HUMAN RIGHTS COUNCIL46th SessionInteractive Dialogue on Burundi

Oral briefing of the Commission of Inquiry on Burundi

11 March 2021, Geneva

Madam President,
Excellencies,
Ladies and Gentlemen,

I have the honour to address the Human Rights Council on behalf of the Commission of Inquiry on Burundi to report on the human rights situation in this country. We would like to thank the members of this Council for the trust they placed in us by extending for the fourth time the mandate of the Commission (resolution 45/19 of 6 October 2020). Such a renewal is exceptional with regard to the Council’s practice, and it confirms the objectivity of the Commission and the concerns that many actors in the international community have regarding the current situation in Burundi. We will continue to carry out our mission with complete impartiality, objectivity and independence.

Since October 2020, our investigations were conducted in very challenging conditions. The global health situation limits the possibilities of carrying out field missions. Most importantly, the liquidity crisis that the United Nations is going through has had a considerable impact on the provision of the necessary human resources for the execution of the Commission’s mandate. We continued to conduct remote interviews. We once again thank the persons who cooperated with the Commission despite the risks involved.

Many developments have taken place since the presentation of our previous report. In November 2020, the Organization of the Francophonie lifted the sanctions that had been taken in the context of the 2015 crisis. On 4 December 2020, the Security Council decided to withdraw Burundi from its agenda due to “the improved security situation in Burundi [...] following the broadly peaceful elections, [...] the steps taken to fight impunity as well as the progress made in some aspects of gender equality and women’s empowerment”. The Security Council, however, noted that “there is important work ahead to advance national reconciliation, promotion of the rule of law and of an independent and effective judiciary, preservation of democratic space and respect of fundamental freedoms, such as freedom of expression, including for members of the press and civil society actors, peacebuilding, social cohesion and development. […] and notes continued concern regarding human rights violations and abuses.” Since 7 December 2020, the European Union has moved towards gradual resumption of the political dialogue with the Burundian authorities.

In recent months, the repatriation of Burundian refugees from neighbouring countries has accelerated, including from Rwanda. Thus, 31,520 refugees were repatriated between 1 September 2020 and 31 January 2021 under the voluntary return program implemented in cooperation with the Office of the High Commissioner for Refugees (UNHCR).¹ According to this Organization, some 315,000 Burundians nevertheless remain refugees in these countries, and UNHCR has launched a US$222 million appeal in order to be able to provide them with humanitarian assistance.² UNHCR has also launched an additional US$104 million appeal to support the scheduled repatriation of 143,000 Burundian refugees in 2021, but also to support the 120,494 Burundians who have been repatriated since 2017 and who have not received “appropriate assistance for adequate reintegration.” We encourage Member States to answer these calls.

Excellencies,

Since he has been in office, President Ndayishimiye has highlighted the Government's priority to develop the country and therefore reduce poverty which a majority of the population suffers from. He has also made several promises aimed at improving the human rights situation in Burundi and governance, to promote the rule of law, to make the justice system more impartial and fair, but also to strengthen reconciliation and the unity of Burundians. Some of these statements were ambiguous or sometimes even contradict each other. We note that in recent months, he has finally taken the first steps in this direction and we commend him for that. We will discuss these steps during this presentation - while emphasizing that simple ad hoc gestures and statements of intent cannot be sufficient to genuinely improve the situation in a sustainable manner. It should also be noted that alongside these few encouraging signs, other developments are clearly more disturbing.

As a result of the above description, there is a general feeling of uncertainty as to the ongoing developments in Burundi and the path followed by President Ndayishimiye. We understand that many stakeholders in the international community are also disconcerted and they are expecting the Commission of Inquiry to formulate an objective and impartial assessment of the progress of the human rights situation and the prospective realization of the promises of change.

In this regard, we had identified in our latest report areas and specific action points on which the Government could act swiftly in order to provide tangible proof of its willingness to improve the situation, particularly with regard to the risk factors present in the post-electoral context. It is on these specific points that we base our analysis of the current situation:

1. End human rights violations and fight against impunity

The first positive sign is that the Government has demonstrated that it has the means – whenever it wishes - to control the Imbonerakure by holding some of them accountable for serious crimes and allowing them to be prosecuted and punished adequately, as shown by recent cases of Imbonerakure convicted for the murder of political opponents. This is an encouraging sign in the fight against impunity, and it also has the merit of proving that impunity is not inevitable, nor is it linked to a lack of resources or capacity of the judicial system but rather a matter of political will.

