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V. Failings in the Criminal and Penitential Systems

Children in Burundi are dealt with in exactly the same system as adults.  The age of criminal responsibility in Burundi is 13 years old, and there are no separate courts or criminal laws specifically for children.³⁰ The sole provisions currently made for offenders under the age of 18 years old relate to sentencing, where a child is to be sentenced to no more than half the sentence of an adult convicted of the same crime. In addition, children cannot be sentenced to death or to life without parole, but instead are to be imprisoned for a maximum of ten years.³¹ Aside from these provisions, children accused of crimes in Burundi are treated in the same manner as adults under the law.

Burundi’s criminal justice system as a whole faces serious problems with its basic capacity to effectively prosecute cases.  One prosecutor explained to Human Rights Watch researchers that prosecutors must handle too many cases with too few resources and no transportation to cover the large geographic areas for which they are responsible.  He added that prosecutors are required by regulation to close³² investigations of 15 cases per month.³³  Another prosecutor commented, “Sometimes we have to close cases without all the elements of the crime established. It’s become more important to close 15 cases than to complete cases with quality investigations. We are overworked.”³⁴ He added that thejudicial police officers (OPJ) often have done poor work in investigating cases and need training on investigation techniques.³⁵

Cases that therefore get to trial are often poorly prepared:  evidence is lacking, witnesses are missing, or the charges are poorly drawn.  Lack of preparation in a case can lead to postponement of hearings meaning that defendants find themselves subject to further periods of pre-trial detention. ³⁶ For those cases that do proceed, poor presentation of the prosecution’s case, and particularly the absence of legal representation, makes it difficult for child defendants, as with adult defendants, to effectively participate in the trials, to understand and challenge the evidence, or even to contest a forced confession.

In addition to problems of competence and resources, the judicial and police systems are hampered by corruption. In June 2006 the Minister of Justice admitted that corruption existed in the judicial system and called for reforms to restore its credibility.³⁷  Burundians who express little faith in the magistrates and the police accuse them particularly of taking bribes to arrest persons against whom there is little or no evidence.

In the case of children, allegations frequently surface that children are falsely accused of crimes as a consequence of other personal disputes that they may be involved in. In the case of Leon T, for example, a 14-year-old orphan accused of rape, he said that since the death of his parents, neighbors had been making false accusations against him in an effort to remove him and his younger siblings from their land.³⁸  Human Rights Watch was able to examine his file, and indeed the case against the boy was based solely on a statement from the father of the alleged victim, although he made clear that he was not in the vicinity when the rape was alleged to have happened. There was no other evidence to suggest that any sexual interaction between Leon and the alleged victim had taken place at all.³⁹ Similarly Celestin K. (see further below) was accused of raping the daughter of a neighbor who had been in conflict with his family over land.⁴⁰

Ill treatment and forced confessions

Several children in prison told Human Rights Watch researchers of having been beaten and forced to confess while being held in lock-ups and jails before arriving at the prison. There are police lock-ups and holding cells on some hills or in local zones, in most communes, and in all provincial capitals.⁴¹  In most cases, detained persons are held locally until the investigation files relating to the charges against them are completed and are then transferred to the nearest prison.

Burundian Criminal Procedure Code specifies that when confessions of guilt have been obtained under duress, they are null and void.⁴²  The Supreme Court of Burundi has also confirmed the principle that a conviction cannot be secured solely on the basis of a confession alone, especially if obtained before trial and retracted before the court, but must be corroborated by other evidence.⁴³

Children, especially those originally from Cankuzo and Karuzi provinces, told Human Rights Watch researchers that they had been intimidated, threatened, beaten with batons and metal bars while in police lock-ups before being transferred to the prison. Some had been told that if they admitted their crimes they would be released, but of course that was not the case. Children interviewed by Human Rights Watch researchers who had not had access to legal assistance did not know that it was possible to retract a confession nor how to do so. 

Celestin K. told Human Rights Watch researchers that he was arrested and accused of raping the daughter of his neighbor in 2003, when he was 13 years old. He spent a week in the communal police lock-up, insisting on his innocence. The parents of the alleged victim had been in conflict with his family over land and he felt this explained why they had accused him. The administrateur, the local official in charge of his commune, came and threatened to beat him with a metal bar if he did not admit the rape. When the boy refused, the official beat him with the bar on the upper arms and shoulders. “I was in so much pain, I finally admitted it so they would stop hitting me,” Celestin said. “It hurt so much I couldn’t eat for a few days afterwards.”⁴⁴ He was not brought to trial until February 2006 and when Human Rights Watch researchers met with him in May 2006 he still did not know the verdict in his case.

