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Resolution adopted unanimously by the IPU Governing Council at its 185th session
(Geneva, 21 October 2009)

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/185/11(b)-R.1), and to the resolution adopted at its 184th session (April 2009),

Considering the following information on file:

  • The persons concerned, initially all members of the ruling CNDD-FDD party dissented and had lost their parliamentary seats as a result of a ruling adopted by the Constitutional Court on 5 June 2008 declaring that they occupied their seats unconstitutionally; the Court had acted on a petition lodged by the Speaker of the National Assembly; it (the Governing Council) has consistently considered this ruling to lack any genuine legal basis and the United Nations independent expert on the human rights situation in Burundi observed that “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”;*

  • Mr. Radjabu’s parliamentary immunity was lifted on 27 April 2007, and proceedings were started against him and seven other people accused of plotting to undermine State security by inciting citizens to rebel against the authority of the State, 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; on 22 December 2007, the Supreme Court found Mr. Radjabu guilty as charged and sentenced him to 13 years in prison (Case RPS 66); on 25 May 2009 the Supreme Court Appeal Chamber upheld the first-instance judgment; Mr. Radjabu has filed a cassation petition and was obliged to do so without having at his disposal a written copy of the appeal court judgment, which has reportedly not so far been issued; the Committee had sent an observer to the appeal proceedings who concluded that the trial of Mr. Radjabu was 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, the implication of an investigating officer belonging to the  National Intelligence in the facts of the case and, more generally, the absence of evidence to substantiate the accusation; the parliamentary authorities have rejected his conclusions as biased, but have not responded to the observer’s rebuttal of their comments; 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, and a complaint was lodged in this regard; according to the information provided by the President of the Senate, the matter is at present before an examining magistrate in a separate case; moreover, two of Mr. Radjabu’s co-convicts are said to have been released;

  • Mr. Pasteur Mpawenayo was arrested on 4 July 2008 and accused of being Mr. Radjabu’s accomplice; the hearings on the merits of his case have reportedly been adjourned for deliberation since 13 January 2009, the maximum period for such adjournment being 60 days;

  • Mr. Nkurunziza was arrested on 15 July 2008 on the orders of the Kirundo Provincial Police Commissioner on the charge of distributing weapons for the purpose of arming a rebellion against the State authorities; according to the sources, it is in fact Mr. Nkurunziza who, while 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 him arrested; Mr. Nkurunziza has reportedly not been served the indictment and is being detained in the absence of any case or trial and without having been brought before a judge for a ruling on his pretrial detention; similarly, many applications filed by the defence counsel have reportedly not been handled;

  • Mr. Minyurano was arrested on 2 October 2008 and accused of assaulting a magistrate; the accusation apparently arose because Mr. Minyurano’s tenant, a magistrate, tried to move out without paying his rent; Mr. Minyurano apparently demanded that he hand over the keys of 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,
Considering that legislative elections will be held in 2010 and that the Election Code was amended, stipulating in its Article 112 that the parliamentary mandate ceases when members of parliament voluntarily resign from the political party on whose ticket they were elected or, having been expelled from the party, have exhausted all legal remedies against their expulsion,

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 or Degrading Treatment or Punishment, which guarantee the right to liberty and a fair trial, and prohibit torture,

Bearing in mind the concluding observations of the Committee against torture and other cruel, inhuman or degrading treatment (CAT) on Burundi’s initial national report (CAT/C/BDI/CO/1; 15 February 2007),

  1. Deeply regrets that the authorities have not provided the requested information on the situation of the parliamentarians concerned, particularly since the parliament of Burundi is receiving IPU assistance;

  2. Reiterates the concerns and considerations it expressed in its April 2009 resolution regarding respect for the international human rights norms to which Burundi has subscribed, in particular regarding the length of preventive detention and the right to fair trial;

  3. Endorses the concerns expressed in the trial observer’s report on Mr. Radjabu’s trial as referred to above in the second preambular paragraph; points out once again that, by virtue of the international human rights treaties ratified by Burundi, evidence obtained under torture must be dismissed, and that otherwise proceedings are fundamentally flawed for that reason alone; earnestly hopes, therefore, that this question will be duly taken into account during the cassation proceedings;

  4. Considers that, as long as the question of torture in this case has not been fully elucidated, the suspicion remains that Mr. Radjabu was prosecuted for political reasons for the purpose of barring him from campaigning and standing in the forthcoming elections; in this respect, wishes to ascertain whether co-convicts have been released in the meantime and, if so, on what grounds;

  5. Stresses that the concerns it has expressed in this case, along with those of the trial observer are largely also those of the Committee against Torture (CAT) as reflected in its Concluding Observations, in which it recommends inter alia that Burundi (i) bring the practice of pretrial detention into conformity with international fair-trial standards and should ensure that trials take place within a reasonable time, (ii) clarify the mandate of the National Intelligence Service within the framework of the ongoing reform of the judiciary in order to prevent any use of the Service for political repression and ensure that its officials do not engage in criminal investigation, (iii) take vigorous measures to end the impunity enjoyed by the perpetrators of acts of torture and ill-treatment, whether they be State officials or non-State actors, to conduct timely, impartial and exhaustive inquiries, try the perpetrators of such acts and, if found guilty, sentence them to punishment commensurate with the gravity of the acts committed, and (iv) adopt effective measures to guarantee the independence of the judiciary in accordance with the relevant international norms;

  6. Wishes to ascertain the follow-up action taken by parliament on these recommendations, including with regard to the case in question; wishes in particular to ascertain the stage reached in the inquiry which, according to the authorities, is under way to examine the torture complaints in the case of Mr. Radjabu;

  7. Is deeply concerned that the proceedings against Mr. Mpawenayo and Mr. Nkurunziza appear to be at a standstill, and emphatically recalls the fundamental principle of justice delayed is justice denied; urges the authorities, as is their duty, either to try them without further delay or to release them forthwith; reiterates moreover its wish to receive a copy of the formal charges brought against Mr. Mpawenayo, Mr. Nkurunziza and Mr. Minyurano, the decisions confirming their pretrial detention and detailed information on how the proceedings before the relevant courts are proceeding;

  8. Regrets that the new Election Law provides for the loss of the parliamentary mandate in the case of loss of affiliation to one’s political party, which provisions the IPU firmly believes to be detrimental to the freedom of expression which members of parliament need in order to exercise their parliamentary mandate;

  9. Requests the Secretary General to convey this resolution to the parliamentary and other competent authorities, inviting them to provide the information requested;

  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 122nd IPU Assembly (March-April 2010).

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