The Governing Council of the Inter-Parliamentary Union,

Referring to the case of the above-mentioned Burundian parliamentarians, as outlined in the report of the Committee on the Human Rights of Parliamentarians (CL/184/12(b)-R.1), and to the resolution adopted at its 183rd session (October 2008); referring also to the outline of cases BDI/26 concerning Mr. Ndikumana et al. and case BDI/44 concerning Mr. Radjabu,

Taking into account the official mission to Burundi carried out by the Director of the IPU's Democracy Division from 10 to 14 November 2008 within the framework of the IPU's activities, in particular its technical assistance programme, to assist the Parliament of Burundi in its role as an important facilitator of reconciliation in the country, during which he met with Mr. Radjabu, Mr. Mpawenayo, Mr. Nkurunziza and Mr. Minyurano and the competent authorities, including the Attorney General of Burundi; taking into account also the information and observations provided to the Committee by the President of the Senate and another member of the Burundian delegation during the hearing held at the 120th Assembly,

I.       Recalling the following information:

• The parliamentarians concerned were elected in July 2005 on the CNDD-FDD list, which won a majority in the National Assembly; over time, internal differences emerged within the party; they deepened after the party convention of 7 February 2007, at which Mr. Radjabu was ousted from the CNDD-FDD leadership; the party was split in two, one wing supporting the new party president, Mr. Jérémie Ngendakumana, the other backing Mr. Radjabu; the parliamentarians concerned are part of the latter wing and continued to sit in the National Assembly as independents; other political parties, in particular FRODEBU, have also been riven by dissent; a group of FRODEBU members reached an understanding with the dissident members of the CNDD-FDD that they would refrain from participating (regularly) in the work of the National Assembly, which was thus blocked as there was no longer a quorum;

• In order to end the resulting institutional deadlock, the President of the National Assembly asked the Constitutional Court to rule that the parliamentarians concerned were holding their seats unconstitutionally; the mandates of the parliamentarians concerned were revoked by decision of the Constitutional Court on 5 June 2008, the Court ruling that they held their seats unconstitutionally since they were no longer members of the party on whose list they had been elected and that they could not sit as independents either; the Court based its ruling on Article 98 of the Constitution, which stipulates the conditions required to run for legislative office, and did not take account of either Article 149, which prohibits imperative mandates, and Article 156 of the Constitution, or of Article 132 of the Electoral Code and Article 15 of the Standing Orders of the National Assembly, which clearly stipulate the situations in which a parliamentarian's term of office ends; the Court also took no account of the preparatory work on the Constitution, which rejected a proposal to disqualify members of parliament should they change political parties and replaced it with the present constitutional provisions on the termination of the parliamentary mandate, which provide for no such termination in the case of expulsion or resignation from the political party on whose list the parliamentarian was elected;

• In his report to the 9th session of the United Nations Human Rights Council, the independent expert on the human rights situation in Burundi expressed deep concern at this decision: “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”;¹

• There has been no follow-up to the request from the FRODEBU President that a dissident group of FRODEBU members that had set up a new party be excluded for the reasons evoked by the Court; a leader of that new party had asked the President of the National Assembly to remove 15 FRODEBU members from office on the grounds that they had failed to attend over one quarter of the current session's sittings and could therefore be removed under the provisions of Article 156 of the Constitution and Article 15 of the Standing Orders; however, the application of those provisions would have had consequences not only for the 15 FRODEBU members in question, but also for a number of CNDD-FDD and UPRONA parliamentarians, who had also boycotted a large number of sittings of parliament, and the request was therefore taken no further,

II.       Considering the information on the situation of Mr. Radjabu, Mr. Mpawenayo, Mr. Nkurunziza and Mr. Minyurano, as follows:

(a)   Mr. Radjabu's situation:

• When his parliamentary immunity was lifted on 27 April 2007, proceedings were started against Mr. Radjabu and seven other people accused of having plotted to undermine State security by inciting citizens to rebel against the authority of the State (acts defined and punished in Article 143 of the Penal Code), and against Mr. Radjabu alone for having, in the course of a meeting he organized with a view to disturbing the peace, insulted the Head of State by comparing him to an empty bottle (acts defined and punished in Article 278 of the Penal Code); the prosecutor accused Mr. Radjabu of having organized a movement of demobilized officers in order to paralyse the State's institutions after he had been ousted as president of the CNDD-FDD; Mr. Radjabu is reported to have entrusted Mr. Evariste Kagabo, his right-hand man, with the task of identifying the demobilized officers, a report allegedly confirmed by the accounts of demobilized persons thus recruited and by the seizure of several weapons;

