Burundi

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BURUNDI CRIMINAL DEFENSE MANUAL

  1. Fundamental Principles
  2. Interviews with Clients
  3. Hearing Strategies
  4. Defense Strategies
  5. The Nullity Procedure
  6. Nullification Proceedings Request (PDF)
  7. Manual on Arrest and Detention Procedures Established by the Code of Criminal Procedure of Burundi

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LEGAL RESOURCES

LEGAL TRAINING RESOURCE CENTER

Background of Burundi

Burundi is an African country located in the Great Lakes region and is one of the five members of the East African Community (EAC). With a total area of 27,834 km, Burundi is one of the smallest countries in Africa. Landlocked, Burundi shares borders with Tanzania to the East, the DRC to the West, and Rwanda to the North. Burundi contains Lake Tanganyika and other smaller lakes that dot the country. The overall population density compared to the area of land (not lakes) is 310 inhabitants per km2, which is concentrated mainly in the provinces of Gitega, Kayanza, Ngozi, Kirundo, and Muyinga, making Burundi one of the most populous African countries. Burundi officially recognizes three ethnic groups: the Hutu (85% of the population), the Tutsi (14% of the population), and the Twa (1% of the population). The cohabitation of these three ethnic groups caused tensions to rise in the past but after the Arusha Accords were signed in 2000, a much more peaceful atmosphere has existed until the recent political crisis (see below).

Historically, Burundi has experienced political crises and repeated civil wars between 1962 and 2008 that caused the deaths of more than 600,000 people. During the years of civil war following Burundi’s independence in 1962, Burundi struggled to grow economically, finally experiencing positive growth in 2005 at a rate of three to five percent. As emphasized by the World Bank, however, Burundi is still suffering the reverberations from previous wars, seeking to bandage wounds that have still not fully healed. Economic progress in Burundi is slowed by the high prices for food and oil, an energy deficit, inflation, excessive population growth, and a strong dependence on international financial aid. According to a recent IMF report, today, Burundi is the fifth poorest country in the world.


2015 Political Crisis

After just experiencing a brutal twelve-year civil war that ended in 2005 and left hundreds of thousands dead, Burundi is once again being plunged into another tumultuous situation following Burundi’s 2015 presidential election. In April 2015, Burundi’s President, Pierre Nkurunziza, announced his intent to run for a third term, an action which is unconstitutional due to Burundi’s two-term limit. Following Nkurunziza’s re-election in 2015, violence has once again erupted, causing increases in killings, detainment, and torture. While overt violence has started to subside recently, covert violence continues to rise and fears are growing among the international community that this new crisis could open up old wounds left by the civil war.

As of August 2015 the National Prison Administration reported that the prison population of Burundi was 8,689 although the prison capacity was only 4,050, putting the occupancy level at 214.5%. Because of this over-crowding, juveniles are often held in the same areas as adults. Among these prisoners, 56.7% of them are pre-trial detainees or remand prisoners (4,925 people) and the average time for pretrial detention is reported as being between one and two and a half years. Some detainees, however, have remained in pre-trial detention for up to five years and in some cases the length of the pre-trial detention equaled or exceeded the sentence of their alleged crime. Since the re-election of President Nkurunziza, however, these problems have escalated. The UN Human Rights Chief warned in April of 2016 that a “sharp increase in the use of torture and ill-treatment in Burundi” could occur and expressed concerns about reports of the existence of illegal detention facilities throughout the country. UN investigators have documented at least 345 cases of torture and ill-treatment from January 1, 2016 to April 18, 2016 according to the UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein. During visits in April of 2016 by the UN human rights team to SNR facilities (Service National des Renseignements – one of the country’s most feared institutions), thirty out of the sixty-seven people held there displayed signs of torture, twenty-five detainees had been kept in custody beyond the prescribed maximum time limit, and while the detainees had been arrested for minor offenses, the SNR registry listed much more serious offenses such as undermining State security, illegal possession of arms, and espionage. In addition to this, APRODH identified more than one-thousand men, women, and children who were arrested and accused of participation in insurrection movements against the State between April 26 and late June 2015 while League ITEKA reported more than two-thousand persons arrested and detained throughout Burundi.

The re-election of President Nkurunziza has stirred the waters of discontent among many of citizens of Burundi leading to the growth of opposition movements and, as a result, increased violence by the police, the military, and other organizations. The SNR are one of the most notorious actors in Burundi responsible for the recent human rights abuses. People can be held at an SNR compound for weeks before ever seeing the inside of a prison, therefore making it difficult to gather precise statistics on the amount of pre-trial detainees in Burundi. As of late 2015, no one within the SNR has been investigated or arrested for claims of torture. Further, in the cases studied by Amnesty International, the detainees did not have access to lawyers or contact with family members while at SNR facilities despite Articles 10 and 95 of the Burundian Code of Criminal Procedure which provides a right to communicate freely with a lawyer. In addition to these conditions, the SNR recently has been excluding many organizations and individuals from visiting its facilities.


