BURUNDI

CCPR A/48/40 (1993)

45. The Committee considered the initial report of Burundi (CCPR/C/68/Add.2) and the core document forming the initial part of reports under the various international human rights instruments (HRI/CORE/1/Add.16) at its 1178th, 1182nd and 1183rd meetings on 19, 21 and 22 October 1992 (CCPR/C/SR.1178, 1182 and 1183). (For the composition of the delegation, see annex XI.)

46. The report was introduced by the representative of the State party, who indicated that, since 1987, the authorities had been working to put an end to the situation of division and violence in the country. The long process of dialogue that had been initiated had led to the drafting of the Charter of National Unity and the new Constitution, which had won a nearly 90 per cent vote of approval in referendums held in February and March 1992. A national commission had been set up for the return, reception and reintegration of refugees. Some 40,000 persons had returned to Burundi under the voluntary repatriation programme, despite attacks by the Hutu People's Liberation Party.

47. The representative drew attention to the human rights provisions introduced in the new Constitution of March 1992. The measures taken in favour of the promotion of human rights extended to the recognition of democracy based on political pluralism. Seven groupings had already been authorized as political parties under a law promulgated in April 1992 and legislative and presidential elections were scheduled for March 1993. Bearing in mind its level of social and cultural development, however, Burundi still had many obstacles to overcome on the path to democracy, social justice and development.

48. The members of the Committee welcomed with satisfaction the initial report of Burundi, which had been submitted shortly after it had been due, and thanked the State party for the core document forming the initial part of reports under the various international human rights instruments (HRI/CORE/1/Add.16). They nevertheless regretted that, because the report contained only a brief description of the legal provisions in force and did not refer to practice or the factors and difficulties impeding the implementation of the Covenant, it was not in keeping with the Committee's guidelines on the preparation of reports.

49. With regard to article 2 of the Covenant, the members of the Committee requested information on the hierarchy of legal norms in Burundi, the status of the Covenant in internal law, the relationship between the Constitution and the Charter of National Unity, the work in progress on the drafting of a new Penal Code and a new Code of Penal Procedure and the tasks of the Centre for the Promotion of Human Rights in Burundi. It was also asked how possible conflicts between the provisions of the Constitution and the Covenant and those of ordinary law were settled, whether the text of the Covenant had been translated into the various local languages, how the authorities had made known the Constitution and the Charter of National Unity to illiterate members of the population and what the powers of the National Security Council were.

50. In respect of article 3 of the Covenant, the members of the Committee asked what specific measures had been taken to promote the equality of men and women, how the nationality of parents was transmitted to children and what provisions governed the property of the spouses in marriage and the custody of children.

51. Referring to article 4 of the Covenant, the members of the Committee asked whether the rights mentioned in article 4, paragraph 2, of the Covenant could be derogated from during a state of emergency, whether the Secretary-General had been notified of the proclamation of the state of emergency and what derogations to the Covenant had been made at that time.

52. In connection with articles 6, 7, 9 and 10 of the Covenant, the members of the Committee asked in what cases the death penalty could be handed down, in how many cases it had been applied in the past, whether there were plans to abolish it, what law regulated the use of force by the police, whether controls had been established to ensure that persons arrested or detained, particularly in police stations, were not subjected to torture or ill-treatment, whether the Code of Penal Procedure did or would establish machinery for the conduct of independent and impartial investigations into allegations of torture, whether persons responsible for such acts were brought to justice and punished, what measures were taken to avoid overcrowding in detention centres, whether the Standard Minimum Rules for the Treatment of Prisoners were observed and whether the relevant rules were known to prisoners and law enforcement officials. It was asked how long it took before a person in custody was brought before a judge, what measures were taken to prevent abusive arrests and pre-trial detention and whether there was a remedy in Burundi law similar to that of habeas corpus.

53. Clarifications were requested on the events of November 1991 and March 1992 that had allegedly resulted in mass arbitrary arrests, enforced or involuntary disappearances, summary or arbitrary executions, many cases of torture and ill-treatment and serious breaches of the Standard Minimum Rules for the Treatment of Prisoners. It was asked whether those tragic events had been investigated, whether the individual responsibility of soldiers or gendarmes in those events had been established and how many members of the armed forces and gendarmerie had been prosecuted.

