BURUNDI 2010-Elections an Opportunity Not to Be Missed to Consolidate Peace

Ligue Burundaise des Droits de l’homme Iteka

BURUNDI 2010-Elections An opportunity not to be missed to consolidate peace

of person. Article 4: No one shall be held in slavery Article 1: All human beings are born free and equal or servitude; slavery and the slave trade shall be prohibited in all their forms. Article 5: No one shall be subjected to in dignity and rights. They are endowed with reason and conscience and should act towards one another in a torture or to cruel, inhuman or degrading treatment or punishment. Article 6: Everyone has the right to recognition spirit of brotherhood. Article 2: Everyone is entitled to all the rights and freedoms set forth in this Declaration, everywhere as a person before the law. Article 7: All are equal before the law and are entitled without any discrimi- without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, nation to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the Declaration and against any incitement to such discrimination. Article 8: Everyone has the right to an effective rem- basis of the political, jurisdictional or international status of the country or territory to which a person edy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. by law. Article 9: No one shall be subjected to arbitrary arrest, Article 3: Everyone has the right to life, liberty and security

May 2010 N°539a BURUNDI 2010-Elections An opportunity not to be missed to consolidate peace

Cover: © Télé Renaissance This photo has been taken in January 2010 in Kinama. Militants from the CNDD-FDD and the FNL are competing for the location of their respective flags. Violent clashes have subsequently opposed the militants of both parties. The vehicle of the journalists who took this photo suffered from thrown stones.

2 / Titre du rapport – FIDH INTRODUCTION : MISSION MANDATE ...... 4

I – Consolidating peace through the strengthening of the rule of law ...... 6 1 . The return to peace...... 6 1 .1 . From Arusha to the end of the conflicts ...... 6 1 .2 . Integration of rebels...... 8 1 .3 . Ethnic representation in the institutions...... 10 1 .4 . The repatriates ...... 11 2 . The challenges facing durable peace ...... 13 2 .1 . Guaranteeing security...... 13 A/ The circulation of light weapons and criminality...... 13 B/ The need for reform in the security sector...... 15 2 .2 . Fighting corruption...... 16 A/ A high level of corruption...... 16 B/ The scandals: Double salaries, Falcon and Interpetrol ...... 17 2 .3 . Respecting public liberties...... 18 A/ Media under pressure...... 18 B/ A civil society under surveillance...... 19 1) The Ernest Manirumva affair...... 19 2) Bills on the Independent National Human Rights Commission and on Associations...... 20 2 .4 . Guaranteeing the right to justice...... 20 A/ Setting up mechanisms of transitional justice ...... 20 B/ Guaranteeing a good administration of justice ...... 22 1) A deficient and dependent judicial sector...... 22 2) The scourge of impunity ...... 23

II – Strengthening peace through democracy ...... 25 1 . The 2010 elections: « a period of passion, nervousness and tension »...... 25 2 . Analysis of the pre-campaign situation: attempts at controlling the electoral process by the Presidential party ...... 27 2 .1 . The Independent National Electoral Commission...... 27 2 .2 . The challenges facing a lasting peace...... 28 A/ The Electoral Code...... 28 B/ The electoral campaign...... 30 2 .3 . The registration of voters...... 30 2 .4 . The authorities « dirty tricks » ...... 31 A/ Freedom of assembly into question...... 32 a) The Hussein Radjabu affair...... 32 b) The expulsion of 22 secessionist deputies...... 32 B/ …and in other parties ...... 33 a) In the FRODEBU...... 33 – The Domitien Ndayizeze affair...... 33 – Those deputies not expelled ...... 33 b) In the MSD ...... 34 c) In the FNL...... 34 C/ The 20 servicemen affair...... 34 D / Freedom of assembly on the line...... 35 2 .5 . Civil society in the crosshairs...... 37 A/ The tug-of-war between the Interior Minister and the FORSC...... 37 B/ Threats against the OLUCOME ...... 38 3 . Meeting the challenges in the way of transparent, free and peaceful elections...... 39 3 .1 . Avoid fraud, irregularities and manipulations...... 39 A/ During the campaigns: ensure the neutrality of the administration and of State resources...... 39 B/ On polling day: ensure that voting goes smoothly ...... 40 C/ When the results are announced: ensure the freedom of the Constitutional Court ...... 42 3 .2 . Guaranteeing the security of political actors and of the electoral process...... 42 A/ Harassment and insecurity of political players...... 42 B/ The violence of young activists...... 43 C/ Moments of potential tension: during and after the polls ...... 44 D/ The security around the elections at stake...... 45 a) What should be the attitude of the security forces?...... 45 b) What should be the attitude of the political parties and the media?...... 46 c) A need for communication, training and sanctions...... 48

III- Conclusions and recommendations...... 49

FIDH – Burundi / 3 Introduction: Mission mandate

Within the framework of its programme for strengthening the rule of law as well as democratic spaces in sub-Saharan Africa1, an International Federation for Human Rights (FIDH) undertook a fact-finding mission in Burundi, in Bujumbura and Rumonge from February 15 to 20, 2010 . The mission was composed of Mr Dismas Kitenge Senga, president of the Groupe Lotus and Vice-President of FIDH, Miss Tchérina Jérolon and Mr Marceau Sivieude, respectively Programme Officer and Director of the Africa desk at FIDH International Secretariat . The mission benefited from the support and participation FIDH’s member organisation, the Ligue Burundaise des droits de l’Homme – ITEKA .

The mission aimed at shedding light on the challenges related to the establishment of a lasting peace in Burundi on the basis of the 2000 Arusha Peace Agreement, the 2005 Constitution, the end of the political transition which resulted from the 2005 elections and the cease-fire agreements between the government and the last rebel movements .

To this end, the mission delegates examined the respect of fundamental liberties, the enforcement of ethnic quotas, the conditions for the return of refugees, the security and justice sectors and the fight against impunity of those who perpetrated the most serious crimes during the civil war .

The mission delegates also analysed the conditions under which the five elections will be held, including the presidential election, between May and September 2010, since they represent a test for democracy and security in the country .

To this end, the mission delegates met in Bujumbura with: − Members of the Burundian government and a representative of Parliament: the first Vice- president of the Republic, Hon . Dr Yves Sahinguvu ; Minister of Interior, Mr Edouard Nduwimana ; the Minister of Defence, Lt-General Germain Niyoyankana ; the President of the Senate, Mr Gervais Rufyikiri . − Representatives of the following political parties: the National Liberation Forces (FNL) ; the Union for Peace and Development (UPD) ; the Union for National Progress (UPRONA) ; the National Council for the Defence of Democracy (CNDD) ; the Front for Democracy in Burundi (FRODEBU) ; the Movement for Solidarity and Democracy (MSD) ; the Democratic Alliance for Renewal (ADR) . Despite renewed requests for appointment, the FIDH has not met representatives of the ruling CNDD-FDD . − The Military Auditor Nkurunziza Donatien and the President of the Independent National Election Commission (CENI), Pierre Claver Ndayicariye .

1. The FIDH International Investigative Mission and this report were carried out thanks to the support of the National Endowment for Democracy. The opinions expressed in this report are those of FIDH.

4 / Burundi: 2010-elections – FIDH − Representatives of the United Nations: Mrs Bintou Keita, Mr Mahamadou Coulibaly and Mr Jean-Luc Marx, respectively Deputy Executive Representative of the United Nations Integrated Office in Burundi (BINUB), Advisor/Media and communication section of the BINUB and BINUB head of the Human Rights and Justice Division and Representative of the United Nations High Commissioner for Human Rights in Burundi , as well as Mrs Germaine A . Bationo, Deputy Representative of the United Nations Office of the High Commissioner for Refugees (OHCR) . − Representatives of the French and Belgian diplomatic missions and of the delegation of the European Union Commission . − Representatives of civil society : Forum for the Strengthening of the Civil Society (Forum pour le renforcement de la société civile – FORSC), Observatory for the Fight against Corruption and Economic Malpractices (Observatoire de lutte contre la corruption et les malversations économiques – (OLUCOME), Human Rights Organisation in the Great Lakes Region (Ligue des droits de la personne dans la région des Grands Lacs – (LDGL), Association for the protection of human rights and of detainees (Association pour la protection des droits humains et de spersonnes détenues – (APRODH), Global Rights, Human Rights Watch, the Burundian Human Rights Organisation (Ligue burundaise des droits de l’Homme « Iteka ») .

In Rumonge, the FIDH mission met several repatriated .

FIDH – Burundi: 2010-elections / 5 I – Consolidating Peace through the Strengthening of the Rule of Law 1. The Return to Peace

1.1. From Arusha to the end of the conflicts

The Arusha Agreement for Peace and Reconciliation in Burundi has been obtained with many difficulties on August 28, 2000, after several years of negotiations . Supported both politically and financially by the international community, this Agreement aimed at putting an end to the ethno-political conflicts which had shaken Burundi society by causing the deaths of close to 300,000 people and the forced displacement of several millions more, and lay the foundations for the establishment of the rule of law in Burundi . The negotiations orchestrated by of Julius Nyerere, President of Tanzania and later Nelson Mandela, former president of South Africa, led to the adoption of a text guaranteeing « the institution of a new political, economic, social and judicial order in Burundi »2 .

The signatory parties agreed on the establishment of transitional institutions . A transitional government, National Assembly and Senate were put in place respectively on November 1, 2001, January 10 and February 6, 2002 . Pierre Buyoya, President of the Republic since his 1996 coup d’état and member of UPRONA (Union for National Progress – majority Tutsi party)3 led the first phase of the transition with, by his side as Vice-president, Domitien Ndayizeye, member of the FRODEBU (Front for Democracy in Burundi – majority Hutu party) . The latter, in accordance with the agreement, succeeded Buyoya as head of State and led the second phase of the transition .

Aside from the new constitutional framework, these authorities were expected to use the transitional period to ensure the repatriation, the relocation and the reinsertion of Burundian refugees, the adoption of an electoral law and the creation of an independent electoral commission in view of holding local and national elections4 . However, the pursuit of combats between regular forces of defence and security, and the rebel movements still in activity delayed the execution of most of the measures stipulated in the Agreement .

The intensification of clashes between the Burundi army and the rebels of the National Council for the Defence of Democracy-Front for the Defence of Democracy (CNDD-FNL) and of the Party for the Liberation of the Hutu People – National Forces of Liberation (Palipehutu – FNL), both non-signatories to the Arusha Agreement, contributed to an increasing deterioration of living conditions of civilians . In this context of civil war, serious and massive violations of

2. Protocol I, Chapter II, Art. 5.1 of the Peace and Reconciliation Agreement for Burundi (Arusha Agreement). 3. The UPRONA was the single party from 1966 to 1992. 4. Protocol II, Chapter II of the Arusha Agreement regarding transitional arrangements

6 / Burundi: 2010-elections – FIDH international humanitarian law and of international human rights law were perpetrated against civilian populations, often accused of supporting one side or the other in the conflict : deadly mortar and rocket attacks in inhabited zones, installing of anti-tank mines on major roads, large scale sexual violence against women and children, summary and extrajudicial executions, acts of torture , ill-treatment and enforced disappearances . Furthermore, attempts at muzzling the press, arbitrary arrests, and detentions and other forms of breaches of public liberties were also observed .

It was then necessary to make the Arusha Agreement becoming not simply a political but also a true peace agreement5 . The commitment of the international community, in particular the South African, Tanzanian, Ugandan and Gabonese mediation efforts, helped ease the negotiations between on the one hand the transitional government and the one which resulted from the 2005 elections and, on the other hand, the representatives of the rebel movements .

As soon as 2002, under the impetus of Jacob Zuma, then Vice-president of South Africa, several meetings were organised between the transitional government and the rebel movements . On October 7, a first cease-fire accord was signed between the government, the CNDD-FDD of Jean Bosco Ndayikengurukiye and the Palipehutu-FNL of Alain Mugabarabona6 .

On December 2, 2002, an accord was also reached with the CNDD-FDD of Pierre Nkurunziza . However, this accord immediately became obsolete, due to the resumption of fightings, in particular in the provinces of Bujumbura Rural, Muramvya, Gitega, Ruyigi, Kayanza and Bujumbura Mairie7 . On October 8, 2003, the transitional government, by then led by Domitien Ndayizeye, and the CNDD-FDD of Nkurunziza finally signed in Pretoria a protocol on Political, Defence and Security Power Sharing of which the totality of the arrangements were integrated into the global cease-fire accord8 signed on November 16, 2003 . Pierre Nkurunziza was named minister for Good governance and State Inspector General .

The Palipehutu-FNL of Agathon Rwasa did not take part in the Pretoria process . On the contrary, the clashes between the rebel movement and the Burundi Armed Forces (FAB), soon to be supported by elements of the CNDD-FDD of Nkurunziza, continued to increase . The combats, which essentially took place in the Western provinces of the country, did not spare the civilian population .

Although the negotiations with the rebels of Palipehutu-FNL seemed not to be making progress, on the political level, the measures put forward by the Arusha Agreement were slowly being put into place . The Constitution, based on the principles of the Arusha Agreement, was approved of of a large majority in February 2005 . As for the communal, legislative and senatorial elections organised between June and July 2005, they resulted in the massive victory of the CNDD-FDD which culminated on August 19, 2005 with the election, by Parliament, of Pierre Nkurunziza to the post of President of the Republic, thus bringing to an end the transition period .

5. See FIDH-Ligue ITEKA statement, From a political agreement to a peace agreement, April 29, 2002, http://www.fidh.org/D-un-accord- politique-a-un-accord-de-paix 6. The internal tensions within the rebel movements will lead to the negotiating table the representatives of both respective CNDD-FDD factions (Jean Bosco Ndayikengurukiye – Pierre Nkurunziza) and of the Palipehutu-FNL (Alain Mugabarabona – Agathon Rwasa). The factions of Jean Bosco Ndayikengurukiye and Alain Mugabarabona which signed the October 7, 2002 cease-fire agreement were in relative minority and no longer had the military means to oppose the regular army. 7. See FIDH-League ITEKA statement, Indiscriminate violence against the civilian population, April 25, 2003 http://www.fidh.org/Violences- aveugles-contre-la-population-civile 8. This agreement includes the December 2, 2002 cease-fire agreement, the January 27, 2003 joint declaration of cessation of the hostilities, the October 8, 2003 Pretoria Protocol on Political, Defence and Security Power Sharing and the November 2, 2003 Pretoria Protocol on the Technical Forces Agreement.

FIDH – Burundi: 2010-elections / 7 After several months of clashes, official negotiations between the government and the Palipehutu- FNL were initiated in June 2006 in Dar-es-Salaam, Tanzania . The talks, with the support of the Regional Initiative for Peace in Burundi, the South African mediator, Charles Nqkula, the African Union (AU) and the United Nations, led to the signing, on June 18, 2006, of an agreement between the different parties and then, on September 7, 2006, of a global cease-fire accord, making provision for, in particular, the cessation of hostilities and the integration of the Palipehutu-FNL combatants into the regular forces of defence and security .

The fulfilment of the provisions of these accords suffered however from a deadlock caused in particular by questions relating to the liberation of political prisoners, the provisional immunity for the leaders of the rebel movement and to its transformation into a real political party, devoid of any ethnic connotation9 . This deadlock delayed the enforcement of the Accord, favoured the pursuit of clashes in the Western provinces and the forced displacement of thousands of civilians .

The summit of the heads of State and government of the Great Lakes region held in Bujumbura on December 4, 2008 restarted the peace process . On January 9, 2009, the FNL succeeded the Palipehutu-FNL and on April 21, 2009, it became the 42nd political party in Burundi . At the end of May, 2009, the government adopted several decrees nominating 24 FNL leaders to different administration jobs . Agathon Rwasa was named Director General of the National Social Security Institute .

1.2 Integration of the rebels

Some of the interlocutors met by the FIDH mission have a fairly positive view of the process of integration process into the army . In their opinion, a real esprit de corps now exists within the army, and this in spite of the dissatisfaction and social demands expressed recently10 . From now on, most of the former members of the Burundi Armed Forces (FAB), the CNDD-FDD, the Palipehutu-FNL and other political and armed parties and movements (PAAM) officiate together within the Forces of National Defence (FDN) and the National Police of Burundi (PNB)11, considered as instruments « for the protection of all the people »12 .

For a long time, the FAB were considered as the military and political instrument of the Tutsi minority . The integration process of elements of the PAAM, mostly Hutu, was therefore a major issue in the negotiation of the different cease-fire accords . The Global Accord of November 16, 2003 concluded between the transitional government and the CNDD-FDD of Pierre Nkurunziza, contains measures relating to the power sharing of power in the sectors of defence and security and in particular a technical accord among the forces according to which the officer corps and the police and intelligence forces must be made up of respectively 40% and 35% of representatives of the CNDD-FDD . In accordance with this agreement, mixed security units, made up of elements of the FAB and the CNDD-FDD were put in place .

