publications

VI. International and Burundian National Law

The conduct of police officers at Rutegama violates national legislation and international human rights law on several grounds, and should be subject to appropriate investigation and sanctions.

Burundi is a party to the International Covenant on Civil and Political Rights (ICCPR) and the 1981 African Charter on Human and People’s Rights, both of which set out prohibitions on arbitrary detention and use of torture and inhuman or degrading treatment. Burundi is also a party to the United Nations Convention against Torture, which obliges states to prohibit and take appropriate action to prevent and sanction acts of torture, and also acts of inhuman and degrading treatment. Torture under the Convention is defined as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person […] when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”108

The Convention against Torture requires that state parties undertake a prompt and impartial investigation wherever there is reasonable ground to believe that an act of torture has been committed.109 Further, the UN Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (2001) provides that “Even in the absence of an express complaint, an investigation should be undertaken if there are other reasons to believe that torture or ill-treatment might have occurred.”110 

Burundian national law currently fails to prescribe penalties for torture, except if it results in death or is carried out in the course of an abduction.111 A prohibition on torture, however, is part of a proposed new criminal code, currently before the National Assembly. The current criminal law prohibits “voluntary bodily injury” and prescribes a penalty of up to two years in prison if the injury is premeditated.112 Also prohibited is the extortion of funds carried out under threat of violence, punishable by five years in prison.113 The 2004 law on the creation, organization, missions, composition, and operation of the National Police prohibits the police from using force, except when in pursuit of a legitimate objective that cannot be achieved without force.114

In addition to violating international and national law on torture, bodily injury, extortion, and the use of force, the conduct of some GMIR officers at Kaniga violated provisions of the Burundian code of criminal procedure, and the 2004 law on the National Police relating to procedure. These laws specify that only judicial police officers may interrogate suspects. GMIR officers are not part of the judicial police.115  The commissioner general of the Internal Security Police told Human Rights Watch that security police officers have the authority to hold suspects for 24 hours before turning them over to the judicial police, but this assertion was contested by other police officials and an experienced jurist, who said suspects must be turned over to the judicial police “immediately” after their detention.116 

According to Burundian law flagrant violations of criminal procedure are subject not only to internal disciplinary proceedings but also to criminal sanctions. The conduct of illegal arrests and detentions, for example, is punishable by imprisonment for to up to a year.117




109 Convention against Torture, art. 12.

110 Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Punishment (« Istanbul Protocol »), August 9, 1999. The United Nations General Assembly in its resolution 55/89 of February 22, 2001, drew the attention of governments to the Principles on the Effective Investigation of Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (Istanbul Principles) emanating from the Istanbul Protocol.

111 Décret-loi no. 1/6 du 4 Avril 1981 portant réforme du code penal, art. 145 and 171.

112 Décret-loi no. 1/6 du 4 Avril 1981 portant réforme du code penal, art. 146.

113 Décret-loi no. 1/6 du 4 Avril 1981 portant réforme du code penal, art. 189

114 Loi No. 1/020 du 31 December 2004 portant creation, organization, missions, composition, et fonctionnement dela Police Nationale, art. 47.

115 Loi No. 1/020 du 31 December 2004 portant creation, organization, missions, composition, et fonctionnement dela Police Nationale, art. 21 ; Loi No. 1/015 du 20 juillet 1999 portant réforme de code de procedure penale, art. 58. The “OPJ” referred to by a number of victims in this report was Apollinaire Sindihokubwayo a brigadier of the security police who told Human Rights Watch and BINUB researchers that he was authorized to interrogate detainees because he had “completed a training”; Human Rights Watch/BINUB interview, Kaniga, November 7, 2007.

116 Human Rights Watch interviews with Commissioner General of the Internal Security Police Gabriel Nizigama, Bujumbura, 19, 2007; Commissioner General of the Judicial Police Deo Suzuguye, Bujumbura, November 20, 2007; and a Burundian lawyer knowledgeable about police procedure, Bujumbura, November 23, 2007.

117 Loi No. 1/015 du 20 juillet 1999 portant réforme du code de procedure penale, art. 57 ; Décret-loi no. 1/6 du 4 Avril 1981 portant réforme du code penal, art. 392. According to the former, “La rétention ne peut intervener que dans les cas, selon les modalités et pour les fins que la loi détermine. La rétention effectuée hors ce cas constitue un des faits visés aux articles 171 ou 392 du Code Penal, selon le cas.”