54. With regard to articles 12 and 13 of the Covenant, the members of the Committee requested further information on the problem of the voluntary repatriation of refugees to Burundi. It was asked whether such repatriation was in accordance with article 33 of the Convention relating to the Status of Refugees and article 18 of the Covenant, whether a general amnesty law was being envisaged and what the functions and activities of the National Commission for the Return, Reception and Reintegration of Refugees were.

55. In respect of article 14 of the Covenant, the members of the Committee asked whether the principle of the irremovability of judges existed in Burundi, how the independence and impartiality of the judiciary were guaranteed, what powers the Judicial Supervisory Commission and the Mandi Commission had, particularly as far as detention was concerned, whether there were political prisoners or prisoners of opinion arrested or detained in Burundi for opposing the Government, what measures had been taken to guarantee their right of defence and what jurisdiction military courts had.

56. Referring to articles 17, 18 and 19 of the Covenant, the members of the Committee requested information on the media bill and how article 18 of the Covenant was being implemented. They asked whether the media were State owned and whether Burundi and foreign journalists were free to express their opinions.

57. In connection with articles 21, 25 and 27 of the Covenant, the members of the Committee requested further information on the political parties and trade unions that now existed in Burundi, on the conditions in which the Decree-Law of 31 December 1991 making it obligatory to request prior authorization to hold a public demonstration was applied and on the implementation of the provisions according to which political parties were prohibited from identifying themselves with an ethnic group or religion. It was also asked what measures were taken to settle ethnic conflicts, whether the Charter of National Unity had achieved its aim of integrating all citizens into the country's political life, whether the restrictions provided for in articles 55, 56 and 57 of the Constitution were in keeping with articles 19, 22 and 25 of the Covenant, whether the opposition parties could present candidates in communal elections, whether measures had been taken to enable the Hutus, the majority ethnic group, to enter the public service and, in particular, to join the army in general conditions of equality and what was meant by the expression "who enjoy their civil and political rights" in article 3 of the Constitution.

58. In her reply, the representative of the State party said that Burundi had a single people, with a single culture and a single language. It had had many ethnic problems for reasons relating to its monarchical and colonial past and the running of State affairs after independence. In the last few years, however, efforts had been made to bring about national reconciliation, as shown by the adoption of the Charter of National Unity and the new Constitution. Legislative and preventive measures had been taken to educate the people and make them aware of the equality of all before the law. The Government was trying to promote ethnic reconciliation through specific actions aimed at preventing exclusion in all areas of national life, particularly concerning appointments of senior officials and the recruitment of security officials.

59. The provisions of articles 10 to 15 of the Constitution recapitulated the principles enunciated in article 2 of the Covenant. Other texts, such as the Penal Code and the Code of Penal Procedure, reproduced the definition of discrimination contained in the International Convention on the Elimination of All Forms of Racial Discrimination. Measures had been taken to promote the principle of the equality of men and women and the rights of children. However, the acceptance of democratic ideas accompanying the emergence of new political parties was still giving rise to problems, especially in rural areas, and there was still some inequality between the sexes as a result of sociocultural problems, particularly as far as the right to inherit was concerned. The Centre for the Promotion of Human Rights had the general task of disseminating information on and increasing awareness of human rights. The Government was endeavouring to make national and international legal instruments known to the illiterate part of the population by organizing rallies and information meetings, as well as radio programmes.

60. Replying to other questions on article 2 of the Covenant, the representative indicated that all the rights and duties embodied in the international human rights instruments were proclaimed in and guaranteed by article 10 of the Constitution. Moreover, the Covenant and the Constitution naturally prevailed over the Penal Code and the Code of Penal Procedure and, if the latter failed to conform to the Covenant or the Constitution, they were automatically amended or annulled by the Appeals Division. The Charter of National Unity was not accompanied by any legal or regulatory sanctions, but had primacy over the law. It was based essentially on the principle embodied in article 20 of the Covenant and was thus fully in conformity with the Covenant.

61. Referring to article 4 of the Covenant, he said that the various legal instruments relating to the maintenance of order and security, the proclamation of a state of emergency or state of siege and the requisitioning of persons and property had been drafted in the light of the need to protect human rights and individual freedoms and to maintain or re-establish law and order. Article 79 of the Constitution, setting forth the special powers of the President of the Republic during a state of exception or emergency, was fully compatible with articles 4 and 9 of the Covenant. In practice, whenever an exceptional measure was taken, for example, during the meningitis epidemic in September 1992, the public was so informed by the media and by the local authorities.