9. The Palipehutu-FNL wished to register as a political party while keeping its name, which the government always refused, as the ethnic reference was contrary to the provisions of the 2005 Constitution (Art. 78). 10. See below, Part II, 2.4 C, The 20 Servicemen Affair. 11. The laws related to of the creation, the organisation, the composition and the functioning of the FDN and the PNB were promulgated by Domitien Ndayizeye on December 31, 2004. 12. Protocol III, Chapter 1, Art. 1, Paragraph 8 of the Arusha Agreement and Art. 241 of the 2005 Constitution.

8 / Burundi: 2010-elections – FIDH The accords signed by the Burundi government and the Palipehutu-FNL concluded that 3,500 elements of the former Palipehutu-FNL would be integrated into the forces of defence and security, that 5000 would be demobilised and that 11,000 more (adults associated to the movement) would benefit from compensation in order to favour their return to civilian life . On April 22, 2009, 3,500 combatants of the former Palipehutu-FNL and 250 dissidents were thus integrated into the army and police13 . By August 19, 2009, 10,186 associated adults (including 1048 women) had been compensated14 . Furthermore, at the end of 2009, the report of the Secretary-General on the United Nations Integrated Office in Burundi announced that the totality of the children associated to armed groups had been freed and had returned to their families15 .

In spite of the optimism displayed by some, the interviews led by the FIDH mission delegates lead however to the conclusion that the number of challenges linked to integration were and remains particularly high, in particular in the national police force .

One of the first difficulties facing integration was to bring together, within the same forces, elements of the former FAB and the former PAAM, which had ill-assorted levels of training . While efforts were made and continue to be made in order to offer training to members of the FDN and the PNB16 as to bring them up to standards, the lack of professionalism, in particular in the national police force, continues to be highlighted by the Burundian population17 . The many atrocities attributed to its members, as well as their lack of political neutrality do not inspire confidence to the population .

Other than the lack of training of the defence and security forces, the question of army and police strength is also particularly sensitive . The World Bank (WB) and the International Monetary Fund (IMF) fixed the maximum number at 25,000 for the army and 15,000 for the police . However, at the time of the integration of the former Palipehutu-FNL, the numbers within these two forces reached already a little over 26,000 and 16,500 individuals18 . It therefore appeared to be difficult to consider integrating a large number of former Palipehutu-FNL members, not only due to the necessity to respect the fixed limits, but also considering the obligation to respect the ethnic quotas fixed by the Constitution19 . As the former Palipehutu-FNL is by a majority Hutu, the issue was not to undermine the ethnic quotas already in place .

Today, the army and the police total respectively 28,000 and 18,000 people . If we ask about the limits fixed by the WB and the IMF, the Defence Minister explains that the question of the reduction of numbers is a very sensitive subject, in particular prior to elections20 . This question will nevertheless have to be addressed as soon as possible . The answers will have to take into account not only budgetary aspects but also the need to maintain an ethnic balance, especially since the retirement of Tutsi officers are a cause of fear regarding an imminent break-down of this balance .

13. Trimestrial report of the United Nations Integrated Office in Burundi (BINUB), April-June 2009, p.2. 14. Sixth report of the Secretary General on the United Nations Integrated Office in Burundi, November 30, 2009, S/2009/611. 15. ibid. 16. In particular with the support of the United Nations Operation in Burundi (ONUB), later replaced by BINUB. Along with the Belgian, French, Dutch and also British authorities, the United Nations gives training in human rights, armed conflict law and also administration of justice to, among others, members of the FDN and the PNB. 17. See below, The need for reform in the security sector. 18. International Crisis Group report, Burundi : To Integrate the FNL Successfully, 30 Jul 2009. 19. In accordance with art. 257 of the 2005 Constitution, the Defence and Security Forces can not be composed of more than 50% of members of the same ethnic group. 20. Interviews in Bujumbura between the Minister of Defence and Former Combattants, the Lt-General Germain Niyoyankana and the FIDH mission members.

FIDH – Burundi: 2010-elections / 9 The limited possibilities of socioeconomic reintegration of former combatants did not facilitate the integration process . Compensation, amounting to 100,000 Burundi Francs21, and grantedto some 11,000 adults associated to the former Palipehutu-FNL in order to « facilitate » their return to civilian life, was judged insufficient by several of these former combatants, some of them even threatening to take up the arms once more . A few violent incidents thus appear to have involved certain elements of the former Palipehutu-FNL unhappy that they had not been authorised to participate in the disarmament, demobilisation and reintegration process22 . This lack of perspectives of reintegration does indeed has the disadvantage of convincing some people that they would be better by keeping their weapons . The continuous increase of criminality in Burundi is probably related to this phenomenon23 .

1.3 Ethnic representation in the institutions

The Arusha Agreement and the 2005 Constitution imposed an ethnic distribution of power through the instauration of quotas with the objective of correcting the imbalance or the domination at the root of past conflicts .

Concretely, the Arusha Agreement proposed that the President of the Republic should be assisted by two Vice-presidents belonging to different ethnic groups and political parties24 and that the Senate be composed of two delegates from each province originating from different ethnic communities25 . In order to reduce the imbalance in the judicial sector and public administration, the Agreement recommends that they be, from now on, structured so as to represent all components of the popula- tion26 . The Agreement is much more precise when it comes to ethnic balance in the defence and security forces . For a period to be determined by the Senate, the forces of defence and security must not count more than 50% of members belonging to one particular ethnic group in27 .

The 2005 Constitution validates the option of ethnic quotas and goes even further than the Arusha Agreement . According to its provisions, the government must not count more than 60% of Hutu ministers and Vice-ministers and no more than 40% of Tutsi ministers and Vice-ministers28; Public companies must not include more than 60% Hutu nor more than 40% Tutsi29; The National Assembly is made up of at least one hundred members (deputies), with 60% Hutu and 40% Tutsi30 . Furthermore, the text specifies that during National Assembly elections, for three candidates registered one after another on a list, only two can belong to the same ethnic group . As for the defence and security forces, as stipulated by the Arusha Agreement, they must not include over 50% of members belonging to the same ethnic group . The President of the Republic must, furthermore, make sure that the minister in charge of the National defence forces should not originate from the same ethnic group as the minister in charge of the national police . The Constitution also makes provision for gender quotas and women must be represented at a rate of at least 30% in the government, the National Assembly and the Senate .

21. Approx. 80 US Dollars. 22. See fifth report by the Secretary General on the United Nations Integrated Office in Burundi, May 22, 2009. 23. See below, Challenge of insecurity 24. Protocol II, Art.7, paragraph 4. 25. Protocol II, Art. 6, paragraph 14. 26. Protocol II, Art. 9, paragraph 3 and Art. 10, paragraph 4. 27. Protocol II, Art. 11, paragraph 4.d and Protocol III, Art. 14, paragraphs 1.g and 2.e. 28. Art. 129 of the 2005 Constitution. 29. Art. 143. 30. Art. 164.

10 / Burundi: 2010-elections – FIDH Several mechanisms have been put in place to monitor the implementation of the ethnic balances required by the Constitution . This balance is more or less respected depending on the sector . On July 28, 2009, a senatorial Commission investigating the respect of the balances in the Burundi national police (PNB) was put in place31 . The results of the investigation sheds light on the existence of imbalances among ethnic groups (albeit minimal ones), regions and genders . The investigation thus reveals that General police stations are made up of 80% of Tutsi and 30% of Hutu and the Provincial police stations of 66% Hutu and 34% Tutsi ; regarding the regional balance, the investigation revealed that the province of Bururi was by far the best represented with 19 .2% of the strength . Furthermore, the PNB includes 98% of male members32 .

The setting up of ethnic quotas in State institutions paradoxically enabled a de-ethnicisation of social and political relations in Burundi . According to the analysis of some of the interlocutors that met with the FIDH mission, through the imposition of quotas, ethnic rivalries appear to have reduced in their intensity within Burundian society while giving way to political rivalries between parties . This phenomenon was observed in particular in the period preceding the 2010 general elections and strengthened by the political fight between the members of the CNDD- FDD and those of the FNL, the two dominant Hutu-majority parties .

When questioned by FIDH about his view of the Arusha Agreement and the quota policy, a Burundian politician declared that « the Arusha Agreement is nothing more than a little drug to make demons sleep » . According to him, the quotas were necessary in order to impose peace, yet they in fact legalise a certain inequality which could turn out to be a source of new conflicts . This analysis reflects remarks made by some politicians who doubt the durability of such a model, or even openly criticise the quota system . Others, without questioning the quota policy claim that « taken on their own, the percentages cannot be correctors » and that a more global policy – social and economic – is needed in order to reconcile all the different ethnic components of the country .

1.4 The repatriates

The many years of conflict provoked the departure of hundreds of thousands of Burundians towards neighbouring countries, in particular Tanzania, with the massacres of 1972 and 1993 constituting the main waves of refugee movements . The return of peace speeded up the repatriation process which began in 2002 with the support of the Office of the United Nations High Commissioner for Refugees (HCR) . The HCR, which supported the repatriation of close to 500,000 people, estimates today that around 6% of the Burundian population is constituted of former refugees that have returned over the past six years33 .

Immediately after the signing of the Arusha Agreement, the transitional government rapidly understood that the issue of the return of refugees entailed both financial and electoral interests . From a political point of view, the transitional government believed that it was in its interest to dismantle the refugee camps, first of all because these were considered to be bastions of rebel forces, and also because a large number of refugees appeared to support the CNDD-FDD of

31. A Commission of the same kind was created in 2008 for the purpose of investigating into the respect for the balances within public administration. 32. Oral question with a debate posed to His Excellency the honourable 1st Vice-Pesident of the Republic regarding the status of the respect for constitutional balances within the burundi National Police, http://www.senat.bi/spip.php?article1808. 33. United Nations High Commissioner for Refugees (HCR), Burundi. Operations Profile, 2002. Operational Environment.

FIDH – Burundi: 2010-elections / 11 Pierre Nkrunziza . The signature of a global cease-fire with the CNDD-FDD and its arrival on the political scene, made him a potential rival prior to the 2005 general elections . It therefore became essential to gain the sympathy of the repatriated voters by facilitating the conditions of their return .

Today, the political interest is still on the agenda given that those refugees repatriated in 2008 and 2009 are listed as voters for the 2010 elections . The FIDH mission members, having been to Rumonge34, witnessed a repatriate saying « Personally, I will vote for Nkurunziza. It was him who made it easy for me to return, who feeds me, who gave me a house. The others didn’t do anything! ».

With the return of a large number of refugees to Burundi, the issue of their relocation and their reintegration becomes the political stake . Conflicts linked to land access constitute the main points of dispute35 . Land exploitation represents one of the single sources of revenue . Due to the lack of available land, the repatriation of over 50,000 refugees from 197236, organised between March 2008 and October 2009, has provoked a fear of an increase of land disputes, particularly in the towns of Bururi, Makamba and Rutana .

By October 31, 2008, the National commission on land and other properties (CNTB)37 had recorded 10,771 land disputes of which 3389 had been resolved38 . In January 2010, the numbers equalled respectively 14,679 and 760039 . The use of a property Code dating back to 198640 of which the provisions are no longer adapted to the situation today, the loss of property deeds or their fraudulent acquisition are so many obstacles to the amicable steelement of disputes . Many women, in particular widows, have become particularly vulnerable due to a legislation which does not sufficiently guarantee their right of succession and of access to land41 .

On September 4, 2009, a bill strengthening the jurisdiction of the CNTB with regards to settling disputes was adopted . The decisions taken by the Commission are from now on applicable in their entirety until a definitive judgement is handed down42 . Other than the difficulties linked to their relocation, repatriates must overcome the challenge of their socioeconomic reintegration . The issueof language or level of education, for refugees having spent 15 to 30 years outside their country or who were born abroad, constitutes some of these difficulties . According to the HCR’s predictions, some 10,000 refugees could return to Burundi in 2010,

34. In the Bururi region, Rumonge is one of the communes with the largest numbers of repatriates. 35. According to the HCR, the repatriates figure among the principle groups involved in real estate disputes and according to a recent report of the United Nations Development Programme (UNDP), the real estate disputes henceforth represent the second cause of violence in the country. Global Report 2008 of the HCR for Burundi, http://www.unhcr.fr/4ad2f76ff.html UNDP – CDCPA, Armed violence in Burundi. 2008-2010 Report. 36. The 1972 refugees are considered as being the first concerned by land disputes. Contrary to the 1993 refugees, those of 1972 have mostly fled to the coastal regions of the East, considered more fertile than those of the interior. 37. The CNTB was established in 2006. It replaced the National Commission for the Rehabilitation of Victims (CNRS) of which the competency had been transferred in 2005 to the Ministry in charge of national solidarity, the repatriation of refugees and social reintegration. 38. Burundi Senate, La Commission nationale des Terres et Autres Biens satisfaite du travail déjà accompli malgré des difficultés, http://www.senat.bi/spip.php?article1085. 39. BINUB-INFO n° 038, January 2010. 40. The Property Code of 1986 should soon be subject to revision. 41. See the Dossier of claims of the Africa for women’s rights: ratify and respect campaign. 42. Decree N° 100/196, of November 24n 2009 in view of application of law N°1/17 of September 4, 2009, revising law N° 1/18 of May 4, 2006 in view of missions, composition, organisation and functioning of the National Commission for Land and other Property, http://www.presidence.bi/spip.php?article198.

12 / Burundi: 2010-elections – FIDH coming mainly from the Democratic Republic of Congo (DRC)43 . In Tanzania, the HCR numbers indicate that there remains approximately 36,000 Burundian refugees in Mtabila, one of the last camps open in that country as well as a group of 21,500 refugees in the DRC, Rwanda and Uganda .

2. The challenges facing a lasting peace

2.1 Guaranteeing security

A/ The circulation of light weapons and criminality

In its last report to the United Nations Security Council on the situation in Burundi, the Secretary General declared he was worried about the increase in criminality on the whole territory, « particularly armed violence, with an up trend noted in residential attacks, armed robber- ies, killings and ambushes, as well as sexual violence.»44 . At the end of 2009, the United Nations Integrated Office in Burundi attributed this high rate of criminality to the continued « circulation of fire arms as well as hand grenades within the civilian population »45 .

The many years of conflict in Burundi have led to a significant proliferation of small arms and light weapons (SALW) within the civilian population, the availability and the relatively low cost of these weapons having equally contributed to their circulation . In order to fight against this phenomenon, the Burundian authorities have acquired, since 2006, a significant judicial and institutional arsenal .

From a legal point of view, Burundi has to comply with the provisions of the Nairobi Protocol on Small Arms and Light Weapons in the Great Lakes Region and the Horn of Africa (Nairobi Protocol), to which it is a party since 2006 . A law aiming at harmonising the provisions of national law with those of the Nairobi Protocol was adopted on August 28, 2009 . This law forbids civilians from obtaining or holding SALWs without authorisation . In accordance with the provisions of the new Criminal Code of Burundi, adopted on April 22, 2009, offenders risk a sentence of up to ten years in prison and to a fine ranging from 100,000 to 500,000 Burundi Francs46 .

From an institutional point of view, Burundi set up in 2006 a National Disarmament Commission . Its jurisdiction was transferred in 2008 to the National Commission for Civilian Disarmament and the fights against SALW proliferation (CDCPA) . An Observatory of Armed Violence was, furthermore, set up by the UNDP . Also, a five-year action plan (2009-2014) for the control, the management of small arms and light weapons and the disarming of civilian population should be adopted in the near future .

From October 19 to 28, 2009, the CDCPA organised a national civilian disarmament campaign,

43. United Nations High Commissioner for Human Rights (HCR), Burundi. Operations Profile 2010. Operational Environment. 44. Sixth report of the Secretary General on the United Nations Integrated Office in Burundi, November 30, 2009, S/2009/611 45. United Nations Integrated Office in Burundi, quarterly report October, November, December 2009. The Secretary General of the United Nations also mentioned the conflicts relating to land, the limited possibilities of socioeconomic reintegration of the demobbed soldiers and former combatants as well as the repatriates, displaced persons and other vulnerable groups as factors in the increase of criminality. 46. Art. 480 of the Penal Code.

FIDH – Burundi: 2010-elections / 13 encouraging owners of SALWs to hand in voluntarily their weapons in exchange of household goods, an improvement of their habitat or of their means of production . According to the first results, this campaign permitted to take over 16,000 weapons and over 160,000 munitions on the entire national territory47 .

Several observers, particularly the national authorities, consider this campaign to have been a real success . For them, the restitution of a large number of weapons has had a positive and quantifiable impact on the reduction of armed violence in the country . The joint report by the UNDP-CDCPA report indicates that three months after the end of the campaign, « the statistics of the Observatory of Armed Violence reveal a reduction of the rate of armed violence incidence averaging 38% in 15 provinces ».