• The Supreme Court opened public proceedings on the case on 22 December 2007 and handed down its decision on 3 April 2008, sentencing Mr. Radjabu to 13 years in prison (case RPS 66); the appeal to the decision was heard by the Supreme Court Appeal Chamber starting in late January 2009 and was adjourned on 1 March 2009, before the defence lawyers had finished pleading their case; the Court nevertheless reopened the proceedings and, at a hearing held on 26 March 2009, apparently returned the case to the lower court for further information;

• Mr. Evariste Kagabo, the main person accused with Mr. Radjabu, and another person initially suspected, Mr. Abdul Rahman Kabura, were allegedly tortured by the National Intelligence Service with the complicity of the police station in charge of the investigation; Mr. Kagabo informed the Court of the acts of torture allegedly inflicted on him by Mr. Ngendanganya, a National Intelligence Service agent, and said he was even frightened to testify before the Attorney General because National Intelligence Service agents were present; another of the accused, Mr. Jean-Marie Haragakiza, also stated to the Court that he had been threatened with torture if he did not testify against Mr. Radjabu; according to the information provided by the President of the Senate, the matter is currently before an examining magistrate in a separate case;

• According to the report by the Committee's observer, whose conclusions were rejected by the parliamentary authorities, the trial of Mr. Radjabu is marred by serious flaws, notably the recourse to torture during the investigation, the lack of independence of the Court's judges and of the prosecution, who are all members of the ruling party, and the absence of evidence to back up the accusation;

(b)   Mr. Mpawenayo's situation:

• Mr. Mpawenayo was arrested on 4 July 2008 in Bujumbura and accused of having been Mr. Radjabu's accomplice (BDI/44) and thus of having co-chaired the meeting where the acts with which he is charged are said to have been committed; he was taken to Mpimba prison (Bujumbura), where he spent three months and ten days before being transferred, according to him unlawfully, to Rutana prison and from there, in late November 2008, back to Mpimba prison (Bujumbura); his conditions of detention at Rutana prison, which is far from his family's home, did not meet minimum hygiene, nutritional and security standards; Mr. Mpawenayo was brought before the Supreme Court on 1 October 2008; on that date, the Court adjourned the proceedings to consider the points of order raised by the defence, namely the question of detention; it observed that the prosecution had acted in accordance with the law and therefore rejected Mr. Mpawenayo's arguments; Mr. Mpawenayo appealed; a court appearance originally scheduled for 19 November was postponed to 26 November 2008, because the decision on pre-trial detention had not been notified; the case was to be heard on 13 January 2009 in a public hearing before the Appeal Section of the Supreme Court Judicial Chamber; the trial on the merits against Mr. Mpawenayo was adjourned; adjournments can last a maximum of 60 days and, at the time of the mission by the Director of the IPU Democracy Division, the adjournment in Mr. Mpawenayo's case had 17 more days to run, until the end of November 2008; Mr. Mpawenayo asserts that the judicial authorities wanted him to testify against Mr. Radjabu and that he was imprisoned when he refused; his trial is said to be linked to the position of Executive Secretary he held until the CNDD-FDD Ngozi convention (February 2007) at which Mr. Radjabu was ousted;

(c)   Mr. Nkurunziza's case:

• Mr. Nkurunziza was arrested on 15 July 2008 on the orders of the Kirundo Provincial Police Commissioner on charges of distributing weapons for the purpose of arming a rebellion against the State authorities; the Attorney General has put in place a team of magistrates to investigate the accusations against Mr. Nkurunziza and affirms that witnesses unanimously claimed that he had distributed weapons to the people to incite them to rise up; according to the source, Mr. Nkurunziza had yet to be officially informed of the accusations made against him, is being detained in the absence of any case or trial and without having been brought before a judge for a ruling on his pre-trial detention; similarly, many applications filed by the defence counsel have not been handled; regarding Mr. Nkurunziza's conditions of detention in Mpimba prison, he reportedly had no access to a hospital for some time, supposedly because there were not enough prison guards to escort him there; the authorities furthermore refused to allow him to attend his grandmother's funeral; lastly, according to the sources, it is in fact Mr. Nkurunziza who, while he was still a parliamentarian, had filed a complaint of defamation against the authorities of Kirundo Province, which had accused him in the media of distributing weapons for a rebellion; instead of investigating the complaint, the authorities had had him arrested;

(d)   Mr. Minyurano's case:

• Mr. Minyurano was arrested on 2 October 2008 and accused of assaulting a magistrate; the accusation apparently arose because Mr. Minyurano's tenant tried to move without paying; Mr. Minyurano apparently demanded that the tenant hand over the keys to the house until he had paid the rent, but the tenant only did so after the neighbours stepped in; Mr. Minyurano was reportedly brought before Gitega High Court, which declared the charges against him null and void and ordered his temporary release; his case is said to be pending in Gitega, awaiting ruling by a judge;

