2013 QUATERLY REPORT: FIGHTING ILLEGAL JUVENILE DETENTION IN BURUNDI
During the last three months, International Bridges to Justice (IBJ) has continued to assist children in conflict with the law, in the provinces of Bujumbura, Mairie, Bujumbura Rural, Mwaro and Cibitoke.
The roundtable discussions, organized by IBJ, focused on juvenile justice relevant innovations that have been brought about by the new Criminal Procedure Code. As a consequence of these discussions, it was noticed that there has been better implementation of Article 166 of the Code which mandates the defense of juveniles by a qualified lawyer. A notable example of the impact of IBJ’s work is the case of Bernard, 17, who was accused of rape. As per the law in Burundi, a person is considered to be a ‘juvenile’ if he/she is under 18 years of age. In Bernard’s case, the Court of Bujumbura, Rural refused to proceed with the matter since the 17 year old boy was not represented by a lawyer. The judges postponed the case to another date, and in the meantime, IBJ was called upon to assist in the matter. The network of juvenile legal aid providers in Bujumbura, ‘Coordination de l’assistance judiciaire des mineurs en conflits avec la loi’ refers many criminal cases to IBJ. One of its members has said about IBJ – ‘IBJ lawyers have proven their competencies in assisting children accused of crimes’.
Besides Bujumbura, Mairie and Bujumbura Rural, IBJ lawyers also assisted juveniles in the provinces of Mwaro and Cibitoke. These are two of the seven provinces in Burundi which do not have prisons situated within their geographical limits. This situation creates a unique problem for juvenile detainees. Since they are detained in prisons remotely situated from the competent court, their trials are not conducted in a timely manner. To overcome this challenge, itinerant hearings of the courts are organized to expedite the case of juveniles detained in these remote prisons. In the provinces of Cibitoke and Mwaro, transportation of Magistrates is supported by the Belgian Technical Cooperation.
One of the cases that IBJ has dealt, within these past three months, is a case of robbery wherein three children and two adult men have been jointly accused.
In this case, the two accused adults were not in detention; one of them had been released by the police, while the second had escaped from prison. What is shocking to note is that the case has been pending for a long time due to the absence of the two co-accused adults and, for this entire period, the three juveniles were detained in prison.
IBJ petitioned for the case to either be re-heard, or in the alternative, for the three juveniles to be released until the two co-accused adults are apprehended and brought before the court. Eventually, the Court decided to re-start the trial and Jean Claude Barakamfitiye represented the three juveniles on behalf of IBJ.
It is worth noting that significant improvements with relation to juvenile justice have been made by the new law on criminal procedure. The Code of Criminal Procedure now obliges trials involving children to be conducted in the presence of a lawyer or any other person skilled in juvenile justice matters. It also mandates that any interrogation of a child must be done in the presence of a lawyer or any other skilled person as directed by the court.
In the matter dealt with by Jean Claude Barakamfitiye, the children had not been interrogated in the presence of a lawyer. The defense demonstrated many irregularities in the evidence against the three children, which were to be considered by the Court. The defense argued that these children had been involved in the crime by adults who had, surprisingly, been released. The children stated before the Court that, “We had been promised payment for transporting these items. But we did not know that they were stolen goods”. This raised many doubts about the role of these children in the robbery. The prosecution argued that, from the confession of the children made to the police, it was evident that they had committed the crime. Eventually the prosecutor sought a sentence of 8 years of imprisonment for the three young children. Subsequently, the three boys were sentenced to 2 years of imprisonment.
For the year 2014, IBJ thinks it is necessary to organize trainings on criminal justice for juveniles since it has come to light that children are being prosecuted in an illegal manner. In the above mentioned case, the court was sensitive to the accused juveniles and agreed to conduct the trial in-camera. However, the prosecutor sought punishment of imprisonment of 8 years for the children although, according to the new criminal code of procedure, the maximum sentence against a child in conflict with the law may not exceed 4 years.
In total, IBJ has taken up thirteen cases in these past three months, and in January 2014, six other cases have been referred to IBJ via the network of the juvenile legal aid.
