The Burundi Legal System and Research
By Syldie Bizimana
Syldie Bizimana, a human rights activist in Burundi, is currently a LLM student in Human Rights and Democratization in Africa at the University of Pretoria, South Africa. He is also undertaking a master degree on fundamental rights at Université de Nantes in France. He holds a Bachelor of Law degree from Université Libre de Kigali, Rwanda.
Published November 2007
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Table of Contents
3.1 Background to the Legal System
4. Status of International Law and Ratifications of Relevant Treaties
6. National Human Rights Institutions
List of Figures
Figure 1: Burundi’s Population Density and Growth
Figure 2: A Schematic Attempt at Capturing the Economic Context
1. Introduction
Burundi, a landlocked Republic in Eastern Africa is bordered on the north by Rwanda, on the east by Tanzania and on the west by Lake Tanganyika and the Democratic Republic of Congo. It has an area of 27,834 square kilometres and is one of Africa’s smallest countries.
1.1 Population Information
Figure 1: Burundi’s Population Density and Growth
|
Item |
Latest figures |
|
Total population |
8090 068 (2006) |
|
Population annual population growth rate |
3.7% (2006) |
|
Life expectancy at birth |
44 years old (2005) |
|
Infant mortality rate/1000 |
114/1000 (2005) |
|
% of population urbanised |
11% (2005) |
|
Total adult literacy rate |
59/1000 (2000-2004) |
|
Estimated adult HIV prevalence rate( 15 + years) |
3.3% (end 2005) |
Source: I-PRSP Burundi, World Bank, 2005
The three major ethnics groups that comprise the Burundian population[1] are the Hutu (Bantu) 85%, Tutsi (Hamitic) 14%, Twa (pygmy) 1%, all recognised in the Burundi Constitution.
1.2 Economic Indicators
The Burundian economy depends largely on agriculture and over 55% of the population is poor living under $1 USD a day which is considered below the poverty levels.
Figure 2: A Schematic Attempt at Capturing the Economic Context
|
Item |
Latest figures |
|
100$ (2005) |
|
|
799.8 million (2005) |
|
|
0.9 (2005) |
|
|
Population below 1 $ a day |
55% |
|
Budget expenditure allocated to health |
2% |
|
Budget expenditure allocated to education |
15% |
|
Budget-expenditure allocated to defense |
5.6% |
Source: I-PRSP Burundi, World Bank, 2005
2. Historical Background
2.1 Pre-Colonial History
From the sixteenth century, the region was organised as a kingdom, under the authority of a king (mwami) who was believed to be possessed of both secular and spiritual authority. Hutus, Tutsis and Batwa cohabited in this kingdom under a system of administration consisting of both Hutu and Tutsi chiefs. The two groups became homogenised, and adopted the same language (kirundi). There was territorial expansion and conquest, and the vanquished party was made to pay tribute to the King. The Batwa who lacked a centralized system of governance and were only organized at family level, were almost always on the receiving end of these conquests.[3]
An examination of the way in which the monarchical system operated during the pre-colonial period, based on oral sources, reveals positive and negative aspects of the system. On the positive side, it may be said that monarchism succeeded in forming a nation and in preserving national unity and social peace. In addition, it established an essentially democratic institution, the ubushingantahe.[4] Lastly, power was perceived as being exercised in the interests of the population at large and for the maintenance of order in society. On the other hand, the monarchical system had inequalities and ethnic differentiation originating from the privileges enjoyed by the ruling class and institutionalization of the monarchy.. Moreover, the power of the monarchy could be arbitrary, despite the existence of institutions for social regulation.
2.2 Colonial History
The first contact between barundi and the Europeans was with explorers and missionaries. In 1890, the Germans brought Burundi (then called Urundi) under its control. Together with Rwanda (Ruanda) and Tanganyika, this region became known as German East Africa. Adopting a system of ‘indirect rule’, the impact of German colonisation was insignificant. After Germany’s defeat in the First World War, the territory of Ruanda-Urundi was given to Belgium to administer under the League of Nations mandate system. From the outset of its administration in 1916, the Belgians continued a policy of indirect rule. From 1925, it converted the informal societal hierarchies into rigid structures of government
2.3 Post-Colonial History
When Burundi became independent in 1962, it adopted a constitutional monarchy. Independence ushered in a period of serious destabilisation in the region, characterised by inter-ethnic strife. Large-scale massacres took place in 1965, 1972, 1988, and 1992.