62. With regard to articles 6, 7 and 10 of the Covenant, the representative indicated that, in Burundi, the death penalty could be imposed in cases of assassination, murder, theft followed by murder, cannibalism and torture, rape or abortion resulting in death. Handing down a death sentence, even if it was not carried out, was not a futile act, given the deterrent effect of such a sentence and the infamy it entailed. He also noted that disciplinary and criminal penalties had been applied to security force members who had violated articles 11, 19, 20 and 21 of the Constitution on the individual's right to physical and moral integrity. Although it was undeniable that irregularities had occurred and might reoccur, particularly in the context of ethnic disputes, the competent authorities were endeavouring to ensure respect for the right to life. Detention conditions were consistent with the Standard Minimum Rules for the Treatment of Prisoners. Prisoners were entitled to confer with their lawyers in private.

63. Replying to questions concerning the events of November 1991 and March 1992, he stressed that the human rights violations which had occurred had been the work of an ethnic terrorist faction called the Hutu People's Liberation Party. It took the view that reconciliation was impossible as long as there was ethnic cleansing in Burundi. The members of that faction incited the people to ethnic hatred and sought to deceive international opinion by means of preposterous untruths to the effect that the Hutus were the victims of massacres by the Tutsi minority. In November 1991, some communes had been struck by terrorist attacks which had claimed 500 victims. Clashes between the law enforcement forces and the aggressors had also resulted in many victims on both sides. Legal proceedings had been brought against the terrorists and their accomplices and had been conducted with the greatest possible openness. Abuses by the police had also been reported and members of the military had been prosecuted for summary executions.

64. Referring to article 9 of the Covenant, the representative indicated that measures had been taken to guarantee the right of a detainee to be informed of the reasons for his arrest, to appear before a judge within a reasonable period of time and to have the assistance of a lawyer. In addition, the Code of Penal Procedure was currently being revised to bring it even more closely into line with the constitutional provisions guaranteeing respect for human rights. According to article 4 of the Code of Penal Procedure, the government attorney carried out a weekly inspection of police station premises and had the power to release any person apprehended by the police where evidence against that person was insufficient.

65. In respect of articles 12 and 13 of the Covenant, the representative of the State party indicated that irregularities in the application of the internal provisions relating to freedom of movement had been noted for the last time in 1978. Since 1989, no one had been required to submit his travel documents to the immigration service. In order to facilitate the reception and integration of returnees, the decree of 22 January 1992 empowered the Commission for the Voluntary Repatriation of Refugees to settle disputes over property claimed by the returnees. The Commission's decisions were not open to appeal in order to facilitate reception conditions and encourage the amicable settlement of any family conflicts which might arise.

66. As to article 14 of the Covenant, the representative of the State party said that the military tribunals were empowered to try military personnel and their civilian accomplices and to judge any crimes and offences involving the use of firearms committed by civilians. The judiciary was separate from the military courts and the decisions of the military courts could be set aside by the Supreme Court. Although there had been cases of pressure by the executive on the judiciary from 1980 to 1985, the 1992 Constitution guaranteed the independence of the judiciary. Measures to dismiss judges were taken by a disciplinary body presided over by the Head of State. In Burundi, there were some prisoners of conscience or opinion, and they had been prosecuted for inciting racial hatred. None of them had, however, been prosecuted for criticizing the Government, a party or the administration. Replying to other questions, the representative indicated that the law governing the bar, as well as the laws governing the Code of Penal Procedure and the Criminal Division of the Court of Appeal, provided that a person charged with an offence could be assisted by counsel of his own choosing or could request that counsel should be assigned to him. In 1977, the Mandi Commission had abolished land development contracts under which a person who had cultivated a landholding for several years could be evicted from it at any time by the landowner. The Judicial Control Commission, replaced in 1987 by the Office of the Inspector-General of Justice, dealt exclusively with monitoring the enforcement of judgements in land disputes.

67. The representative of the State party said that the rights covered by articles 18 and 19 of the Covenant had become a reality in Burundi, where many political parties, associations, newspapers, religions and sects had been authorized for some years.

