceived idea that homosexuality is a phenomenon brought about by the white colonizers is still very much alive” [4].

 

Since 2009, another NGO MOLI[5] has recorded and documented many cases of discrimination, arrests, abuses, threats and corruption directed at the LGBT community. It is important to note that for the penalty under article 567 to be incurred, the homosexual act has to be caught or witnessed red-handed. Therefore, any arrest based on presumption of guilt should be considered illegal. Clearly, as proven by the registered cases by MOLI, all arrests or interrogations made by the police were based on speculations established on gender discrimination.

 

Given that the daily situation for the LGBT community is already complicated from a social perspective, and their freedoms being impaired, it is imperative to ask what are the consequences of the 1/05 law on LGBT people’s detention rights?

 

Penal provisions

As aforementioned, the day-to-day life of LGBT persons in Burundian society is one of high discrimination. Hence, it is easy to conceive what their conditions of detention are even more so. It is important to note that there is very little information available on the penal conditions of the LGBT community", David notes. Consequently, the aim here is not to denounce or speculate about any treatment that may occur in prison towards the LGBT community, but rather to try and evaluate the consequences that the current situation can have on the rights of the LGBT people regarding their incarceration.

 

According to the Yogyakarta Principles, the international covenant on civil and political rights – to which Burundi also adheres –, as well as several other international human rights treaties and domestic laws, Burundi violates a fair amount of the LGBT community’s freedoms and rights.

 

To start with, and as provided by Burundian domestic law (Régime Pénitentiaire Art 8, Code of criminal procedure art 342) “no one can be admitted to a detention facility except by virtue of a detention order obtained in a manner prescribed by law“. However, as mentioned above, article 567 can only be applied when the act is caught red-handed. Though, many cases of arbitrary arrests have been reported[6]. Hence LGBT convicts’ arrival at the detention center is already illegal, in the first instance. In parallel, the right to presumption of innocence (granted by many international treaties as well as in Burundi’s national legislation), is also another right considered affected, given that most arrests are not operated based on the red-handed principle, and consequently, there are no ‘real proof’ of a ‘crime’. There are also cases where so-called proofs were obtained during ‘intense’ questioning, following the incarceration. It must be noted here that confession under torture is not to be considered as a proof of crime to keep people incarcerated. The right to presumption of innocence is therefore denied to the LGBT community.

 

Even further, the right to respect of dignity, to security, and to non-discrimination are also denied to LGBT persons during incarceration[7]. Indeed, the government openly discriminates against individuals based on their sexual orientation or identity, as mentioned above. LGBT prisoners or detainees also suffer a high risk of maltreatment not only from security personnel at the jails and detentions centers, but also from the other convicts.

 

Finally, the right to judicial services is another essential right denied to LGBT persons. During their incarceration, LGBT persons are often refused access to judicial services of any kind – to counsel or representation. As mentioned in the MOLI report, “LGBT people are not benefiting from their [non governmental organization providing legal services] range of intervention” [8]. Moreover, judicial proceedings filed or initiated by LGBT persons concerning human rights violations based on sexual orientation and identity yield no fruitful results. Hence, it is evidence that not only is homosexuality punished by Burundian law, but it is also impossible for the ‘defendants’ to legally protect themselves and their rights.

 

Conclusion

Overall, Burundians’ detention rights are considered to be terrible at many different levels. However, these rights are even more disregarded when talking about LGBT convicts. Maylis David maintains emphatically that article 567 is a real threat to the LGBT community’s freedoms due to the non-respect of dignity and security, and the discrimination and non-access to judicial services entitled to all. It is clear however that criminalizing homosexuality is reflective of the opinions of a majority of the Burundian population. Nonetheless, withdrawing this law could greatly ease the everyday life of LGBT people. The consequent will be that they will no longer be arbitrarily incarcerated, and their rights as citizens in a free society will be respected. From a legal point of view, Burundi would also find itself in compliance with the international laws, as it is rightly supposed to[9].