After many years of turbulence, 1993 saw the holding of the first multi party national elections on the basis of a new constitution, which provided for an inclusive government under a presidential system. Ndadaye, a Hutu, won the Presidential elections, becoming the first member of his community to hold the highest office in the land. His term of office was short-lived and he was killed 3 months after ascending office in a coup d’Etat, which plunged the country to civil war and anarchy. His predecessor, Cyprien Ntaryamira, another Hutu, died in a plane crash with his Rwandan counterpart, Juvenal Habyarimana, which ushered in a period of darkness in the two neighbouring countries.
2.4 Current State Structure
2.4.1 The Executive
The executive power is exercised by a President of the Republic assisted in the execution of the mandate by two Deputy Presidents. The President of the republic is both the head of state and government[5]. He is also the Commander in Chief of the army, the guarantor of the National Unity. He exercises the statutory power and the execution of the laws. The current head of state Pierre Nkurunziza, was elected by the parliament in a vote under the Post-Transition Interim Constitution approved in a plebiscite in February 2005[6]. The first deputy president is in charge of the coordination of the political domain, whereas the second coordinates the economic and social domain. Both are appointed by the Head of State after a consultation of the National Assembly. The ethnic composition of the Council of Ministers, which makes up the executive arm of the government and the civil service, is of Hutu and Tutsi by quotas of 60% and 40% respectively. [7]
2.4. 2 The Legislative
The National Assembly together with the Senate undertake the legislative function of the state.[8]. Parliament’s law making function is not absolute. The President may on the advice of the constitutional Court issue a presidential decree which becomes law. The extent of the modification is however not clearly defined under the constitution. It leaves one to wonder if there exist the possibilities of a Presidential decree completely annulling the objects of legislation.
3. Legal System
3.1 Background to the Legal System [9]
Since the colonial period, the judicial system moved from customary law to positive law and it adopted civil law system following the example of the Belgians who were the colonialists. At independence, positive law covered all branches of law, with the exception of some private, civil law issues. After independence, positive law has come to govern almost all the fields of society, with important exceptions related to inheritance, marital property, gifts/liberalities, acquisition and sale of non-registered land and relationships between employers and workers of the traditional or unstructured sector. Reforms are proposed finally to codify the remaining areas covered by customary law[10].
The Burundian Legal System
The judicial system is organized through the Code of Organization and Judicial Competence of 17 March 2005[11]. The independence of the judiciary is guaranteed by the constitution, which separates the judiciary, the executive and legislative body. There are formal and informal mechanisms of conflicts management provided under the Code.
At hills level,[12] there are the Courts of Hills “intahe yo ku mugina“ in which elders “abashingantahe“ and elected people on the hills, comprise the bench; the current municipal law[13] has conferred upon them power reconciliation the parties. However, they do not have the right to impose punishments
At the Commune level, there are the “Courts of Residence” or Magistrate Courts Tribunal de Residence” which handle both criminal and civil cases. The Courts of residence has criminal jurisdiction to impose jail sentences for up to 2 years, and in its civil jurisdiction, a fine of up 1,000,000 Burundi Francs. It also has jurisdiction over land matters and matters relating to evictions.
At the province level, there are county courts: Tribunaux de Grande Instance, which are then followed by three Courts of appeal based at Bujumbura, Ngozi, and Gitega. The Supreme Court stands at the Apex of judicial authority, and has both original and appellate jurisdiction over civil and criminal matters. The Constitutional Court is a key specialized court that presides over matters of a constitutional nature and decides on issues relating to human rights violations.[14] The Constitutional Court together with the Supreme Court, constitute the High Court of Justice, which has competence to try a seating president and other senior members of the government of high treason.[15]
Specialized courts including commercial, administrative, labor and court martial also exist.
