Commission of Inquiry on Burundi Vital 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: 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] Commission of Inquiry on Burundi, “Oral briefing by the Commission of Inquiry on Burundi,” 9 March 2020, See also Commission of Inquiry on Burundi, “Oral briefing of the Commission of Inquiry on Burundi,” 14 July 2020 (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). See examples of indicators below.

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References:

• https://www.protectioninternational.org/en/news/statement-decisive-moment-future-human-rights-defenders-burundi
• http://fiacat.org/presse/communiques-de-presse/2909-communique-cassation-du-jugement-en-appel-condamnant-germain-rukuki?fbclid=IwAR2jpKzXUoRYAWatboXnniub6cqTUDLNfIvZqSpFlSPRehg1TV2aMYERWgA
• https://defenddefenders.org/headlong-rush-burundis-behaviour-as-a-member-of-the-un-human-rights-council/
• https://www.ohchr.org/EN/Issues/Reprisals/Pages/Reporting.aspx
• https://www.achpr.org/sessions/resolutions?id=420
• https://www.hrw.org/news/2020/07/15/letter-president-ndayishimiye-protecting-human-rights-burundi