Fourteen-year-old Pacifique N., who had been accused of raping his cousin, told Human Rights Watch researchers that he had been tied up by members of the community and taken to see the mushingantahe, the respected person customarily called onto settle local disputes.When the mushingantahe tried to release the boy for lack of evidence, the father of the alleged victim took him to the police. The officer of the judicial police (OPJ) then told the boy to remove his clothes and lie down on the floor of the jail. The OPJ hit Pacifique on the back and legs periodically over a three-day period while telling him that he should admit his crime. Pacifique said that he found it difficult to respond to the questions while being hit and that he never got a chance to explain his side of the story. He eventually admitted to the rape and has been trying to retract that confession, but does not know how.⁴⁵ When he informed the prosecutor of his wish to retract, he was told to await his day in court.

According to Pierre-Claver Mbonimpa, founder and president of the Burundian Association for the Protection of Human Rights and Detained Persons (APRODH), mistreatment of detainees in police lock-ups and holding cells by police and administrative officials is an ongoing problem:

At the provincial capitals, where human rights organizations and the United Nations conduct monitoring visits regularly, there are fewer cases, but in the lock-ups in the interior of the country, further from these areas, there are many more cases.⁴⁶

Delays in the justice system

The Ministry of Justice has noted that in many cases the period of detention is excessive and that the slowness of the judicial system is one of the gravest obstacles to effective justice in Burundi.⁴⁷  Under Burundian criminal procedure, a person may be detained by judicial police for one week, extendable to two weeks in cases of “unavoidable delay” (sauf prorogation indispensable), and then must be charged or released.⁴⁸ However Human Rights Watch research strongly suggests that this is not the experience of many children in detention. Most children we spoke to had been held in police custody for months before being charged. Pierre R. from Cankuzo province was accused of theft and spent two months in a holding cell before being brought to the prison in Ruyigi.⁴⁹ Gilbert N., a sixteen year old accused of being a member of the FNL was held in two holding cells, one in Kayanza province and one in Ngozi province for a total of over four months, before being transferred to the Ngozi prison.⁵⁰

Once in the prison system, the child is very likely to remain in detention until his trial commences. Burundian law does provide for bail, but in practice, the provision is rarely used and children without lawyers are often not aware that bail is a legal option.⁵¹ Most defendants are kept in remand long-term until the court can organize a trial date. 

The government noted the problem of long-term remand while analyzing information from 2003, reporting that “it takes an unreasonably long time before cases actually come to trial and the number of remand prisoners (60 percent of the total) is far greater than that of convicted prisoners (40 percent).”⁵² This situation appears to have become even worse since 2003. According to government statistics, in the end of 2006, 318 of the 401 children in prison were on remand–almost 80 percent–some after months of pre-trial detention. ⁵³ 

One prison director told Human Rights Watch researchers that because many children are accused of minor infractions, such as stealing food or small sums of money, their cases are not given priority. As a result, many spend months in prison even though they may be found innocent, have their cases ultimately dismissed or if convicted given a short sentence. The prison director knew of instances in which the sentence received was shorter than the time the child had spent awaiting trial and a verdict.⁵⁴

Athanase N., a 15-year-old boy, was charged with theft and assault. After the death of his father, he had fought with his older brother about what to plant in their fields.  When the older brother planted potatoes, Athanase pulled up the potatoes and planted sorghum.⁵⁵ He was arrested in February 2005 for the alleged theft of the potatoes and assault on his brother but not brought to trial until August 2006, and was also awaiting a verdict.  

Pasteur H., 15 years old, told Human Rights Watch researchers that he admitted to killing his grandfather accidentally when they were drunk on umunanasi, an illegal alcoholic drink. Despite admitting his crime to the police, he spent six weeks in the jail at his commune and then six more weeks at the jail in Cankuzo before being taken to prison in Ruyigi.⁵⁶ Two years after his arrest, he was finally given a hearing and sentenced to five years in prison.

