Burundi: Vital role of the Commission of Inquiry in prompting meaningful human rights progress | Joint Letter

21/08/2020

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To Permanent Representatives of Member and Observer States of the United Nations (UN) Human Rights Council, Geneva, Switzerland

21 August 2020

Burundi: Vital role of the Commission of Inquiry in prompting meaningful human rights progress

Excellencies,

Ahead of the 45th session of the UN Human Rights Council (hereafter “HRC” or “the Coun­cil”), we, the undersigned national, regional and international civil society organisations, write to ur­ge your delegation to support the renewal of the mandate of the Commission of Inquiry (CoI) on Burundi. In the con­text of recent political developments, such a renewal, building off the invest­ments to date in and from the CoI, would pro­­vide the best opportunity to prompt meaningful human rights progress in Burundi.

As of today, the CoI remains the only independent mechanism mandated to document human rights vio­la­tions and abuses (including on their extent and whether they may constitute crimes under international law), monitor, and publicly report on the situation in Burundi, with suffi­cient resources and ex­perience to do so. Chan­ging political realities do not amount to systemic human rights change, and the Council has a responsibility to continue supporting victims and sur­­vivors of violations and working to improve the situation in Burundi.

In the past, an Independent Expert or other experts mandated to report on the human rights situ­a­tion in Burundi have not been able to publish information with the same level of de­tail as the CoI, which has extensive contacts in the country and a team of dedicated, expe­rienced inves­tigators. This is even more crucial now because of the Burundian Government’s in­tran­sigence, the absence of a UN human rights team in the country, and lack of access to the Burun­dian territory.

The work conducted by the CoI, which is due to present its written report to the Council at its up­coming 45th session (14 September-6 October 2020), continues to provide critical oversight of the hu­man rights situation in Bu­run­di. The country’s crisis was trig­gered by for­mer President Pierre Nku­run­ziza’s announ­ce­ment, in April 2015, that he would run for a third term in office. Throughout the years, the CoI and its predecessor, the UN Independent In­ves­tigation on Bu­rundi (UNIIB), have do­cumented gross, widespread and syste­ma­tic human rights vio­lations and abu­ses, some of which may amount to crimes against humanity.

The Government, state security forces, inclu­ding the police, the National Intel­li­gence Service (Service national de ren­sei­gnement, or SNR), and members of the youth league of the ruling Con­seil national pour la dé­fense de la démocratie-Forces de défense de la démocratie (CNDD-FDD) party, the Imbo­ne­rakure, are responsible for many of the violations and abuses. Over the course of its re­por­ting, the CoI has documented vio­lations of civil, po­li­ti­cal, eco­nomic, social and cultural rights in a dete­rio­ra­ting economic and humanitarian context. Vio­la­tions and abuses include arbitrary arrests and de­ten­tions of prisoners of conscience and those perceived to be against the Government, bea­t­ings, des­truc­tion of property, including of premises of the Congrès National pour la Li­berté (CNL) party, theft of pro­perty belonging to members of opposition parties and human rights defen­ders (HRDs) in exile, and arbitrary sus­pension and forced closure of civil society organisations and me­dia out­lets. They also in­clu­de torture and ill-treat­­ment, the use of excessive and lethal force against pea­ceful demons­trators, en­forced disap­pear­ances, violations of the rights of women and girls, rape and other forms of sexual and gender-based vio­lence, forced labour, the extortion of contributions for state-led pro­jects, hate speech and inci­te­ment to eth­nic ha­tred (which go on with the acquiescence of political, prosecutorial, and judicial au­tho­­rities), and extrajudicial killings.

Such violations and abuses have continued to take place in a context of near-com­plete im­pu­nity; to date, no high-level officials have been held acc­ountable. Several hundred prisoners who have served their term or whose release has been ordered continue to be arbitrarily detained. This situation is on­going despite opinions rendered by the UN Working Group on arbitrary detention (WGAD), which exa­mined some of these prisoners’ cases. Victims and survivors of sexual violence have been denied access to a specialised framework for medical and psy­chological treatment and full rehabi­li­tation. Ad­di­tionally, in recent months, there has been an in­crease in ethnic hate speech, including by individuals close to the Government, with a view to de-humanising parts of the population (i.e., the Tutsi).[1]

Members and sup­porters of opposition political parties, in particular the CNL, as well as inde­pen­dent voi­ces, including civil society members, HRDs, members of non-govern­men­tal organisations (NGOs), and jour­nalists, have been targeted. Since April 2015, the civic and democratic space has continued to shrink. At the time of writing, despite calls on the new President, Éva­riste Nda­yishimiye, to de­mon­strate his openness to reconciliation by releasing all detained HRDs,[2] Ger­main Ru­kuki,[3] Nestor Nibitan­ga, and Iwacu reporters Egide Hare­rima­na, Christine Ka­mi­kazi, Te­rence Mpo­zenzi and Agnès Ndi­ru­busa, re­main in detention.