Contributing to Provide IBJ Lawyers to Every Minor Accused of Crimes in Three Judicial Provinces in BurundiDuring the last third quarter, International Bridges to Justice has continued its mission of supporting the Burundian judicial system in the implementation of the new provisions related to juveniles within the new Code of Criminal Procedure, which render the legal assistance for children accused of crimes compulsory.The new Code of Criminal Procedure also provides that the hearings in proceedings involving minors are held in camera sessions, even if in principle hearings are public. However, although the legal framework recently introduced seems to align with the content of the Convention on the Rights of the Child signed by Burundi in 1990, the daily practice seems to remain far from the written law.In order to contribute to reducing the gap between practice and the written law, International Bridges to Justice continues to provide legal assistance to children accused of crimes in Burundi. From July to September 2013, IBJ lawyers and volunteers have traveled to three provinces—namely, the judicial province of Mwaro in the central region of the country, Cibitoke which is located in north east, and Bujumbura, a rural province which is located in east. During this period, 18 children received free legal assistance.Among the beneficiaries of IBJ’s assistance is Bukuru, 17 year-old, who dropped out of school after the death of his parents due to the 12-year civil war that occurred in Burundi and was forced to work to earn a living. However, the sudden loss of his parents led the boy to alcohol abuse and gambling. His fate went wrong in October 2012, when he was arrested for willfully administered beatings and death threats to a woman.The prosecution in the case requested a sentence of 10 years against the defendant.The IBJ fellow Astère Muyango defended the child and in his introduction, he explained to the court that the crime for which his client was being prosecuted should be well-qualified because the investigation records, as well as the confessions of the defendant, highlighted his client’s state of drunkenness on the date in question.In addition, Astère Muyango recalled the basic legal principle that in circumstances, wherein there are contradictory statements leading to doubt, the benefit belongs to the accused. This principle proved useful in this case because the statements of the judicial police officer who was a witness in this case and the victim's statements reinforced a well-founded about the existence of a threat of attack against the person in this case.At the end of the hearing, the case was taken under deliberation, and a month later , the child was released after after 11 months of pretrial detention. Bukuru was happy to resume his normal life, but he worried about the possibility of finding enough money to continue to run his small business.What is perhaps most noteworthy is that after trainings organized by IBJ aimed toward the education of various criminal justice system actors, the demands to hold hearings related to juveniles in camera sessions continue to get increasingly positive responses. International Bridges to Justice will continue its efforts until it sees every minor accused of a crime provided with a competent lawyer.
With the help of IBJ, provisions regarding juvenile justice under the new criminal procedure code are implemented.
In Burundi, the eagerly awaited code on the criminal procedure was finally promulgated on 3rd April 2013 by the President of the Republic of Burundi. It contains within it several improvements and provisions softening the treatment of Children accused of crimes. Amongst them, it should be noted that under the realm of this new Criminal Code, the legal assistance of a child accused of a crime is mandatory. Then, every inquiry to be done by the police officer must be undertaken in presence of a lawyer or any other person having sufficient knowledge in juvenile justice. Unless this is respected, the minutes of the inquiry must be nullified.Furthermore, this new code enacts alternative solutions to the detention of a child by allowing the judge to decide to place the child with a foster family or within a reformation center. Similar powers have also been granted to the police officer and the prosecutor who can only decide if the child is to be kept by his parents, guardian or any other person who can be trusted. Thus, this new code aims to limit the detention of children, which according to its terms, must be decided “as a last resort” (Article 222, paragraph 3). Another major improvement is shortening to a non–renewable seven-day period under which a child in conflict with the law can be under warrant of arrest.
The enforcement of the above-mentioned innovation is a core concern of IBJ’s lawyers since it is still a provision well written within texts, but not implemented.In that regard, among 126 accused defended over the last three months by IBJ lawyers in Bujumbura, Cibitoke and Mwaro, 11 were juveniles. These 11 would not have been defended if IBJ had not provided them with lawyers.