One factor in the long delays in bringing cases involving serious offences to trial is the infrequency of sessions held by the 17 courts of first instance with the jurisdiction to try serious criminal cases.⁵⁷ Such court sessions are especially rare in the seven provinces where there is no prison and where organizing the transport of prisoners, witnesses, judges and prosecutors demands logistical planning, vehicles and money for fuel. Local non-government organizations assist as many courts as they can, by providing transport and other services, including lawyers for some victims and defendants but their funds are not sufficient to assure prompt trials throughout the entire country. In Mwaro province, for example, there were no criminal hearings from January 2005 to October 2006 so that a person arrested in January 2005 would have to wait 22 months for disposition of his case.⁵⁸

The lack of adequate preparation by police and prosecutors, mentioned above, also contributes to delays in bringing the accused to trial.

The delays in the judicial system affect children after trial as well, with some children reporting that they waited months without news of the verdict. Other child prisoners suffer unnecessarily long incarceration because the government fails to release prisoners when they become eligible for parole. Under Burundian criminal law, prisoners including children are eligible for parole once they have served a quarter of their sentence.⁵⁹  In March 2006, the government acknowledged that of 2,573 prisoners proposed for parole, only 758, or approximately one-third, were actually granted it, in spite of the overcrowding in the prisons.”⁶⁰ Some children in prison did not understand parole procedures. Those who did never failed to ask Human Rights Watch researchers why they had not been released even though they had served a quarter of their sentences and been recommended for release by the directors of the prisons where they were held.⁶¹  Questioned about these cases by Human Rights Watch researchers, most prison directors responded that they had complied with the procedures and recommended the children for release but that the officials at the Ministry of Justice with the power to act had failed to respond.⁶² 

Violations of the right to counsel and ability to prepare a defense

Most children in conflict with the law in Burundi have no access to a lawyer or are not provided with legal assistance.  According to information collected in Mpimba central prison in Bujumbura in early February 2007, over 86 percent of the children said that they had never received legal assistance of any kind since being detained. The remaining 14 percent had a lawyer provided by a non-governmental organization present during court hearings.⁶³

Children, who usually have little schooling and do not understand legal procedures, are particularly affected by lack of legal assistance in trying to deal with the police and the judicial system. Donatien C., a cattle herder when he was accused of raping a two-year-old girl, told Human Rights Watch researchers:

I am not smart. I have never been to school in my whole life. When we got to court, I didn’t know what was happening. A lawyer was there, and he told me to plead guilty. I was afraid I could get the death sentence, so I pleaded guilty and then I was sentenced to ten years in prison. I have never seen the lawyer again. I don’t know if I can appeal. I don’t know what to do now.⁶⁴

Some NGOs provide limited legal assistance to indigent defendants but often the assistance is available only for the day of the hearing. The lawyer has no time to build a relationship of trust with the child, nor does he ordinarily have the time or the funds to investigate the case, prepare and meet with witnesses or challenge evidence.  Because of insufficient resources to help all the accused, one large NGO project gives assistance as a priority to cases involving torture and sexual violence.⁶⁵ Children who are accused of petty theft or being a member of the rebel FNL rarely receive any legal assistance at all.⁶⁶

This lack of legal assistance makes it virtually impossible for children to file appeals and to press for redress or suppression of evidence in cases of torture or mistreatment by police.  With no reliable professional advice, children are left to rely on the prison gossip as the only source of information.

Eric K., accused of rape, might have grounds for appealing his conviction but decided not to do so. He told Human Rights Watch researchers:

I was just sentenced to two years in prison, even though I am innocent. I had a lawyer but I only saw her once. I pleaded not guilty and there were no witnesses against me. I didn’t appeal the decision. People here say that I can make my life worse if I appeal the decision. And if the appeal takes a long time, I would have to stay here and wait and maybe that will take longer than my sentence. I only have 14 months left, so I will just wait.⁶⁷

Data from Mpimba Prison indeed suggest that among the children, those accused of rape were 6.5 times more likely to see a lawyer, compared to those accused of theft. Those accused of rape were also 16.1 times more likely to see a lawyer than those accused of being rebels, most likely because there haven’t been trials for alleged FNL members, and no organization has been providing them with legal counseling. 

Grounds for Arrest and Legal Assistance