3.2 Sources of Law
The operative supreme law is the Burundi Constitution adopted through a referendum in 2005.[16] The Constitution empowers parliament to make organic laws as well as statutory laws to give effect to the Constitution and facilitate conduct of public life within the state.[17]
International instruments specifically incorporated by the Constitution are equally directly applicable in the country. Regulatory frameworks are envisaged to be developed by administrative bodies and may be modified by legislative procedure upon advice of the constitutional court.[18] It is explicitly provided also that Presidential Decrees duly advised by the Constitutional court can modify legislation.[19] The position of customary law however remains uncertain, since the constitution is silent on this issue. However, the practice is that at the local level, particularly matters of succession and inheritances are governed by customs. Other sources are treaties and international conventions, jurisprudence and doctrine. There is a code of laws that contains most legal texts used in Burundi.
Apart from that document which has to be updated, after promulgation, all legal instruments are published in an official gazette: BOB (Bulletin official du Burundi) which is published on a monthly basis. There are also other institutions that have their projects of gathering of legal instruments such as Reseau documentaire de l’ Afrique des Grands Lacs , Centre d’Etudes et de Documentation Juridiques (CEDJ), Main Library of University of Burundi, Department of Judicial and Contentious Affairs of Ministry of Justice, Global Rights. As far as case law is concerned, there is no compendium of cases. However some cases dealing with special issues (sexual matters) can be found in some NGO like, Avocats Sans Frontieres, Association des Femmes Juristes.
3.3 Judicial Structure
There is no system of compilation of cases and other judicial decisions. Each court and tribunal has its own system of keeping information and cases can be found in the relevant court or tribunal. There is a project of gathering national jurisprudence conducted by RCN and Global Rights ( NGOs) which is still going on.
4. Status of International Law and Ratifications of Relevant Treaties
The Burundi constitution, unlike National Constitutions of neighboring countries, has specifically incorporated key human rights instruments. Article 19 of the Constitution provides thus:
“The rights and duties proclaimed and guaranteed, among others, by the Universal Declaration of Human Rights, the International Covenants on Human Rights, the African Charter on Human and Peoples Rights,, the Convention on the Elimination of all Forms of Racial Discrimination against Women and the Convention on the Rights of the Child are an integral part of the constitution of the Republic of Burundi.”
It is submitted that the provisions of article 19 of the Constitution are radical and far reaching as the main international and regional human rights instruments have the force of law, capable of being relied upon in domestic litigation and policy development. Incorporation in this case therefore amounts to domestication, and potentially makes Burundi a monist state with respect to these specific instruments. This progressive prima facie status has however not been tested in courts which may render a different opinion.
Treaties other than those specifically domesticated by the constitution require ratification and domestication.[20] The ratification power of the executive is further limited with respect to treaties that have the effect of engaging state resources, in which case, a specific legislation is required.[21]
5. Status of Reporting
Burundi’s reporting record has been far from satisfactory. A few examples will demonstrate this assertion. In July 2005, Burundi submitted its initial report under the Convention Against Torture, ten years later than it was expected; its initial report under CEDAW submitted on 1st June 2000 was seven years late; and its initial report on the Convention on the Rights of the Child submitted on 19th March 1998 was six years late.[22] However, reporting under the International Covenant on Civil and Political Rights has been fairly timely and the International Convention for the Elimination of Racial Discrimination, quite regular.[23]
State implementation of Concluding Observations of treaty bodies has not been systematically pursued. While there is evidence that some of the recommendations have been partially implemented, it is also obvious that some recommendations have not been taken seriously by Burundi. This differential approach to implementation reveals a disconnection between the political commitments made by the state and the policy imperatives being pursued. For instance, it can be said that recommendations relating to women have been taken a little more seriously, while that relating to indigenous communities, particularly the Batwa, and remain in abeyance. The CERD’s concluding observation recommended thus:
“[that] when introducing quotas for ethnic groups, the Government also consider introducing measures, as permitted under article 4, paragraph 1, of the Convention and outlined in the Committee’s general recommendation 23 on women in public life, to increase the participation of women in decision-making at all levels. It emphasizes the importance of strict adherence to principles of gender equality in all reconstruction efforts.” [24]
It can be said that the provisions of article 164 of the current constitution that guarantees a minimum of 30% women in the national assembly, is for instance a response to CERD’s recommendation. This contrasts sharply with the total failure by the state to implement recommendations, such as the concluding observations by the Committee on the Rights of the Child, [25]touching on indigenous minorities such as the Batwa.