Opinions diverge, however, when it comes to the issue of the success of this campaign . Some people met by the FIDH particularly regret that it only lasted 8 days, consider that the material motivation was insufficient and thus fear that a high number of weapons remained in circulation . The first Vice-President met by the FIDH claimed that« this campaign of restitution of weapons has been fairly positive but we are under no illusions. Especially since we are facing the DRC which remains at war ».

The permeability of borders and the continuation of the conflict in Eastern DRC are some of the reasons invoked to explain the proliferation of light weapons in Burundi . In its report published in November 2009, the United Nations Group on Experts of the DRC, indicates it has collected several witness accounts and credible reports according to which « Burundi serves as a base for the recruitment and support networks of the Democratic Forces of Liberation of Rwanda (FDLR) », a rebel group participating in the conflict in Eastern DRC . In the framework of its investigation, the Group apparently learnt that « large quantities of small arms and light weapons had been delivered to Burundi in 2008 […] and were retrieved by Presidential agents and other security services »48 .

Those arms held by the Defence and Security Forces and in particular by the Burundi National Police (PNB) are a cause for concern . In 2009, the Mines Advisory Group (MAG), a humanitarian organisation which, since 2007, helps the Burundi government to reduce the threat of SALWs, published a report on the assessment of the PNB armament . The investigation led jointly with PNB agents, revealed that the SALWs « constitute a potential danger requiring urgent attention [as] the number of stockpiled weapons exceed the quantity necessary for the PNB (by approximately 6000 rifles […] ) [in] surplus […] and inap- propriate for police work. »49 This excessive number of weapons available to the PNB was highlighted in the report of the United Nations Group of Experts on the DRC . The Group thus stated that they had « hard evidence of an attempted purchase of a cargo of 40,000 […] assault rifles and ammunition officially for the Burundian police ». The Group estimated that « such an arms consignment for the Burundian police [was] excessive, given that the Burundian police number no more than 20,000 ». While some observers have declared that « there are so many arms still in circulation that generalised violence is in no-one’‘s interest », such a quantity of available arms is worrying, particularly with the approaching elections . The UNDP and the CDCPA have admitted in this

47. UNDP - CDCPA, The control of small weapons in Burundi. Progress and challenges in the run-up to the 2010 elections, February 2010. 48. Final report of the Group of Experts on the Democratic Republic of Congo, S/2009/603, November 23, 2009. The experts of the group indicate moreover that they have received accounts according to which « the FDLR maintain contacts with General Adolphe Nshirimana, Head of the Burundi information service as well as Burundi police officials ». 49. Mines Advisory Group, AN EVALUATION OF BURUNDI NATIONAL POLICE ARMAMENTS. Report on the Condition and Storage Arrangements of Small Arms and Light Weapons, May 31, 2009.

14 / Burundi: 2010-elections – FIDH regard, that « with an upcoming electoral process of great significance for the future of the country, the activities requiring specific and urgent attention, include the control of weapons held by civilians ; the management and control of the State’s weapons ; the destruction of civilian-owned weapons ; and border control ».

The representatives of political parties met by the FIDH mission delegates also shared their fear regarding the rearmament of the population either by the party in power for some, or, for others, by the different parties in the race .

B/ The need for reform in the security sector

The lack of required training for the Defence and Security Forces, in particular the Burundi National Police (PNB) and the National Intelligence Service (SNR) was brought up several times by those met by FIDH, including the authorities . « Our police have come a long way » admitted the First Vice-President. « It is composed of elements from different groups which don’t have the same kind of training, or the same level of study and experience ».

According to several observers, the agents of the National Police, most of them former members of the rebel forces, are still having trouble accepting their new civilian rather than military role . Several reports have mentioned many abuses attributed to these agents as well as those of the SNR .

In 2008, the United Nations Independent Expert on Burundi discovered over 4,000 cases of human rights violations committed by members of the public force or provinces civil servants . According to the Expert’s conclusions, « Most violations registered related to cases of ill-treatment, rape, torture of suspects by police officials and violations of due process by police and judicial officials.»50 The reports of several Burundian civil society organisations, in particular Ligue ITEKA, also mention a disproportionate use of force by police officers51 . Furthermore, although it is formally forbidden by the new Criminal Code, torture continues to be exercised by PNB officers . According to the United Nations High Commissioner for Human Rights, « The most common sites of torture and ill-treatment […] are PNB detention cells. To a lesser extent, members of the National Defence Forces (Forces de la defence nationale, or FDN) have also been cited inviolations. »52

Created on March 2, 200653, the National Intelligence Service (SNR), seen as an extremely politicised « Presidential police », is also the subject of much criticism . According to several testimonies, agents of the SNR have been committing numerous human rights violations, not only against the civilian population, but also against human rights defenders or members of opposition political parties . In 2007, the Committee Against Torture stated it was deeply concerned by the high number of enforced disappearances, arbitrary arrests and incommunicado detentions « the main perpetrators of which are allegedly officials of the National Intelligence Service ». The Committee also stated its deep concern regarding the « dual mandate of the National Intelligence Service, which is responsible for State security

50. Report by the Independent Expert in charge of examining the human rights situation in Burundi, A/HRC/9/14, August 15, 2008. 51. League ITEKA, 2006 and 2007 annual reports on the human rights situation. 52. Report by the United Nations High Commissioner for Human Rights on the human rights situation and the activities of the Office of the High Commissioner in Burundi. 53. Law n°1/04 of March 2, 2006 in view of the creation, organisation and functioning of the National Intelligence Service.

FIDH – Burundi: 2010-elections / 15 and is also active in criminal investigation, since this entails the risk that the Service might be used as a means of political repression »54 .

The impunity that is generally enjoyed by PNB and SNR agents, despite internal mechanisms which have been put in place in order to investigate the crimes allegedly perpetrated by them, has led to a crisis between the population and these agents who are supposed to ensure their security . Reform of the Burundian security sector should therefore consist of an increased training of the defence and security forces according to national and international norms relativing to the protection of human rights, of an effective use of mechanisms aiming to fight the impunity of those perpetrating human rights violations but also of real de-politicisation of agents, in particular those of the PNB and the SNR .

One of the people interrogated by FIDH made the following statement : « There is an excessive strain of these two forces on the State budget. At this time, there are close to 40,000 people working in the defence and security forces. That is much too much for Burundi ». Several observers thus recommend a necessary reduction in numbers, which would in turn allow agents to be better supervised, better paid and above all better trained .

2.2 Fighting corruption

A/ A high level of corruption

One of the diplomats met by the FIDH mission put it well, saying: « Corruption has been generalised in Burundi ». In this country which enjoys limited resources, corruption is indeed clearly present within public administration and the private sector . Police officers, public service agents, magistrates and other representatives of the judiciary, members of government or even business- men are held responsible for acts of corruption . « All public utilities have to be paid for. This is not normal! » stated a leader of a political party .

In order to fight against this scourge, the Burundian authorities have, once more, set up legal and institutional mechanisms, as recommended by the Arusha Agreement . Burundi is a party to the African Union Convention on Preventing and Combating Corruption as well as the United Nations Convention Against Corruption .

The Criminal Code adopted in 2009 contains particularly repressive provisions against perpetrators of acts of corruption55 . In order to guarantee the implementation of the provisions of these legal mechanisms, the Burundian authorities set up in 2006 a special anti-corruption brigade attached to the Minister in charge of good governance and which commands regional branches on the whole territory . The scandals revealed by this brigade are transmitted to the anti-corruption Court put in place in 2006 and which is charged with investigating them .

Unfortunately, in many cases, the laws in place are not applied and acts of corruption remain unpunished . When it concerns the highest political or financial representatives, corruption becomes a particularly sensitive question which often exposes those who denounce them to acts of reprisal or of intimidation .

54. Conclusions and recommendations of the Committee Against Torture : Burundi, CAT/C/BDI/CO/1 55. Penal Code of April 22, 2009, Chapter II, De la corruption et des infractions connexes.

16 / Burundi: 2010-elections – FIDH This is the case for members of the Observatory for the Fight Against Corruption en Economic Malpractices (Obsveratoire de lutte contre la corruption et les malversations économiques - OLUCOME), who, since 2002, have been working on extremely sensitive corruption cases blaming the highest representatives of the State, and of which the vice-president, Ernest Manirumva, was assassinated at his home during the night of April 8 to 9, 2009, and the President is at this time subject to threats56 . During these last few years, the OLUCOME has revealed numerous scandals involving embezzlement, particularly the illegal sale of a Presidential plane in 2006 (Falcon case), has unveiled an affair involving double invoic- ing of petroleum products (Interpetrol case) and has published a list of high ranking officials suspected of receiving double salaries .

B/ The scandals: Double salaries, Falcon and Interpetrol

Double salaries

Rose Nduwayo, member of the executive committee of the FRODEBU, promoted to the position of Minister for Human Rights and Gender on November 14, 2007, was dismissed by the President of the Republic on February 4, 2010, for having continued to receive her teaching salary between 2007 and 2009, amounting to 3,400,000 Burundian Francs (approximately 3000 dollars) while she was already receiving her minister’s salary .

The OLUCOME, which revealed this affair, claims it has in its possession a list of close to 30 deputies, senators and ministers who continue to receive salaries for their former jobs . The sanction imposed on Rose Nduwayo, who, according to her own statements, reimbursed the totality of the sum prior to her dismissal , was seen by some as a political sanction . They expect the same sanction to be applied to suspected members of the party in power .

Falcon 50

On June 24, 2006, a Presidential plane (Jet Falcon 50) was sold for a little over 3 million dollars to the DELAWARE CORPORATION, although another company bidding higher, AERO TOY STORE was proposing to buy it for the sum of 5 million dollars . An international audit revealed that the market value of the plane was close to 7 million dollars . On July 7, 2006, the representative of AERO TOY STORE seized the Administrative Court in Burundi in order to denounce the irregularity of this sale . This affair was very quickly publicly revealed and denounced in particular by the OLUCOME . In August 2007, the Burundi National Assembly adopted a resolution aiming at creating a Parliamentary Investigating Committee charged with shedding light on all the aspects regarding the sale of the Falcon 50 . The controversial report, published by the Commission in July 2008, concludes that « there was complicity between the Burundian authorities and foreign stakeholders in embezzling part of the funds coming from the sale of the Falcon 50 »57 . The commission specifically blamed the former Finance Minister as well as the former Chief of Staff of the President of the Republic and called on the competent authorities to start criminal proceedings against them .

56. See Urgent appeal by the Observatory For the Protection Of Human Rights Defenders, Threats and intimidation against MM. Gabriel Rufyiri and Claver Mbonimpa, http://www.fidh.org/Menaces-et-actes-d-intimidation-a-l-encontre-de 57. Report of the Parliamentary Investigative Commission into the sale of the Presidential « Falcon 50 » plane, Bujumbura, July 2008, http://www.arib.info/AN_RAPPORT_VENTE_FALCON50.pdf

FIDH – Burundi: 2010-elections / 17 The IMF and the World Bank have taken up this affair and have requested an explanation from the Burundian authorities .

Interpetrol

The Interpetrol affair broke in 2007 when it was discovered that this petroleum company had received close to 21 million dollars between 1996 and 2006 from the Burundian authorities . These 21 million dollars corresponded to the issuing of fictional invoices by some representatives of the Burundian authorities for the benefit of Interpetrol . These illegal transactions allegedly implicated the former Finance Minister, Mrs Denise Sinankwa, as well as the former governor of the Central Bank of Burundi, Mr Isaac Bizimana . The latter was arrested in 2007 while Mrs Sinakwa fled the country .

According to a Transparency International report, this scandal has had serious repercussions on the economic situation of the country, caused the withdrawal of some financial backers and contributed to the failure of the process of the participation of Burundi in the Heavily Indebted Poor Countries Programme58 . An audit report published in 2008 assesses the amount owed to the State by Interpetrol at a little over 32 billion Burundi Francs59 .

2.3 Respecting public liberties

A/ Media under pressure

As indicated in 2008 by the United Nations Independent Expert on the Human Rights Situation in Burundi, « Following a period of intense conflict, during which a number of journalists were arrested, beaten and imprisoned, the media are now free to report on all manner of things, including matters of public interest. »60

While the violations of the freedom of the press have fallen to an extent in recent years, independent journalists are however not safe from arbitrary arrest and acts of intimidation . On September 11, 2008 (one month after the publication of the report by the United Nations Independent Expert), Jean Claude Kavumbagu, director of the website Net Press, was detained for having published an article critical of the President . Net Press had denounced in this article the use by Pierre Nkurunziza of close to 100 million Burundi Francs (FBU) in order to attend the opening of the Olympic Games in China, while the Secretary General of the government had claimed only 50 million FBU had been made available . After six months in prison, Jean Claude Kavumbagu was finally acquitted by the Bujumbura Tribunal de Grande Instance in March 2009 . While it remains isolated, in particular with regards to the length of detention, the case of Jean Claude Kavumbagu is nonetheless significant of a more and more hostile environment for private media . Independent journalists are admittedly not systematically arrested and imprisoned, but they are nevertheless subjected to acts of harassment and intimidation which often encourages self-censorship .

58. Transparency international, World Report on Corruption 2009, Corruption and the private sector. 59. Ibid. 60. Report by the Independent Expert in charge of examining the human rights situation in Burundi, A/HRC/9/14, August 15, 2008.

18 / Burundi: 2010-elections – FIDH

A free press is however not a synonym of an independent and professional press . The lack of sufficient training of the media, in particular State media, has been underlined by several contacts of the mission, a deficiency which, if it is not taken care of, could harm the strengthening of the rule of law in the country . Many media institutions engage in blunders which, in a pre-electoral context, could have significant consequences61 .

B/ A civil society under surveillance

During their interview with the Interior Minister, the FIDH mission members were told that « sometimes civilian society confuses its actions with those of the opposition parties. It behaves like political parties ». This assimilation of human rights defenders to supporters of the political opposition is characteristic of regimes which do not accept any form of protest and which attempt to discredit the actions of human rights defenders by politicising them .

If, in the same way as independent journalists, human rights defenders benefit from a relative freedom of expression and action, the comments made by the Interior Minister are enough to raise doubts about the durability of this freedom . The recent attitude of this minister with regards to civil society organisations is indeed not reassuring62 . Already in 2006, the United Nations Committee against Torture had declared itself to be concerned with « reprisals, serious acts of intimidation and threats against human rights defenders »63 .

1) The Ernest Manirumva affair

The human rights defenders working on sensitive issues involving the highest State representatives are more and more often subject to acts of intimidation, harassment and attacks on their physical integrity . The murder of Ernest Manirumva, which overwhelmed the entire Burundian civil society and was brought up by practically all the people met by FIDH, bears witness to this, due to its powerful symbolic and worrying nature .

Ernest was Vice-President of the Observatory for the Fight Against Corruption and Economic Malpractices Observatoire de lutte contre la corruption et les malversations économiques – (OLUCOME) and vice-chairman of Burundi’s Public Procurement Regulatory Authority, before he was assassinated in his home in the night of April 8 to 9, 2009 . His attackers apparently took several documents with them and in the same night the door of his office was forced open .Very soon, the Burundian civil society mobilised to call for an independent investigation in order to shed light onto this crime, to identify, prosecute and punish those responsible .

In July 2009, in view of the inertia of the judicial authorities, civil society organisations came together for a campaign entitled « Justice for Ernest Manirumva » to demonstrate to the authorities that they would remain mobilised until justice is served .

61. See below, What should be the attitude of the political parties and the media ? 62. See below, The tug-of-war between the Ministry of the Interior and the FORSC. 63. Conclusions and Recommendations of the Committee Against Torture, CAT/C/BDI/CO/1

FIDH – Burundi: 2010-elections / 19 Despite three successive investigative commissions and the technical and logistical support offered by the FBI and INTERPOL, one year after Ernest’s assassination, the investigations appears to be at a standstill . Today, the OLUCOME’s representatives continue to receive threats of all kinds . As mentioned above, the OLUCOME is allegedly in possession of information regarding affairs as sensitive as the Falcon 50, INTERPETROL or the double salaries .

In their activities against corruption and in favour of social justice, some people do not hesitate to stigmatise them by accusing them of favouring the freezing of development aid and of seeking to destabilise the institutions prior to the elections . These threats should be taken extremely seriously . A few weeks prior to his death, Ernest had also received anonymous phone calls calling on him to halt some of his activities .

2) Bills on the Independent National Human Rights Commission and on Associations

For several observers, the bill on the mandate, the composition and the functioning of the Independent National Human Rights Commission (CNIDH) under consideration by the Burundi Parliament, does not comply with the appropriate international norms, particularly the Paris Principles .