The Burundian Government ceased its cooperation with the Council’s mechanisms, including in 2016 by declaring members of the UNIIB personæ non gratæ and in February 2019 by forcing the Office of the UN High Commissioner for Human Rights (OHCHR) to leave the country. Despite being a member of the Council (2016-2018), Burundi refused to implement Council resolutions, including HRC resolution 36/2, which was adopted at Burundi’s request and with the sponsorship of the African Group.[4] Burundian officials have also repeat­edly insulted and threa­t­ened members of the CoI and car­ried out reprisals against exiled HRDs, in­clu­ding lawyers and activists who sought to engage with the UN human rights system.[5] The Government has extended sub-standard co­operation to regional me­cha­nisms. African Union (AU) ob­servers, who have not been fully deployed, continue to face a num­ber of limitations to their work. Unlike the CoI, their findings are not made public. Burundi has dis­re­gar­ded resolutions adopted by the African Commission on Human and Peoples’ Rights (ACH­PR), inc­luding Resolution 412 (LXIII) 2018, which urged the Government to “[c]onduct prompt inde­pen­dent, im­par­tial and effective investigations” into human rights violations and “[c]ooperate with all inter­­national commu­nity stakeholders, including the African Union, the United Nations and the East Afri­can Community, in the search for a peaceful and human rights res­ponsive solution to the crisis.”[6]

Relying on independent, tho­rough and profes­sional documentation methodologies, without access to country’s territory, the CoI has continued to expose violations. In 2019, in accordance with principles of early warning and prevention and using the Fra­mework of Analysis for Atrocity Crimes developed by the UN’s Office on Genocide Prevention and the Responsibility to Protect, the CoI identified risk factors and indicators of violations.[7] While some of the factors the Commission identified are related to specific circumstances, such as elections, a number of other factors are struc­tural. This means that, be­yond the appointment of new officials, systemic changes and meaningful reforms are necessary[8] to bring about sustainable im­­provements in the situ­ation and deliver effective guarantees for the rights of Burundian citizens.

Burundi is in a period of potential transition, following the 20 May 2020 presidential, legislative and local elections resulting in the election of a new President, Évariste Nda­yishimiye and after the pass­ing of former President Nkurunziza. At this moment and in this context, there are signs of promise as well as of significant concern.

Despite promising remarks by President Nda­yi­shi­miye during his inau­guration, as well as the autho­ri­ties’ new, more transparent approach to tackling the COVID-19 pandemic, observers­ also raised con­cerns, notably over the fact that several newly ap­pointed members of the Nda­yishimiye administration are subject to international individual sanctions for their alleged res­pon­sibility in human rights vio­la­tions. Nonetheless, the political tran­si­tion represents an oppor­tu­nity to open a new chapter for the Bu­run­dian people and for Burundi’s rela­tionship with the UN hu­man rights system.

Although the May 2020 elections and their immediate aftermath were not characterised by mass vio­lence, concerns and warning signs remain. Widespread intimidation and patterns of vio­lations against opposition members and supporters, as well as the arrest of hundreds of CNL suppor­ters, have con­tri­buted to an ongoing climate of fear. As the CoI reported in its 14 July update to the Council,[9] “[h]u­man rights violations continue to date and it would be premature to make any pro­noun­cements on the pos­sible evolution of the situation under the new government.”

