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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

Analysing the Human Rights Education Received by Prison Officials and its Effects on Prison Conditions in Cameroon

 

Human rights education constitutes an essential contribution to the long-term prevention of human rights abuses and represents an important investment in the endeavour to achieve a just society in which the human rights of all persons are valued and respected.[1] Human rights training for prison officials as law enforcement officers strengthens their capacity to account for the rights of others and to secure a society where everyone is respected, lives in peace and has a dignified life.

Principle 12 of the preamble of the Cameroonian Constitution[2] provides that every person has a right to life, to physical and moral integrity and to humane treatment in all circumstances and under no circumstances shall any person be subjected to torture, or to cruel, inhumane or degrading treatment. Sadly, Cameroonian prisons are a fertile ground for widespread human rights violations and corruption, the source of which is mostly the prison personnel. Most of the cases of torture observed in Cameroon take place in prisons which may lead one to think that not enough emphasis is put on the respect for human rights in the training of prison personnel which is eventually manifested in their treatment of inmates.

There is clearly a gap between the knowledge of human rights and their implementation in this situation. Human rights are inherent and must be respected always even for persons who have lost their liberty for one reason or the other. Not very much is known about the training of prison personnel in Cameroon and the level of involvement of human rights in their curriculum but what is evident is the magnitude of the disregard for human rights in prison structures.

Penitentiary personnel are the main actors in the observation of the rights of prisoners, and so should be very knowledgeable about these rights and well master the mechanisms for their application. It is essential to properly educate persons in positions of authority on human rights to ensure the protection and promotion of human rights. Hence, it is not merely sufficient to know, but they must also be accountable for any actions taken with respect to the application of these rights. The question then is: Why are Cameroonian prisons famous for torture and other human rights abuses, which are most of the time perpetrated by the prison officials?

One thing is evident in the execution of their duties, which is the lack of accountability for the protection of human rights which has promoted impunity on one hand and corruption on the other. The 2016 Human rights report of the Bureau of Democracy, Human Rights and Labour made the discovery that corruption amongst prison personnel was reportedly widespread. Visitors had to bribe wardens to access inmates and prisoners also bribed them for special favours or treatment[3].

Challenges in the prison setting, especially in Cameroon go beyond malpractices by personnel. They are also characterised by the lack of resources, overcrowding and shortage of personnel, amongst other things. Issues of human rights are simply ignored also because the prisoners do not know their rights

It is the responsibility of the State to protect the rights of imprisoned persons and by consequence they have the duty to make sure that their agents know the full extent of their responsibilities especially towards the inmates. Enriching the capacity of penitentiary staff on human rights will drastically improve prison conditions in Cameroon. It is worthy to note that the National School of Penitentiary Administration (ENAP) in Buea plays an important role in the training of penitentiary officials, given that it trains an average of 600 penitentiary personnel every year – both new recruits as well as personnel on refresher courses. Additional training sessions are organised by structures such as the National Commission for Human Rights and Freedoms (NCHRF), the Commonwealth, the United Nations as well as other organisations.

Contra Nocendi therefore strongly recommends the following: training approaches be restructured and a rights based approach adopted; compulsory capacity building and refresher courses such as those organised by the NCHRF should be organised; and an effective monitoring system be put in place in addition to other efforts to ensure better prison conditions.

 

 

[1] United Nations Office of the High Commissioner for Human Rights

[2] Law N° 2008/001 of 14 April 2008 amending the 1972 and 1996 Constitutions.

[3] Bureau of Democracy, Human Rights and Labor. (2017). Cameroon 2016 Human Rights Report. Available at https://www.state.gov/documents/organization/265446.pdf

Contra Nocendi International submits views on the General Comment of Right to Life

 

 

Contra Nocendi International has submitted its views on the UN Human Rights Committee’s Draft General Comment of the Right to Life. We applaud the Committee for taking on a necessary, but nonetheless difficult endeavor to bring further clarity to the very important law on the right to life. We also wish to applaud the Committee for opening up its Draft General Comment to the public for comments.

 

Contra Nocendi raised an objection to any potential insinuation that there is scope within Article 6 of the ICCPR for the criminalization of abortion. We see the right to competent abortion services as an indispensible part of the right to life and leaving room for the potential criminalization of the right to life will endanger the lives of women. We were very proud to support a recent joint CSO statement on the right to abortion services, which was submitted to the UN Human Rights Council session. We firmly agree with the statement as it makes it clear that criminalization will drive abortion services underground and will expose more women to unsafe abortion services, which will lead to the needless loss of life.

 

Contra Nocendi also supported the Committee’s stance on the need to provide services to persons deprived of their liberty as an issue tied to the right to life. Contra Nocendi encouraged the Committee to make it clear that the provision of medical services, including preventative care, is a part of the obligation of the state to protect the right to life of persons deprived of their liberty.

 

Lastly, Contra Nocendi encouraged the Committee to include the van Boven principles in its comments on reparations. This includes expressly recognizing the potential right to redress and reparation for indirect victims as well as the forms reparations may take. As an organization committed to promoting human rights, we firmly believe that the van Boven principles must be seen as the minimum starting point when it comes to reparations.

 

CNI and CN Cameroon submit joint report for Cameroon UPR

Contra Nocendi Cameroon and Contra Nocendi International has jointly submitted a report to the United Nations Human Rights Council as part of the upcoming universal periodic review process (UPR) for Cameroon. The staff of Contra Nocendi Cameroon worked closely with the programs and legal teams of Contra Nocendi International, on what was a very long but also deeply fruitful and rewarding endeavor. This submission is indeed a significant achievement, and the individuals from both organizations that worked tirelessly and diligently on it must be duly commended.

 

We are hopeful that Contra Nocendi Cameroon and Contra Nocendi International will form only a small part of a long list of NGOs that have submitted a report to the UN Human Rights Council as part of the UPR process for Cameroon. We are confident that many different perspectives will be reflected in the various reports coming in from all these different entities. We are also hopeful that our efforts to highlight concerns and raise points of positive developments, where warranted, will be beneficial to both the UN Human Rights Council and the Government of Cameroon.

 

The Universal Periodic Review is an indispensible and necessary process that enables the UN Human Rights Council to hold States accountable for their human rights record, while creating a constructive and inclusive forum which builds durable relationships aimed at promoting human rights in the country in question. Once again, we are deeply proud of this achievement and remain committed to its further requirements. We look forward to engaging further in this process and will keep everyone informed of the developments in the UPR process for Cameroon.

 

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

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