 

 

[1] http://www.lefigaro.fr/flash-actu/2009/03/06/01011-20090306FILWWW00458-burundi-un-defile-contre-l-homosexualite.php

[2] http://www.arib.info/index.php?option=com_content&task=view&id=687&Itemid=63

[3] https://www.hrw.org/news/2009/07/29/burundi-gays-and-lesbians-face-increasing-persecution

[4] http://lib.ohchr.org/HRBodies/UPR/Documents/Session15/BI/JS3_UPR_BDI_S15_2012_JointSubmission3_F.pdf

[5] http://moliburundi.org/wp-content/uploads/2014/06/MOLI_LGBTI_HR_Report_2014_EN.pdf

[6] https://www.planetromeofoundation.org/wp-content/uploads/2016/11/Orientation-sexuelle-identite-et-expression-de-genre-au-Burundi.pdf

[7] http://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/BDI/INT_CCPR_CSS_BDI_18263_E.pdf

[8] http://moliburundi.org/wp-content/uploads/2014/06/MOLI_Rapport_DH_LGBTI_2014_FR.pdf

[9] Convention against torture and other cruel inhuman or degrading treatment or punishment; International covenant on civil and political rights; International covenant on economic, social and cultural rights

Cameroon Government’s tactics in response to protests in Anglophone regions very concerning

The Government of Cameroon’s response to the protests and demonstrations in the Southwest and Northwest regions of Cameroon is very concerning and raises serious questions about the government’s commitments to its international human rights and constitutional obligations. While the violent conduct of some protesters and other citizens must certainly be condemned, the excessive use of force by security forces that has led to many injuries and deaths being reported must be even more vehemently condemned. Security forces must protect the freedom of expression and right to protest, but they must certainly not violently and brutally surpress the exercise of such rights. Contra Nocendi International and Contra Nocendi Cameroon condemns all acts of violence in totality. We further call on the government of Cameroon to exercise restraint and show an honest commitment to protecting human rights in the conduct of security forces and government representatives. We, yet again, remind the government that there is no legitimate role for firearms in the policing of peaceful protests.

 

We take note of the fact that some military units were detained in Ebonji village of the Southwest region of Cameroon by some civilians. We are deeply concerned by such actions and call on the people of the Southwest region to respect the free movement of the military and not to unlawfully detain any persons. We also wish to note the restraint we have seen by some units of the securities forces. This should be commended, but sadly is not the conduct we are seeing from other units.

 

Contra Nocendi Cameroon’s Executive Director Gilbert Ajebe Akame noted, “We have already made the point that the restriction of freedom of movement impinge on what is clearly a very important human rights, so the government should rather resort to measures that build confidence that this right is not being violated“. While there have been issues of violence committed by civilians, the wide scope of the restrictions by the security forces appear to be unreasonable and disproportionate in relation to this. Undermining the rights of an entire region in response to the behavior of a few is a response that has no place in a democratic society. We have also received complaints about restrictions on internet access in both regions. If the government has indeed taken action to restrict or block internet access, this must stop immediately. Access to the internet is an indispensable part of the freedom of information and free speech.

 

We urge all parties to take steps to raise their grievances in a constructive and inclusive manner. Cameroon faces a very serious threat in Boko Haram, and given this fact, it is vitally important the government of Cameroon takes steps to promote unity among all of its people.

Contra Nocendi expresses concern over renewed protests in Anglophone regions of Cameroon

 

Contra Nocendi International and Contra Nocendi Cameroon express the joint concern with the renewed protests in the English-speaking regions of Cameroon. On Friday 22 September, we observed massive demonstrations in towns and villages of the Northwest and Southwest regions of Cameroon. As always, we support the right of everyone to freely protest injustice, marginalization or abuse. We note that the recent protests were relatively peaceful in most places especially those in villages. Majority of the protesters were seen carrying tree branches as a symbol of peace and non-violence. We salute the protesters who conducted themselves peacefully, and those calling for non-violence and helping to control the crowds. We equally salute the efforts of some security forces who were restrained and conducted themselves professionally.

We however regret the violence that marred the protests in certain towns and cities, and the use of tear gas and live ammunition leading to the death of protesters in Buea, Santa and Mamfe. We condemn the use of lethal force to control the protests and call on the government to apply better crowd controlling methods. There is no legitimate role for firearms in the policing of peaceful protests. We urge the government to respect and guarantee the right to life for every Cameroonian and to do more to end the frequent use of deadly force during protests. We equally condemn the use of violence by protesters, the destruction of public and private property, and the interference with the rights and freedoms of others. We caution that attacks on private persons could lead to reprisal attacks and fuel the conflict even more.

Contra Nocendi International and Contra Nocendi Cameroon condemn any restriction of freedom of movement in any form, as was the case in the Northwest region where movement of persons between Divisions was banned on the day of the protest. We consider such actions as not only an infringement upon peoples’ fundamental right to free movement, but also as counter-productive, as it could fuel the conflict even further. We therefore call on all sides to be circumspect in order to maintain peace.

