In an unprecedented move, on March 5, 2021, the President of Burundi, HE. Evariste Ndayishimiye signed a decree pardoning 5,255 Burundi detainees and ordering their immediate release.

In fact, Burundi Bridges to Justice (BBJ) had called on the Ministry of Justice to issue such a decision to decongest Burundi’s severely overcrowded prisons, particularly given the heightened risk this represents during the COVID-19 pandemic. The President announced that: “an exceptional leniency measure is necessary to decongest prisons and improve detention’s conditions”, given that the legal capacity of Burundi’s eleven prisons is 4,194, but the total prison populations currently stands at 13,200 (334% over-capacity). In fact, one prison stands at more than 800% over-capacity. This unprecedented and praiseworthy measure by the Government authorizes the release of pregnant and breast-feeding mothers in prison with infant children, prisoners less than 18 years old, those with advanced, incurable diseases, and elderly prisoners, among others.

This good news was welcomed by BBJ, along with many other human rights organizations. This was just one of BBJ’s initiatives to obtain the release of detainees such as those imprisoned for minor infractions, falsely accused, detained without evidence, etc., by providing early legal assistance and monitoring police lock-ups.

Nonetheless, even this extraordinary measure does not entirely solve the problem of an ever-growing prison popula-tion due to continued arrests for minor infractions such as curfew violations. A sustainable solution to prison over-population will only be found once the constitutional principle of “Presumption of Innocence”, promoting ear-ly access to counsel for all accused persons and other such due process rights are fully respected and enforced by all actors of Burundi’s criminal justice system.

Meanwhile, we wait for the implementation of this presidential decree . . .

The pressing need for rights awareness in the prisons of Burundi

By IBJ Country Manager Jean-Claude Barakamfitiye

On January 15, 2021, Burundi Bridges to Justice (BBJ) conducted rights awareness events in Mpimba and Rumonge prisons in Burundi. A total of 350 pre-trial detainees attended the events, including 49 women. 

Because of COVID-19, only two members of the BBJ team were allowed to enter the prisons. We obeyed strict health security protocols, including wearing masks, washing our hands at prison entrances, and using disinfectants to ensure that we protected ourselves and the detainees. 

Once inside each prison, we were welcomed by hundreds of detainees. One joked, saying: “Let’s leave them inside so they can see for themselves how bad prison conditions really are, and the way we are forced to live.” These words touched me greatly and made me tear up because it was no joke – it was the harsh reality of their circumstances. When we arrived at the small prison chapel in Rumonge prison where we had planned to conduct the rights awareness campaign, we found it packed with more than 150 detainees already seated – this was far more than what we had anticipated. The detainees all seemed as hopeless as sheep without a shepherd. The sheer number who had shown up was proof in of itself of the desperate need for rights awareness for pre-trial detainees. 

The BBJ events focused on the basic rights of every accused person, including the constitutional right to be provided with legal representation. We explained how each detainee can be provided with a lawyer even if he or she is unable to afford legal fees. We discussed due process rights of detainees during the pre-trial detention stage, including the detainee’s right to appear before a judge within 15 days from the day of arrest and a required review of detention status every 30 days if the case has not yet gone to court for trial. We emphasized the principle of the presumption of innocence and its implications for a fair trial. We also informed detainees about their right to be protected from torture and other cruel treatment, including sexual abuse. As the majority of event attendees were pre-trial detainees, it was important that we explain trial procedures and the role of different actors involved in a criminal trial. We differentiated between the role of the prosecutor and that of the judge, and explained the order that legal arguments are presented in court. We advised detainees on how to formulate closing statements and coached them on good behaviors to adopt when before the judge, whether one pleads guilty or not. 

Each event ended with questions and concerns from the detainees, and there were many. One woman shared that while being interviewed by the prosecutor she was asked if she wanted to be assisted by a lawyer. When she replied “yes”, the prosecutor stopped the investigation and provided no further information or a date when she would be provided with legal representation. Accordingly, she felt is would have been easier to respond “no” because at least then her case would have progressed. This example shows how inadequate explanation by the prosecutor can have significant bearing on the normal progression of a case; the prosecutor should have clearly explained to the detained woman how she could be provided with legal representation at no cost. We received many other questions from the detainees concerning particular irregularities that were hampering their cases. For example, five Ethiopians were arrested in December but their case could not progress because of the lack of an interpreter. 

