The Governing Council of the Inter-Parliamentary Union,

Having before it the case of the above-mentioned members of parliament of Burundi, who lost their parliamentary seats on 5 June 2008, which has been the subject of a study and report of the Committee on the Human Rights of Parliamentarians following the Procedure for the treatment by the Inter-Parliamentary Union of communications concerning violations of the human rights of members of parliament,

Taking note of the report of the Committee on the Human Rights of Parliamentarians, which contains a detailed outline of the case (CL/183/12(b)-R.1),

Taking account of the hearing the Committee held with the President of the CNDD-FDD to the 119th IPU Assembly,

Considering the following information on file:

• The parliamentarians in question were elected in July 2005 on the CNDD-FDD list, which obtained the majority of seats in the National Assembly; as time passed the party experienced  internal dissent, which became more pronounced after the party convention of 7 February 2007, during which Mr. Hussein Radjabu was ousted as party leader; as a result, one wing was formed that backed the party's new president, Mr. Jérémie Ngendakumana, while another backed Mr. Radjabu; the persons concerned belong to the latter wing; except for Ms. Nzomukunda, ¹ the former Vice-President of the National Assembly, and Mr. Basabose, both of whom were expelled from the party, and Mr. Kana and Ms. Sindarusiba, the other members of parliament resigned from the party and continued to sit in the National Assembly as independent members;

• Other political parties, in particular FRODEBU, also met with dissidence, which encouraged some of its members to join the dissenting members of the CNDD-FDD in abstaining from (regular) participation in the work of the National Assembly, as a consequence of which the National Assembly failed to reach the quorum needed to adopt decisions, and its work was blocked;

• The IPU, under its programme of assistance to the Parliament of Burundi, made every effort, in common with the parliamentary authorities, to find a solution to the stalemate and, after consultations with all the parties concerned during a working mission in May 2008, submitted a possible solution for resolving the ongoing stalemate;

• On 30 May 2008, the President of the National Assembly sent a letter to the President of the Constitutional Court concerning an “Application relating to unconstitutional occupation of seats at the National Assembly”; in justification of his application that the Court “rule on the unconstitutional occupation” of the seats held by the members of parliament concerned, the President cited Articles 98 and 169 of the Constitution and a letter from the President of the CNDD-FDD asking him to bring the cases of those persons, who were no longer members of the party, before the Court; the President further argued that “certain people consider that a member of parliament who has resigned from his party automatically loses his right to sit in parliament, since that right is only recognized in respect of elected officials who can prove they are on either a list of independents or the list of a political party having obtained two per cent or more of all the ballots cast”;

• In its decision RCCB 213 of 5 June 2008, the Court declared the application admissible by virtue of its competence to ensure respect for the Constitution, including the Charter of Fundamental Rights, by State bodies and other institutions (Article 228 [2]) and ruled that the members of parliament concerned held their seats unconstitutionally; in so doing, the Court based its arguments in particular on Article 169 of the Constitution, which stipulates that “candidates presented by the political parties or lists of independents can only be considered to have been elected and sit in the National Assembly if, nationwide, their party or their list has obtained two per cent or more of all the votes cast”; it pointed out that members of parliament “are elected before the parliament's term and sit during the parliament's term”; consequently, according to the Court, the members of parliament concerned no longer fulfilled any of the conditions of the article: they could not sit as independents because the list of independents had not obtained two per cent of votes, and they could not sit as members of the party on whose list they had been elected because they were no longer members of it,

• Article 149 of the Constitution stipulates: “The mandate of deputies and senators is national in character. There shall be no imperative mandate. The deputies and senators vote in their own name”;

• Article 156 (section 1) of the Constitution stipulates: “The term of office of a deputy or a senator ends if the deputy or senator in question dies, resigns, is permanently incapacitated or unjustifiably fails to attend over one quarter of the meetings in a session or when the deputy or senator finds himself in one of the cases of disqualification provided for in statutory law” (such as the Electoral Code and the Standing Orders);

• Article 132 of the Electoral Code stipulates: “The term of office of a deputy may end prematurely if his seat is vacant as a result of death, resignation, physical incapacity, permanent disability, unjustified absence at more than one quarter of a session's meetings, or disqualification following loss of a criterion for eligibility or the occurrence of a case of ineligibility …”;

• Article 15 of the Standing Orders of the National Assembly stipulates: “The term of office of a deputy ends if his seat is vacant as a result of death, resignation, physical incapacity, permanent disability, unjustified absence at more than one quarter of a session's meetings, or disqualification following a penal sentence of more than twelve months. However, there shall be no disqualification if the deputy is convicted of unintentional offences”; Article 16 stipulates: “The vacancy is confirmed by decision of the Constitutional Court ruling at the request of the Bureau of the National Assembly”,

Considering further that four of the parliamentarians concerned, namely Mathias Basabose, Pasteur Mpawenayo, Alice Nzomukunda and Zaituni Radjabu, were the target of grenade attacks in August 2007 and March 2008 respectively, which have remained unpunished to date; noting that, moreover, according to one of the sources, arrest warrants have been issued for Mr. Nkurunziza, Mr. Nsababandi, Mr. Nshimirimana, Mr. Nyabenda, Mr. Basabose and Mr. Mpawenayo; noting that the latter was arrested on 4 July 2008, that Mr. Nkurunziza was arrested by the Deputy Director of Police on 15 July 2008, reportedly without a warrant, and that Mr. Minyurano was arrested on 1 October 2008 reportedly on an accusation of assault and battery and public insult which, according to the sources, originated in the failure of Mr. Minyurano's tenant, a magistrate, to pay his rent,