Civil society organisations have raised certain preoccupations regarding the independence of the process for the nomination of the members of the Commission . These concerns were also put forward by various United Nations bodies . Indeed, in his latest report, the Secretary General declared that « The current version of the draft law raises concern as it provides the executive branch with the authority to appoint commissioners without parliamentary review. »64

The law relating to Non-Profit Associations (NPA)65, which is outdated and a cause of many legal disputes (see below), will most probably be revised in 2011 . It is very important that this revision does not constitute an attack on the freedom of association and that the new law comply with the provisions of the United Nations Declaration on Human Rights Defenders signed in 1998 . It has recently been a common occurrence that, in order to silence civil society independent organisations, certain countries have adopted restrictive legislation relating to the freedom of association: tedious and opaque application procedures, arbitrary refusals of applications, interference in the current affairs of organisations, abusive terminations, freezing of assets, etc . The new Burundian law on NPAs must in no case aim at strengthening the control over NGOs, as was recently the case in Ethiopia and Uganda for instance .

2.4 Guaranteeing the right to justice

A/ Setting up mechanisms of transitional justice

« The justice system estranges people rather than bringing them together », « No-one here believes in transitional justice. We prefer truth, forgiveness and reparations ». These statements, held by some political party representatives met by the FIDH mission members show the existing reluctance to the establishment of a transitional justice system in Burundi .

64. Sixth report by the Secretary General on the United Nations Integrated Office in Burundi, November 30, 2009 S/2009/611. 65. Decree-Act n°1/11 of April 18, 1992 in pertaining to the organic framing of Non Profit Organisations.

20 / Burundi: 2010-elections – FIDH In order to prevent and fight impunity for the most serious crimes and to guarantee a lasting peace, the Arusha Agreement recommended the establishment of three different mechanisms: an international judicial investigative commission on genocide, war crimes and crimes against humanity, an international criminal tribunal charged with prosecuting those responsible for these crimes as well as a truth and reconciliation national commission .

A United Nations assessment mission went to Burundi in May 200466 and finally recommended the establishment of a Truth and Reconciliation Commission (TRC) and a special Chamber within the court system of Burundi67 .

On November 2, 2007, the Burundi government and the United Nations signed a framework agreement on the creation of a Tripartite Steering Committee (TSC) composed of representatives of the government, civil society and the United Nations, charged with organising national consultations on the mechanisms of transitional justice . Organised over a period of more than six months (July 2009 – April 2010) these consultations were aimed at allowing the TSC to better understand the Burundian population’s perception regarding the process of reconciliation and of combating impunity and to hear its point of view regarding the mandate of the truth commission, of the special tribunal and of their articulation .

According to information collected by the BINUB, the rate of participation in the national consultation process was 80%68 . Spread out over the country’s 17 provinces, the TSC representatives were able to organise individual and community meetings involving different components of the Burundian society (victims, displaced persons, repatriates, magistrates, army personnel, religious representatives, academics, women’s associations, etc ). .

At the same time, discussions continue between the United Nations and the Burundi authorities regarding the links to be put in place between the TRC and the special Chamber . Indeed, points of disagreement remain with regards to the terms of the seizure of the special Chamber’s Prosecutor . While the Burundian authorities are in favour of the Prosecutor seizing only those cases transmitted by the Commission, the United Nations would rather have the Prosecutor start investigation on his or her own decision, in particular to guarantee his or her independence .

Burundi is already familiar with debates around the establishment of mechanisms of transitional justice . Prior to the signing of the Arusha Agreement, three missions or international investigative commissions had been created by the United Nations: one investigative mission on the coup and massacres of 1993, a mission charged with assessing the possibility of creating a truth commission on the question of impunity in Burundi as well as an international investigative commission charged with shedding light on the murder of President Melchior Ndadaye in 1993 and the massacres which followed . All these commissions and missions produced reports and recommendations which were hardly enforced by the Burundian authorities .

As was underlined by the Vice-President of Burundi as well as BINUB representatives, there can be no reconciliation in Burundi without justice for the victims of the most serious crimes . Whatever the terms of their establishment, the mechanisms of transitional justice will indeed have to ensure victims that the truth is established and that their right to justice and reparation are upheld .

66. Mission mandated on January 26, 2004 by the President of the United Nations Security Council (S/2004/72). 67. Report of the evaluation mission relating to an international judicial investigation commission for Burundi, S/2005/158, March 11 2005, « Rapport Kalomoh ». 68. The TSC had planned to organise the consultations with a cross-section of close to 5000 people throughout the country’s 17 provinces.

FIDH – Burundi: 2010-elections / 21 B/ Guaranteeing a good administration of justice

1) A deficient and dependent judicial sector

« Burundian justice is profoundly ill » . This statement, made by a Burundian politician, reflects well the general view . Whether one interviews diplomats, civil society organisations or representatives of political parties, all agree that the judiciary is one of the sectors in which there has been the least progress in Burundi in recent years . The weaknesses of the judicial system are the consequence not only of the intrusion of political authorities in judicial decision, of the lack of material and human resources allocated to this sector, of the lack of knowledge of and the disrespect for bills but also of the corruption which occurs in this system .

The composition of the Superior Council of Magistracy (CSM) is characteristic of the interference by political authorities in the judicial apparatus . Presided by the President of the Republic himself, assisted by his Minister of Justice, the CSM is composed of 15 members, 8 of whom are designated by Presidential decree69 . The Council adopts its decisions by voting with a simple majority of the votes of those members present, but in the case of a sharing of votes, the one of the President of the Republic will prevail . Thus, the latter does not hesitate to steer the CSM’s decisions, although this body is the guarantor of the independence of the judiciary and is charged with appointing and sanctioning magistrates .

Furthermore, the non-recognition of the principle of permanence of the judges contributes to manoeuvres by the executive authorities in the sense that they favour transfers or threats of transfer against magistrates who have taken positions opposed to those of the authorities . In his latest report, the United Nations Secretary General himself denounced the threats of transfer and declared he was concerned that « contrary to the law, the recruitment of judges and prosecutors lacked a competitive examination process, and the Ministry of Justice has continued to make appointments without consulting the Superior Council of Magistracy». 70

The insufficient material and human resources also represent obstacles in the way of the administration of justice in Burundi . From a material point of view, the lack of transportation, communications, the dilapidated state of the infrastructure, in particular of prisons, favour the inefficiency of the judicial apparatus71 . From a human point of view, it is the lack of sufficiently trained personnel which poses a problem . Difficult working conditions, particularly low wages, are according to some, at the root of the qualified personnel’s disaffection with judicial careers . Regarding the lack of training of the judicial personnel, one of the political representatives met by the FIDH did not hesitate to state that « almost no-one sees studies as useful anymore, since some people would climb the ladder while having a low level of education ».

These obstacles result in the considerable delay in handling judicial cases, in hindering the good progress of the investigations (poor quality of interrogations, loss of evidence, corruption of witnesses, etc .) or in encouraging errors in the qualification of offences . The alarming

69. Law n° 1/01 of January 20, 2006 70. Sixth report of the Secretary General on the United Nations Integrated Office in Burundi, November 30, 2009, S/2009/611. 71. In this regard, the lack of material resources also contributes to the dependency of the judicial sector on the executive. As an example, the Tribunals de Résidence essentially depend on the communal administration for the granting of vehicles, the purchase and maintenance of material. It is not rare that a judge in conflict with the local administration is refused necessary material for the opening or the carrying out of an investigation.

22 / Burundi: 2010-elections – FIDH number of people in custody perfectly illustrates this inefficient management of cases . According to information transmitted by the BINUB, there are at present close to 11,000 detainees in Burundi’s prisons (for a capacity of 5,000), of which 60% are in custody! Among these people, 1/3 would already have served their sentence had they been put on trial . This state of affairs is worsened by the fact that « there is no clear procedure for detainees to challenge their pre-trial detention ».72

« We have a very corrupt judiciary » admitted an observer met by the FIDH mission . It is not rare that escapes from detention houses are encouraged by corrupt police officers, or that cases get closed . In order to explain this corruption, some don’t hesitate to point the finger at the low salaries in the judicial sector . Others see in it the prolonging of a phenomenon covering all sectors of society, encouraged by the near lack of administrative procedures aimed at prosecuting those responsible . In any case, this practically generalised corruption participates in the bad administration of Burundian justice and especially discourages victims from filing complaints, representing a loss of confidence « which contributes to an increase in cases of mob justice which is prevalent in the country ».73

The international community, in particular the BINUB, the World Bank, the European Union, as well as the UK Department For International Development (DFID), have offered financial support for the restructuring of certain infrastructures dedicated to justice as well as for putting in place training of judicial personnel . However, as was underlined by the United Nations Independent Expert on the Human Rights Situation in Burundi, « those programmes and investments cannot achieve the desired results if the Government and judicial personnel do not commit themselves to reinforcing the administration of justice and respecting due process with regard to the cases brought to court »74 . It is first and foremost a question of political will . And from this point of view, as was denounced by one of the diplomats met by the FIDH, there are still many efforts to be made .

2) The scourge of impunity

Apart from the articles criminalising homosexuality, the new Burundian Criminal Code, adopted on April 22, 2009, contains a number of provisions in accordance with the regional and international mechanisms for the protection of human rights . Indeed it abolishes the death penalty, recognises in national law and criminalises war crimes, crimes against humanity, genocide as well as acts of terror . Furthermore, this Code strengthens the repression against sexual offenders, perpetrators of domestic violence, and sexual harassment75 .

The majority of the provisions in this new Code are however rarely enforced . Due to the lack of a new Code of Criminal Procedure76, the lack of sufficient training of members of the defence and security forces and those of the judicial personnel, the dependence of the judicial sector on the executive, and the corruption mentioned above, the impunity of perpetrators of crimes remains common . « If the perpetrators of the assassination of President

72. Report of the independent expert in charge of examining the human rights situation in Burundi, A/HRC/9/14, August 15, 2008. 73. Report of the independent expert in charge of examining the human rights situation in Burundi, A/HRC/9/14, August 15, 2008. 74. ibid. 75. See FIDH-League ITEKA statement, Burundi : new Penal Code, between progressivism and conservatism, http://www.fidh.org/ Burundi-nouveau-code-penal-entre-progressisme-et 76. The Code of Criminal Procedure in effect dates from 2007 and is no longer in accordance with the Penal Code adopted in 2009.

FIDH – Burundi: 2010-elections / 23 Ndadaye have, to this day, not been punished, we do not see how the little people could obtain justice » declared one of the FIDH’s interviewees .

At the time of the cease-fire accords, a provisional immunity was negotiated between the CNDD-FDD and the transitional government, and then between the CNDD-FDD in power and the Palipehutu-FNL . In accordance with these agreements, the immunity exempts the members of former rebel groups from prosecution in the case of political crimes committed prior to 2006 but does not apply to war crimes and crimes against humanity . This provisional immunity should normally end with the establishment of the Truth and Reconciliation Commission and the Special Tribunal, a specific condition which makes certain people call it a « definitive provisional immunity ». In any case, this immunity granted to former rebels, who, often, perpetrated serious human rights violations, contributes to a culture of impunity within Burundian society .

Sexual crimes, considered to represent a weapon of war, were perpetrated on a large scale during the years of conflict . The large impunity enjoyed by the perpetrators has contributed to the trivialisation today of this practice . Thus, in spite of new repressive provisions against them, perpetrators of sexual offences remain generally unpunished, with families and the administration preffering ‘amicable’ settlements . In cases where suspected perpetrators of sexual crimes are arrested, it is not rare that they are freed during the preliminary investigation or that they succeed in escaping . These phenomenon, combined with the slow pace of procedures, discourage victims from filing a complaint for fear of reprisals .

Furthermore, accounts of cruel, inhuman and degrading treatment perpetrated by police forces continue to be recorded by international observers . According to the BINUB, these practices usually take place during arrests and detentions of suspects and the impunity enjoyed by the police forces allegedly exists due to the absence of disciplinary action and prosecution against those responsible .

Several cases of summary and extrajudicial executions have failed to result in criminal procedures . No light has yet been shed on the circumstances of the Gatumba massacre which took place on August 13, 2004, during which close to 160 Banyamulenge Congolese were killed in a United Nations Office of the High Commissioner for Refugees (OHCR) camp, in spite of a United Nations Security Council resolution calling on the Government of Burundi to put in place an investigation into this case and to bring the perpetrators to justice77 . As another example, while members of the National Defence Force (FDN) were condemned for the abduction and massacre of 31 civilians which took place in Muyinga province between June and August 2006, many observers deplore the lack of prosecution against civilians that would have been invovled in this massacre78 . Also, over two years after the murder in Ruyigi of Agnès Dury, employee of Action Contre la Faim (ACF), neither of the two investigations initiated in France and Burundi are making any progress .

77. Resolution 1577 (2004). 78. Report of the High Commissioner, August 2009.

24 / Burundi: 2010-elections – FIDH II – Strengthening peace through democracy

1. The 2010 elections: « a period of passion, nervousness and tension »

While peace is a reality in Burundi, it is a fragile one . Its durability depends on the strengthening of the rule of law via the reform of the security and justice sectors, the respect for public liberties, the respect for ethnic representation within the institutions, a true reintegration of former rebels, support for repatriates and the struggle against impunity of the perpetrators of the most serious crimes .

Any reluctance to engage in such a process would destabilise the Burundi society, would kindle resentment and dissent and would undermine the peace and security efforts that have been agreed upon since the signing of the Arusha Agreement .

Another fundamental element of stability lies in the regard for democratic principles . This is why the elections in Burundi planned to be held between May and September 2010 represent a test . They will either strengthen or put at risk the positive steps taken in recent years .

Burundian citizens will be called 5 times to elect communal counsellors, deputies and senators as well as the Collines counsellors, and for the first time since Arusha, the President of the Republic will be elected by direct universal suffrage . As underlined by the President of the Independent National Electoral Commission (CENI) whom the members of FIDH mission met, these elections will be « a period of passion, nervousness and tension ».

The political transitional period ended with the adoption of the new Constitution by way of a referendum on February 28, 2005 and its promulgation by law N° 1/010 of March 18, 2005 . Article 302 of this law stipulates that « the first post-transitional period President will be elected by the National Assembly and the Senate sitting together as Congress with a two- thirds majority required ».

In 2005, the election of the first post-transition President was thus preceded by local, legislative and senatorial elections . These elections – held in a climate of insecurity (with the Palipehutu- FNL rebellion remaining active) and tension among political parties, resulted in a resounding victory for the National Council for the Defence of Democracy–Forces for the Defence of Democracy (CNDD-FDD) . As a result of the legislative elections, the former rebel movement (having entered the political arena after the cease-fire accord of November 2003) obtained 59 deputy seats versus 25 to FRODEBU, 10 to the Union for National Progress (UPRONA), 4 to the CNDD (first political branch of the CNDD-FDD) and 2 to the Movement for the Rehabilitation of Citizens (MRC) out of the 100 seats up for grab . Since the quotas set by law were not respected, the CENI co-opted 18 deputies in order to make up a total of 118 deputies, 64 of which going to the CNDD-FDD .

FIDH – Burundi: 2010-elections / 25 On August 19, 2005, the election of the President of the Republic took place with a single round of voting . Pierre Nkurunziza of the CNDD-FDD was elected by Parliament with a resounding majority of the votes . Although the CNDD-FDD denies it, it encouraged among the population a message of a return to war in case it lost the elections . Furthermore, it allegedly threatened several people of reprisals if they didn’t vote for it . In spite of the irregularities observed and the threats, the ballot results were indisputable79 .

This represents the consecration of the total hegemony of the CNDD-FDD over the principle institutions of the country . This situation has led several observers whom the members of FIDH mission met to say that this hold of power has developed a taste for power and that some high placed officials of the CNDD-FDD are prepared to do anything to hold on to their prerogatives .

This concern is all the more significant because the political context in the run-up to the 2010 elections is different from the one in the post-transition period . The transformation of the Palipehutu-FNL rebel movement into a political party, the National Forces of Liberation (FNL), on April 21, 2009, consecrated peace . The fear of a return to war on which the CNDD- FDD depended for its electoral success in 2005 is less present and doesn’t truly represent an electoral argument any more . Few observers fear a return to armed insurrection, even though the risk is sometimes invoked at times of exacerbated electoral violence . Furthermore, the political game relies less on the dichotomy between Hutu and Tutsi . Although the ethnic frame of reference is still accurate, the issue for political parties is now the harnessing of the Hutu vote, representing a majority . These new realities allow for more space and ambition for Burundian political parties80 . Several parties (particularly the CNDD-FDD, the UPRONA, the FRODEBU, the FNL, the Movement for Solidarity and Democracy (MSD) and the Union for Peace and Development (UPD) appear to be in a position to influence the elections and to obtain a role in power . It should be remembered that the presence of members of a political party in the government depends on the party’s result in the Presidential elections81 .