National Sources of Law

Burundian law is dense in legal texts which can be applied to accused, indicted, condemned and detained individuals. The main texts applicable in criminal matters are:

- Criminal code, revisited, 2009;

- Code of Criminal Procedure, revisited, 2013;

- Constitution of Burundi, Law N°1/ 010 of the 18 March 2005 promulgating the Constitution of the Republic of Burundi

- Act No. 1/014 of the 29 November 2002 reforming the status of the profession of a lawyer[1]


International sources of Law

Burundi's constitution recalls it's commitment and respect for the Universal Declaration of Human Rights of the 10 December 1948, the International Covenant on Economic, Social and Cultural Rights of the 16 December 1966, the Africain charter on Human and Peoples' Rights of the 18 June 1981, and the National Unity charter. Additionally, considering that relations between people characterised by peace, friendship and collaboration in accordance to the Charter of the United Nations of 26 June 1945; Burundi's commitment to the Africain Unity in accordance with the Charter of the organization of Africain Unity of 25 May 1963 is reaffirmed. Furthermore, Burundi has ratified a multitude of treaties related to human rights which are the following: [2] [3]

- UDHR - Universal Declaration of Human Rights (1948 was when Burundi joined the UDHR)

- ICCPR - International Covenant on Civil and Political Rights (1990)

- ICESCR - International Covenant on Economic, Social and Cultural Rights (1990)

- African Charter on Human and Peoples' Rights (1989)

- Convention on the Prevention and Punishment of the Crime of Genocide (1996)

- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1992)

- Convention on the Rights of the Child (1997)

- AU Convention Governing Specific Aspects of Refugee Problems in Africa (1975)

- Convention on the Political Rights of Women (1992)

- International Convention on the Elimination of All Forms of Racial Discrimination (1977)

- Convention on the Elimination of All Forms of Discrimination against Women (1991)

The Rights of the Accused and Detained

A certain number of fundamental rights and principles prevail all the steps of the procedure from the arrest to the final hearing. They are:


The right to be informed of your rights and motives for the arrest

The right of any person arrested to be informed of the reasons for their arrest is a procedural safeguard which can not be restricted, at any time or under any circumstances.


Presumption of innocence

The right of accused and detained persons to be presumed innocent is clearly affirmed in article 40 of the Constitution, which states that "all persons accused of a derelict act is presumed innocent until his or her guilt is legally established by a public process during which all the necessary guarantees for his or her free defense has been assured."


The right to be assisted by a lawyer

The right to be assisted by a lawyer is recognised by the Code of Criminal Procedure. Under Article 95 of the Convention, it is stated that the alleged offender is entitled to all necessary guarantees for the exercise of the right to defense.


The right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment

The Constitution recognizes in Article 25 that no one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment. Therefore, the Constitution of Burundi prohibits any use of torture or cruel, inhuman or degrading treatment or punishment. Torture is also defined in Article 204 of the Penal Code as any act by which acute physical pain, mental pain or suffering is intentionally inflicted on a person for the purpose of obtaining information or a confession; punishing an individual for an act they have or are suspected of having committed; intimidating and putting pressure on an individual; or any other reason based on discrimination inflicted by a public official is a punishable violation. This in backed up by Article 205 of the Penal Code which states that anyone who subjects a person to torture or other cruel, inhuman or degrading treatment shall punished with penal servitude of ten to fifteen years and with a fine of one hundred thousand to one million"


The right to be judged within a reasonable time

The Article 40 of the Constitution of Burundi guarantees that everyone will be judged within a reasonable time.


The right to a public trial

Publicizing debates promotes fairness. Free defence imposes a duty not to prosecute lawyers for what they may say in their pleadings (see Article 35 of the Lawyers' Profession Act) The debate must remain free of censorship. This principle applies to a double reservation: on one hand, contempt and insult remain criminal and deontological, on the other hand, the freedom of speech of the lawyer is no longer the same when leaving the courtroom and the press. The publicity of the debates is a universal way of taking the audience or the audience witnessed the exchanges of arguments and remarks between the headquarters of the judges, the public prosecutor's office and the defense.