Noting that a dissenting group within FRODEBU has set up a new party and that the President of FRODEBU has requested the President of the National Assembly, on the same basis as referred to above, to ask the Constitutional Court likewise to declare the occupation of the seats of the dissenting parliamentarians unconstitutional, but that the President of the National Assembly has so far taken no such action; noting also that a leading member of this new party has asked the President of the National Assembly to dismiss 15 members of the FRODEBU party from parliament on the grounds that they were absent from parliament for more that a quarter of the current session and can therefore be dismissed by virtue of Article 156 of the Constitution and Article 15 of the Standing Orders; that an application of that provision would affect not only the 15 members of the FRODEBU in question but a certain number of parliamentarians belonging to the CNDD-FDD and UPRONA, who likewise boycotted a large number of parliamentary sittings,

Considering that, according to the President of the CNDD-FDD to the 119th IPU Assembly, the aim of the parliamentarians concerned was to block the National Assembly and they succeeded as other opposition parliamentarians joined them in this effort, a total of more than 40 members, so that the quorum for adopting legislation was no longer reached; that, however, major problems would have been created had the Assembly sought the expulsion of all of them, for which reason only the expulsion of the 22 members who no longer belonged to the CNDD-FDD was sought; that, in any event, had it not been for the Constitutional Court's interpretation of Article 169, they would have lost their mandate by virtue of Article 156 of the Constitution; that since their expulsion the Assembly functioned normally, having meanwhile adopted 29 of the 35 bills proposed by the Government; noting also that the President of the CNDD-FDD welcomed the assistance of the IPU insofar as capacity-building in the field of democracy, human rights and the participation of women in politics are concerned as this contributes to the stabilization of the country,

1. Thanks the President of the National Assembly for his cooperation; also thanks the President of the CNDD-FDD for having shared his view with the Committee;

2. Recognizes that Burundi has faced a critical situation owing to the virtual inability of the National Assembly to muster the necessary quorum, and that as a result, parliamentary and governmental business came to a halt early this year; acknowledges, therefore, that there was an urgent need to find a solution enabling the National Assembly to resume its work;

3. Commends the IPU for its efforts to work with all the parties concerned in Burundi to identify a negotiated, comprehensive and agreed solution to the problems faced in parliament that would allow all political parties and factions to participate effectively in the work of the National Assembly; regrets that this process was interrupted before it came to fruition;

4. Recalls that the revocation of the parliamentary mandate is a serious measure, as it irrevocably deprives the members of parliament concerned of the possibility of carrying out the mandate entrusted to them by the people, and that it must therefore be decided in full accordance with the law and only for serious reasons stipulated in the law; 

5. Expresses therefore deep concern at the Constitutional Court ruling, as it takes account neither of the provisions in the Constitution dealing explicitly with the loss of the parliamentary mandate, nor of the relevant provisions in the Electoral Law and the Standing Orders; nor does it refer to the preparatory work of the Constitution or to the views and legal arguments of the parliamentarians concerned;

6. Notes in this respect that, in his report to the United Nations Human Rights Council at its 9th session, the independent expert on the situation of human rights in Burundi expressed deep concern at this decision, stating as follows: “the Court appears to have been enlisted by the executive to serve a specific political objective, thereby bringing into question its independence and credibility. By acting in this compliant manner, the Court has lent credence to the widely-held belief that the whole machinery of justice in Burundi is beholden to the executive” ²;

7. Expresses, moreover, deep concern at the reported issuing of arrest warrants for the six persons mentioned above, and the arrest of four of them on reportedly arbitrary grounds and in violation of procedural rules; and wishes to ascertain as a matter of urgency the legal and factual grounds to justify the issuing of such warrants, as well as the arrest and detention of the persons concerned;

8. Urges the National Assembly and the competent authorities to return to the negotiating table, and requests the Assembly to receive urgently the planned IPU follow-up mission so that it can resume its good offices function in support of political dialogue, which alone can provide a lasting solution to the problems that have arisen and contribute to the stabilization and democracy-building called for by the Burundi parliamentary authorities;

9. Requests the Secretary General to convey this resolution to the Presidents of the National Assembly and of the Senate;

10. Requests the Committee to continue examining this case and report to it at its next session, to be held on the occasion of the 120th Assembly of the IPU (April 2009).

---

1. Ms. Nzomukunda was excluded from the party during the CNDD-FDD convention held on 26 January 2008 in Muyinga.

2. A/HRC/9/14, 15 August 2008.

---

Note: you can download a complete electronic version of the brochure "Results of the 119th IPU Assembly and related meetings" in PDF format (file size 595K approximately). This version requires Adobe Acrobat Reader, which you can download free of charge.

HOME PAGEHUMAN RIGHTSMAIN AREAS OF ACTIVITYIPU STRUCTURE AND DOCUMENTS