The results are therefore open-ended . In front of the members of FIDH mission , all the political leaders evoke victory . Those who consider defeat are rare . As one political leader said to the mission members: « It’s tense. It’s electric. For the first time, no-one knows who will win! ». In this atmosphere, the political programme comes far down the list after the political strategy for winning the elections . The campaign staff of the different parties turned their attention to the elections a long time ago . Indeed, the real campaign has already begun in violation of the rules of the Electoral Code82 . The President of the Republic has increased his visits to the hinterland . The 2010 calendar of one of the political party has already called the shots: « vote for us ».

The excitement and tension are tangible – especially given that they are not limited to the political arena (see below) . Many fear that the will of the CNDD-FDD to maintain its hold on power could push it outside the legal political arena and cause it to engage in significant irregularities which would distort the democratic principles and threaten the security situation around the elections, or even of the country itself . The signs of the radical

79. See Report by the International Crisis Group of August 25, 2005 : Elections in Burundi : A Radical Shake-up of the Political Landscape. 80. 44 political parties are officially recognised in Burundi. 81. In the 2005 elections, the presence of party members in government was subject to the results of the elections of deputies and senators. Pierre Nkurunziza, of the CNDD-FDD, winning party in the elections, had to form its government with members of the UPRONA and FRODEBU parties. 82. In accordance with Art. 25 of the Electoral Code : « the electoral campaign (…) is open by decree on the sixteenth day preceding polling day. It is closed forty-eight hours before the poll ».

26 / Burundi: 2010-elections – FIDH nature of the party in power already exist (see below) .

Nevertheless, as an official of one of the principle political parties said: « if these elections are a success, we will take a step towards democracy ».

2. Analysis of the pre-campaign situation: attempts at controlling the electoral process by the Presidential party

2.1. The Independent National Electoral Commission

The establishment of a truly consensual Independent National Electoral Commission (CENI), approved by the political parties and civil society, was not an easy feat due to attempts at submit- ting this institution to the authorities . The President of the Republic is accused of attempting to put in place a tailored institution in the run up to the 2010 elections .

A first decree on the creation, structure and function of the CENI which was signed in June 2008 had provoked an outcry and was rejected by the opposition which accused the authorities of putting in place a CENI under the thumb of the Executive . The text thus gave the President the power to dismiss any member « suspected of any act which may disrupt the elections ».

A second decree was signed in December 2008 and presented to Parliament in January 2009 for approval . This bill recommended a list of CENI members named by the authorities . On January 20, the decree was rejected by the Senate while the session held for its adoption was boycotted by the opposition deputies to the lower chamber . The list of CENI members presented by the authorities was made up of Mrs Clotilde Niragira, Minister of Civil Service, labour and social security, His Eminence Antoine Pierre Madaraga, General Curate of the Catholic Church in the Ngozi diocese, His Eminence Elie Buconyori, bishop of the Free Methodist Church of Burundi, Mrs Sylvie Kinigi, former Prime Minister (1993-1994) and Mr Didace Birabisha, Chief of Staff of the Energy and Mining Ministry . Mrs Clotilde Niragira was expected to become President of the said Commission .

The opposition criticised the lack of consultation regarding such a significant Commission for the credibility of the elections, and expressed its caution regarding the independence of the proposed CENI, considering Mrs Clotilde Niragira to be a very active member of the party in power .

This crisis led to consultations between the Burundian authorities and the opposition parties . On February 13, the National Assembly and the Senate finally approved in separate motions and almost unanimously, the members of the CENI named by President Nkurunziza, following consultation of his Opposition . The CENI is now composed of 2 civil society members and three members from the CNDD-FDD, the FRODEBU and the UPRONA .

Decree n° 100/22 on the organisation and function of the CENI was adopted on February 20 . Decree n° 100/32 on the nomination of the CENI members was adopted on March 13, 2009 .

FIDH – Burundi: 2010-elections / 27 The members of the new CENI took oath on April 7, 2009 before Parliament83 . The CENI is a permanent authority (contrary to the previous one of 2005) . The 5 Commissioners have a 3-year renewable mandate . It is a decentralised structure which brings together CEPI (at the provincial level) and CECI (at the level of the Communes) . According to Article 3 of the Electoral Code, the CENI’s mandate is to guarantee the freedom, impartiality and independence of the electoral process .

The different interviewees of the FIDH mission, whether they are representatives of civil society, diplomats present in Burundi, UN officials or members of political parties, expressed a great level of faith in the CENI . They all praised the independence of its members and their efforts to put in place a transparent and democratic electoral process . As stated by the First Vice-President of the Republic during his interview with the members of FIDH mission , « this attitude means in fact that they are subjected to threats coming from some political parties ».

At the time of FIDH’s visit, the projected cost of the electoral process established in the document of the support project for the electoral cycle in Burundi, were covered by three quarters . Thanks in particular to the contributions of the State, Belgium, the Netherlands and France, the CENI had 43 million US dollars available for a budget estimated at 57 million US dollars .

2.2. The framework and the electoral calendar

A/ The Electoral Code

As with the CENI, law N° 1/22 updating law N° 1/015 of April 20, 2005 on the Electoral Code, was promulgated on September 18, 2009 by the President of the Republic following several months of controversy due, in particular, to the attempts by the authorities to impose its own choices, guided by the will to dictate the electoral rules for their best interests . However, once more, the pressure exerted by the opposition political parties, civil society and the international community, made the Presidential party give in without, however, resolving all the problems .

A consultative framework between political parties had been put in place with a view of discussing the necessary amendments to the Electoral Code of 2005 in order to determine the legal framework of the 2010 elections . Several stumbling blocks related in particular to the amount of the deposit paid by the Presidential candidates, the order of the polls and the type of ballot paper used in the polls . Without paying heed to the recommendations of the various opposition parties, the authorities sought to impose its point of view by proposing an Electoral Code tailored to the interests of the CNDD-FDD to be considered by the Council of Ministers on July 9, 2009 . With the support of the international community, new negotiations allowed the parties to agree on a new version which was to be presented before the Assembly for adoption . However, at the behest of the party in power, the President of the Justice and Human Rights Commission of the National Assembly rewrote the text in favour of the CNDD-FDD . Finally, the Electoral Code was adopted on September 11 and 12, 2009 respectively, by the National Assembly and the Senate .

83. The compostion of the CENI : Pierre Clavere Ndayicariye, President ; Marguerite Bukuru, Vice-president ; Prosper Ntahorwamiye, Commissioner in charge of civic education and communication ; Adelaide Ndayirorere, Commissioner in charge of finance and administration ; Julius Bucumi, Commissioner in charge of electoral operations, logistics and judicial affairs.

28 / Burundi: 2010-elections – FIDH The first point on which the different political players in the country diverged, was the amount of the deposit payable by each Presidential candidate . While the CNDD-FDD wanted the deposit to amount to 25 million Burundian Francs, the Code finally stipulated a deposit of fifteen million Burundian Francs reimbursable in its totality if the candidate achieves 5% at least of the votes in the first round (Article 104) .

Concerning the electoral calendar, the CNDD-FDD wanted the five elections to begin with the Presidential vote, hoping to win these, and with a knock-on effect, to obtain a large majority in Parliament and in local elections . The opposition wanted, as in 2005, to start with the local elections and to finish with the national elections with a view to analysing the forces involved and to foresee any potential coalitions in order to win in the Presidential elections . A compromise on this point was reached, and the elections will take place in the following sequence: 1 . The election of the members of the communal Councils on May 21, 2010; 2 . The election of the President of the Republic on June 28; 3 . The election of the Deputies on July 23; 4 . The election of the Senators on July 28; 5 . The election of the members of the Collines Councils on September 7 . Some observers underline the fact, however, that the order in which the polls are held, goes against the Constitution since the mandate of both chambers end before that of the President of the Republic .

Finally, the parties were opposed on the question of a single or a double ballot paper in the polls . In the end, as was wished for by the CNDD-FDD, a double ballot paper was chosen . Thus, in accordance with Article 55 of the Electoral Code, the voter will take as many ballot papers as candidates or lists of candidates in the race, and will go to the polling booth where he or she will insert into a white envelope the ballot paper representing the candidate or list of candidates chosen, and into a black envelope the unused ballot papers . The voter will then introduce the white envelope into a ballot box and the black envelope into another box .

For many observers, this procedure will unnecessarily complicate the process . First of all, voters could choose the wrong envelope or the wrong box and could be induced to doing so by manipula- tive individuals . Next, this procedure will lengthen the counting of votes, making irregularities possible, and risking a longer delay in declaring the results . This will bring a little more tension to the proceedings and will thereby move the different elections closer together in time . Furthermore, this procedure will burden the electoral budget by doubling the necessary equipment .

Finally, it is noteworthy that, concerning the criteria pertaining to candidates’ eligibility in the polls, Article 8 of the new Code stipulates that « until the conclusions of the Special Tribunal for Burundi on Genocide, war crimes and crimes against humanity as well as the National Commission for Truth and Reconciliation, the people who have benefited from provisional immunity will continue to enjoy their civil and political rights without regards to any possible convictions handed down. Any elected official whose responsibilities in those crimes under investigation have been established by the Tribunal or the Commission, will automatically lose their mandate and will be replaced ». This provision enables all the party leaders to enter the electoral race, even though the responsibility of some of them could be engaged for international crimes .

FIDH – Burundi: 2010-elections / 29 B/ The electoral campaign

The CENI published the electoral calendar on December 15, 2009 . The five polls are to take place in under five months: the election of the communal Counsellors will be held on May 21, 2010; the Presidential election on June 28; the Legislative elections on July 23; the Senatorial elections on July 28 and the election of the Colline Counsellors on September 7, 2010 .

For many observers, this tight calendar could lead to complications and complaints . Indeed, the complexity of the ballot count due to the double ballot system could mean that the results will arrive later than planned . If the results are challenged, this delay could become even longer, encroaching on the next elections and shortening/disturbing the electoral campaign period planned for 16 days prior to polling day .

2.3. The registration of voters

According to Article 15 of the Electoral Code, « the registration on the electoral roll takes place on presentation of the national identity card or any other regular form of identification as well as any document allowing the verification of the voting capacity ».

Few Burundian citizens possess a National Identity Card (CNI), as it can only be obtained against a fee and the procedures for obtaining one are often long and tedious . Furthermore, few Burundians, in particular those who live in the country, possess « other documents allowing the verification of their voting capacity », stipulated by the CENI, such as the christening card, the civil servant card, the driver’s licence, the military or police cards (the christening card and the driver’s licence are only valid if accompanied by a witness) .

Also, on December 21, 2009, the Minister of the Interior, Mr Edouard Nduwimana, and the Executive Representative of the United Nations Secretary General and Resident Representative of the United Nations Devlopment Programme (UNDP), Mr Youssef Mahmoud, started a three- week national campaign for the issuing of free CNIs . Financially supported by the UNPD, the operation led to the distribution of close to a million CNIs . However, this distribution, which was not controlled by the CENI or the political parties, was marred by numerous irregularities .

The CENI itself confirmed these irregularities to the mission delegates, particularly: the refusal of some administrators to deliver the CNI to individuals suspected of voting for another party than their own; the issuing of CNIs to foreigners, to minors; the issuing of several CNI to the same person so that they could register in several polling stations . The issuing of the CNI therefore became a veritable electoral stake84 . If the CNDD-FDD has a particularly strong anchoring with local administrators (civil servants owe their jobs and possible promotion to the political authorities), all parties were able to use their local influence on the latter in an attempt to shape the electorate in their best interests . According to the President of the CENI, « the UNPD initiative came much too late. It was a foregone conclusion. The issuing of CNIs 2 to 3 weeks prior to voter registration necessarily became a political stake ».

84. See report on the observation of the enlistment of voters by the COSOME, published in March 2010.

30 / Burundi: 2010-elections – FIDH Furthermore, the million CNI delivered did not reflect the size of the electorate . This is why on January 22, 2010, 5 political parties publicly denounced the fact that approximately two million Burundians of voting age did not yet possess any form of identification (indispensable for registering on the electoral roll), although the voter census process had started on January 21, 2010 (ending February 9) . These parties called on the CENI to halt its « wait-and-see attitude » .

Also, in order to compensate for problems relating to the issuing of CNIs, the CENI introduced on January 30 a new form of identification called « attestation of identification for the registering of the voter » allowing the verification of the voting capacity .

These attestations were distributed by the CEPI and CECI to the Colline and neighbourhood chiefs who, in the presence of representatives of the political parties, filled in and signed the attestation for the voter candidate . With this attestation, the latter could then register . This operation was approved by the different political parties, since these attestations were delivered by people who knew their citizens, thereby avoiding for instance the registration of minors or foreign individuals . On February 12, 2010, the CENI published the number of Burundians who registered on the Electoral Roll 2010: 3,550,665 voters in total, 51 .4% of which are women . The expecta- tions of the CENI were thus fulfilled, since it was expecting 3,505,954 voters according to estimations based on the results of the 2008 census and the number of voters registered in 2005 .

The provisional results of the registration of voters were well accepted by the different opposition parties, as was confirmed by several of them during interviews with FIDH mission delegates . All revealed however the existence of many cases of fraud which marred the beginning of the registration process although they underlined the good work done by the CENI in attempting to control or at least minimise them, thus reinforcing its credibility .

2.4. The authorities « dirty tricks »

Since it took power, the CNDD-FDD has attempted with all means possible to retain its hold and its hegemony by weakening the other political parties . The means used are political or judicial, legal or illegal . It can take the form of a disregard for political quotas in government; encouraging dissidence within opposition parties; but also criminal accusations against the principle opposition leaders; as welll as attacks on political parties .

The ultimate aim of these « dirty tricks », as defined by an interviewee of the FIDH mission, seems to be to win the elections by any means possible in order to maintain their control on the State . In order to achieve this aim, the Presidential party appears to essentially make use of the National Intelligence Service (SNR) also known as « the documentation », which, according to observers, acts like a sort of political police in charge of the dirty work . This tendency to want to control everything appears to be more and more significant . This has led some to tell the mission that there is a risk of seeing the authorities operate an appreciably authoritarian shift and it sends a worrying signal in the run-up to the elections .

FIDH – Burundi: 2010-elections / 31 A/ When the CDD-FDD purges its own party…

a) The Hussein Radjabu affair

When Pierre Nkurunziza won the Presidential elections in 2005, Hussein Radjabu took over the CNDD-FDD and acted as the real boss . Several observers consider that he held the power over the country and they attribute to him numerous acts of embezzlement and exactions such as the illegal sale of the Falcon 50 Presidential plane, the bribes involved in the reconstruc- tion of the Bujumbura-Rumonge road, the extrajudicial executions committed in Muyinga and Kinama, or the accusations of coup attempts made against former dignitaries, such as the former President Domitien Ndayizeze and his former Vice-President Alphonse-Marie Kadege (see below) . Others consider that the first circle in power wanted to make him carry the burden for these accusations and for scandals which in fact never led to any judicial case, in order to get rid of cumbersome political opponents .

On February 7, 2007, 1200 high placed party activists dismissed Radjabu from his post during an extraordinary Congress organised in Ngozi . Radjabu protested against this decision and engaged a petition for nullity of the Congress . To this day, the Supreme Court has not yet handed down its decision .

On April 27, 2007, Radjabu and 7 other people (including the minister Jean Bigirimana and an official representative of the Presidency of the Republic, Ndindi Ribakare Baudouin) were arrested, accused of having « recruited demobbed former rebels in order to disrupt public order » . They were sentenced in April 2008 for fomenting a plot against the security of the State . On May 25, 2009, the Supreme Court confirmed the conviction of Radjabu to 13 years in prison as well as those of his 7 co-accused .

In prison, Radjabu continues to exert influence on the political arena . He is allegedly the mentor and financial backer of the UPD, without however holding a party-member card . Also, although he can’t participate in the elections himself, Radjabu continues to garner attention . On January 20, 2010, Radjabu sent a letter, through his lawyer, to the CENI, arguing that he continued to represent the CNDD-FDD . For this purpose, he presented to the CENI the distinguishing mark which would be used by his party in the upcoming elections . On February 4, 2010, the CENI responded that « the commission is a technical institution which has no prerogative over the decision as to who is the President of a political party and who is not85 » .

b) The expulsion of 22 secessionist deputies

Twenty-one CNDD-FDD deputies, 19 of which faithful to Radjabu left the party in 2007 . Furthermore, the former First Vice-President of the National Assembly, Alice Nzomukunda, was excluded from the Presidential party in early 2008 . The Presidential party consequently refused that these deputies take part in votes which led to a paralysis of the legislative power, as the necessary quorum for the vote of laws could no longer be fulfilled .