In its 14 July address, the CoI identified some “priority areas for action against which the new au­tho­rities can objectively attest their desire for change and normalisation on the long term […].” These areas for action include:

  • The fight against poverty and economic instability (risk factor no. 1).
  • The fight against the de facto impunity en­joyed by the main perpetrators of violations (risk factor no. 2) and the reform of the judicial system (risk factor no. 3). In our view,[10] this would include:
  • The removal of offi­cials who have been credibly implicated in serious human rights vio­la­tions and possible atrocity crimes while thorough and im­partial investi­ga­tions are con­duc­ted. Where there is sufficient admissible evidence, those suspected of criminal res­pon­sibility should be prosecuted in fair trials, ir­res­pective of their rank, status, or political affi­liation. Victims and survivors and their families should be able to access justice, truth and reparation;
  • Comprehensive reforms of police and security forces, including bringing human rights violations com­mit­ted by the National Defence Force, law enforcement bodies, the SNR and the Imbo­ne­rakure to an end, and ensuring that the ruling party’s youth league is dis­armed and not used for any official state security or other duties. Military, security and law en­for­cement forces should undergo a thorough vet­ting process, with regional or inter­na­tional assis­tance, to remove individuals who have taken part in human rights vio­lations.
  • The re-opening of the democratic space (risk factor no. 4). In our view, this would include:
  • Establishment and maintenance of a safe and enabling environment for HRDs, members of civil society, journalists, and opposition members and supporters. A safe and enabling civic space includes releasing all pri­soners of conscience, inclu­ding detained HRDs and jour­nalists; an end to political interference in the ju­dicial system; full protection of free­dom of expression, peaceful assem­bly and asso­ciation, and the re­insta­tement of and full respect for the rights of arbitrarily banned civil society or­ga­nisa­tions and media out­lets;
  • Measurable progress should also be recorded to allow for the safe, voluntary and digni­fied return of more than 300,000 refugees, including political refu­gees who were forced to flee the country to avoid harassment.
  • The cooperation with the Commission of Inquiry. More generally, we urge:
  • Full cooperation with international and African human rights bodies and mechanisms, inclu­ding coope­ration with the CoI (which means granting it access the country), resumed co­operation with OHCHR, and finalisation of a memorandum of un­der­standing with the AU’s human rights obser­ver mission. Regional and international NGOs should also be able to access the country and operate without interference. Burundi should promptly re-accede to the Rome Statute of the International Criminal Court (ICC) and cooperate fully with the Court.

We would welcome meaningful and concrete improvements in the human rights situation in Burundi, and we believe that the best chance to achieve such meaningful change is through the renewal of the mandate of the Commission of Inquiry, as well as the Burundian authorities re­initiating dialogue with the CoI, OHCHR, and other UN and AU human rights bodies and me­cha­nisms. Through such engagement, the Burundian authorities could help chart a clear and unwavering path from the current context of grave violations and widespread impunity by ma­king measurable progress on key indicators such as those referenced above.  

At its 45th session, the Council should avoid sending the Government of Burundi signals that would disincentivise domestic human rights re­forms, such as terminating the CoI’s mandate in the absence of measurable progress. It should avoid a scenario where re-establishing the CoI’s man­date would be necessary after a pre­ma­ture discontinuation, because of a renewed esca­­lation of human rights violations and abuses. The Council should rather ensure conti­nued in­ves­ti­ga­tions, monitoring, public reporting, and public debates on Burundi’s human rights si­tuation.

We thank you for your attention to these pressing issues and stand ready to provide your delegation with further information as required.