6. National Human Rights Institutions
Apart from the Constitutional court, whose mandate is to interpret the bill of rights, [26]the other main public institution seized with human rights protection and promotion purpose is the Ministry of Human Rights( the Ministry), the creation of which is viewed as the highest level of political commitment by the government of Burundi in protecting and promoting human rights. In its three years of existence, the ministry has however failed to undertake any meaningful measures aimed at promoting the constitutional provisions on human rights. Reports of abuse of rights by military forces and police are still rampant, and the existence of the ministry does not seem to have made any differences.[27].
However, the country has no independent human rights body to monitor state compliance with international standards as well as constitutionally protected rights. It is unlikely that the ministry of human rights, being part and parcel of the executive can challenge the government in relation to its own human rights record. Moreover, it is likely that human rights defenders would feel uncomfortable reporting violations perpetrated by the state to the ministry in so far as it is the same state that is the violator.
The situation seems to be ameliorated by the establishment of the institution of an Ombudsman constitutionally sanctioned to receive complaints of state maladministration, including instances of human rights violations. [28] However, the establishment of this institution awaits an organic law to be passed by parliament in order to ensure its implementation.
A Truth and Reconciliation Commission has recently been established by statute to provide a framework for national healing after years of serious violation of human rights. It is hoped that within this new framework, the Batwa in Burundi would be able to expose the atrocities they have suffered in the context of genocide.[29] However, the body is yet to be constituted, and like in the Rwanda experience, it may take a long time to address the complexities of genocide and other crimes in the context of the civil war
Conclusion
Actually there is a negative vision of justice that may be attributed to an ethno-political perception of the Burundian system, particularly in criminal matters. The magistrates and the police are thus first of all perceived according to their ethnic group and seen as biased in favour of it.
Moreover, the formal system is severely jeopardised by perceptions of impunity and the lack of enforcement of judiciary decisions. In general, the formal judicial apparatus did not manage to deal efficiently with the crisis of 1993 and its effects.
One hears of people saying that the prosecution of the murders and assassinations related to the crisis concern only ‘small fish’ and the ‘big fish’ get away. Public outcry is specifically directed against cases such as the assassination of President Melchior Ndadaye, or crimes against humanity or genocide that are not dealt with even if their final settlement would have gone a long way towards restoring the rule of law.[30]
The impunity in Burundi is a result of the wrong ruling the country during the last 30 years. Impunity has been denounced by all parties but in different manner according to ethnic sensibilities. In as much as the Hutu community condemns the repression that took place in 1965, 1972, 1988 and 1993, the Tutsi community also denounced the amnesty given by Buyoya following the events of Ntega and Maragara in 1988 as well as those who committed acts of genocide with the support of FRODEBU in 1993. Also ‘popular justice’ takes encouragement from the impunity for offences and crimes, and is a negation of the justice system. However, it is obvious that some judges are guilty of corruption and other abuses of office. The reconstruction and reconciliation of the communities require that all accused persons should be arrested and brought to trial.
Finally, it must be mentioned that the formal system is severely lacking funds. The budget of the Justice Department (some 4.6 billion FBu) in 2004 amounted to 3 per cent of the national budget, and 25 per cent of the Justice Department’s budget was devoted to the penitentiary sector.
7. Burundi Links
Government
For further information on Burundi’s Government Institutions, Parliament, the National Commission, and Judicial courts, visit the Burundi government official site.
Universite du Burundi (History of the University, the library, research centers, etc.)
University of Pennsylvania Burundi Page
Burundi news, as well as regional news and exclusive interviews
Portail Internet sur le Burundi
Studio Ijambo and Radio Isanganiro (radio sponsored by Search for Common Ground-Burundi, formed with the goal of reducing ethnic conflict and encouraging reconciliation
Burundiyouth.com (A movement of youth that tries to understand the causes of the crisis that our country is going through. The movement is a kind of news group for those who love Burundi and look for ways to put an end to the actual situation and offer all Burundians a prosperous and peaceful country.)