At the behest of the CNDD-FDD leader, Jérémie Ngendakumana, the President of the National Assembly, Pie Ntavyohanyuma, also a member of the CNDD-FDD, asked the Constitutional Court,

85. http://www.iwacu-burundi.org/index.php?option=com_content&view=article&id=id_de_l%E2%80%99article_526

32 / Burundi: 2010-elections – FIDH in a letter dated May 30, 2008, to determine whether members who had left the CNDD-FDD could continue to sit as parliamentarians in the National Assembly . With a promptness hitherto unknown by observers, the Constitutional Court decided on June 6, 2008, that the former members of a party were occupying their seats in violation of the Constitution, citing Article 169 which stipulates that candidates « can not be considered elected and sit in the National Assembly » if their party has not obtained at least 2 per cent of the popular vote . Thus, the « independents », who did not garner more than 2 per cent of votes in 2005, the non-aligned deputies such as the 22 former members of the CNDD-FDD could not remain in the Assembly . Many objected to this decision, citing article 149 of the Constitution which stipulates that « the mandate of deputies is determined nationally . No imperative mandate is valid . The vote of the deputies and the senators is personal » . Furthermore, Article 156 of the Constitution which specifies the possible reasons for ending the mandate of deputies does not include a change of party: « The mandate of deputy and of senator ends with death, resignation, permanent incapacity and unjustified absence from over a quarter of the meetings of one session or if the deputy or the senator finds him - or herself in one of the cases of forfeit specified by a fundamental law » . The 22 deputies expelled were quickly replaced with members close to the Presidential party .

Most of the deputies expelled were consequently subjected to threats, some of them having even been arrested . In fact, three deputies among the 22 excluded from the National Assembly, Jean Fidèle Kana, Nadine Nzomukunda and François Xavier Nsababandi, filed a complaint on February 16, 2010 with the Public Prosecutor against the director of Radio REFMA FM and the journalist John Hero Ndinimana for having, during a programme, announced that the three deputies were « in the process of recruiting formerly mobilised individuals with the single aim of disturbing the 2010 elections ».

B/ …and in other parties

a) In the FRODEBU

The Domitien Ndayizeze affair

The former President of the Republic, Domitien Ndayizeze, then leader of the FRODEBU, was arrested on August 22, 2006, just after the Senate had lifted his parliamentary immunity, accused of breaching the security of the State . 6 other people were already incarcerated in this case, including his former Vice-President Alphonse-Marie Kadege . On January 15, 2007, the Supreme Court finally acquitted the former President of the accusations against him as well as four of his co-accused, including Alphonse-Marie Kadege . On the other hand, the Supreme Court convicted the former rebel chief Alain Mugabarabona, accused of being the « brains » of a plot, to 20 years in prison . A sentence of 15 years was handed down to Tharcisse Ndayishimiye, better known under the nickname of Maconco . Many saw in these accusations against former President Domitien Ndayizeye and his co-accused the work of Radjabu, at the time still President of the CNDD-FDD .

Those deputies not expelled

12 deputies of the FRODEBU expressed the « wish » to leave their party and join the Presidential party, at the same time as 22 deputies of the CNDD-FDD were leaving the party (see below) . Many observers saw here an attempt by the Presidential party to « buy » parliamentarians

FIDH – Burundi: 2010-elections / 33 in order to consolidate its majority in the National Assembly and at the same time weaken the FRODEBU party . Strangely, while the 22 « secessionist » deputies of the CNDD-FDD were expelled from the National Assembly by decision of the Constitutional Court, the « secessionist » deputies of the FRODEBU retained their seats . The President of the Assembly, Ntavyohanyuma Pie, did not send a petition to the Court so it would examine their status although the President of FRODEBU had asked him to . Finally, one of the 12 deputies, Jean Minani, former President of the National Assembly, created a new party called « FRODEBU nyakuri (real FRODEBU) » .

b) In the MSD

Alexis Sinduhije, President of the Movement for Security and Democracy (MSD), an opposition political party still at the time in its infancy, was arrested on November 3, 2008 during a meeting of his party . Some believed this arrest was due to the absence of an approval of this party and/or of an authorisation of the meeting from the government (the authorities illeaglly imposed at that time an authorisation regime although the freedom of assembly is governed in Burundian texts by the regime of declaration) . And yet, on November 11, 2008, Alexis Sinduhije was brought before the deputy Prosecutor in the offices of the Prosecution in Bujumbura and was charged with « insult to the Head of State » . This accusation was based on documents seized during his arrest which allegedly criticised the development policies of the President . Alexis Sinduhije was finally acquitted on March 11, 2009 by the Tribunal de grande instance and freed the next day, after 4 months in custody .

c) In the FNL

Tensions appeared in 2009 within the FNL . On August 28, a group of former high ranking members was excluded from the party by the President, Agathon Rwasa . These members organised on October 4 in Bujumbura an « extraordinary congress » in order to elect new leaders, declaring that the mandate of three years to which Mr Rwasa had been elected, had expired in 2007 . The « congress » decided to dismiss Mr Rwasa from his post of President of the FNL . Mr Rwasa and other opposition parties strenuously condemned the holding of this « congress », accusing the CNDD-FDD of attempting to foment dissent among the FNL and to weaken them in the run-up to the 2010 elections . During a press conference held on October 29, 2009, the Interior Minister finally distanced himself from the conclusions of the « extraordinary congress » and recognised Mr Rwasa as legitimate leader of the FNL .

C/ The 20 servicemen affair

On January 29, 2010 at 7 p .m, national television viewers watched a strange live report . Before the cameras, the Army Chief of Staff went to a beach, next to the La Pirogue bar, in order to catch red-handed and arrest servicemen suspected of fomenting a coup . Also present were members of the police force, the National Intelligence Service, the Defence Minister and the Military Auditor . The Army Chief of Staff, all smiles, delivered his tirade, straight from an American TV series: « Here are a group of gentlemen who wish to go back in time ».

Once the cameras had stopped rolling, the military auditor asked the officers of the judicial police to bring the arrested servicemen to different places of detention in order to interrogate them . The auditor interviewed the highest ranking servicemen himself . According to information received, dissatisfied at the slow pace of reforms of the status of servicemen and,

34 / Burundi: 2010-elections – FIDH in particular, demanding housing benefits, the detained wished to strike a blow and bring the President of the Republic to respond to their demands . According to the military auditor, they were prepared to eliminate the Defence Minister and the Army Chief of Staff .

Towards midnight, after the auditor had left, the detainees were subjected to a second, utterly different, kind of interrogation . The Director General of the police, known for his sympathies towards the presidential party, nicknamed by Burundians « Ndakugarika », expressed his wish to meet the two highest ranking detainees . The next day they claimed they had been the victims of acts of torture (beating, beaten with a chair; armed threats) destined to getting their confessions regarding their supposed collusion with opposition party leaders . Illegal statements of offence mention these supposed links .

FIDH notes that Burundi recently put in place its Criminal Code in accordance with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment . Article 12 of this Convention stipulates that « Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction » . At the time of the FIDH mission, the servicemen did not yet have access to a lawyer; and at the time of the publication of this report, no investigation had been opened, regarding the acts of torture the servicemen were allegedly subjected to .

On the day of the servicemen’s arrest, the President hastened to denounce a coup attempt . This was refuted the very next day by the Defence and Public Security Ministers who spoke of a mutiny due to financial grievances . In any case, the promptness with which certain people in power seized this affair while attempting to compromise certain opposition parties demonstrates the attempts by the CNDD-FDD to discredit its opponents by passing them off as destabilising forces .

D/ Freedom of assembly into question

The decree aimed at regulating public demonstrations and public meetings86 makes provision for a regime of declaration, not an authorisation one . Article 32 of the Burundi Constitution stipulates that « freedom of assembly and association is guaranteed, as well as the right to found associations or organisations in accordance with the law » . Burundi is also a party to the African Charter on Human and People’s Rights and the International Covenant on Civil and Political Rights which guarantee freedom of assembly .

Yet, in 2009, many opposition party meetings, in the capital as well as in the provinces, were forbidden without objectively valid motives . Local administrators, the majority of whom are supporters of the CNDD-FDD imposed the authorisation policy . According to the Interior Minister, whom the mission delegates met, this situation is due to the fact that « the communal administrators do not master governing law ». However, he conceded that « these administrators sometimes have party reflexes ».

In its July-September and October December 2009 quarterly reports87 on the situation of human rights in Burundi, the United Nations High Commissioner for Human Rights listed several

86. Decree n°100/187/91 of December 31, 1991. 87. http://binub.turretdev.com/index.php?searchword=rapport+trimestriel+&option=com_search&Itemid=

FIDH – Burundi: 2010-elections / 35 cases of obstacles to freedom of assembly put in place by local administrations, sometimes in conjunction with local police .

For instance, on August 2, 2009, the provincial superintendent and the Ruyigi prosecutor interrupted an MSD meeting attended by its President, Mr Alexis Sinduhije and 30 other members of his party, in the Gasanda neighbourhood, of the Ruyigi province . The activities of UPD-Zigamibanga were suspended by the Muyinga Communal administrator by means of a letter addressed to the provincial representative of the party dated October 8, 2009, following the altercations which took place on October 4, 2009 between the party’s members and the Governor’s Principal Counsellor . This prerogative does not, however, come under in its competence . On November 24, 2009, the Muyinga Commune administrator, once again, sent a letter to the Communal representative of the UPD to inform him of the suspension of the activities of the party in the whole of the Commune . The motive indicated in the letter was insults to the Head of State allegedly made on November 7, 2009, at the opening of the party office in the Cumba zone in the Commune and Province of Muyinga . On December 3, the communal administrator sent a new letter to the Communal representative of the UPD-ZIGAMIBANGA to inform him of the termination of the suspension of the activities of the party in the whole Commune .

The FNL also listed several obstacles to freedom of assembly concerning its members during the second semester of 2009 . The list given to the FIDH mission members mentions in particular the following cases: on July 2, 2009, the police denied permission to members of the FNL party to open an office in Kirundo although they had asked for permission . On July 25, 2009, the administrator of Butaganzwa Commune in Ruyigi Province refused permission, without reason, to the FNL party to hold a meeting . On September 10, 2009, the chief of Rugari zone, in the Commune and Province of Muyinga allegedly arrested 6 members of the FNL party, including two women, for having held an unauthorised meeting . They were allegedly detained in Muyinga Judicial Police cells before being released the same day for lack of sufficient evidence against them . Also on September 10, the Nyarusange Commune administrator and the CNDD-FDD representative refused permission to the party to open an office in this commune of Gitega Province . On September 1, 2009, a woman, member of the FNL party, accused of having held an unauthorised meeting and of insulting the Head of State, was also allegedly arrested and detained in the Kiremba Judicial Police cells . On September 4, 2009, having been transferred to the Ngozi Judicial Police, the woman was allegedly released on the same day, after having been interrogated . On September 20, in Karuzi, the FNL party members were expelled by the police from the provincial office where they were holding a meeting, on the orders of the local authorities . On September 27, the Chief of Butanganzwa Zone in Kayanza Province, accompanied by youth from the party in power, the CNDD-FDD, Imbonerakure, dispersed the members of the FNL party during a meeting although he had himself authorised it . On October 25, the chief of a police station in Cibitoke Province, Commune of Bukinanyana, refused permission to members of the FNL party to hold a meeting . On October 26, in Karusi Province, Commune of Gitaramuka in Nyarutovu, the administrator arbitrarily imprisoned two members of the FNL, accusing them of having held a meeting in the FNL office with the aim of burning down the offices of the CNDD-FDD . On November 15, the Governor of Cankuzo Province sent the police superintendent to refuse permission to members of the FNL party to open a Provincial office .

36 / Burundi: 2010-elections – FIDH All the opposition political parties met by the FIDH mission members denounced obstacles to the freedom of assembly of their members in 2009 .

Under pressure from the opposition parties and the International Community, the Interior Minister consented to bring together the Provincial Governors to inform them of their expected legal conduct . Since then, the opposition parties’ meetings have been allowed, although some difficulties remain .

2.5. Civil society in the crosshairs

Most of the people FIDH mission delegates met with, wished to highlight the respect for freedom of expression in Burundi, compared to the situation in other countries of the sub-region, such as Rwanda and the Democratic Republic of Congo .

Freedom of expression is guaranteed by Article 31 of the 2005 Constitution, by the African Charter on Human and People’s Rights and the International Covenant on Civil and Political Rights ratified by Burundi .

However, in the context of the prevailing tension in the run-up to the elections, it appears that the least bit of criticism of the authorities, and all the more the Presidential Party, is seen as a political positioning of destabilisation . The Burundian civil society is bearing the brunt of this situation, as it is often perceived by the authorities as supporting the political opposition . Threats, disparaging campaigns, tugs-of-war between the authorities and human rights NGOs are often at the forefront of the news in the run-up to the elections .

The Interior Minister did not hide to the FIDH mission members his will to control Burundian civil society . Although he claims only wanting to control the legality of NGOs, his relentless- ness and even his intrusion into the affairs of some of them betrays a suspiciously zealous attitude in the run-up to the elections . Private information regarding the personnel of some organisations or the patrimony of their directors often ends up on public radios close to power, such as REMA FM . Recently summoned by the Minister of Foreign Relations , the members of the diplomatic corps were told: « There are among civil society, certain groups who wish to disrupt the elections. Some embassies relay these groups. You have been warned ».

A/ The tug-of-war between the Interior Minister and the FORSC

Questioned by the FIDH mission delegates about the Forum pour le renforcement de la société civile (FORSC) « affair », the Interior Minister immediately warned them : « if you met any members of this organisation, you are outlaws ».

The FORSC is an umbrella group of 146 Burundian civil society organisations . On November 23, 2009, the Interior Minister issued an order cancelling the order of legal approval which he had himself signed in May 2006, under the pretext that certain members of the FORSC did not come under the competency of his administration, particularly the workers’ unions and the Bar association, which come respectively under the competency of the Ministry of Civil Service, Labour and Social Security and the Ministry of Justice .

FIDH – Burundi: 2010-elections / 37 The 1922 decree-act on associations is deficient when on the subject of fora or coalitions of civil society organisations . Nevertheless there are many legal organisations, which touch on different areas, and which are approved by one single Ministry . This strict interpretation of the decree act by the Ministry of the Interior is a dangerous legal precedent for freedom of association in Burundi and is contrary to the provisions of the African Charter on Human and People’s Rights and the International Covenant on Civil and Political Rights ratified by Burundi .

The attitude of the Ministrer regarding FORSC appears to have been dictated more by pre-electoral political considerations than by this legal orthodoxy . In fact, several public declarations made in September and November 2009 by some FORSC members, in particular by its President, Pacifique Nininahazwe and the President of the APRODH, Pierre Claver Mbonimpa, strongly displeased the authorities .They had denounced the lack of a judicial follow-up to the assassination of the Vice-President of OLUCOME, Ernest Manirumva, and the murder of Salvator Nsabiriho, a young man who was summoned on October 13 by the Governor of Kayanza Province regarding a real estate dispute and who was allegedly beaten to death on the orders of the Governor . In response to these statements, the Minister of the Interior summoned on November 10, 2009, the representatives of the FORSC and other organisations threatening to « punish » them in reprisal for their action and to suspend the activities of the FORSC . The President of the APRODH was also summoned to the National Intelligence Service (« la Documentation »), where he was ordered to « refrain from taking the place of the justice system » . Pierre Claver also received anonymous phone calls telling him: « You’ve gone too far. Don’t put your nose into other people’s business ». The President of the FORSC had to leave Burundi for a while out of fear for his safety .

A few days later, the order of cancellation took effect! The Minister of the Interior even summoned the representatives of a Belgian organisation, 11 11. 11,. and told them not to back up the FORSC financially anymore, considering its illegality, and threatened to expel them .

Finally, the International Community, intervening at the height of the tug-of-war between the Minister and civil society, managed to convince the Minister to write a letter dated December 5, 2009, suspending certain provisions of the order and calling on the FORSC to hold a congress in order to redefine its statutes in accordance with the law . The FORSC’s leaders not only contest the legality of this letter, stating that an order can only be cancelled by another order, but also refuse to bow to the Minister’s injunctions, underlining the illegality of the order .At the time of the mission, all parties were prepared to put the matter before the Administrative Courts in order to solve the dispute .

The rigid and threatening attitude of the Minister of the Interior, a member of the CNDD-FDD, with regards to human rights defenders, demonstrates the toughening of the Presidential party against any critical stance towards its governance, particularly in the pre-electoral period .

B/ Threats against the OLUCOME

As the EU representative in Burundi said to the FIDH mission members, « Gabriel deals with dynamite every day ». On February 2, 2010, the President of the Observatory for the fight against corruption and economic malpractices (Observatoire de lutte contre la corruption et les malversations économiques – OLUCOME), Gabriel Rufyiri, signed a letter to the President, informing him of the existence of double salaries illegally received by civil servants on temporary assignments, including members of Parliament (deputies), Governors, as well as members of the Government and their cabinet directors .

