A Burundian refugee woman quenches her thirst at the Tanzania-Burundi border before beginning the next stage of her journey home. According to Amnesty International, returnees to Burundi face violations of their civil and political rights, including arbitery detentions and threats from government officials.
Credit: Joel Frushone |
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The international community is backing an experiment to address four decades of violence in Burundi by creating two distinct but interrelated institutions: a "special court" to bring justice and a "truth commission" to bring reconciliation.
A United Nations mission was in Burundi in March 2006 to negotiate with the government on how exactly the two institutions will function. What has been decided is that both institutions will look into violence that has taken place in Burundi since independence from Belgium in 1962. The country saw ethnic violence in 1965, 1972, 1988, 1991, and 1993 after which a civil war broke out that lasted 12 years.
Hostilities have been mostly between the two main ethnic groups in the country, the Hutus and the Tutsi, with representatives of each group laying responsibility on the other for the many crimes committed.
In a letter to the president of the UN Security Council in 2005, the UN Secretary-General, Kofi Annan, said past UN inquiries into such crimes have been inadequate: "Three United Nations commissions of inquiry have been established in the last decade at the request of the Government of Burundi… No legal or practical effect, however, has been given to any of their recommendations, and no action has been taken by any of the United Nations organs."
The letter is a preamble to a report by a UN assessment mission to Burundi, which states: "The United Nations can no longer engage in establishing commissions of inquiry and disregard their recommendations without seriously undermining the credibility of the Organisation in promoting justice and the rule of law."
The report recommended "the establishment of a twin mechanism: a non-judicial accountability mechanism in the form of a truth commission, and a judicial accountability mechanism in the form of a special chamber within the court system of Burundi”.
A truth and reconciliation commission would essentially operate as an auxiliary of the Burundian court system. It would be empowered to hear victim complaints, to summon the people they accuse to appear, and to decide what reparations to allocate.Reconciliation efforts boosted
The March 2006 visit by the UN delegation, led by the Under-Secretary-General for Legal Affairs, Nicolas Michel, was aimed at speeding up efforts to establish the truth and reconciliation commission, as well as the special court. The UN delegation held five-day talks with government officials on the ways and means of setting up these two mechanisms.
"We are mandated to carry out negotiations with involved parties to establish the necessary juridical framework for establishment of a truth and reconciliation commission and a special court," Michel said on arrival in the capital, Bujumbura, on 26 March 2006.
At the end of the consultations, the UN delegation announced it was happy with Burundi's commitment to boost reconciliation and justice. "We are happy the Burundi people and its leaders are engaged in a direction aimed at rendering 'irreversible' the progress towards lasting peace," Michel said. He added that sustainable peace could be achieved only through a combination of truth and reconciliation with justice.
He went on to say that reconciliation and the fight against impunity would have to be a participatory process involving the Burundian people, government and the civil society; this within a participative process.
The UN mission was urged carry out consultations with political actors, the civil society, and various representatives of the Burundian society in preparation for the setting up of the judiciary and non-judiciary bodies.
Government's proposal
At a meeting with the UN delegation, the Burundian government submitted a 19-page memorandum to the UN mission, detailing its proposals and recommendations on the setting up of the truth and reconciliation commission. The government recommended that the commission be made up of seven members, including four Burundians and three expatriates.
"Members of that commission would be selected by a committee to be appointed by the head of state after consultations with the UN Secretary-General," the document stated. According to the memorandum, the commissioners should "be chosen on the basis of their high moral values, including impartiality and integrity”. The head of state would therefore appoint the president, vice-president, the reporter, and members of the commission, after consultations with the UN Secretary-General. The administration of the commission and the support staff would be run by a non-Burundian executive secretary, with a Burundian assistant.
Regarding the special court, Burundian officials discussed with the UN delegation another document containing its proposals. According to the government's proposal, the tribunal "will try people allegedly involved in crimes committed on the Burundian territory since Burundi's independence in 1962, until the date of the setting up of the truth and reconciliation commission". A person who is prosecuted by a local court can also be summoned to the special court. Before passing sentence, the special tribunal will have to take into account any previous convictions. A foreigner will chair it, with three Burundian vice-chairpersons. The special court will have three branches: in Bujumbura, the central province of Gitega, and the northern province of Ngozi.