Recalling that Burundi is a party to the International Covenant on Civil and Political Rights (ICCP), the African Charter on Human and Peoples' Rights (ACHPR) and the Convention against torture and other cruel, inhuman and degrading treatment, which guarantee the right to liberty and a fair trial and which prohibit torture,

1. Thanks the Burundian authorities, notably the parliamentary authorities, for their spirit of cooperation and the information and observations they have provided;

2. Acknowledges the enormous progress Burundi has made in leaving behind the civil war and violence and building a democracy guaranteeing peace and respect for the human rights of all citizens;

3. Considers that effective progress towards reconciliation in Burundi at the national and political level can only be made if all political parties and factions participate in the political dialogue and can express themselves without fear or hindrance; is pleased therefore that the IPU continues to work with the National Assembly in support of political dialogue and has no doubt that these efforts will bear fruit and thus help 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; is confident that those efforts will also serve to resolve the case of the parliamentarians removed from office and at the very least enable them to stand for election;

4. Believes nonetheless that the 22 parliamentarians were removed from office for practical political reasons lacking any genuine legal basis, and in this respect observes that the application of a double standard to dissident parliamentarians from the majority party and FRODEBU parliamentarians is hardly likely to strengthen the rule of law;

5. Emphasizes, with regard to the ongoing amendment to the Constitution, that the IPU has always warned against the adoption of provisions allowing parliamentarians to be removed from office because they have lost their affiliation to a political party, since such a measure is detrimental to freedom of expression, and recommends that the matter be raised within the scope of the IPU's assistance to the Parliament of Burundi;

6. Notes that four of the persons concerned were arrested after their parliamentary mandate had been revoked, and in conditions apparently contrary to Burundian criminal procedure, and which could thus strip the proceedings brought against the former members of parliament of any legal basis; notes with concern on this point:
    
   1. Mr. Mpawenayo's appearance before a judge three months after he was arrested and the adjournment of his case, despite the fact that the acts of which he is accused are based on the same elements and evidence as in Mr. Radjabu's case, including confessions allegedly obtained under torture and his repeated transfers from prison to prison, especially to Rutana prison, apparently without any legal justification;

   2. Mr. Nkurunziza's detention since 12 November 2008 without appearing before a judge to confirm such detention, and the absence of any formal charges brought against him, at least any that were brought to his attention;

   3. The maintenance of a criminal file on Mr. Minyurano even though Gitega High Court reportedly declared the accusation of insulting a magistrate null and void and ordered his release;
       
7. Notes, in particular as concerns Mr. Radjabu, that the testimony of his principal co-accused was obtained under torture and recalls that, by virtue of the international human rights treaties ratified by Burundi, evidence obtained under torture must be dismissed by the Court; therefore wishes to know whether this was the case here; affirms that the fact that key witnesses were tortured suffices on its own to disqualify the trial;

8. Notes with satisfaction that, according to the authorities, an investigation has been opened into the complaints of torture in this case, and wishes to receive more detailed information in that regard;

9. Recalls that:
    
   1. The right to liberty as enshrined in Article 9 of the ICCP and Article 6 of the ACHPR includes the right of all individuals arrested on a criminal charge to be informed, upon arrest, of the reasons for such arrest, to be notified as soon as possible of any charges brought against them, to be brought as soon as possible before a judge and to be sentenced within a reasonable time or released; moreover, the detention of persons who are awaiting judgement should not be a matter of course;

   2. The right to a fair trial, enshrined in Article 14 of the ICCP and Article 7 of the ACHPR, includes the right to be presumed innocent, the right of all persons accused of a criminal offence to be informed, as soon as possible, of the nature and reasons behind the charges brought against them, to have the necessary time and facilities to prepare their defence and to be tried without excessive delay;

   3. The prohibition of torture is enshrined not only in the Convention against torture, but also in Article 7 of the ICCP and Article 5 of the ACHPR;
       
10. Wishes to receive a copy of the formal charges brought against Mr. Mpawenayo, Mr. Nkurunziza and Mr. Minyurano, the decisions confirming their pre-trial detention and detailed information on how the proceedings before the relevant courts are proceeding;

11. Requests the Secretary General to convey this resolution to the Speaker of the National Assembly, the President of the Senate and the Attorney General, inviting them to provide the information requested;

12. Requests the Committee to continue examining this case and report to it at its next session, to be held on the occasion of the 121st Assembly of the IPU (October 2009).

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

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