In recent developments, a few agents of the National Intelligence Service (SNR) and other Imbonerakure have also been arrested and detained - some of whom have been frequently mentioned for their involvement in serious human rights violations. Nevertheless, the authorities may wish to clarify their situation, the acts for which they were arrested, any charges against them, as well as the status of the legal proceedings against them. It is important that they too enjoy the protection of the law and that their detention is in strict compliance with the requirements of international human rights law in regards to deprivation of liberty.

Regrettably, we have documented that since President Ndayishimiye has been in office and even in recent months, serious human rights violations have continued to be committed, especially as a result of the numerous security incidents that have taken place since the summer of 2020. Armed clashes and exchanges of fire between members of the security forces, sometimes supported by the Imbonerakure, and members of armed groups, but also cases of attacks on civilians by unidentified groups of armed men have increased. An independent organization reported 308 incidents of this type which resulted in 273 victims among the police and security forces, the Imbonerakure,³ and members of armed groups but also the civilian population between 18 June 2020 (inauguration date of President Ndayishimiye) and 26 February 2021.⁴ Such incidents have been documented since 23 August 2020 in the provinces of Rumonge, Bujumbura (rural), Bubanza, and Kayanza.⁵

This resulted in an increase in the “hunt” for rebels, mainly in locations where the attacks took place and in the border provinces of the country. Repression targeting persons suspected of belonging to or supporting the armed opposition groups responsible for these attacks increased, and was generally based on ethnic and/or political profiling, or simply for having crossed the border. As a consequence, since September 2020, Ex-Fabs soldiers (members of the former Burundian Armed Forces) active or retired as well as members of their families, young men, often of Tutsu origin, and members of opposition parties, mainly from the Congrès national pour la liberté (CNL), were victims of extrajudicial executions, enforced disappearances, arrests and arbitrary detentions often accompanied by acts of torture.

Agents of the SNR, sometimes backed by the Imbonerakure, have been identified as the main perpetrators of these violations, as has been the case since 2015. Indeed, several members of the SNR have been implicated in serious human rights violations, even international crimes, but they continue to operate unchallenged. As a reminder, since the constitutional revision of 2018, the SNR falls directly under the authority and responsibility of the President of the Republic. We therefore strongly urge the Head of State to exercise his official authority over the SNR in order to bring an end to these practices and to ensure that the perpetrators are adequately punished.

Every week, lifeless bodies, most bearing signs of violent death, continue to be found in public spaces and are hastily buried by the authorities who do not even make any effort in identifying them, much less try to establish the causes of their death, nor search for the possible perpetrators. If it is impossible as things stand currently to distinguish cases of violations of the right to life from those of common law crimes, the extent of this phenomenon which has been going on for some time and the significant number of these "bloodshed crimes" in the country remain of concern. The Government must recognize the seriousness of this situation and act to rectify it.

Furthermore, with regard to all the human rights violations committed since 2015, the Government appears to simply want to turn the page, charactering them as mere “misunderstandings”, or “unnecessary controversies”. If the Government refuses to recognize them and to take adequate measures such as prosecuting the alleged perpetrators including those in prominent positions in the Government, these violations and possible international crimes will be added to the list of the many tragedies which have punctuated the history of Burundi and whose consequences are still visible to this day. It is precisely such consequences that have prevented the rebuilding of a Burundian society that is dignified, peaceful and truly reconciled with itself and its past. There is a need to “accept what happened, share the grief of the victims and reassure them that it will never happen again. […] The victims of past conflicts need the country to recognize what happened to them and for the Government to join forces with them for support. […] They also want the assurances of the country's institutions that the past will not happen again because the perpetrators of these crimes often used State resources.” These remarks from President Ndayishimiye, in his keynote speech during the celebration of the National Unity on 5 February 2021, are absolutely appropriate and relevant, including for victims of human rights violations committed since 2015. The latter must not be arbitrarily deprived of their rights to an effective remedy, to obtain the truth, reparation and guarantees of non-recurrence.