The government proposed that in consultation with the UN Secretary-General, the Burundian president would appoint the tribunal's chairperson, the vice-chairpersons and its judges. The court's managing staff will be appointed for a three-year term. The court and the truth and reconciliation commission will then collaborate with other states while seeking witnesses to testify in its trials. The status of the court's staff is the same as that of UN workers.
The government's memorandum attempted to address the issue of time limits for the two institutions. Initially, it was stated in the Arusha peace accord that the special court would deal with cases ranging from crimes committed since independence, to the date of the signing of the Arusha peace accord (28 August 2000). Civil society officials and politicians had raised concern that major crimes committed after the signing of the peace deal would, therefore, not be taken into account. Indeed, by proposing that both mechanisms be included in the Burundi justice system, the UN mission of May 2005 maintained the spirit of the Arusha accord instead of unilaterally applying it.
Objectivity
However, Burundi's opposition leaders have questioned the proposed bodies' objectivity. The truth and reconciliation commission "should comprise only members of the civil society in order to prevent endless misunderstanding among politicians," said Leonce Ngendakumana, a former speaker of the National Assembly, who is also the leader of the main pro-Hutu political party, the Front pour la democratie au Burundi (FRODEBU).
Burundian Justice Minister, Clotilde Niragira, told IRIN that victims of the atrocities taken place in the country since independence will be helped through a system of “compensation”.
Credit: IRIN
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The opposition leader said although they supported the creation of the two bodies, they were unhappy that they had been excluded from negotiations, thus giving undue influence to the former rebel-group-turned-ruling party, the Conseil national pour la defense de la democratie-Forces pour la defense de la democratie (CNDD-FDD).
A government official, who requested anonymity, said negotiations with opposition parties would take place once the government and the UN concludes talks on the two mechanisms.
Aloys Rubuka, the head of the second main opposition party in the country, the pro-Tutsi Union pour le progres national (UPRONA), said the international personnel should outnumber Burundians in the two mechanisms. However, the government wants the truth and reconciliation commission to consist of four Burundians and only three expatriates to ensure "national appropriation of the reconciliation process”, according to the official who declined to be named. At the end of their March 2006 visit, the UN officials and the government agreed to continue consultations on the setting up of the commission and the special court.
Whose justice and accountability?
Often, extremist Hutus and Tutsis blame each other's community for the atrocities that have taken place in the country since independence. They claim that true justice should be the one that punishes the other ethnic group.
A Burundian lawyer and legal consultant, Francois Nyamoya, says the justice being sought is "justice for victims of the violence or their parents". But civil rights activist Jean-Marie Kavumbagu, the leader of the Iteka Human rights league and communication officer of the Ligue des Droits de la personne dans la région des Grands Lacs , is of the opinion that the justice being sought is also "justice for the entire country".
Kavumbagu said such a justice would restore trust from the international community and attract foreign investment into the country. Accountability for crimes that have taken place in Burundi is often blamed on the country's leadership. Amani Jean-Pierre, a lawyer, said the executive and the judiciary are mostly responsible for the "evils that devastated" Burundi, leaving hundreds of thousands dead and even more displaced. "In the past, police and the army, instruments of the executive, perpetrated a major part of the crimes," he said.
According to Kavumbagu, the crimes can be ascribed to "both the rulers and the various rebellions whose confrontation provoked unspoken killings". Meanwhile, Justice Minister, Clotilde Niragira, has indicated that justice would also be done to the victims or their families through a system of "compensation". She said even persons who had not been jailed, despite being found guilty of crimes, would also face justice.
However, there have been claims of manipulation regarding the time limits for the proposed truth and reconciliation commission and the special court. The law on the repression of genocide, crimes against humanity and war crimes of May 2003 stated that related investigations would bear on crimes committed from independence until the day the law is promulgated.
Ethnicity, hope and scepticism
All is not lost. There are prospects for a sustainable reconciliation among Burundians. According to Amani, there is now "real communication" between all ethnic groups. "People now interact; Hutus and Tutsis do not perceive each other as enemies any more, as the political mood is clean," he said. The significant reduction in problems bedevilling the justice and security sectors, which have brought about a sense of power sharing, constitute hope for the long-awaited social stability and togetherness, Amani said.