68. As to articles 21, 22 and 25 of the Covenant, the representative of the State party stressed that public demonstrations were authorized under a decree-law adopted in 1992. For security reasons, demonstration organizers had to inform local authorities of the demonstration 48 hours in advance. The restrictions on the right to take part in the conduct of public affairs, to vote and to be elected, as referred to in articles 3 and 29 of the Constitution, were fully consistent with the Covenant. Article 57 of the Constitution prohibited political parties from identifying themselves in any way with an ethnic group, region, religion, sect or sex.

69. With regard to article 27 of the Covenant, the members of the Committee said that there were no ethnic groupings in the strict sense of the word in Burundi, since no population group possessed a territory, culture, language or religion of its own. However, the term "ethnic group" was used for lack of a better word to designate the Hutus, the Tutsis and the Twas, whereas the three groups made up a single population sharing the same culture. During the colonial era, the Hutus had represented 85 per cent of the population, the Tutsis 14 per cent and the Twas 1 per cent and no ethnic census had been organized since then.

Concluding observations by individual members

70. In concluding the consideration of the initial report of Burundi, members of the Committee welcomed the willingness of the State party's delegation to cooperate and enter into a constructive dialogue with the Committee on the application of the Covenant in Burundi. Members noted a number of positive developments that had recently taken place in Burundi, in particular, the opening towards pluralism, the promulgation of a new Constitution, the ratification of a number of international human rights instruments, the establishment of a centre for the promotion of human rights, and the agreement of the Government to the establishment of independent associations for the protection of human rights. Although there was still much to be done, members welcomed the implementation of a policy of voluntary repatriation, resettlement and social and occupational reintegration of refugees.

71. At the same time, members of the Committee expressed special concern over the cases of extrajudicial executions and of torture in connection with the upheavals that took place in 1988, 1991 and 1992. In that connection, they pointed out that no derogation from articles 6 and 7 of the Covenant were permitted under any circumstances. They also expressed concern over the unavailability of effective remedies to victims of human rights violations; the absence of legal provisions prohibiting illegal detention; the shortage of legal personnel and the financial constraints which hampered the administration of justice; the general inadequacy of the legal and other measures designed to promote and protect human rights; the various constitutional limitations on the effective enjoyment of human rights; and over problems relating to the effective implementation of articles 18, 19 and 27 of the Covenant.

72. The representative of the State party expressed her sincere thanks and appreciation for the dialogue which had been initiated and assured the Committee of her Government's desire to make improvements in future periodic reports.

73. In concluding the consideration of the report, the Chairman also thanked the representative for her cooperation and expressed the hope that the Committee's comments would be taken into account by the Government.

Comments of the Committee

74. At its 1203rd meeting (forty-sixth session), held on 5 November 1992, the Committee adopted the following comments.

Introduction

75. The Committee welcomes the willingness of the Government of the State party to cooperate and to enter into a constructive dialogue with the Committee on the application of the Covenant in Burundi, as evidenced by the timely submission of its initial report, the sending of a high-level delegation to present the report and the submission of an additional document updating the information contained in the initial report. The Committee has, however, noted that the report did not conform to the Committee's general guidelines for the preparation of initial reports. The Committee commends Burundi for the core document (HRI/CORE/1/Add.16) submitted in accordance with the consolidated guidelines for the initial part of reports submitted under the various international human rights instruments (HRI/1991/1).

76. Since neither the initial report nor the additional document contained sufficient information on the actual application of the Covenant, in particular information on the factors and difficulties affecting the implementation of the provisions of the Covenant, it was difficult for the Committee to obtain a clear picture of the human rights situation in the country.

Positive aspects

77. The Committee has noted that recently a number of developments had taken place in Burundi that may have a positive effect on the human rights situation in the country, including the opening towards pluralism; the promulgation of a new constitution; the ratification of a number of international human rights instruments; the establishment of a centre for the promotion of human rights; and the agreement of the Government to the establishment of independent associations for the promotion and protection of human rights. Although there is still much to be done, the Committee welcomes the implementation of a policy of voluntary repatriation, resettlement, and social and occupational reintegration of Burundian refugees.