38 / Burundi: 2010-elections – FIDH Among the many people accused by this letter, only the Human Rights Minister, Rose Nduwayo (from the FRODEBU) was sacked despite the reimbursement of the illegal payments . She claimed she had never been aware of the situation having failed to look at her bank statements .

Gabriel Rufyiri, whom the FIDH mission delegates met, declared he had received serious threats, including from high ranking officials in power . He is accused of seeking to destabilise the country a few days prior to the polls . Public radios even go as far as to give the names of the alleged informers on their airwaves . During his interview with FIDH, the President of the OLUCOME declared he was hesitating about leaving the country for a while .

In March, the threats intensified and were accompanied by a real campaign of vilification against him . In particular, on the pro-governmental site abarundi .org, a statement was posted clearly suggesting that Gabriel was largely responsible for the assassination of Ernest Manirumva .

3. Meeting the challenges in the way of transparent, free and peaceful elections

On February 17, 2010, approximately 20 of the 44 approved political parties in Burundi had already signed the new Code of good conduct during the electoral period, constituted of 33 articles structured around general provisions, rights and obligations of the political parties, media and the administration .

Having read this Code, it is regrettable to observe that the majority of the provisions have, thus far, been infringed by different parties, principally the Presidential party, the media and the administration . This encourages concern with regards to the last few months in the run-up to the first polls, in particular regarding the transparency and the security of the electoral process . Certain preventive measures, or even sanctions, must be taken in order to avoid serious blunders which could risk compromising democracy and peace in Burundi . Thus, a strict compliance with this Code will determine the credibility of electoral process in Burundi .

3.1 Avoid fraud, irregularities and manipulations

A/ During the campaigns: ensure the neutrality of the administration and of State resources

The administration in Burundi is highly politicised . Keeping one’s job or obtaining a promotion can be linked to the political affiliation of the administrator . Nomination to posts of responsibility or recruitment to important posts allegedly depends on payments to the party’s coffers . The pressure allegedly increases as the polls grow closer . The presidential party, which is in a position of strength, thus gains a considerable influence on the local administration, as has been verified when the National Identity Cards were issued (see below) .

The President of the CENI confirmed to the FIDH mission members his concerns regarding the politicisation of the administration . « Burundians live off the State, the administration, the civil service. In the run-up to elections, we risk what can be termed an end-of-mandate psychosis. This could encourage civil servants to enter further into the political game ».

Another concern relates to the use of State resources for campaign purposes . Indeed, several

FIDH – Burundi: 2010-elections / 39 observers have already noted the use by Ministries of State vehicles to go to the meetings of their political party . This concern is all the more significant since the Minister of the Interior declared to the FIDH mission members that no instructions will be given to members of the Government or Parliament as to leave their post while they are campaigning . He added: « Indeed, I will stay in place until the end, although I am a candidate to the post of deputy ».

FIDH notes the importance of the neutrality of the administration in the electoral process . Article 140 of the Constitution stipulates that « The administration functions in accordance with the democratic values and principles set out in the Constitution and in law » . Article 145 specifies that « no public or judicial agent can benefit from preferential treatment nor be subjected to partial treatment for the only motive of their gender, ethnic and regional origin or their political opinions » .

According to the Code of good conduct during the electoral period, « The administration agrees to treat all political parties and all the candidates impartially and fairly . The same administration must forbid the representatives, executives and officials from using their respective positions to run an electoral campaign » . Finally, Article 226 of the Electoral Code stipulates: « Anyone who, by means of donations or hand-outs, financially or in kind, with promises of hand-outs, of favours, of public or private employment or other benefits, has influenced or attempted to influence the vote of one or several voters, either directly or through a third party, will be punished by penal servitude of one to three years and a fine of 40,000 to 400,000 Francs or one or the other of these sentences only » .

The same Code stipulates that « the administration must ensure that no political party, no candidate resort to State resources for his own benefit » . Article 48 of the law on political parties also states that « it is forbidden to use on behalf of political parties the assets or other belongings of the State, public or public participation companies » . Finally, Article 225 of the Electoral Code stipulates that « any person who for reasons of propaganda, uses or will allow to be used for their own profit, the profit of a candidate or a political party, the assets and belongings of the State, of an institution or of a public organisation will be punished by a fine of 40,000 to 200,000 Francs » .

The CENI should be particularly vigilant with regards to the neutrality of the administration and the use of the State’s resources . According to the Code of good conduct (Article 32), it could be led to arbitrate cases of disputes regarding these matters brought by political parties in an attempt to find an amicable settlement . Also, political parties will be able to resort to legal and judicial avenues in order to contest any illicit act .

B/ On polling day: ensure that voting goes smoothly

It is well known, polling days are critical moments when numerous irregularities can happen with the potential of distorting the results and sparking off important protests, generating in turn troubles . The role of the CENI will be considerable in preparing and monitoring the elections . In particular, the training on the Electoral Code, by the CENI, CEPI and CECI, delivered to the administrators of polling stations and members of political parties will be a fundamental condition of the smooth process of the elections . An awareness campaign, for the benefit of the population, is also planned on the technique of the double ballot paper in order to avoid any manipulation . The training, but also the logistical preparation of the polls will avoid important irregulari-

40 / Burundi: 2010-elections – FIDH ties such as: the opening and closing of poll stations outside the legal hours, the presence of unaccredited persons in the polling stations, the lack of polling booths, the lack or insufficient numbers of ballot papers for certain candidates, the counting of ballots outside the polling stations, etc . In order to allow the CENI to meet this important challenge, it is essential that its projected budget (presented in its electoral cycle support project) for the organising of the elections be entirely covered . At the time of the FIDH mission, 43 million US dollars out of the 57 budgeted were covered .

Finally, still with the goal of curbing manipulation, fraud and other irregularities on polling days (vote buying, absence of a record of the count, failure to deliver the results to the counting centres, etc .), it is essential that the Burundian authorities (in particular the Minister of the Interior) and the CENI clarify in advance the risks of sanctions incurred by any person hindering the smooth running of the elections88 .

Finally, the high number of national or international observers on polling day – while they cannot intervene to avoid an irregularity – will be a decisive factor in dissuading any manipulation or fraud . This should indeed be the case: the authorities view such a presence favourably, as was confirmed by the Vice-President of the Republic during his interview with the FIDH mission members . Observers, from the European Union, the African Union, and the Arab League are in particular expected a few days prior and during the polls . Observers from the European Parliament are expected to come for a longer period of time, as soon as March or April to analyse the conditions and preparation of the electoral process . The diplomatic representations present in Burundi equally called for this strong presence .

Furthermore, the Civil society coalition for the electoral monitoring (Coalition de la société civile pour le monitoring electoral – COSOME) is preparing to deploy a large number of observers on polling days . The local administrative, political and police authorities should be aware of the importance of the presence of these observers in order not to hinder their activity .

88. Indeed, Articles 227 to 238 of the Electoral Code provides for financial sanctions or prison sentences against any person having committed an electoral offence simultaneously or following the polls. For example, Art. 223 of the Electoral Code states : « Will be punished by a fine of 10,000 to 20,000 Francs, any public agent who has engaged in propaganda during their working hours ». Art 224 : « Will be punished by a fine of 40,000 to 200,000 Francs any person who, with the aim of propaganda, uses or allows to be used, in their own profit, that of a candidate of a political party, the property or means of the State, an institution or a public organisation ». Art.225 : « Will be punished by penal servitude of one to three years and a fine of 40,000 to 400,000 Francs or one or the other of these sentences only, anyone who by means of donations or hand-outs, financially or in kind, with the promises of hand- outs, of favours, of public or private employment or other benefits, has influenced or attempted to influence the vote of one or several voters, either directly or through a third party. Will be punished with the same sentences anyone who, by the same means has made or attempted to make one or several voters abstain from voting. The same will be true of whoever has authorised or sollicited the same donations, hand-outs or promises. » Art. 229 : « Will be punished by penal servitude of three months to two years and a fine of 20,000 to 40,000 Francs or one or the other of these sentences only, anyone who has, at a polling station, or in the immediate proximity thereof, exercised by whatever means, pressure on one or several voters in view of influencing their vote, obtaining their suffrages or of preventing the expression thereof ».

FIDH – Burundi: 2010-elections / 41 C/ When the results are announced: ensure the freedom of the Constitutional Court

According to Articles 75 and 76 of the Electoral Code, « the CENI transmits without delay the results of the polls to the Constitutional Court which will verify the regularity thereof » . And, « the official proclamation of the results by the Constitutional Court must take place at the latest on the fourth day following their transmittal » .

Some concerns exist over the role of the Constitutional Court relative to the declaration of the results of the polls . The independence of the highest judicial authority is indeed subject to caution . According to many people met during the FIDH mission, due to recent nominations, most of the members of the Constitutional Court are close to the Presidential Party . According to observers, these nominations are made regardless of competence, with some new arrivals having only a few years professional experience or not actually being magistrates! Out of the seven people of whom the Court is composed, allegedly only three have recognised professional experience .

The dependence of certain magistrates of the Constitutional Court on the Presidential party was indeed revealed several times by its decisions, culminating for instance with the affair involving the expulsion of the CNDD-FDD deputies . The Constitutional Court had indeed confirmed the expulsion of the 22 secessionist deputies of the Presidential party according to a constitutional interpretation which was largely favourable to the Presidential party .

The public communication of the CENI and of the International Community on these concerns could bring the members of the Constitutional Court to stick to their mandate without fear of outside pressure regarding the announcement of the results of the different polls .

3.2 Guaranteeing the security of political actors and of the electoral process

The safety of political players and of the electoral process is an important part of the consolidation of peace in Burundi . In 2009, force has, at times, replaced political discourse, facilitated by the circulation of weapons in large numbers inside the country (see above) . Certain parties and former rebels have held on their guerrilla habits . While insecurity continues to surround the electoral process, it could also alter the transparency and fairness of the elections and consequently lead to violent protests . To avoid this pessimistic scenario, the agents of the electoral process in their entirety, political parties, security forces and even the media must play a decisive role in order to avoid any dangerous flare-up in a country where peace is still fragile .

A/ Harassment and insecurity of political players

Insecurity is present in Burundi . Many assassinations have taken place, facilitated by the presence of small weapons in the country . It is easy to buy a hand grenade on a neighbourhood market . It is often difficult to distinguish the true motives of these crimes: disputes relating to land ownership, family feuds, villainous crimes, etc . However, in this tense pre-electoral period, the political parties claim to have listed many politically motivated murders and acts of violence between early 2009 and early 2010 . The following is a non-exhaustive list of these crimes: In January 2009, a CNDD-FDD activist from Ngozi Province was killed . In April, in Bujumbura Rural, a CNDD-FDD member was shot and killed . Between January and April, 4 members of the FRODEBU were assassinated in

42 / Burundi: 2010-elections – FIDH Bujumbura . In August, an FNL activist was shot; in Muramvya, two members of the UPRONA were lynched . In November, the FNL party representative in Mutambu in Bujumbura was the target of a grenade attack during the night . He managed to escape; in Nyanza-Lac in Makamba Province, a leading member of the UPD Zigamibanga was assassinated . In January 2010, one of the local representatives of the UPD in Bubanza Province was killed; in the Province of Cankuzo, a member of the MSD was seriously wounded by a grenade on his way back from his party office; in the Commune of Rugombo, Cibitoke Province, two FNL activists narrowly escaped assassination with machete wounds . In February, 2 MSD members were assassinated .

In addition to these crimes and assassination attempts there are many acts of insecurity against members of political parties: numerous arbitrary arrests, trespassing in party offices, threats, harassment, etc .

Most party leaders interviewed by the mission members mentioned the insecurity of their partisans and some of them believed to be personally in danger . Some of them declared « I am not afraid to die » . Others said « after all the cheating, the final stage for the presidential party will be the assassination stage ». Agathon Rwasa, President of the FNL, also expressed concerns to the mission members regarding a letter received the previous day which called for the orderlies at his private home to participate in training and suggesting their temporary replacement with other security services . Some leaders prophesied that « the worst was yet to come ». Many blame the insecurity on the Presidential party which, they claim, attempts to establish a climate of terror, in order, as in 2005, to show that this party could be a destabilising force if it loses the elections .

B/ The violence of young activists

New youth movements belonging to the parties appeared in 2009, reinforcing the feeling of insecurity in the run-up to the elections . We can cite the creation of the following groups: Imbonerakure « those who see from afar », intaganzwa and ivyuma vy’indege (or Mouvement des jeunes patriotes), belonging respectively to the CNDD-FDD, Sahwanya-FRODEBU and FNL parties .

These youth groups have started organising sporting events, practising paramilitary-style exercises and singing provocative slogans . Sometimes they march through the streets armed with sticks and clubs . Tensions and violence between the different groups of youths affiliated with political parties have increased .

To illustrate this, one can note that, on February 1, 2009, in Kirundo Province, Imbonerakure youths fought with UPRONA activists . Still in February, in Busini Commune in Kirundo Province, the Imbonerakure youths attacked UPRONA activists at their office on the Gacuranda Colline . The UPRONA activist who were present retaliated .

On September 27, 2009, youths affiliated with the CNDD-FDD and those affiliated with the FNL party fought on the Nyakarama Collines of the Bugabira Commune and on the Kibazi Colline in Bwambarangwe Commune, all in Kirundo Province . The Bugabira Commune administrator and the Police station chief went to defuse the situation .

FIDH – Burundi: 2010-elections / 43 Clashes also took place on October 4, 2009 on Mukoni Colline, in the Muyinga Commune and Province, between UPD-Zigamibanga and CNDD-FDD supporters .

On November 1, in Gihogazi Commune, Karusi Province, altercations were reported between CNDD, MSD and FNL sympathisers and sympathisers of the CNDD-FDD . Also in November, in Kizi, Muyinga Province, the Imbonerakure militias of the CNDD-FDD clashed with the Intaganzwa of the FRODEBU .

On November 15, in the city of Gitega, Gitega Commune and Province, the youth league attached to the Sahwanya-FRODEBU party commonly known as Intatangwa were allegedly surrounded by Burundi National Police members led by the officer in charge of information at the Gitega Interior Security Police secondary police station, having organised a mass sports session . This allegedly created tension between members of the party and police officers, and violent words were exchanged .

On January 20, 2010, a pitched battle between Imbonerakure and FNL Ivyuma vy’indege members left some wounded in Carama in the Urban Commune of Kinama . The next day in Kirundo in Gitobe Commune, the fight took place between Imbonerakure and youths belonging to the UPD-Zigamibanga .

According to the representatives of the BINUB met by the FIDH mission members, « the Burundian youth has the potential of being a real time bomb. The youth are manipulated, manoeuvrable. There needs to be a true reaction of the authorities and youth leaders ».

However, faced with this violence, the Burundian authorities and political parties delayed their reaction . In spite of repeated calls from the CENI President, NGO’s and the international community, the Ministry of the Interior waited until January 28, 2010 before suspending all politically-motivated mass sporting events in Kirundo Province . When asked by the FIDH mission members about the possibility of suspending those activities in all provinces until the elections, the Minister responded that « things should be analysed case by case » even adding, not without irony, that « sport is healthy ».

C/ Moments of potential tension: during and after the polls

The underlying violence of political tensions is therefore already perceptible in the country . This violence fortunately didn’t hinder the progress of the political parties towards elections . Moreover, at the time of the FIDH mission, all the parties were in electoral mode and each of them has organised primaries . However, the worries relating to seeing the political debates disrupted or worse, stifled by the increase in acts of violence, are real .

The closer it gets to the polling dates, the stronger violent acts will have repercussions on the smooth running of the electoral process . The pre-campaign period, already in full-swing, but especially the campaign period itself, will be periods of tension when the smallest spark of insecurity will have to be avoided . The different polling days will also obviously be times of potential tension, therefore violence, with the sympathisers of the different parties seeking to influence the votes up until the last moment . The periods of time between the polls and the official proclamation of the polling results, lengthened by the double ballots practice, will also be particularly sensitive periods, when tension could arise from the positioning of the different parties seeking to challenge the voting process .

However, the moment which observers fear most for its potential insecurity is unquestion-

44 / Burundi: 2010-elections – FIDH ably the post-election period . Indeed, many of them fear the attitude of the parties who have been declared defeated after the polls and who could flare up tensions, including violence .

« How will the parties manage victory or defeat? », wondered the CENI President in front of the FIDH mission delegates . He added: « The training of parties was perhaps the one which was the most neglected. They must be taught how to win and how to lose. You can lose once and win the next time. The parties refuse to accept the word defeat ».

D/ The security around the elections at stake

a) What should be the attitude of the security forces?