Efforts to revamp the country's judicial system have seen Hutus being included in nominations for key judicial positions made in early March 2006 by President Pierre Nkurunziza. A Hutu magistrate was appointed deputy president of the Supreme Court. "It is the first time since 1972 that a Hutu is holding such a high post," Amani said, analysing the ethnic composition of the appointments in the justice sector.
"There seems to be ethnic balance in the appointments," Capitoline Sabugoga, the private secretary at the Ministry of Good Governance, said. "The Hutus who had been complaining of marginalisation in the top management of justice have been appointed to higher posts."
Amani said that at least 40 percent of the newly appointed magistrates are Hutus. "It is difficult, however, to attain total balance as not many Hutus attended higher law education," he said.
The appointments served to rejuvenate the justice leadership as, according to Sabugoga, the magistrates who have been replaced had served since at least 1998. Another feature of the appointments is that they are gender-sensitive. The president of the association of women magistrates, Marjolie Niyungeko, praised the appointment of women to key positions such as that of president of the Supreme Court. "I salute the president for having nominated women to higher posts. It is a sign that women are now allowed access to important positions and that they can perform better than men," she said.
However, Niyungeko said the appointments did not reach the 30 percent representation in government institutions for which women had advocated. Kavumbagu said the remaining challenge is to see if the new appointees will perform as expected.
Political prisoners
Another move by the Burundian government to promote reconciliation and justice, is the release of at least 3,000 political prisoners since January 2006. Justice Minister Niragira said the provisional release was for prisoners who had been incarcerated in connection with the killing of President Melchior Ndadaye in 1993 and the violence that followed. Most of these people were Tutsis but there were also others - mostly Hutu - who allegedly took part in the military coup of 1993 in which President Ndadaye was killed, and those who have been blamed for the killing of the Tutsis after the coup.
"They will be granted provisional immunity as they have been freed temporarily," Niragira said. She said their cases would be taken before the truth and reconciliation commission once it is formed. Selection for provisional release was based on the Penal Code description of political crimes. Those who committed common law offences such as rape were not released.
However, Burundian leaders remain divided over the definition of a political prisoner. Pierre Claver Mbonimpa, the leader of the Association pour la promotion des droits humains, said the commission, mandated to compile a list of political prisoners, should have clearly defined the criteria for qualification as a political detainee.
Dimede Rutamucero, the leader of a former pro-Tutsi militia group known as Puissance d'Auto defense Amasekanya, said the prisoners' release was tantamount to a return to the days of "impunity and the genocide of the Tutsis".
UPRONA leader, Aloys Rubuka, said people should trust the judiciary and the commission mandated to inquire into political crimes, while FRODEBU leader Leone Ngendakumana, said he was satisfied with the release of the prisoners. However, he expressed concern that the decision to release them had to have parliamentary approval. "I am worried that there may have remained other political prisoners in prison," he said, adding that the prisoners suspected of backing Agathon Rwasa's Forces nationales de liberation (FNL) should also be released. The FNL is Burundi's only rebel group that is still active; the others have since joined the government and transformed into political parties.
Venant Bamboneyeho, the leader of the anti-genocide organisation known as Accord-Cadre (AC-Genocide-Cirimoso), opposed the release of prisoners and called on the UN to order a stop to the release in order "to bring first the prisoners before justice". He is not opposed to pardon as, he says, “justice is not always punishment".
According to lawyer Francois Nyamoya, the release of some political prisoners posed a disturbance, especially for cases which were at a stage of compensation. "Families of victims lost their time and energy," he said.
The leader of the Centre National d'Alerte pour la Prevention des Conflicts (CENAP- the National Centre for Prevention of Conflicts), Charles Ndayiziga, does believe that the release of political prisoners would wake up dormant ethnic antagonisms and revenge against those who accused them. "The release of CNDD-FDD political prisoners in June 2004 did not create any particular problem. They were jailed or condemned for acts whose political and military masterminds had already received amnesty for," he said.
However, he said the release of prisoners who had been sentenced for such crimes could be considered by some as "a political de-penalisation, reinforcing the idea of repeating the acts in case of a new conflict".
