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.
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. The protesters’ chants and slogans referred to homosexuality as a “crime” . 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 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” .
Since 2009, another NGO MOLI 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?
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. 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. 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” . 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.
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.
 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