With regards to the political violence already recorded and the fear of tensions exacerbated in the run-up to the elections, on polling days and at the time the poll results are declared, the issue of securing the elections is crucial .

When the question of a possible presence of regional forces with the aim of securing the elections is put forward, the reactions of the persons met by the FIDH mission delegates was fairly unanimous . Most rejected such an idea considering that it came either too late and that it was therefore unworkable, or – in the majority of cases – that the presence of these forces would be in itsself a source of insecurity and misunderstanding for the Burundian people . « Should we learn from Kagame or from Museveni? We can’t call in the python to manage the cobra’s problems » summarised one political party leader . Many stated that if the Burundian security forces were able to secure the 2005 electoral process while the country was at war, there was no reason these same forces shouldn’t be able to ensure the security of their compatriots in 2010 .All the more since, as the First Vice-President claimed, « in 2005, the security forces had only just regrouped, integrating CNDD-FDD elements and they didn’t know each other ». Many forget, however, that the 2005 elections were organised by the ONUB in a particular context in which the CNDD-FDD appeared not to have any real opponent .

Furthermore, when the mission members asked about the capacity of the Burundian security forces to assure the security of the elections, the same interviewees expressed their concerns . Many regret that some elements of the police retain partisan reflexes . Moreover, several acts of violence or arrests and politically motivated threats took place with the complicity of certain police (or military) elements . Others underline their lack of training and their guerilla reflexes making it easier for them to pull the trigger . Most of them are former rebels . All interviewees regret that the numbers in the police are too high and overly armed . Just by travelling around Bujumbura one can see the permanent presence of the police forces, armed with large numbers of kalashnikovs .

The concerns relating to the attitude of the army are similar . The Minister of Defence, General Niyoyankana, whom the mission delegates met, considers that the integration of the former rebel force into the army went well . This is also the opinion of most of the people FIDH mission delegates interviewed . However, regarding recent cases of exactions committed by certain elements of the army, the Minister conceded: « I am not very happy about the attitude of certain officers recently. There has been an increase in thefts and burglaries organised by military officers. An officer killed a barman last week ». To the question of whether officers retain the reflexes of partisans, the Minister considers that it is difficult for him to manage these attitudes while talking about putting in place training on the ethics of the army .

FIDH – Burundi: 2010-elections / 45 According to the CENI President, « elements of the army will have to dispense with their rebel affiliations » in order to serve the Nation and not the interests of a few individuals . The concerns are rekindled by the feeling of unrest in the army . On the occasion of a public press statement on March 23, 2010, the Defence Minister confirmed that « something unusual is happening. (…) We have never experienced a crisis which appears to have lasted such a long time while the country is going through a crucial period. If this crisis continues, it could precipitate the country into an abyss»89 . The Minister made this statement on the first day of the trial against the 18 officers accused of a « military plot » and arrested for « destabilisation of the institutions » and referred to tracts produced by servicemen distributed in several provinces by non-commissioned officers, soldiers and police officers, accusing their hierarchies of favouring the officers and of unjustifiably deducting money from the pay of the security forces . They also criticised them for throwing out the war widows from military bases, and promised bloody reprisals . This situation is obviously worrying; certain elements in the army could be tempted to disrupt the electoral process in order to have their voice heard or to be instrumentalised by certain political parties with the same aim .

Apart from the army, concerns also remain regarding the attitude of the National Information Service (« the Documentation ») which many deem to be employed for the dirty work of the Presidential party . As one political leader says: « The SNR has become more political than the politicians. It is more repressive and subversive than preventive » . Numerous arrests of political leaders but also assassinations are attributed to this service . This was confirmed to the mission members by a State official:« Many violations can be attributable to the SNR ». The behaviour of the SNR will determine the good process of the elections . The CENI President claims to have « approached » the SNR regarding this issue . However, the FIDH mission delegates didn’t learn anything extra about this .

In the face of these concerns, the representatives of the international community insisted to the mission delegates on their important contribution to the training of the security forces, army and police . The Netherlands, Belgium and France are particularly involved in fashioning forces susceptible of responding in an adequate manner to the particular context of the elections .

b) What should be the attitude of the political parties and the media?

The calm conduct of the elections in Burundi will be largely the result of the attitude of political parties and media . Indeed, the partisans, whether civilians, administrators or members of the security forces will be less inclined to tensions and violence if the leaders of the parties in the electoral race and the principal private and public media go along with the debate and the democratic elections without provoking hate and resentment .

Although not necessarily comparable, the recent violent elections in Zimbabwe and Kenya were the result of two principle factors: the massive irregularities during the polls and the politically motivated hatred, motivated by the political parties and relayed by the media . As has been underlined, the guarantee of transparency in the Burundi elections will largely come down to the actions of an independent CENI with the logistic and human resources necessary for the accomplishment of its mandate . Concerning the second part, the Burundian political parties are the ones which hold the key to the success of the elections .

89. AFP dispatch : Burundi : Army in serious « crisis » warns the Minster of Defence. March 24, 2010.

46 / Burundi: 2010-elections – FIDH The electoral stakes are real and provoke political quarrels . The election results are not a foregone conclusion for anyone . The management of victory and defeat will therefore be fundamental in these elections – multiple and close together . The campaigns must remain in the political domain, based on programmes, and must remain outside any individual or ethnic consideration . The media will also have to remain in this framework .

The political parties and the media agreed to this when they signed the Code of good conduct in an electoral period . Among the obligations stipulated, the new Code of good conduct obliges the political parties to restrain in their speech, attitude and general behaviours and to respect the opinions of others .

The political parties must also respect the public authorities, law order and discipline, and psychologically prepare their members to avoid all forms of violence . The political parties must also forbid their activists from any libellous or abusive behaviour or statements liable to threaten the dignity, the physical well-being of people, public and private property, during meetings or in the media .

The political parties must provide, in all circumstances, information which complies with reality, must abstain from disrupting the meetings or rallies of the rival political parties and candidates or to perpetrate acts of vandalism against the symbols of other parties or rival candidates .

As for the media, they should not allow themselves to report political programmes and speeches favouring lies, vote buying, and incitement to electoral fraud . Neither should they allow themselves any partisan or malicious commentary about political parties and their programmes and any disparagement of political parties and candidates . The media must agree to banish any form of discrimination by guaranteeing fair access and impartial treatment of the different political actors .

It is essential that the CENI, BINUB and the civil society be able to control the speeches of the political parties and how they are relayed in the media in order to control that they comply with the Code of good conduct, the Electoral Code and the Criminal Code . In the case where certain individuals were to contravene the established rules, it will have to be possible to rapidly denounce these offences and allow the tribunals to take a decision .

FIDH – Burundi: 2010-elections / 47 c) A need for communication, training and sanctions

The electoral process is on its way . Until now, the difficulties linked to the transparency and security of the elections appear to have been relatively well managed, allowing all the political actors to remain in the democratic process . While the Presidential Party has attempted by different means to control the electoral process in order to control its result, the vigilance and positive action of the political parties, the civil society and the international community appear to have won over these little schemes .

However, the concerns are very real and will be more and more significant in the run-up to the elections . The first Presidential election by direct universal suffrage is a new context for Burundi . This unquestionably requires the continuous training of the actors of this electoral process, i .e . the political parties, the security forces and the media . According to the President of the CENI, « democracy should be a continuous exercise ». This also assumes constant public communication by these actors in order to increase public awareness, in particular in the countryside, on the issue of the smooth process of the elections by avoiding any manipulation .

In addition, this would require a firmness towards any person who would provoke hate or violence in order to influence the electoral process . For this purpose there are provisions in the Code of good conduct but also and especially in the Electoral Code and the Criminal Code . Public communication on the possibility of sanctions must be developed in Burundi by the CENI, the Ministry of the Interior and the international community for preventive purposes .

48 / Burundi: 2010-elections – FIDH III – Conclusions and recommendations

The five polls of 2010, culminating with the Presidential Elections of June 28, will be a test for Burundi . The existence of massive irregularities or serious insecurity surrounding the electoral process would undermine not only the efforts of democratisation which have taken place since the Arusha Agreement but would also put at risk the peace which followed years of civil war .

All the actors who mobilised for the elections have an important responsibility for the success of this process . If it fails, this responsibility could be at stake, including criminally, on a national and international level . In this regard, the government should beware of any attempts at authoritarian- ism . The law enforcement forces must secure and not destabilise the elections by demonstrating their neutrality . The political parties and the media must abstain from any hindrance to the smooth running of the democratic process . The international community must be present in order to pursue its support to the electoral process and to denounce, if needed, any blunder .

The elections are a test, but they are not an end in themselves for guaranteeing the respect of the rule of law and the consolidation of peace in the long term . The new governmental team resulting from the polls will have to respond as rapidly as possible to the numerous challenges such as the reform of the sectors of security and justice and the strengthening of fundamental liberties . The authorities will also have to respond to the rights of victims to justice by combating impunity for the most serious crimes .

The FIDH and the Ligue burundaise des droits de l’Homme –Iteka call on:

> Concerning the security sector

The Burundian authorities to - adapt the numbers in the army and police to the needs and resrouces of the country in order to guarantee their members a better supervision, a better training and a better pay ; - guarantee the ethnic quotas within the security forces established by the Constitution and the different peace accords; - reform the Documentation to ensure its neutrality; - reduce the excessive number of weapons available to the police force and adapt these to their mandate; - ensure in the long term a true socio-economical reinsertion of former members of the rebel groups; - adopt measures responding effectively to the economic and social demands of the armed forces, as well as those other civil servants ; - guarantee the training of the police and armed forces, including in human rights and in international humanitarian law, with the aid of the international community; - guarantee an end to the circulation of small arms in accordance with the provisions of the regional and international instruments against the proliferation of small arms ratified by Burundi ; - fight against the impunity of members of the security forces as well as other suspected perpetrators of human rights violations .

FIDH – Burundi: 2010-elections / 49 The security forces to - respect the provisions of the national and international instruments for the protection of human rights in the fulfilment of their mandate; - respect the neutrality of their mission, in accordance with Article 256 of the 2005 Constitution .

> Concerning the sector of the judiciary and penal administration

The Burundian authorities to - increase the judicial budget in order to improve the capacity of the tribunals, as well as the training and ensure the independence of their personnel; - reform the Statute of the Constitutional Court and of the Superior Council of Magistracy, in order to ensure their independence; - adopt as soon as possible the new Code of Criminal Procedure to allow the effective implementation of the provisions of the new Criminal Code ; remove the articles in this new Criminal Code which criminalise homosexuality ; -take measures guaranteeing judicial assistance to victims; - take measures to ensure the presence of lawyers in judicial procedures; - halt any measure of transfer which is not in the strict interests of justice and scrupulously conform to the fundamental principles of the United Nations relating to the independence of the magistracy; - take concrete and immediate measures for improving the conditions of detention in police stations and prisons; - take concrete and immediate measures to put in place the provisions of the new Criminal Code which are repressive against the perpetrators of sexual crimes .

> Concerning transitional justice the Burundian authorities to - allow the rapid establishment of mechanisms of transitional justice, including the Truth and Reconciliation Commission and the Special Tribunal to fight against the impunity of those who perpetrated the most serious crimes; - guarantee the independence of the Prosecutor of the Special Tribunal .

The international community to - pursue its support of the establishment of transitional justice .

> Concerning the fight against corruption

The Burundian authorities to - take all the necessary measures to fight against acts of corruption within the public administration, in accordance with the African Convention on Preventing and Combating Corruption and the national provisions on the subject and guarantee to all a fair access to State services ;

> Concerning the National Commission on Human Rights The Parliament to -adopt a bill on the establishment of the national Commission on Human Rights in compliance with the Paris Principles

50 / Burundi: 2010-elections – FIDH > Concerning the situation of human rights defenders

Burundian authorities to - respect the provisions of the Declaration on Defenders adopted by the United Nations General Assembly in 1998 and put an end to all harassment and threat to their physical and moral well-being ; - not to interfere in the internal affairs of human rights NGOs; - take all the necessary measures for the investigation into the assassination of Ernest Manirumva to be led to its conclusion and for the perpetrators and those who ordered this crime to be prosecuted and punished ; - take all the necessary measures to guarantee in all circumstances the physical and psychologi- cal integrity of human rights defenders subjected to threats ; hold independent and impartial investigations into the origin of these threats in order to identify and prosecute those responsible ; - find a consensual solution allowing the FORSC to continue its activities; - not to legislate on associations unless the project reflects the opinions and recommendations of NGOs and is in accordance with the provisions of the United Nations Declaration on Defenders; - The FIDH and Ligue ITEKA moreover call on the fututre authorities that would result from the elections to invite the Special Rapporteur of the African Commission on Human and People’s Rights on Human Rights Defenders to Burundi .

The European Union to - systematically involve human rights organisations in the framework of political discussions between the EU and the Burundian authorities in the framework of the Cotonou Agreement .

The representative of the High Commissioner for Human Rights to - systematically insert a paragraph on the situation of human rights defenders in its quarterly reports on the human rights and justice situation in Burundi .

Diplomatic representatives present in Burundi to - continue to support the programmes of Burundian NGOs for the promotion and protection of human rights .

> Concerning the electoral process of 2010

The Burundian authorities to - forbid any sports demonstration and other activities of a paramilitary nature by the political parties’ youth; - ensure the security of members of the political parties; - guarantee the independence and the safety of members of the CENI; - guarantee the independence of the Constitutional Court; - abstain from using the means of the State for the needs of the electoral campaign; - abstain from influencing local administrators for electoral profit; - guarantee the respect for international, regional and national benchmarks on the issue of freedom of expression, assembly and association all over the country; - guarantee that the Prosecutor can criminally prosecute all agents of the State suspected of breaches of the right to life; - in view of the up-coming elections, ensure that every Burundian citizen be in possession of a National Identity Card .

FIDH – Burundi: 2010-elections / 51 The political parties to - conform strictly to the Electoral Code and the Code of Good Conduct in an Electoral Period; - forbid sporting demonstrations and other activities of a paramilitary nature by young activities; - prevent the arming of their activists .

The Independent National Electoral Commission (CENI) to - plan several training sessions of the political parties and media on the Code of Good Conduct in an Electoral Period; - prepare, in advance, the election logistics; - communicate on the existence of sanctions against any person disrupting the smooth running of the electoral process;

The media to - conform strictly to the Code of Good Conduct and to show professionalism .

Justice to - systematically start investigations and prosecute any person suspected of having committed or ordered politically motivated crimes .

Security forces to - ensure that the members of the PNB and the FDN respect the international and national norms regarding the use of firearms .

The European Union and diplomatic representations present in Burundi to - continue their contribution to the financing of projects of support to the electoral cycle; - ensure in large numbers the presence of observers of the electoral process .

52 / Burundi: 2010-elections – FIDH FIDH – Burundi: 2010-elections / 53

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Establishing the facts – Investigative and trial observation missions Through activities ranging from sending trial observers to organising international investigative missions, FIDH has developed, rigorous and impartial procedures to establish facts and responsibility. Experts sent to the field give their time to FIDH on a voluntary basis. FIDH has conducted more than 1 500 missions in over 100 countries in the past 25 years. These activities reinforce FIDH’s alert and advocacy campaigns. Supporting civil society – Training and exchange FIDH organises numerous activities in partnership with its member organisations, in the countries in which they are based. The core aim is to strengthen the influence and capacity of human rights activists to boost changes at the local level. Mobilising the international community – Permanent lobbying before intergovernmental bodies FIDH supports its member organisations and local partners in their efforts before intergovernmental organisations. FIDH alerts international bodies to violations of human rights and refers individual cases to them. FIDH also takes part inthe development of international legal instruments. Informing and reporting – Mobilising public opinion FIDH informs and mobilises public opinion. Press releases, press conferences, open letters to authorities, mission reports, urgent appeals, petitions, campaigns, website… FIDH makes full use of all means of communication to raise awareness of human rights violations.

Ligue Burundaise des Droits de l’homme Iteka

ITEKA was created in 1991. Its vision is a united and democratic Burundi where peace and security are based on the rule of law. Its mission is to defend, promote human rights and to prevent violations. ITEKA has branches in 17 provinces across the country. It has eight specialised committees among which the Commission on women and children. www.ligue-iteka.africa-web.org

FIDH - International Federation for Human Rights Director of the publication: Souhayr Belhassen Editor: Antoine Bernard 17, passage de la Main-d’Or - 75011 Paris - France Authors: Dismas Kitenge Senga, Marceau Sivieude, Tchérina Jerolon CCP Paris: 76 76 Z Coordination: Marceau Sivieude, Tchérina Jerolon Tel: (33-1) 43 55 25 18 / Fax: (33-1) 43 55 18 80 Traduction: Jeremy Marnham www.fidh.org Design: Vasily Zaïtsev

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• FIDH takes action for the protection of victims of human rights violations, for the prevention of violations and to bring perpetrators to justice.

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