Lobbying by human rights groups
Already, several organisations, including the human rights league, Iteka, the Observatoire de l'Action Gouvernementale (OAG), and the Forum de Reinforcement de la Societe Civile (FORSC) - which gathers tens of local civil organisations including the Confederation of Burundian Trade Unions - have already lodged a case before the constitutional court seeking the monitoring of the political prisoner release. "We agree with a principle to release real political prisoners. We, however, oppose the process in which the release was carried out," Kavumbagu said.
To Kavumbagu, the prisoners who had been sentenced to death or life imprisonment should not have been released. "Those who had not been sentenced should have been the ones released," he said. He added that describing as 'political prisoners' those who committed blood-related crimes (war crimes, crimes against humanity and others that provoked bloodshed) as an apology to impunity. "The FNL and other criminals can shed blood and claim release, considering themselves political prisoners," he said, adding that it is a dangerous precedent for society, as his human rights group had already recorded cases of some of the released political prisoners threatening their victims' families, especially in eastern province of Karuzi.
Francois Nyamoya, the lawyer who took the civil organisations' appeal to the constitutional court, said the ministerial ordinance, under which the political prisoners were released, violated the constitution that states that laws are passed by the parliament. "Laws are voted in by the parliament and promulgated by the president, which was not done in the case of the recent release of political prisoners," he said.
According to the lawyer, there remains the problem of the separation of powers and political interference in justice issues. He said that the releases on bail and presidential pardons could have been applied, instead of carrying out "random" releases. Reacting to the civil societies' appeal to the constitutional court, Justice Minister Niragira said these organisations have the right to appeal, but she stressed the necessity of checking whether the constitutional court was entitled to receive a complaint from such organisations.
Reforms
Regarding reforms in the justice institution, several laws have been passed. They include a law on the repression of the crime of genocide, crimes against humanity and war crimes dating from May 2003. It provides for suits and prosecutions by an international judiciary inquiry commission and an international tribunal for Burundi.
South African peacekeeping troops in Burundi.
Credit: IRIN
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In September 2003, a law was introduced on the mission, composition, organisation, and function of a national observatory for prevention and eradication of genocide, war crimes, crimes against humanity and exclusion. The law states that the observatory is a rapid response mechanism that serves to draw the public's attention to potential conflict. It is a body that monitors situations likely to lead to interethnic violence. The body is also charged with preventing the recurrence of genocidal acts, crimes against humanity and impunity.
Another law, passed in September 2003, is aimed at speeding up appeal hearings by decentralising penal jurisdiction. It also introduced the right of appeal and redressed ethnic imbalance in those courts, with the promotion of 70 Hutus to posts.
One more law, from June 2003, concerns the organisation and functioning of the high magistrates' council. The members of this council were appointed in early March 2006. Niragira said the council will "supervise the justice administration and guarantee independence for the magistrate". For the first time, magistrates appointed half of the council's members. Previously, the president of the republic appointed all the members.
Provisional immunity and amnesty are unprecedented tools for reconciliation. The Government-CNDD Pretoria protocol on power sharing of 2003 - signed between the then rebel CNDD-FDD and the transitional government that was led by President Domitien Ndayizeye - the Arusha peace agreement, signed in August 2000, and a law on provisional immunity, provided amnesty for political leaders returning from exile. Therefore, such leaders cannot be charged for political crimes. Amnesty has been granted to combatants of political parties and movement supporters for crimes committed during their involvement in the Burundian conflicts, before the signing of the Arusha accord, in genocide crimes, war crimes and crimes against humanity as well as participation in coup attempts.
Indeed, reconciliation and truth establishment form the pillars of peace in Burundi. "Recognition of the wrongs and the crimes committed and eventual pardon for them are fundamental," Kavumbagu said. On his part, Nyamoya said truth and reconciliation would only be necessary if it helped unearth the whole truth.
Challenges
Challenges abound for justice in Burundi. A report by a UN mission to the country in 2005 criticised judicial reforms as being "incomplete and carried out late". The report also said that no steps to implement some of the reforms has been taken into account, making the reforms purely theoretical. The report singled out lack of required materials, logistics, and infrastructure building.
Magistrates have highlighted this problem. In March 2006, magistrates complained at a meeting with the first vice-president in Gitega Province, that problems such as lack of transportation contributed to delays in prosecution. They said their low salaries were at the root of often-reported cases of bias.