Sincerely,

  1. Action des Chrétiens pour l’Abolition de la Torture – Burundi (ACAT-Burundi)
  2. African Centre for Democracy and Human Rights Studies (ACDHRS)
  3. African Centre for Justice and Peace Studies (ACJPS)
  4. AfricanDefenders (Pan-African Human Rights Defenders Network)
  5. Amnesty International
  6. ARTICLE 19
  7. Association Burundaise pour la Protection des Droits Humains et des Personnes Détenues (APRODH)
  8. Association des Journalistes Burundais en Exil (AJBE)
  9. The Burundi Human Rights Initiative (BHRI)
  10. Cairo Institute for Human Rights Studies (CIHRS)
  11. Centre for Civil and Political Rights (CCPR-Centre)
  12. CIVICUS
  13. Civil Society Coalition for Monitoring the Elections (COSOME)
  14. Coalition Burundaise pour la Cour Pénale Internationale (CB-CPI)
  15. Collectif des Avocats pour la Défense des Victimes de Crimes de Droit International Commis au Burundi (CAVIB)
  16. DefendDefenders (East and Horn of Africa Human Rights Defenders Project)
  17. Eritrean Movement for Democracy and Human Rights (EMDHR)
  18. European Network for Central Africa (EurAc)
  19. Front Line Defenders
  20. Geneva for Human Rights / Genève pour les Droits de l’Homme
  21. Global Centre for the Responsibility to Protect (GCR2P)
  22. Human Rights Watch
  23. International Commission of Jurists (ICJ)
  24. International Federation for Human Rights (FIDH)
  25. International Federation of ACAT (FIACAT)
  26. International Movement Against All Forms of Discrimination and Racism (IMADR)
  27. International Service for Human Rights (ISHR)
  28. Lawyers’ Rights Watch Canada
  29. Light For All
  30. Ligue Iteka
  31. Mouvement des Femmes et des Filles pour la Paix et la Sécurité (MFFPS)
  32. National Coalition of Human Rights Defenders – Burundi (CBDDH)
  33. Central African Network of Human Rights Defenders (REDHAC)
  34. Observatoire de la Lutte contre la Corruption et les Malversations Économiques (OLUCOME)
  35. Odhikar
  36. Organisation pour la Transparence et la Gouvernance (OTRAG)
  37. Réseau des Citoyens Probes (RCP)
  38. SOS-Torture/Burundi
  39. Southern Africa Human Rights Defenders Network (SAHRDN)
  40. TRIAL International
  41. Union Burundaise des Journalistes (UBJ)
  42. West African Human Rights Defenders Network (ROADDH/WAHRDN)
  43. World Organisation Against Torture (OMCT)

References

[1] Commission of Inquiry on Burundi, “Oral briefing by the Commission of Inquiry on Burundi,” 9 March 2020, https://www.ohchr.org/EN/HRBodies/HRC/Pages/NewsDetail.aspx?NewsID=25694&LangID=E. See also Commission of Inquiry on Burundi, “Oral briefing of the Commission of Inquiry on Burundi,” 14 July 2020, https://www.ohchr.org/EN/HRBodies/HRC/Pages/NewsDetail.aspx?NewsID=26087&LangID=E (both accessed on 10 August 2020).

[2] Protection International et al., “Burundi: a decisive moment for the future of human rights defenders,” 17 June 2020, https://www.protectioninternational.org/en/news/statement-decisive-moment-future-human-rights-defenders-burundi (accessed on 17 July 2020).

[3] On 30 July 2020, it was reported that in a 30 June 2020 ruling, Burundi’s Supreme Court rendered invalid the July 2019 Appeal Court decision to uphold Germain Rukuki’s conviction and 32-year prison sentence and sent the appeal case back to be heard again by the Ntahangwa Appeal Court, with a newly composed bench (see FIACAT, “Cassation du jugement en appel condamnant Germain Rukuki,” 30 July 2020, http://fiacat.org/presse/communiques-de-presse/2909-communique-cassation-du-jugement-en-appel-condamnant-germain-rukuki (accessed on 31 July 2020)).

[4] Regarding Burundi’s violations of its Council membership obligations, see DefendDefenders, “Headlong Rush: Burundi’s behaviour as a member of the UN Human Rights Council,” 25 July 2018, https://defenddefenders.org/headlong-rush-burundis-behaviour-as-a-member-of-the-un-human-rights-council/ (accessed on 17 July 2020).

[5] Ibid. See also the UN Secretary-General’s reports on “Cooperation with the United Nations, its representatives and mechanisms in the field of human rights” presented to the Council by the Assistant Secretary-General for human rights on a yearly basis: https://www.ohchr.org/EN/Issues/Reprisals/Pages/Reporting.aspx (accessed on 17 July 2020).

[6] African Commission on Human and Peoples’ Rights, “Resolution on the Human Rights Situation in the Republic of Burundi – ACHPR/Res. 412 (LXIII) 2018,” 13 November 2018, available at: https://www.achpr.org/sessions/resolutions?id=420 (accessed on 17 July 2020).

[7] Human Rights Council, “Report of the Commission of Inquiry on Burundi,” UN Doc. A/HRC/42/49, 6 August 2019, available at: https://www.ohchr.org/EN/HRBodies/HRC/CoIBurundi/Pages/CoIBurundiReportHRC42.aspx (accessed on 17 July 2020).

[8] See examples of indicators below.

[9] See footnote 1 above.

[10] See also Human Rights Watch, “Letter to President Ndayishimiye: Protecting Human Rights in Burundi,” 13 July 2020, https://www.hrw.org/news/2020/07/15/letter-president-ndayishimiye-protecting-human-rights-burundi (accessed on 31 July 2020).