At the end of each rights awareness event, we handed out BBJ flyers to attendees; in total, 270 flyers were distributed. We also conducted a number of one-on-one sessions with detainees who presented critical and time sensitive needs for legal assistance. BBJ committed to following up on cases with irregularities. As for the detained Ethiopians, we plan to connect them to a relevant multilateral organization, such as the African Union, in order to obtain an Amharic interpreter. 

These BBJ events convinced us once again of the pressing need for rights awareness among detainees. We belief that it would be very useful for us to develop a basic detainee rights guide for distribution to every pre-trial detainee. Posters with basic detainee legal rights displayed at each prison would be another valuable and efficient way to increase rights awareness among detainees. 

We may have our work cut out for us at BBJ but we are up to the challenge! 

For the past 3 months, IBJ fellows assisted 6 cases involving minors; 5 were in the province of Cibitoke and 1 in rural Bujumbura. One case involved Celeus, a youth accused with another man of a  theft that occurred at a residence. The other accused, who had already confessed to the crime after being caught with stolen articles in his possession, was given provisional release. IBJ lawyer for the defense, Astère Muyango, argued that the specific juvenile procedures introduced by the new Code of Criminal Procedures were violated. He demonstrated that Article 224, which declares void any interrogation of a minor without the presence of a lawyer or another person duly authorized by judicial authority, had been breached.

The argument between the prosecution and defense hinged upon the age of the defendant and a matter of statutory interpretation – was it the age at the time of the offence or the offender’s current age that must be taken into consideration? The prosecution argued the latter, whereas Muyango rebutted by relying on the Penal Code, more specifically, Article 29, which stipulates that penalties are set based on age at the time of the offense. Celeus was a minor at the time of the offense, hence the significance of the element of age and it’s centrality to Muyango’s argument. This could be the factor that effectively decides Celeus’s fate.

The prosecution called for a delay in order to summon the co-accused who was currently  out on bail. An additional delay would mean that the accused would have to be detained for the time-being – a result Muyango argued would violate the legal provisions that protect minors, as they stipulate that the detention of a minor must be a measure of last resort. Given the interpretation of “minor” and this special protection now afforded to the defendant, the defense concluded that their client should be released. Celeus was released.

Lawyer Astere interviewing his client

Lawyer Aline Nijimbere interviewing her client

A month later, a member of Celeus’s family contacted  IBJ expressing his joy to once again see the child the prosecution had asked to punish with 10 years of imprisonment.

The hard work of exceptional lawyers such as Astère Muyango remind us of how important it is to continue our mission. Despite such a milestone in the fight against illegal juvenile detention in Burundi, Celeus is but one individual who needed legal help that he otherwise would not have had access to. It is imperative to continue working with the police and prosecutors, conducting training sessions and developing best practices to protect ordinary citizens under the auspices of the rule of law.

Burundian Lawyers following one of IBJ’s eLearning Modules

International Bridges to Justice (IBJ) has been providing early access to council in Burundi since 2006, with the establishment of a Defender Resource Center (DRC) that now covers 9 of the 17 provinces.

Since the establishment of a DRC in the capital city of Bujumbura, IBJ has developed strong relationships with the Minister of Justice and other key justice stakeholders of the Burundi Bar Association. In April 2009, a revised version of the Burundi Penal Code was ratified, criminalizing the use of torture, when our DefenseWiki became available to justice officials through IBJ’s DRC in Bujumbura. Since then, over 400 justice sector professions have participated in DRC trainings and roundtable discussions.

 Quick Facts: 

• IBJ lawyers have handled 360 cases with a 30% acquittal rate
• 60% increase in access to lawyers for those in policy custody
• 8 imprisoned children have received legal aid within the last few months
• IBJ lawyers and advocates make weekly visits to educate prisoners about their basic legal rights
  • 14 rights awareness campaigns held: 13,000 “Know Your Rights” posters distributed, reaching over 31,000 individuals
  • 85% of individuals educated by rights awareness campaigns agree they are in a better position to ask for the respect of their rights in case of arrest

Lawyers, Judges, and Police Officials come together for Roundtable Discussions

In 2010, President Pierre Nkurunziza ordered the immediate release of hundreds of prisoners from the overcrowded prisons. The incorporation of an IBJ rights awareness slogan into Article 110 of the Criminal Procedure Code signed in 2013,  shows to what extent Burundi’s government is interested in further developing our programming on the national level.