2. Guarantee the freedom and safety of journalists and the freedom of the press

An encouraging development is of course the release, on 24 December 2020, of four journalists from the Iwacu media group who were arrested in October 2019 and sentenced to two and a half years in prison and a fine of 1 million Burundian francs each for “complicity in the impossible attempt to undermine the internal security of the State.” We welcome their release through a presidential pardon, but we nevertheless note that this pardon does not erase their conviction for exercising their journalistic duties.

Another positive development took place on 28 January 2021, when the Head of State reaffirmed “his commitment to a free and responsible press” in Burundi and asked the National Communication Council (CNC) to meet with heads of media that were under sanctions or suspended in Burundi in order to find the way forward for them to resume their activities. On 1st February 2021, the CNC did in fact, as an initial contact, hold a closed door meeting with the representatives of some of these media organs. Sanctions against the Iwacu media group and Radio Bonesha FM have since been lifted in exchange for certain commitments from these media organs.

However, on 2 February 2021, the Supreme Court’s verdict dated 23 June 2020 was made public. The Court found 12 journalists and human rights defenders in exile guilty of “attack on the authority of the State”, “assassinations”, “destruction”, in the context of the attempted coup of 13 May 2015, and sentenced them to life imprisonment and to punitive damages of more than 5 billion Burundian francs. This decision, taken following a trial in which all the defendants were absent and did not have legal representation, de facto curtails the President’s attempt to find solutions for the majority of the media organs that were sanctioned or suspended.

3. Guarantee the freedom and security of human rights defenders

We see little improvement in this regard. The second appeal trial of human rights defender Germain Rukuki - sentenced to 32 years in prison for carrying out his legitimate activities - must still be held following the Supreme Court’s decision in June 2020 to quash his first appeal trial. In any case, Germain Rukuki, together with Nestor Nibitanga, another human rights defender, remain for the time being arbitrarily detained.

4. Guarantee the freedom and security of political opponents

During the congress of the ruling party (CNDD-FDD) held at the end of January 2021, which saw the appointment of Révérien Ndikuriyo, the former president of the Senate and one of the hard-liners of the party, to the position of secretary general of the party, President Ndayishimiye stressed that opposition political parties should not be considered as enemies, but as government observers who identify shortcomings and issues. It is a constructive reminder from the President of the legitimate role of opposition parties but in reality, members of these parties, particularly the CNL, remain closely monitored by the police and security forces as well as the Imbonerakure. Although their targeting appears to be less intense than during the 2020 elections, several CNL members have been arbitrarily arrested and detained since September 2020.

We must also remember that former member of Parliament Fabien Banciryanino, who had been one of the few parliamentarians to have shown the courage to denounce the human rights violations committed under the regime of President Nkurunziza, has been detained since 2 October 2020, accused of “rebellion, malicious accusations and attack on the security of the State”, in particular due to his critical statements.

In this regard, while the presidential pardon granted on 5 March 2021 to more than 5,000 prisoners is a welcome development in view of the recent record levels in prison overcrowding, it is unfortunate that human rights defenders and political opponents, generally convicted of "undermining the internal security of the State", are excluded. In addition, the recourse to exceptional measures of pardon, which do not concern persons who are in pre-trial detention or who have appealed against their conviction, cannot address the outstanding issues of abuse of pre-trial detention and the lack of an effective system for reviewing the legality of detention, which are among the root causes of the saturation of prisons in Burundi.

5. Guarantee the right to freedom of association, in particular for national and international civil society organisations

The Government is undoubtedly seeking to increase its control over the functioning of civil society organizations by imposing State control on the design and implementation of projects funded by technical and financial partners as well as a salary grid for all the persons who work in these projects.⁶ The first inspection visits of foreign NGOs, including the ethnic composition of their staff, salaries paid to expatriates and activities undertaken, took place in early 2021.

One cannot help but think about the consequences of all these measures and their impact on the freedoms of creation, organization and functioning of these NGOs, which are an integral part of the right to freedom of association recognized by international human rights law.

