by Albert Mbonerane, Bonn, Germany, October 1997
THEME = JUSTICE
In describing the judiciary in Burundi, I shall approach it according to the abuses which has contributed to a kind of "institutionalization of impunity" enjoyed by the presumed authors and planners of all the violations of human rights committed since Burundi gained her independence in 1962.
According to the most recent statistics (before 1993), the total population of Burundi was nearly six million. According to a study carried out by the Agency for Cultural and Technical Cooperation (ACCT), there were about 200 judges in the Higher courts; of these one-third worked for the Ministry of Justice and two-thirds sat on the Bench. A study conducted by the Burundi Democratic Front (FRODEBU) at the end of 1995, reported that the Ministry of Justice had a personnel of 210 (civil servants and judges), of whom only 12 were Hutu. As in other African countries, the liberal profession of lawyer is very little developed.
At the end of 1995, the National Bar (Association of Lawyers) in Burundi had 24 members. We must stress at the outset, that this body suffers from the same ethnic disproportion as other public and semi-public institutions. In 1992, out of 17 lawyers at the Bar, only one was a Hutu. This is what dangerously threatens the right to defense, in a country where there are many trials with politico- ethnic implications. In the trial called "of assailants", Burundi lawyers refused to represent Hutu detainees accused of belonging to Palipehutu and implicated in attacks and massacres in November 1991. They judged them guilty before they were tried.
The Burundi Human Rights League obtained, with the help of other international organisations, the services of two foreign lawyers. They were Lawyer Eric Gillet of the Brussels Bar, Belgium, and Lawyer François Roux of the Montpellier Bar, France. To save the honour of the national Bar, its president, Lawyer Tharcisse Ntakiyica, decided to work with them. Even Lawyer Nzeyimana Laurent agreed to act as interpreter for Lawyer Roux. Burundi judges were very embarrassed, because until then, they were accustomed to holding the law up to ridicule, by judging peremptorily the accused, who were thought not only to be ignorant of the law, but of any kind of law.
It should be remembered that the legal texts are written in French, and it is well known that 90% of the people do not understand that language.
As regards organisation of the judiciary, Burundi has no reason to be jealous of other developing countries. In terms of "administration", the country covers 27,834 sq.km the country, and is divided into 16 provinces, including the municipality of Bujumbura. There are two kinds of Courts:
- Ordinary Courts with resident judges. Their number equals the number of communes and areas of the municipality of Bujumbura - a total of 123 resident judges.
- Superior Courts. There are 17 County Courts, or one per province, except for the province of Muramvya which has two, one at Muramvya and the other at Mwaro. At a higher level, there are three Appeals Courts to which should be added the Supreme Court, which is the highest jurisdiction in the Republic. To each Appeals Court is appended a criminal court of First and Final Instance, which has power to judge cases of crimes carrying a possible sentence of more than 20 years in prison, as well as the death penalty.
At the moment there are also Special Courts: a Court of Auditors, two Administration Courts, a Commercial Court and two Industrial Courts. The Constitutional Court which was set up by the Constitution of March 1992, disappeared with the abolition of the Constitution following the coup of July 1996.
As regards the police, all has been done to ensure maximum respect for the law and to guarantee the rights of citizens. But the reality is quite different. The functions of the police and special investigations are carried out by:
- The Attorney-General's Police (PJP) with its own general headquarters;
- The Criminal Investigation Department (CID) of the special investigations' brigade of the Gendarmerie (BSR);
- the CID of the public security police (PSP);
- the CID of the airborne, frontier control and foreigner control police (PAFE);
- the CID of the special police services dealing with Customs, mines, transport);
- the CID of the information services (Security).
Ordinary folk have great difficulty in understanding these various divisions in the police service. Why? Because each of these police divisions obeys the rules governing its original brigade, and is accountable only to its own immediate superior.
In the area of human rights, the ACCT report rightly asserts that: "The dispersion of the activity of the judicial police, brings about an abuse of innocent persons being kept under remand, without it being possible to know the slant given to the arrest reports, or the freeing of dangerous criminals without the court being informed or being able to do anything about it" (page 15). But sometimes there is collusion between the police and the various courts, to the detriment of the accused.
How are judges appointed, moved or promoted? The answer to this question should be found in the Constitution of March 1992, which was abolished by the same person who promulgated it after a referendum: Major Buyoya, who took over power by force of arms on 25 July 1996, after losing the elections of June 1993. This Constitution - - which includes in section II, thirty articles on human rights, the duties of the individual and the citizen - copperfastens the independence of the judiciary in article 143: "The power of the judiciary is independent of the legislative power and the executive power. In the exercise of his functions a judge is subordinate to the Constitution and the law".
Since the Constitution no longer exists, the judiciary has no choice but to submit to the orders of the government in power. The Public Prosecutors and the judges of Higher Courts and tribunals, are appointed by the President of the Republic, in theory on the recommendation of the Minister of Justice. Ethnic allegiance is the most determining factor in the appointment of these highly-placed functionaries. As regards the recruiting of judges, it is done when the candidate has followed a four-year university course in law, and been successful in obtaining the necessary diploma.