One of them, a boy of 17 years old is accused of assassination. The child had been arrested in February 2013, two months before the promulgation of the new code on criminal procedure. The police inquiry has been done without legal assistance. On June 18, 2013 in the public hearing heldthereof, the prosecutor was requesting for the case to be taken in the criminal chamber of the court. If done in this way, this could result in a potential heavy penalty against this child who pleaded innocent from the beginning of the proceedings. The rapid treatment of the case would not be achieved as this would have taken at least one further month for the hearing to be reorganized. Also, the prosecutor was calling for perpetuity as a penalty to be pronounced by the court against the child.
This position of the prosecution has been deemed illegal by Astère Muyango who assisted the case. First, the lawyer proved his client was born in 1996. In addition, under the realm of the new code on criminal procedure, the child, whatever the crime he is accused of, is to be heard in the Special Chamber for Minors not in the criminal chamber. Furthermore, as pleaded by the IBJ lawyer and according to the criminal code, no child can be sentenced to life imprisonment since the article 29 of the criminal code specifies the maximum of sentences for juveniles.
This case proves how it is hard for criminal justice actors to overcome the old practices and truly implement new practices enacted under the new legal framework.
A need for rights awareness activities remains. IBJ intends using its training tools to popularize this new code on criminal procedure. This was also emphasized on the 26th day, a world date dedicated to the fight against torture, where, IBJ fellow Astère Muyango, was invited by the National Independent Commission for Human Rights (CNIDH) to a one hour radio show of five more listened-to radio stations (National Radio, RPA, Isanganiro, Bonesha and Rema FM) which were broadcasting the same program and at the same time in a media synergy. All the speakers, among whom was the vice president of the CNIDH, converged on the great need for trainings and rights awareness. Since it affects juveniles accused of crime, it is important for all stakeholders to help in the implementation of Burundi obligations born after the signature of CAT in 1993.
1) Janvier Ncamatwi and Astère Muyango, the IBJ fellow lawyers
2) After legal assistance of the juvenile in public hearings
3) & 4) From right to left, Astère Muyango (IBJ lawyer, Sonia Ndikumasabo (vice president of CNIDH, Serges Nibizi (journalist), Armel Niyongere (President of ACAT), and Fidèle Havyarimana (from the Republic Prosecutor’s department)
The Belgian Technical Cooperation (BTC) supports courts remote from prisons where accused are detained, by covering costs of transports for judges, prosecutors and courts clerks of such courts. Since January 2013, as CIBITOKE court sit in trials to hear prisoners who are imprisoned in the Central Prison of MPIMBA (Bujumbura), International Bridges to Justice provide free legal assistance to the accused of Cibitoke especially to juveniles, while the BTC offers logistical support to the court and this makes hearings possible.
On the last session of 27th of March 2013, IBJ lawyers assisted nine cases where more than 12 accused were involved among whom 3 were juveniles. Among the assisted of January, 4 have been already acquitted, another who was prosecuted for 10 years saw his crime re qualified/ renamed and was condemned to pay a fine of 100 000 Fbi, around 70 USD. All the juveniles assisted have had their cases taken for deliberation. Within more than two months the court will have pronounced itself on the decision that will have been taken according to their cases.
Furthermore, IBJ kept on working in MURAMVYA Province to assist vulnerable accused of crime. One should note that in Muramvya thanks to IBJ support, all juvenile cases have been closed and all released, and that has been possible after the IBJ trainings provided to Muramvya jurisdiction stakeholders.
All this is happening on the time that the legal framework is changing for the sake of children in conflict with the law. After many roundtables which gathered criminal justice stakeholders among whom MPs and members of the Senate senators, after trainings and radio programs which diffused innovations of that law which was at that time a bill of law for more than 3 years, after judicial short shows after each evening News where IBJ put a special emphasis to the fact that the code will create an obligation that every child accused of crime to be granted the right to legal representation as well as other innovations like the one of establishing special chambers of minors, that law has been voted. The adoption is an element among others which lets IBJ hope for a new age of Juvenile Justice in Burundi.
IBJ has already diffused the main improvements of this text when it was still a bill, but we will continue to raise the main innovations of that law that help the development of the juvenile justice in Burundi, through its implementation. The following step is to support the implementation this text which is, in IBJ’s view, one which can help to improve human rights in general, and the respect of the rights of the child in Burundi.