Despite IBJ’s substantial progress, the country is still estimated to have only around 300 lawyers to serve a population of approximately 9 million. The prison population has recently reached 11,000, with the majority of inmates unable to afford legal representation.

IBJ Burundi will continue to train judicial officials on all aspects of the legal process and provide legal aid for minorities, minors, and vulnerable people. It’s time to take the success of IBJ Burundi’s programming in Bujumbura and implement it countrywide!

Thank you in advance for helping to bring universal access to legal aid in Burundi. Join the #SEChallenge and donate today!

Gatavu Audace is a human rights defense attorney in Bujumbura, Burundi, who has witnessed the plight of people living with HIV/AIDS in Burundi’s criminal justice system. These experiences moved Audace to use his legal skills and connections within the legal community to create a network of pro bono defense attorneys to provide legal counsel to the most vulnerable within the criminal justice system who are without any legal defense.  Audace’s courage to devote his professional life to defending those most marginalized was awarded by International Bridges to Justice with the JusticeMakers Fellowship in 2012. Now two years later, he continues to raise the voices of the hopeless with renewed persistence.

Gatavu Audace

2012 HIV/AIDS JusticeMakers Fellow, Burundi 

September 5, 2014

What made you apply for IBJ’s JusticeMakers Competition?

When I applied for IBJ’s JusticeMaker Competition, I was working with people living with HIV/AIDS and I was shocked by the way they were threatened in prisons. They were {not} considered as normal prisoners because of their incurable disease. I applied therefore to save some from prison as soon as possible.

What were some of the initial challenges you faced in implementing your work?

I faced the challenge of talking to judges that do not {give} consideration to the particular situation of prisoners with HIV/AIDS. There was a serious problem of undue delay of procedures and these people were hopeless! Some of them refused to take their medication and died in prison just because they considered their life already lost!

 What were you able to achieve with your grant of $5,000?

I stood beside hopeless people and raised my voice for their cases. I encouraged some of them not to give up despite the hardships they were experiencing. With the $5000, the prison officials and prisoners and the community knew that these people have value and are worthy. In representing them before the court, I gave them the consideration they longed for since they knew they was HIV positive.

What have you gained from joining the international community of JusticeMakers Fellows?

I am always learning from other Fellows. I now belong to a community of service providers to which I am conscientious of the quality of their work.

 As a recipient of IBJ’s JusticeMakers Competition, what advice would you give to those looking to apply?

 IBJ’s JusticeMakers Competition is an opportunity that is given to YOU to serve YOUR community. Don’t miss it! Try! You’ll never know if you do not try!

Gatavu Audace and the Network of People living with HIV/AIDS representative had a meeting with prison officials in order to discuss the opportunity and the benefit of his project regarding the targeted people, the prison and the entire legal system. The discussions emphasized that prisoners, and especially such vulnerable ones, need a representation, i.e. some kind of link between them and judicial institutions. That is the main challenge that prisoners are facing in general.

Gatavu Audace then moved to consulting 33 people living with HIV/AIDS in the prison. He found out that 18 prisoners were in a pre-trial detention situation. Among these 18 people, 14 cases had not been fixed in court. As for today, 13 sick detainees already have a date of hearing arranged. Gatavu Audace is currently defending cases, and he continues to provide these people with advocacy in order to accelerate the procedures. Currently, Gatavu Audace is in the process of supplying the convicted prisoners with advocacy in order to obtain conditional release for them.

On March 27^th, 2013, the court in the Rohero Tribunal conducted a hearing. From 9 o’clock, twenty defendants awaited the arrival of the judges while IBJ lawyers interviewed them. Among the issues scheduled, there was a case of four defendants that captured the human rights defenders’ attention. These defendants had been arrested on January 21, 2011.

As of March 16, 2011, the judge granted them provisional release. The prosecution objected to this decision and appealed. The Court of Appeal of Bujumbura maintained the first decision, which was notified to the defendants on November 13, 2012. Burundi’s law provides that in case of pre-trial detention, the appeal must be dealt with in 72 hours. In the defendants’ case, the appeal procedure lasted for almost twenty months, time during which the defendants were held in detention throughout the procedure. A worrying fact was that those defendants remained in prison despite the second decision.

