Burundi: Preventive Detention Law Violations Highlighted

• Burundi's Constitution and Code de procédure pénale set strict rules for arrest and preventive detention, including the integration of international human rights texts.
• Article 154 of the Code de procédure pénale states liberty is the rule, detention the exception, requiring sufficient guilt evidence and a minimum one-year sentence offense.
• Officers de police judiciaire (OPJ) must disclose identity and inform suspects of rights, including the right to silence, or face nullity of the case.
• Human rights advocates report widespread violations of these laws, including arrests without warrants by unidentified individuals and failure of officers to disclose identity.
• Critics suggest the Penal Code's colonial origins contribute to its disconnect from current Burundian realities, despite the country having robust laws.

Consequently, preventive detention is only permissible if there is sufficient evidence of guilt against an accused person, and if the alleged acts constitute an offense punishable by a minimum of one year of penal servitude.

Jean-Marie Nshimirimana, president of Solidarité avec les prisonniers et leurs familles (SPF/Ntabariza), has highlighted significant discrepancies between Burundi's legal framework for arrests and its practical application. He points to widespread violations of the law and instances of ill-treatment during arrests, stressing the fundamental principle of presumed innocence. These concerns are echoed by Gérard Rugemintwaza, vice-president of the National Independent Human Rights Commission (CNIDH), who notes a growing trend among some Officers de police judiciaire (OPJ) and magistrates to disregard requirements for identity disclosure before arrests or interrogations.

Nshimirimana specifically details common occurrences where individuals are apprehended based solely on suspicion, without warrants, often involving force and mistreatment by unidentified persons in vehicles with tinted windows, who then transport them to undisclosed locations. He characterizes these frequent incidents as inhumane arrests that disrupt social tranquility and cause considerable distress to the families of those detained.

Burundi's Constitution provides explicit protections regarding arrest and preventive detention. Article 39 stipulates that no individual can be deprived of liberty except in accordance with the law, and further clarifies that no one can be charged, arrested, detained, or judged except in cases defined by a law enacted prior to the alleged acts. Complementing this, Article 19 of the foundational law integrates regularly ratified international human rights instruments directly into the Constitution, underscoring a commitment to broader human rights standards.

The Code de procédure pénale Burundi and the Penal Code draw their inspiration from these constitutional principles. Article 154 of the Code de procédure pénale establishes that liberty is the general rule, while detention is an exception. Consequently, preventive detention is only permissible if there is sufficient evidence of guilt against an accused person, and if the alleged acts constitute an offense punishable by a minimum of one year of penal servitude.

The law mandates specific procedures for arrests. An Officer de police judiciaire (OPJ) must carry out any arrest, and this officer must possess a valid OPJ card issued by the Prosecutor General of the Republic. Magistrates from the Public Ministry are also authorized to conduct arrests. However, an exception exists for situations of flagrante delicto, where any citizen is empowered to apprehend an individual and present them to the appropriate authority.

Crucially, before performing their duties, an OPJ is legally required to disclose their identity and inform the suspected individual of their rights. Failure to adhere to this requirement renders the case inadmissible. Article 9 of the Code de procédure pénale specifies that an Officer de police judiciaire must, under penalty of nullity, state their full name, rank, the police station they are affiliated with, and the number of their professional card issued by the Prosecutor General. Furthermore, Article 10, paragraph 5, of the same code dictates that prior to any interrogation, the person being questioned must be informed of their rights, including the right to remain silent in the absence of their legal counsel.

Despite the clear legal provisions, figures like Jean-Marie Nshimirimana and Gérard Rugemintwaza lament the frequent disregard for these established procedures. Kefa Nibizi, president of the Conseil pour la démocratie et le développement durable au Burundi (Codebu) party, acknowledges the robustness of Burundi's laws but criticizes their drafting, particularly pointing to the Burundian Penal Code. Nibizi suggests that this code, originating from Belgian colonial influence, does not adequately reflect contemporary Burundian realities. This historical context, combined with observed practices, highlights a significant gap between the protective intent of the law and its inconsistent implementation on the ground.

Lawyers and compliance officers in Burundi should be acutely aware of the specific provisions within the Code de procédure pénale and the Constitution regarding arrest and preventive detention, particularly Article 154 and Article 39. Given the reported widespread violations, they must proactively advise clients on their rights, including the right to identity disclosure from arresting officers and the right to silence, and be prepared to challenge procedural irregularities or unlawful detentions based on these foundational legal texts.

Source: Original reporting via Burundian media