According to the ACCT report: "Some judges seem to have been recruited even before obtaining their diploma. They belong almost exclusively, like most of the officers of the administration and the army, to the Tutsi tribe which represents only 14% of the population".
There are no set rules for recruiting judges, such as a competitive examination. The same report brings out the reality: "A young judge who has just been recruited, is immediately assigned to a jurisdiction without any specific professional training. Considered as a trainee judge for two years, he assumes complete judicial responsibilities without a definitive appointment".
The ethnic and often the regional aspect distorts the profession of upholder of the law. Judges being simple functionaries of the Ministry of Justice and paid by the State, have only the amount of liberty given them by the party in power. For over thirty years, the people in power has remained the same, dominated by the army and a small coterie belonging to the minority Tutsi. The judiciary, instead of being the guarantor of impartial application of the law, has been and continues to be, an instrument of repression in the service of the government.
The Judges' Association got its independence back during the short democratic period from July 1993 to 21 October 1993, under the presidency of Melchior Ndadaye. After his assassination, the government, theoretically of FRODEBU (the party which won the elections of June 1993), was roughly treated by the judiciary. During that period (October 1993 to July 1996) the judiciary arrested more than 5000 FRODEBU activists, of the party which was supposed to be in power.
According to researches carried out, the Justice Ministry remains the preserve of the minority Tutsi. In the central administration, all the officers are Tutsi. Of the 11 public prosecutors, presidents of courts and tribunals, there is only one Hutu. The 17 presidents of higher courts and tribunals, are all Tutsi. Just two of the 17 Commissioners in the Attorney-General's judicial police are Hutu. In conclusion, it can be said that the structure of the Bench of Judges is basically Tutsi. The structure of judges in the Attorney-General's Office is no different from the Bench. At the moment, the president of the Supreme Court, and of the Appeals Court as well as the president of the High Court of Bujumbura City (the capital) are all Tutsi.
In spite of that, it's not the ethnic character in itself which is the major problem. The tragedy arises from the fact that politicians take advantage of this mono-ethnic structure, to influence judges and incline them towards one-sidedness. As a result, the law becomes a means of defense for a part of the population, while it is an instrument of repression against the Hutu, and since 1993, against the Tutsi who belong to parties which voted for democratic change.
The inequality of Burundi's citizens before the law, depends on whether the accused is Hutu or a Tutsi, and the country's political history has shown this so well. As space is limited, we give just a few examples.
On 15 November 1965, Prime Minister Pierre Ngendandunwe, a Hutu, was murdered by Tutsis who were arrested, imprisoned and then set free. The same year, a plot by Hutu officers against the royal palace was discovered,the officers captured and then shot. The same scenario was repeated in 1969. Then in 1971, the powers-that-be, invented another conspiracy, this time against Tutsis in the army and the administration, who were not from Bururi. The same happened to them. Files were rapidly prepared and death sentences pronounced. President Micombero used his right to grant pardon. On 29 April 1972, the first genocide in post-colonial Africa, directed against the Hutu community, began - about 100,000 to 300,000 victims. The justice department kept no records of this.
President Melchior Ndadaye's assassination is closer to our own days. Those responsible are still free: Lieutenant Paul Kamana (who commanded operations and was reported to have himself executed the President); François Ngeze (who was appointed president of the National Council for Salvation by the mutineers); and Colonel Jean Bikomagu (Commander-in-Chief of the armed forces and who surrendered President Ndadaye to the mutineers). But Father Patrice Vyiyingoma, a priest from the diocese of Muyinga, who was accused of "giving food to those who attacked Rugaragara", has been condemned to penal servitude for twenty years.
The overall view of justice in Burundi, which unfortunately is very negative and which does not flatter those who practice law, can be summed up in the words of a special report of the United Nations observer in Burundi, (and there is no exaggeration here): "The predominance of Tutsi in the judicial system, contributes to weakening its impartiality and independence, and jeopardizes its credibility. According to the highest authorities in the country, negative ethnic solidarity which causes members of the same group to protect each, other makes the system even more one sided. The application of a judicial system (which is massively dominated by Tutsi", to accused persons who are in the majority, Hutu, heightens tension and mistrust. (Report of the Special Observer on his mission in Burundi from 19-29 April 1995, p.10).
The only solution, which would make all Burundians feel equal before the law and enjoy the same rights, is to carry out a lock, stock, and barrel reform of the judicial system, by recruiting judges from all ethnic groups. But in order to do that, would it not be necessary to start with university education which is the door to a career in law? It is the same with the police. All those bodies, like the army who are entrusted with the security of citizens, should reflect the overall composition of society. Taking into account Burundi's turbulent history, it will be a long and exacting task, but it will have to be done to establish the rule of law and avoid the law of the jungle.
END