The day before, when prison officials were calling defendants who were going to appear in court, one of the four defendants was not on the list. Bnub and Aprodh, agents who followed their case, warned the other three defendants that their case could not be heard in the absence of their co-accused. Bnub and Aprodh followed the cases and did their best for the defendant to appear.

At the call of the case, Janvier Ncamatwi, an IBJ lawyer, denounced all the irregularities related to illegal detention of his clients. Among others, he let the seat note that his clients were supposed to walk free according to decision taken by the court. He went on by inviting judges to analyze whether his clients were irregularly maintained in detention. He was vouching for release of his clients. According to him, the seat had to decide on the benches and order their provisional release. The prosecution unsuccessfully tried to oppose the IBJ lawyer’s arguments. The seat left the room to deliberate. After ten minutes, the session was reopened and the President of the seat confirmed that the four defendants were to walk free.

This joyful decision caused tears to pour down the defendants’ faces.

The seat had then to deal with the substance of the case. IBJ lawyer requested the implementation of the first decision to allow defendants to consult their records in order to prepare their defense. The case was thus reported in 29 April 2013.

On that day, of the 10 defendants whose cases have been assisted by IBJ lawyers, four have been granted provisional release, five have seen their cases closed and taken for deliberation and another case was handed over on April 29, 2013.

International Bridges to Justice was pleased to see that the Office of the High Commissioner for Human Rights and the Office of the United Nations in Burundi in the section of Human Rights and Justice, who were present during the audiences, decided to follow up with that case until the decision of the court was effectively implemented. On the following day, the four accused defended by IBJ were released after 740 days of detention with a provisional release granted.

IBJ lawyers and volunteers Astère Muyango, Aline Nijimbere, Janvier Ncamatwi, Modeste Niyonsaba and Audace Gatavu assisted more than thirty five defendants from the provinces of Cibitoke and Mwaro on 29^th and 30^th of April in 29 cases. The inmates from Mwaro were assisted in the province of Muramvya, which is the location of the prison in which they are detained. Most of the cases have been closed and submitted for deliberation.
IBJ continues to support the accused in Burundi. As the IBJ Founder and CEO, Karen Tse wrote in From Fear to Hope, citing Martin Luther King, “the time is always ripe for justice”. Justice does not “roll in on the wheels of inevitability” but comes about because of dedication and hard work of committed individuals.

One IBJ client was barely 15 years old when he was arrested on 6 July 2007. He was accused of burglary and put in pre-trial detention. The only existing documentation of his detention is the arrest warrant (dated 06/07/2007), and the order to detain him provisionally (dated 23/08/2008). It was only after almost two years after his arrest that he appeared before the court in a public hearing. He pled not guilty, but was not assisted by a lawyer (although the right to legal assistance is stated in both the Constitution and the Procedural Penal Code). The attorney general asked for a punishment of 4 years of imprisonment. Following the hearing, on 13/04/2010 the court condemned the young man to 2 years of imprisonment. The court took several circumstances into account, including the fact that the accused was a minor. But although the condemned was detained over 2 years already by the time of the judgement (2 years and 10 months to be exact), he was not immediately freed. In fact, he ended up in detention for almost 4 years.

The case was brought under the attention of an IBJ lawyer during one of IBJ’s visits to the prison.  At that point, the condemned was already imprisoned for 3 years and 9 months. Seeing the striking circumstances of the case, the lawyer did not hesitate to act and immediately verified the facts of the case by checking the relevant documents. Lawyer Aline Nijimbere found out that the facts were indeed correct, and contacted the Registry, which is the authority responsible for automatically notifying and signing the judgement to the condemned—and in this case to free him. After she contacted the Registry, the Clerk said she would free the prisoner the next Monday. However, the next Monday the prisoner was still not freed, and it was only after IBJ’s lawyer contacted the clerk again on Tuesday that he was freed.

This case does not require intensive or complicated legal assistance. The problem with cases such as this one is their identification. Once identified, the case simply needs a quick follow-up, including verification of the facts and personal contact with the Registry, in order to put pressure on officials to notice the prisoner of the judgement. All of this should be followed by his liberation.

