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). 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, Germain Rukuki, 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. 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. 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.” 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. 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 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, “[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,  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).  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).  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)).  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).  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).  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).  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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