Factors and difficulties impeding the application of the Covenant

78. The Committee has noted that the upheavals that took place in the country in 1988, 1991 and 1992 had a negative impact on the human rights situation in Burundi as a whole, and seriously affected compliance with the provisions of the Covenant. Furthermore, constitutional provisions stipulating that the enjoyment of human rights had, in many instances, to be subordinated to the imperatives of public order, hindered the effective implementation of the Covenant. The Committee has also noted the absence of laws giving effect to constitutional provisions on human rights, the shortage of legal personnel and the large backlog of cases before the courts, all of which hinder the effective protection of human rights.

Principal subjects of concern

79. The Committee expresses concern about the general inadequacy of the legal and other measures designed to promote and protect human rights and, especially, about the various constitutional limitations on the effective enjoyment of human rights. The Committee is alarmed over the cases of extrajudicial executions and of torture documented in the reports prepared by the Special Rapporteurs of the Commission on Human Rights on those subjects (E/CN.4/1992/30 and E/CN.4/1992/17) and also as reported by various non-governmental organizations. In that connection, the Committee observes that no derogations from articles 6 and 7 of the Covenant are permitted under any circumstances. The Committee has also noted that effective remedies to victims of human rights violations, as envisaged in article 2, paragraph 3, of the Covenant, are not available. In addition, the absence of legal provisions prohibiting illegal detention and of a habeas corpus procedure seriously undermine the rights to liberty and security of person as set forth in article 9 of the Covenant. The non-conformity of legislation and actual practice with articles 18 and 19 of the Covenant was also of special concern.

Suggestions and recommendations

80. The Committee recommends that a determined effort be made to bring national laws and practice more closely into conformity with the provisions of the Covenant, that the use of excessive force by law enforcement officers should be effectively prevented and that, in conformity with articles 2, 26 and 27 of the Covenant, the rights of persons belonging to minorities living in the country should be given full protection. It is also recommended that Burundi's second periodic report should be prepared in conformity with the Committee's general guidelines and provide comprehensive information on measures undertaken, both in law and in practice, to give effect to the provisions of the Covenant.

CCPR A/49/40 (1994)

354. In the light of past and continuing events in Burundi affecting the human rights guaranteed under the International Covenant on Civil and Political Rights, and in accordance with article 40, paragraph 1 (b), of the Covenant, the Committee requested the Government of Burundi on 29 October 1993 to submit a report, not later than 31 January 1994, if necessary in summary form, describing in particular the implementation of articles 4, 6, 7, 9, 12 and 25 of the Covenant during the current period, for consideration by the Committee at its fiftieth session.

355. At its fiftieth session, the Committee noted that the report requested had not been submitted by the Government of Burundi and, through its Chairman, asked for it to be submitted to the Committee for consideration at its fifty-first session. In response to this request, the Government of Burundi submitted a report on 12 July 1994 (CCPR/C/98), which was considered by the Committee at its 1349th and 1350th meetings, on 25 July 1994. The Committee adopted 30/ the following comments:

Introduction

356. The Committee thanks the State party for its report and welcomes the presence before the Committee of a high-level delegation. The Committee notes with regret, however, that while providing some information on the implementation of articles 4, 6, 7, 9, 12 and 25 of the Covenant, the report does not contain enough information on the situation obtaining in the country and the difficulties affecting the application of the Covenant. The information provided orally by the delegation made good those deficiencies and provided the Committee with better insight into the human rights situation in Burundi.

Factors and difficulties affecting the application of the Covenant

357. The Committee notes that, since its accession to independence, Burundi has regularly had to contend with serious conflicts between the Hutu majority and the Tutsi minority, largely attributable to socio-political difficulties inherited from the past. Those conflicts, particularly the most recent one in the autumn of 1993, following the assassination of the President of the Republic, have been marked by gross violations of human rights. The lack of effective measures following such events, as well as the de facto impunity enjoyed, regardless of rank, by members of the army, police, gendarmerie, security forces or administration responsible for serious violations of human rights, are obstacles to the restoration of lasting peace and to the halting of the cycle of violence between the Hutu majority and the Tutsi minority.

358. The dominance in the army, the police, the gendarmerie, the security forces, the judicial system and, generally, in the most senior civil-service posts of persons belonging to a minority group is a factor constantly and seriously affecting the application of the Covenant and one which continually

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       30/     At the 1355^th meeting (fifty-first session), held on 28 July 1994.

arouses the fears of the majority of the population. The recent unrest on an unprecedented scale in a neighbouring country (Rwanda), which has resulted in a massive influx of refugees into Burundi, is a further difficulty likely to have extremely negative effects on the application of the Covenant in that country.