Site for News in English and French
Site for the Burundi Human Rights league “ITEKA”
Detailed analysis of Burundian situation through different original and interactive rubrics
Nonprofit NGOs and Foundations
Search for Common Ground – a NGO based in Washington, D.C. working to reduce ethnic conflict and encourage reconciliation)
NDI.org (a nonprofit organization which seeks to promote democratic institutions in new and emerging democracies. It has 33 pages on how to live in democracy in Burundi)
International Foundation for Elections Systems – IFES has a project in Burundi to support the implementation of the Arusha Peace and Reconciliation Accords (APRA) and promote community reintegration and stabilization through a sub-grant program-Burundi Initiative for Peace (BIP)
Human Rights Watch – This Web site has a lot of reports about Burundi – click on Info by Country – then click on Burundi
United States Institute of Peace: Preventing genocide in Burundi, lessons from International Diplomacy
Woodrow Wilson International Center for Scholars
National Council of Burundi Churches
an Evangelical Christian mission agency working in partnership with the Anglican Church in Burundi, Rwanda, south-western Uganda and the Democratic Republic of Congo
Others
Site for information sharing for women
US Agency for International Development – USAID assistance to Burundi
Information by country- Burundi
[1] However, the definition of an ethnic group can not be applied to the Burundian context. This because apart from Batwa ethnic group that exhibit some differences making them to be known as indigenous people , all the three groups shares the same territory, the culture and language.
[2] GDP per capita Gross Domestic product (GDP) is the sum of value added by all resident producers plus any product taxes (less subsidies) not included in the valuation of output. GDP Per Capita is Gross Domestic Product divided by mid-year population. Growth is calculated from constant price GDP data in local currency.( see source as indicated on the table above)
[3] Lewis J The Batwa Pygmies of the Great Lakes Region (2000) 5
[4] It is a traditional institution of elders which was handling disputes
[5] Article 95 and 109 of the Constitution of the Republic of Burundi (2005 )
[6] The Arusha Peace and Reconciliation Agreement for Burundi signed in 2000 under the mediation of Presidents Nyerere and later Mandela provided the link during the period of constitutional crisis in Burundi. See for instance here (assessed 20-2-2007)
[7] Article 129 of the Constitution of the Republic of Burundi (2005)
[8] Article 147 of the Constitution of the Republic of Burundi (2005). Oversight of exercise of presidential power is another function of parliament.
[10] Ntahombaye, Ph. and Kagabo, L,: ‘Mushingantahe Wamaze Iki? –The Role of the Bashingantahe during the crisis’, University of Burundi, 2003, )
[11] Promulgated pursuant to article 205 para.3 of the Constitution of the Republic of Burundi (2005)
[12] This the basic administrative unity
[13] The Law No1/ 016 of 20th April 2005 on the Organisation of Municipal Administration
[14] Article 228 of the Constitution of the Republic of Burundi (2005)
[15] Article 234 of the Constitution of the Republic of Burundi (2005)
[16] While there is no explicit provision to on the supremacy of the constitution, the same can be inferred from article 228 of the constitution, which empowers the constitutional court to determine the constitutionality of laws and regulatory Acts. It is thus assumed that inconsistency with the constitution will invalidate the other laws, which by parity of reasoning rank lower than the constitution.
[17] Article 159 of the Constitution of the Republic of Burundi (2005)
[18] Article 160 of the Constitution of the Republic of Burundi (2005)
[19] Article 160 of the Constitution of the Republic of Burundi (2005)
[20] Article 292of the Constitution of the Republic of Burundi (2005)
[21] Article 129of the Constitution of the Republic of Burundi (2005)
[22] See here (assessed on 20-4-2007) for information on Burundi’s reporting under various treaty bodies.
[23] The initial report under ICCPR was submitted on time on 4th November 1991 while the 7th and 8th Report under ICERD was submitted on 9th March 1994
[24] Concluding Observations of the Committee on the Elimination of Discrimination Against Women : Burundi. 02/02/2001.accessed from here (assessed on20-4-2007)
[25] Concluding Observations of the Committee on the Rights of the Child: Burundi. 16/10/2000 CRC/C/15/Add.133. (Paragraph 77 & 78):
[26] Article 228 of the Constitution of the Republic of Burundi (2005)
[28] The office of the Ombudsman is established by article 237 to receive complaints of administrative maladministration, including human rights violations
[29] Batwa victimization in the context of the genocide has been documented by Minority Rights Group International, among others. See for instance here (assessed 30-2-2007)
[30] Ntahombaye, Ph. and Kagabo, L as above.