The People of Burundi Deserve Answers

The recent release of the report of the Commission of Inquiry (CoI) on Burundi included suggestions that the International Criminal Court’s (ICC) Office of the Prosecutor open a formal investigation into the events that took place in Burundi beginning April 2015. Going by the allegations, there seems to have been far too many disappearances, claims of torture and other inhumane and cruel treatment, and even worse, the discovery of so many corpses to not raise serious concerns about the human rights situation in Burundi. More than 400,000 people do not flee their homeland without just reason. To date, the Government of Burundi has not taken credible steps to conduct an independent and competent investigation as it is obliged to do under international human rights law, the Rome Statute and Burundian domestic law. This failure to respect its obligations has only added to tensions and has put Burundians of all affiliations at risk. In the light of all these, we make an emphatic plea that the people of Burundi deserve answers and should get them.

 

While we appreciate the mandate of the CoI, we must stress the need to give the Prosecutor and her staff the proper space to make the determination as to whether and how to proceed. The CoI recommendations have no binding effect on the Prosecutor however. The decision is clearly within her mandate. Her staff has already began conducting a preliminary examination into the matter and previous statements from the office suggest that they take the matter seriously. We must also stress the need for all parties, including non-state actors, to cooperate fully with the Prosecutor and her office. While we are very concerned about the conduct of organs of the State, we are fairly confident that non-State actors has conducted themselves in a manner that will raise questions for the Prosecutor should she seek to open a formal investigation.

 

The government of Burundi has, to date, failed to conduct an effective investigation. While the government has submitted a notice of withdrawal from the Rome Statute, in part citing threats to its sovereignty, the government has and will continue to have original jurisdiction over the constituent crimes of the Rome Statute. The Court may only exercise jurisdiction when the State in question is unwilling or unable to. A competent and independent investigation followed by judicial action in response to the evidence obtained during the investigation would likely render the situation outside the scope of the jurisdiction of the Court. Contra Nocendi International, and its affiliates and partners in Cameroon and Burundi remain committed to adding our voices to the call for justice to be served for the people of Burundi. We sincerely hope the Office of the Prosecutor initiates a formal investigation, and provides the findings to the people of Burundi, as they very well deserve answers!

General overview of the African region’s human rights system on the protection of detainees

 

Regional human rights systems, consisting of regional instruments and mechanisms, play an important role in the promotion and protection of human rights. They provide more accessible remedies and assist with the implementation of universal human rights. The African Charter on Human and Peoples’ Rights (ACHPR), which was adopted in 1981 and entered into force in 1986, was established for the promotion and protection of human rights in Africa.

 

Binding Regional instruments for the protection of persons in detention

In the African region, it is the African Charter on Human and Peoples’ Rights (ACHPR), also known as the Banjul Charter, which provides for the protection of persons in detention. It is supplemented in this function by its protocols, soft law instruments and specific mechanisms.

  • African Charter on Human and Peoples’ Rights, the Banjul Charter

While the right to freedom from torture is one of the few non-derogable rights, it is also one of the rights commonly violated in Africa. In its article 5, the Charter allows for the right of ‘every individual to the respect of the dignity inherent in every human being’ and provides that ‘all forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited’. The ACHPR also provides for the right to an appeal, equality before the law, the right to defense, the right to be tried within a reasonable period (article 7), nondiscrimination, presumption of innocence, and freedom from coercion of any kind for persons who are detained.

  • Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa

Also known as the Maputo protocol, this instrument was drafted in 1995 and became effective in 2005. It guarantees a comprehensive set of rights to women and was adopted as a protocol to the ACHPR. Article 24 provides for the special protection of women in distress. States have the obligation under this article to “... ensure the rights of pregnant or nursing women or women in detention by providing them with an environment which is suitable to their condition and the right to be treated with dignity”.

  • African Charter on the Rights and Welfare of the Child

The African Charter on the Rights and Welfare of the Child (ACRWC) was adopted by the then Organization of African Unity (OAU) in 1990 and entered into force in 1999. Its provisions are inspired from the ACHPR and other International human rights laws. Article 2 of the charter provides in its first paragraph that States should: ”ensure that no child who is detained or imprisoned or otherwise deprived of his/her liberty is subjected to torture, inhuman or degrading treatment or punishment.” This article goes further to protect child detainees by ensuring that they are separated from adults in their place of detention or imprisonment.

 

Soft Law provisions

  • Kampala Declaration on Prison Conditions in Africa

In September 1997, a pan-African conference was held in Kampala, Uganda, which led to the Kampala Declaration on Prison Conditions in Africa. The Declaration stipulates that ‘any person who is denied freedom has a right to human dignity’ and declares, inter alia, that ‘the human rights of prisoners should be safeguarded at all times’. Similar instruments have been adopted by or on the initiative of the African Commission on Human and Peoples’ Rights, some of which refer to the Standard Minimum Rules.

  • Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (Robben Island Guidelines), 2008

The Guidelines, adopted in 2002, promote the ratification by States of international and regional anti-torture instruments as well as the States’ co-operation with existing international mechanisms for the prevention of torture and ill treatment of detainees. They also prescribe the criminalization of torture in domestic law, as well as the establishment of complaints and investigation procedures. Furthermore, the Guidelines recommend the adoption of rules designed to contribute to the prevention of torture. It includes such basic safeguards as the right of detainees to notify relatives of their detention immediately after admission, the right to an independent medical examination and the right to legal representation. Guideline 33 stipulates that States should “take steps to ensure that the treatment of all persons deprived of their liberty is in conformity with international standards guided by the UN Standard Minimum Rules for the Treatment of Prisoners”. Finally, the instrument stresses the importance of establishing independent and impartial complaints and monitoring bodies. The Special Rapporteur on Prisons and Conditions of Detention in Africa is mandated to visit and examine places where people are being detained. He or she may “make recommendations to improve conditions of detention and may if necessary, propose that urgent action be taken”.

  • The Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa (the Luanda Guidelines);

The Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa (the Luanda Guidelines) were adopted by the African Commission on Human and Peoples’ Rights (the Commission) during its 55th Ordinary Session in Luanda, Angola, from 28 April to 12 May 2014. Articles 2, 3, 5, 6, 7 and 26 of the African Charter on Human and Peoples’ Rights (the African Charter) set out States’ obligations to provide all people with the rights to life, dignity, equality, security, a fair trial, and an independent judiciary. The Luanda Guidelines will assist States in implementing these obligations in the specific context of arrest, police custody and pre-trial detention.

Other regional soft law instruments include:

  • The Ouagadougou Declaration and Plan of Action on Accelerating Prisons and Penal Reforms in Africa
  • The Kadoma Declaration of Community Service, Zimbabwe 1997
  • The Arusha Declaration on Good Prison Practice adopted in Arusha, Tanzania
  • Kampala Declaration on Prison Health in Africa
  • Lilongwe Declaration on Accessing Legal Aid in the Criminal Justice System in Africa
  • Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa

 

Regional Human Rights Mechanisms

  • The African Commission on Human and Peoples’ Rights

The Commission is a quasi-judicial body with three principal functions. It promotes, protect human rights and interprets the provisions of the Charter. It also receives complaints and makes recommendations accordingly. Numerous cases have been brought to the commission alleging violations of rights with respect to those held in detention. Through its decisions the commission interprets provisions for the protection of detainees and by so doing sets precedent.

  • In 1997, the Commission appointed a Special Rapporteur on Prisons and Conditions of Detention in Africa, whose task is to visit and examine places of detention. In the past, the Special Rapporteur has undertaken visits to prisons in South Africa, Cameroon and Ethiopia and has published reports on these visits. In more recent years, however, the Special Rapporteur has been unable to undertake any visits due to resource constraints.

The mandate of the Special Rapporteur on Prisons and Conditions of Detention in Africa is to examine the situation of persons deprived of their liberty within the territories of States Parties to the ACHPR. The mandate of the Special Rapporteur extends to other detention centers such as reform centers and police cells, and covers detainees awaiting trial.

In one of his Reports (which also provide guidance on the treatment of prisoners) on prison conditions in South Africa, it was stipulated that the African Commission subscribes to the principles enunciated in the Standard Minimum Rules. In examining the South African Correctional Services Act of 1998, the Special Rapporteur considered it significant that ‘the Act incorporates principles espoused by the all-important Standard Minimum Rules for the Treatment of Prisoners and Kampala Declaration on Prison Conditions in Africa’.” the reports of the Special Rapporteur on Prisons and Conditions of Detention in Africa.

  • Conference of the Central, Eastern and Southern African Heads of Correctional Service (CESCA)

The Heads of Correctional Services in the region, who had been holding regular consultative meetings, decided to regularize those meetings into a standing forum. They established the Conference of the Central, Eastern and Southern African Heads of Correctional Service (CESCA) in 1993. At its fifth meeting held in Windhoek in September 2001, they passed, among other things, a resolution on a Charter of prisoners' rights. The conference made a recommendation for the Charter to be adopted by all Africa countries.