Positive aspects

359. The authorities have made an effort to consider a number of measures to restore civil peace and harmony among the various elements of the Burundi population, although those efforts do not for the time being seem to have had concrete effects.

360. The Committee also notes that foreign non-governmental organizations have been allowed to conduct inquiries into human rights violations in Burundi without hindrance.

Principal subjects of concern

361. The Committee deplores the massacres following clashes between Hutus and Tutsis that have occurred in Burundi since its consideration of the initial report in October 1992 and the increasingly serious obstacles to the peaceful coexistence of the various elements of the Burundi population. The attempts to restore civil peace, to assuage the tensions of daily life in society and to redress the balance in the various State institutions, particularly the army, the police, the gendarmerie, the security forces and the judiciary, so as to make them more representative of the various elements of the population, have clearly failed. The Committee deplores the pattern of gross violations of human rights in the form of numerous summary executions, disappearances and instances of torture which occurred following the events of autumn 1993. The army, the police, the gendarmerie and the security forces have continued to be responsible for many violations of human rights. The civilian population continues to be armed and further violations of human rights are to be feared.

362. The Committee deplores the lack of any inquiry into the above-mentioned violations. As a result, the perpetrators have remained unpunished and continue to perform, and sometimes to abuse, their functions in the army, police, gendarmerie or security forces. The victims or their families have received no compensation of any kind. The judiciary has shown itself incapable of carrying out its duties independently and impartially and has been unable to initiate the necessary investigations or bring those responsible to trial. Furthermore, the fact that the commissions of inquiry recently set up to identify those responsible for human rights violations consist of individuals belonging to only one of the country's population groups is a source of serious concern and has served only to shake the population's confidence in the authorities and exacerbate strife and violence between the various population groups.

363. The Committee deplores the fact that the provisions of the Covenant not referred to in the Committee's decision have also been the subject of serious violations. In particular, the use of the media to incite hostility and violence among the various population groups constitutes a clear violation of the provisions of article 20 of the Covenant.

Suggestions and recommendations

364. The Committee urges the State party to initiate without delay a process of national reconciliation. This process should be accompanied by various specific measures such as the establishment of commissions of inquiry made up of members of each of the country's population groups. Impartial foreign observers could participate in the inquiries in order to identify those responsible for gross violations of human rights in the autumn of 1993, to bring them to trial and punish them and to remove all persons involved in such crimes from the various State bodies, particularly the army, the police, the gendarmerie and the security forces. The victims and their families should also be compensated.

365. The Committee suggests using the media to promote national reconciliation and harmony among Burundi's various population groups. Strenuous efforts should be made to educate and inform the whole of Burundi society regarding human rights. This campaign should take account of Burundi's traditions and customs, including the role of mothers in educating their children.

366. The Committee believes that it is essential to take urgent measures to reorganize public institutions so as to ensure balanced participation by all population groups in the conduct of public affairs and to permit all citizens, without distinction, to have access to public service, in the administration, the army, the police, the gendarmerie, the security forces and the judiciary. In addition, the Committee considers that the army should be brought under the effective control of the civilian authorities. The judiciary and the civil service should also be opened immediately to those groups, so that they can be seen by the population to be impartial and representative of the population as a whole, thus restoring some degree of public confidence in national institutions.

367. In view of the considerable difficulties encountered by the State party in implementing the Covenant, the gross violations of human rights that occurred in autumn 1993 and the serious danger of a recurrence of such violations, the Committee is of the view that in its efforts at internal pacification and national reconciliation, Burundi should receive the resolute support of the international community.

368. The Committee recommends that the United Nations High Commissioner for Human Rights continue to make strenuous efforts to help Burundi avoid any future recurrence of gross violations of human rights, for example, by encouraging the establishment of international investigation machinery.

369. The Committee encourages the High Commissioner for Human Rights and the Centre for Human Rights in their efforts to provide advisory services and technical assistance in the field of human rights.

370. The Committee, for its part, is ready to respond constructively to any appropriate request for assistance by the Government of Burundi, provided that it is clear and accompanied by a firm resolve on the part of the Government to adopt the measures necessary for the effective implementation of the Covenant.