6. Restrict the omnipresence of Imbonerakure in the public sphere

Attempts in early summer 2020 to better control the Imbonerakure came to nothing. They continue to regularly replace police and security forces, especially in rural areas, and many pursue their criminal activities. They were even praised and galvanized following the security incidents, since they were called upon by certain authorities to actively contribute to the security of the country. They continue to forcefully levy contributions from the population, namely as local “taxes” to finance the construction of public buildings, or to support the CNDD-FDD party, including organisation of various festivities.

7. Resume full cooperation with the United Nations

Cooperation with the United Nations remains random and partial. If the authorities are open to cooperation in the areas of economic development and humanitarian assistance, they remain opposed to any cooperation at the political level and in the field of human rights. Indeed, the President and the Minister for Foreign Affairs of Burundi had assured the Secretary-General of the United Nations that “the Government was ready to engage, as soon as possible, in a constructive dialogue on the future of the Office of the Special Envoy for Burundi” and the Secretary-General had recommended that this Office remain open until 31 December 2021 in order to prepare for the transition to a new presence.⁷ However, on 17 November 2020, the Government of Burundi notified the Secretary-General that the Office would be officially closed and liquidated on 31 December 2020, even if the United Nations was subsequently given additional time to address technical issues.⁸ Furthermore, no progress has been made on the reopening of the country office of the United Nations High Commissioner for Human Rights (OHCHR), which was unilaterally closed by the Government on 28 February 2019.

8. Fight against economic malpractices and corruption

Within the framework of his fight against economic malpractices and corruption, showcased as one of President Ndayishimiye’s priorities, a number of measures have been announced, including the suspension of the Anti-Corruption Special Court and Special Brigade. Rather, anti-corruption sections will be created within the prosecutor’s offices, and anti-corruption chambers would be established in the tribunals of first instance and courts of appeal. The powers and duties of the Special Brigade will be assigned to the judicial police.⁹ Admittedly, the results of those institutions left much to be desired, but it would be premature to comment on these changes and their impact on the fight against corruption. The same can be said of other similar measures taken in this area.

Madam President,
Excellencies,

Other developments are of concern and should be monitored within the framework of the risk factors analysis. For instance, in the fall of 2020, the Government carried out a census of all civil servants and subsequently decided to extend it to all employees in the private sector and semi-public companies. This census, which includes sensitive questions on ethnicity and the details of the wealth of respondents, comes as the Government has just decided to criminalize the refusal to answer statistical questions.¹⁰ We might reasonably question its purpose and especially the way in which the data collected will be protected, who will have access to it and how it could be used. As a reminder, such censuses can constitute triggering factors according to the framework analysis of risk factors (Factor n°8 (h)), therefore such census should not be taken lightly given the country’s history.

To sum up, the current situation in Burundi is too complex and uncertain to be referred to as genuine improvement. We hope that the actions taken by President Ndayishimiye are the beginnings of profound structural changes, which have yet to materialize. We therefore reiterate our previous recommendations to the Burundian Government to take meaningful actions on the issues that we have just outlined, but also implement structural measures to guarantee good governance, rule of law, as well as independence and impartiality of the justice system. Such measures are essential in the fight against impunity and corruption, which are central to the promises made by the Head of State. The time has come for the Government to remove doubts and ambiguities as to the path it intends to follow in terms of human rights, especially if it wishes to re-engage with technical and financial partners and gain support for its national development plan.

We welcome the initiatives taken by the Government of Burundi in order to restore, in due time, cooperation with its international partners, and we reaffirm that the international community must do everything possible to constructively help Burundi to assume its responsibilities in terms of human rights. This requires having objective reasons to believe that such cooperation is possible and that it can lead to actual progress in the area of human rights. We also propose that our risk factor analysis be used for this purpose. Thus, the international community should at the very least be assured of the reopening of the OHCHR country office, which would be a tangible sign of the good faith of the Burundian Government to credibly and sustainably improve the human rights situation in Burundi. We also stress the importance of maintaining impartial vigilance on the situation in Burundi, which remains fragile.

We want to believe that change is possible, but there is still a long way to go while time is running out and the Burundian population continues to suffer.

Thank you for your attention.