Open letter to the Cameroonian Government, Anglophone Activists and the general public to safeguard the right to education for children in the Anglophone region

 

“To the young students, I implore you to be emboldened by the courage of young Malala Yousafzai, to stand up, raise your voices and fight for your right to education.” - Gilbert Ajebe Akame

 

The shutting down of schools in the English-speaking regions of Cameroon for a period of almost a year has not only been counterproductive, but was also particularly devastating for children of school-going age in the region. The recently released GCE Advanced and Ordinary level results, which showed a drastic drop in the percentage marks obtained by students in the two regions of Northwest and Southwest, bears testimony to the negative impact of the unfortunate closure of schools. Many have blamed the deterioration of events to the initial response by the security forces to the protests staged by teachers and lawyers. The brutal crack-down on peaceful protesters, the ill-treatment of protesting lawyers, the use of live ammunition resulting in the death of some protesters, the arrest and jailing of trade union leaders and others, all helped to bolster the efforts of the activists towards the closure and emboldened their stance which led to the eventual shutdown of the schools. The social media campaign initiated by these activists was characterised by manipulation, misinformation, threats, attacks on students, and burning down of schools, amongst others. The result has been the creation of an atmosphere of fear, distrust and lack of confidence amongst residents of the English-speaking regions. However, the security establishment has since failed to re-instil confidence in the school proprietors to re-open their doors and for students to feel safe going back to school.

The picture I paint here is only a simple narration of what is actually a very complex set of situations engineered by a web of actors and events that have culminated in the disruption to the smooth running of the 2016/2017 academic year. The government, politicians, school proprietors, parents, social media activists, the clergy and more, having found themselves trapped in a complex political conundrum, knowingly or otherwise, because of ignorance and manipulation, which led to them resolving to sacrifice an entire academic year to the detriment of helpless children. The various actions and inactions – in particular the inability by the government to ensure a safe learning environment – amount to an interference with the inalienable right to education especially for vulnerable groups such as children and girls.

The importance of education to the individual child and society at large cannot be over-emphasized. Education is the foundation for the growth and development of the full potentials of every child, and is a tool for the empowerment of less privileged groups and the elevation from a life of poverty. Very few in our 21st century civilization will remain indifferent to the plight of young children (in particular girls) who have been kept out of school against their will for an entire academic year and counting. No entity or party in any conflict is likely to gain credibility in the eyes of the international community for depriving such young ones their rights to education. It is a noble duty to protect children and girls when adults fight. It is dishonourable to mortgage the education of children to score political points. Advocates of the right to education don’t hesitate even in situations of armed conflicts or other instabilities to call for the absolute protection of children’s right to education. Malala Yousafzai, a staunch advocate of the right to education for young girls in the Swat Valley of north-western Pakistan, braved threats from the local Taliban terrorist group, to push for the right for these girls to attend school, even sustaining life-threatening gunshot wounds in the process.

Access to education is a universal human right – meaning it is guaranteed legally for all without discrimination – and states have an obligation to protect, respect and fulfil this right in totality. It is stated in the Universal declaration of human rights, and upheld by many international human rights instruments today. In fact, the right to education for children is enshrined in the Convention on the Right of the Child, boasting 196 state parties to the Convention.

Each of these states have the primary obligation to protect the enjoyment of this inalienable right by among other things, putting in place the appropriate measures to prevent the interference with it. The presence of violence and unrest should not be a limitation on the part of the state to fulfil its obligation The inalienability of the right to education demands that even in the current dispensation, the state of Cameroon must put in place measures including both diplomatic and operational, to guarantee a safe and serene education environment.

Parents also play a vital role in the education of their children. Key amongst their responsibilities is to ensure their children attend school and not deny them access to education. Parents in Cameroon are called upon to exercise this responsibility by giving priority to the education of their children. They should consider the best interest of the child in matters of their education and development of their full potentials.

The best interest of the child in matters of education, an important gateway to guarantee a bright future, should be considered, duly assessed and taken into consideration. In so doing, it is important for the voice of children to be heard and given due consideration; for their development and aspirations to be given priority; and for their right to education to be protected. It is my conviction that children of school-going age in Cameroon’s Northwest and Southwest regions will wish for nothing better than to be in school – just like their counterparts in the other regions of Cameroon – to play, learn and continue their journey of developing their full potentials.

To the young students, I implore you to be emboldened by the courage of young Malala Yousafzai, to stand up, raise your voices and fight for your right to education. Fight to guarantee your future and not depend on anyone else. To quote Malala’s famous words, “Let us pick up our books and our pens… they are the most powerful weapons. One child, one teacher, one book, and one pen can change the world.”

 

Gilbert Ajebe Akame

Executive Director - Contra Nocendi Cameroon

 

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