The young man was following his primary school studies before he was arrested and jailed. Given the precarious prison conditions in Burundi in general, and the fact that there are no special measures to protect minors within the prison system whatsoever, his health was seriously affected.

When he was freed, he was very happy to see his family again and possibly continue his studies, even though he thinks he is not capable to go to school after 4 years of detention in inhumane conditions.

What went wrong in this case? Several flaws of the Burundian justice system can be pointed out with this case in an exemplary function.

-First of all, the Burundian Penal Code clearly states that no minor younger than 15 can be held criminally responsible (it is the age at the time of the criminal act that should be taken into account). Next to the criminal irresponsibility of minors under 15, the article specifies that crimes committed by them can only give rise to civil procedures. This also means that he cannot be imprisoned for a crime he is accused of.

-The Procedural Criminal Code points out clearly that pre-trial detention has to be authorized and renewed every month by a judge, by means of a motivated decision. The judge therefore should have had several occasions to notice the unlawfulness of the detention. The fact that the monthly review of the detention does not take place regularly is in itself an element that makes the pre-trial detention unlawful. Moreover, the Penal Code criminalizes the behaviour of the actors of the judicial system if they do not follow the timeframes stated in the Procedural Code without a valuable explanation.

– The fact that the accused only appeared before the court more than 2 years after his arrest and detention is unlawful. Moreover, the prisoner was not assisted by a lawyer. This is certainly not strange in Burundi, since recent studies show that only 2.7 percent of the accused can benefit from legal aid. And in this case, the young man was not liberated, although he already served almost twice the punishment required! The Registry, firstly responsible for informing the parties of the judgement and the liberation of the condemned, did not do so according to ‘a typing mistake.’

-Another authority that should have reacted on the unlawful situation is the Attorney General, since they are responsible for the executions of the judgements and should control the Registry.  These kind of actions can be resolved by IBJ trainings that gather  key criminal actors.

-Another element to consider is the unawareness of the population of their rights. If the detainee and his family were more aware of the manifest unlawfulness of the imprisonment, they would have taken firmer actions.

The justice system failed at several levels to guarantee the basic rights of the suspect, the accused and the condemned. The identified flaws should be further analysed, in order to contribute to a more efficient and fair Burundian justice system. In this case, it points clearly out that the execution of judgements is in itself a problem in Burundi.

All these malfunctions point out the relevance of IBJ actions in supporting the implementation of Burundi criminal laws.

Five members of this family of farmers were accused of willful destruction of property. IBJ lawyer Janvier Ncamatwi managed to gain acquittal for four, but had to visit the jail to make sure they were actually freed.

During one of his regular prison visits to the prison of Bururi, IBJ lawyer Janvier Ncamatwi identified five family members who were imprisoned and awaiting their trial, accused of willful destruction of property. After having met with the clients, the facts showed that the family was imprisoned for rather strange and not very comprehensive accusations. Family disputes of neighboring families seemed to be at the source of the accusations. Maître Janvier followed up the cases and was able to obtain a positive outcome for almost every single one of them.

The five cases concerned a 71-year-old widow, her two sons, and two uncles. The widow and one of her sons were, at the time of the identification of the case, imprisoned for over a year and a half. The second son was younger than 15 years at the time of the crime, and consequently not criminally responsible. He should have never been detained in the first place, but was only freed after spending one year and three months in manifestly unlawful pretrial detention. The two uncles were arrested and detained after they were heard as witnesses in the same case in May 2010.

When Maître Janvier took up the cases, the investigation was already closed at the level of the Attorney General, but the files were not yet referred to the court in order to fix an audience. Within a month, he got the cases subscribed on the role of the court, and all persons concerned received a trial swiftly after his input.  All members of the family, except for one, were acquitted in the trial.

However, the strange story concerning their actual liberation indicates how a lack of working hierarchic control mechanisms and a similar lack of coordination between the different actors in the justice sector (specifically the prison and court environment) creates often absurd and damaging situations.

Normally, prisoners should be freed right after their acquittal. This rule is clearly stated in the Procedural Penal Code, and was confirmed in a Circular of the Federal Attorney-General. However, two weeks after their acquittal, the prisoners were not yet freed, together with two other clients of Maître Janvier who already sat out their punishment for over 2 months. Therefore, Janvier decided to visit the prison himself to make sure they were freed.