A step-by-step progress toward a new age of juvenile justice in BurundiThe ratification of the Convention on the Right of the Child by Burundi in 1990 brought a hope for change in the system of administrating juvenile justice. However, the civil war which lasted 15 years from 1993 slammed the brakes on these changes. In 2005, the Constitution of Burundi integrated the CRC through its 19th section and enacted some key principle rules on the treatment of children accused of a crime. It stipulates that the detention of a child must be prevented as much as possible (section 46 of Burundian Constitution). In 2009, a new penal code was adopted and brought meaningful changes including raising the age of penal responsibility to 15 years and introducing alternative sentences in order to avoid detention of the child. By this only reform, Burundi remains far from reaching the minimum standards of acceptable treatment of the child in conflict with the law. IBJ as well as other organizations working for the welfare of the child accused of a crime seek a more specific text to protect the child in Burundi. Following this, a bill of code of criminal procedure and a bill of code of the protection of the child in Burundi are being discussed. These two texts will recognize the right of the child to legal counsel, the right to be judged in front of specialized chambers of the courts as well as other innovations. IBJ gave the opportunity to ordinary citizens to discuss the content of these bills of law through the radio programs organized by IBJ. Awaiting the adoption of these legal provisions, International Bridges to Justice continue to bring out impetus for changes as far as possible using the existing provisions. IBJ combines three methods: building and tightening collaboration with courts and prosecutions, sensitizing criminal actors to hear children in special in-camera sessions and providing direct legal counsel to children.From September 2012, after a successful legal assistance of children accused of crimes in the province of Muramvya, where all the 15 cases of children which were fixed at the court were closed by October 2012 and 6 acquittals obtained. In this perspective, IBJ went on spreading the technique of organizing special in-camera sessions in the province of Gitega. There, a legal need assessment done throughout an IBJ mission conducted in November showed that 21 children are in pre-trial detention. With the judicial authorities of Gitega court, it has convened the regular in-camera sessions organization. The first session was then held on December 12, 2012 and 5 cases were brought in front the court. The IBJ legal fellow Aline NIJIMBERE assisted the children. 3 cases have been closed and the decisions of the court accordingly are to be pronounced in January.Organizing special sessions for children accused of crime helps judges and prosecutors to implement laws related to trials concerning children. This is why all judges who attended the roundtable organized by IBJ on November 23, 2012 around the “updates of implementation of special procedures of juvenile justice in Burundi” committed themselves to building a strong collaboration with IBJ and then became open to holding such sessions. That roundtable was held with the initial purpose of pushing the juvenile justice actors working in the area where IBJ provides legal assistance to children, to catch the right meaning or have a common understanding of the key articles of the Convention on the Right of the Child especially the section 3, 37 and 40. Also, this roundtable had to bring juvenile justice actors together for them to renew commitments that had been taken through a similar roundtable organized on 23rd September 2011. In this way, this roundtable intended to lay the first steps towards the implementation of the administration of juvenile justice guidance of the Ministry of Justice. Another purpose was to strengthen collaboration with Juvenile Justice Stakeholders to render more successful IBJ legal assistance in benefit of children accused of crime.Participants including courts clerks, secretaries, judges and prosecutors took feasible and concrete commitments going from tightening their professional collaboration to treating the child’s case more rapidly. Apart of these two events, IBJ lawyers went on providing legal assistance to children in Bujumbura Township and Bujumbura rural areas. Among the cases of children handled, NDIKUMANA, a child of 14 years old has been assisted by Aline NIJIMBERE. He was accused of rape. Regardless whether this was true or not, Aline emphasized the age of the accused since the penal code enacted that children under 15 years old can not be responsible of a crime (article 28). In the trial of November 12, 2012, after she had showed to the court that the child was 14 years old at the time of arrest, the court of Bujumbura rural decide to immediate release the child. It is a continuous process and IBJ will not give-up until a new age of juvenile justice becomes a reality in Burundi.
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