The UN mission report also pointed out insufficient human resources in the justice sector. Most judicial officers are poorly paid. The low pay is also claimed to be the cause of corruption among some judicial officials, and is also responsible for the departure of magistrates for better-paid jobs in organisations such as NGOs and the UN system.
According to the UN report, laws are published late in the state journal and in French, while many Burundians only speak Kirundi, the national language. Burundian magistrates also lack the required judicial skills, as there is no institution to train them. The UN High Commission for Human Rights has been trying to support the judiciary system through an aid programme and the convening of workshops for police, civil and military judges, and penitentiary staff.
The UN report says the Burundian public considers the country's judicial system to be flawed and biased because of the influence exerted on it by the executive and the legislative bodies. "Despite the constitutional statements guaranteeing independence to the magistrates, the latter is seen by the public as being partial, ethnically prejudiced, and client to political powers," the UN mission reported.
The leader of CENAP, Charles Ndayiziga, said in a recent report on challenges for consolidation of peace and democracy that, "Burundi's judicial incapacity should cease by no more relying on the sole police authority.” He said the government's failure to implement instruments contained in the Arusha accord was hampering effort to secure lasting peace and reconciliation.
Perpetrators of massacres and other violations of human rights and international humanitarian law have not yet been brought to justice. The UN commission has also noticed that in several instances, the Burundian justice system has been carrying out what it calls 'a two-speed justice'. "While nobody has been prosecuted in connection with the massacre of at least 80,000 Hutu civilians in 1972, massive arrests of Hutu civilians have been carried out with diligence in the aftermath of the coup d'etat of 1993 and massacres that followed," the UN report says.
Realities such as lack of trust and respect for the Burundian justice institutions, failure to protect citizens and to ensure true justice, forced the UN mission to point out the incapacity of the justice administration to tackle such complex issues as genocide, crimes against humanity and war crimes.
Another challenge regarding reconciliation is that it is difficult to adequately compensate victims and survivors of certain crimes. "What is necessary and feasible is [the] easing of the victims' suffering through social solidarity and encouragement, for there is no price for a human life," Nyamoya said.
The UN mission of 2005 noticed that time limits for provisional immunity were theoretical and that political crimes remained "ill-defined" as they were said to be excluding genocide acts, crimes against humanity, and war crimes.
The government's move to expose the alleged authors of human rights offences is not appreciated by everyone. The leader of APRODH considers this a violation of human rights, especially when their files are not yet closed. "Even if persons are not in jail, this does not mean there are not among them [those] who committed offences," he said.
The police spokesman, Pierre Claver Gahungu, said exposing criminals as assassins, rapists, counterfeiters and other offenders can "prevent repetition of such crimes".
Despite efforts to set up the truth and reconciliation commission and the special court, Rwasa's FNL is still fighting, especially in Bujumbura Rural and Bubanza provinces. Lawyer Amani says Burundians should not wait for total political peace and security to set up the truth commission. For him, "what matters is that moderate persons accept the reconciliation moves".
No specific reconciliation model
Burundi has no fixed model for reconciliation and justice, as contexts vary from country to country. According to Kavumbagu, truth and pardon will "help avoid generalisation of accusations that victimise even the innocent". He says if truth is established, there will be less manipulation. Kavumbagu added that the idea to seek truth is a favourable asset for reconciliation.
Lawyer Nyamoya does not believe in a model for reconciliation for Burundi. He says it is fundamental "to struggle day and night for a rule of law, and to be creative enough to find adequate mechanisms likely to help settle conflicts". He says Burundi can take a cue from foreign models instead of copying them. "The conflict is ours, and the solutions should be ours too," he said.
Creativeness, according to Nyamoya, is crucial. It would most notably be reflected in the reduction of sentences for those who help in advancing justice by searching for truth. "If prisoners languish in custody, this can undermine society," he said. Collective condemnation is harmful to society as accountability for crimes is individual, Nyamoya said.
However, there are views like those of the CENAP leader, Charles Ndayiziga, that "peace must precede justice and not the reverse". For Ndayiziga, peace must not mask the truth and hide those responsible for the crimes.
Burundians and the international community await the setting up of the truth commission and the special court. If inquiries on truth are made, they should, as lawyer Nyamoya said, "be in the sense of ending impunity instead of provoking reoccurrence of crimes committed in the past".
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