Police Procedures

Status and police functions

According to Article 3 of the Code of Criminal Procedure, judicial police officers are responsible for investigating the perpetrators of criminal offenses, gathering the indices at their charge and making them available to the public prosecutor and will receive from the Public Prosecutor's Office the task of carrying out any inquiry or supplementary investigation which is deemed necessary. Also, in Article 8 of the Code of Criminal Procedure and the Article 6 state that they are obliged to inform the Public Prosecutor without delay of the crimes, offences is under penalty of professional sanctions.

The rights of the accused and the civil party during the pre-jurisdictional phase.


Article 95 CCP. The alleged offender is entitled to all the necessary guarantees for the exercise of the right to defense. To that end, it shall be guaranteed the following rights:

(1) to choose a council; (2) communicate freely with him and in confidence; (3) to be assisted in the drafting of corrections and in the production of exculpatory evidence; (4) to be assisted by his or her counsel during investigative proceedings; (5) the right to remain silent in the absence of his Council. The accused and his counsel shall have the right to take cognizance if the record of the proceedings.


Article 96 The civil party may be assisted by a counsel of his choice during the investigative proceedings. She is also entitled to access to the file of proceedings.

Article 100 Any person who is legally required by a Public Prosecutor or by a judge is obliged to lend his ministry as an interpreter, translator or expert. The latter are bound by the duty of confidentiality.

Article 97 The investigating magistrate shall in no case forward the file to the Council. He may nevertheless appreciate the opportunity either to let him consult the whole file on the spot; or to issue copies of certain documents of the proceedings to the Council.


The guard saw Police custody is defined in Article 32 of the Code of Criminal Procedure as the detention of a person for a reason and for a short period determined by law on the very place of his arrest, police or security offices, for the purposes of a judicial police or judicial mission. In addition, police custody can only be carried out by Judicial Police Officer who is clearly identified in the verbal process and who ensures the control and assumes responsibility for it. Men and women must be separated in police custody. In addition, they must be monitored by police officers of the same sex. (Article 32 CCP)


It is important for a lawyer to verify that every police custody is accompanied by a police custody record drawn up by a judicial police officer. The latter must contain all of the following information: his name, surname, position, quality, the identity of the person in custody, the day, the time and place of arrest, the reasons for the custody, the conditions under which the detained person was presented, that the detainee was aware of their rights and placed in a position to exercise them, the day and hour of the custody and the duration of the custody. The report must also indicate the place or places where the police custody took place. (Article 35 CCP). The latter must be transmitted in original to the Public Prosecutor and a copy must be given to the person in custody, and a duplicate shall be kept on the spot. A record must be entered in a register containing all cases of Police custody. (Article 35 CCP)

Individuals in custody have rights as stated in Article 36: Every Judicial Police Officer is obliged to inform the family of the person in custody or any other interested person. Moreover, the Public Prosecutor may order the end of a custody that he deems no longer justifiable. (Article 34 of the CPP)

There are different types of police custody: Police custody is refereed to as the Criminal Investigation Department for the purposes of a preliminary investigation or the execution of a rogatory letter. Police custody is judicial when the arrested individual is addressed for the execution of a justice mandate, deprivation of liberty or imprisonment is immediately placed in custody. (Article 33 CPP)

Custody is limited. According to Article 34 of the Code of Criminal Procedure it cannot exceed seven days, unless the prorogation is decided by the Public Prosecutor with a maximum limit of twice that period.

More Information


See Criminal Justice Systems Around the World

QUICK FACTS

  • Prison Statistics (August 10, 2015)
Prison Population = 8,689
Prison Population Rate (Per 100,000 people) = 77
Pre-Trial Detainees / Remand Prisoners (Percentage of Prison Population) = 56.7%
Female Prisoners (Percentage of Population) = 4.0%
Juveniles / Minors (Percentage of Population) = 3.4%
Foreign Prisoners (Percentage of Population) = 1.2%
Number of Prisons = 11:#Official Capacity of Prison System = 4050
Occupancy Level (Based on Official Capacity) = 214.5%
  • Prison Population Trend (Year / Prison Population / Prison Population Rate)
2001 / 9,013 / 130
2002 / 8,647 / 121
2004 / 7,526 / 98
2006 / 7,332 / 89
2008 / 9,114 / 104
2010 / 9,481 / 100
2012 / 10,422 / 103
2014 / 8,646 / 79
2015 / 8,689 / 77
  • General Information
Capital = Bujumbura
Ethnic Groups = 85% Hutu / 14% Tutsi / 1% Twa
President = Pierre Nkurunziza
Area = 27,834 km2
Population = 11,178,921
GDP = $3.247 billion
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