Janvier contacted officials to understand why his clients were not yet liberated, but they did not understand the situation either. The President of the Court did not understand why the acquitted persons, as well as those who sat out their punishment, were not freed. The director of the prison mentioned something about waiting for the appeal of the Attorney-General. However, no appeal was made yet, and even in the case of an official appeal, this would not be a reason to keep the prisoners imprisoned for a longer time, according to Burundian law.

It was only after Janvier made sure that both the president of APRODH (a well-known human rights organization in Burundi) and the director of the Directory-General of the Prison Affairs had contact with the prison director that all of the family was liberated except for one of the two sons, who was found guilty of a failure to the public security. IBJ then made an appeal, because the judgment that sentenced him to three years did not even indicate the principal crime.

Even after that, the disastrous events did not end for the family. The son who was freed in June 2010 because he was not old enough to be criminally responsible at the time for the crime of destruction of property, returned to his village, where two days after his liberation a girl was found dead. He was immediately accused of the murder, although no leads could be found that pointed toward him. The social stigma of being imprisoned probably had a lot to do with the accusations. However, since he already had the age of criminal responsibility, he was again detained.

This detention gravely affected this family of farmers because they lost cultural seasons and were not able to feed themselves after their release. The children in the family were also obliged to live with other relative families since their parents were jailed. However, after IBJ lawyer Maître Janvier helped them tackle the Burundi justice system, the accused were happy to go back to the farm, feed their family, and see their children.

This event took place a year after IBJ organized a similar roundtable on the same topic. Taking a collaborative format, this roundtable was organized to evaluate how criminal justice stakeholders are dealing with matters relating to children, how they are implementing what they have committed themselves to doing, and what can be done to improve collaboration as well as speed up the treatment of juvenile offenders’ cases going forward.

The Convention on the Rights of the Child, which has been incorporated into the Burundian constitution (article 19), states that with all decisions concerning the child, the best interest of the child must be taken as the most important consideration (article 3 of the CRC). With this statement began the task of getting the audience to notice that, in accordance with the Convention and Burundian constitution, detention of the child must be prevented as often as possible. Aline Nijimbere, IBJ legal fellow, had the participants think about the scenario “what if you had committed or been suspected of committing a crime at a young age and then were jailed?” According to Aline, it would have been impossible for most of the participants to have the same role as the one they currently have in society if this statement was true.

Then, in addition to the example mentioned, the roundtable also noted that juvenile justice goes way beyond simply organizing society by the rule of law. It is also a matter of value judgment. This is why all participants had to focus their attention on what can be done to avoid the insufferable imprisonment of children, and if there is no other solution, then how to deal  with such cases involving children.

Exchanging ideas on the issue being discussed, the presidents of the courts of Muramvya and Bururi each shared experiences on how they have been implementing procedures of juvenile justice in partnership with IBJ. Then, as a whole, the roundtable network of stakeholders came to the conclusion that it would be feasible to advance the rights of children in conflict with the law through individual and shared commitments. Not only did participants commit themselves to changing their ways of enforcing criminal provisions protecting the child, but also, they found the importance in working to bridge the existing gaps that may be present due to lack of collaboration. They agreed that setting up a solid network and laying a functioning chain of actors, starting with the prosecutor who conducts questioning of the child after the arrest stage, all the way to the judges who sit in trial, are both important and possible. Then, in their individual commitments, the secretaries for the prosecution and the court clerks committed themselves to distinctly classifying the files of children and entering the information rapidly for all documents concerning children’s affairs. Urgency will be applied while transmitting files to courts whereas prosecutors will avoid, to the extent that they can, issuing warrant of arrest and calling for heavy penalties against children in conflict with the law.

To follow the example of Bururi and Muramvya, all judges committed to holding regular special “in-camera” hearings for children. Hopefully, these minimum standards guiding juvenile justice are going to be observed.

Amazed by this short, energizing event that will  lead to a new age of juvenile justice in Burundi, IBJ will  support the implementation of the commitments raised through the roundtable until they become a reality. The biggest recommendation participants agreed upon is tightening the collaboration of all justice stakeholders in promoting and protecting the rights of the child in conflict with the law, and IBJ is committed to support this endeavor.