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KAS Law Study Library Vol 7 - English.Indd 1 10/14/2011 4:11:28 PM Office : Mbaruk Road, Hse, No KONRAD ADENAUER STIFTUNG AFRICAN LAW STUDY LIBRARY Volume 7 Edited by Hartmut Hamann and Stanislas Makoroka Hartmut Hamann is a partner of the law firm CMS Hasche Sigle and focuses on complex international projects and arbitration proceedings. He is a lecturer on dispute resolution and international law at Freie Universität Berlin and Technische Universität Chemnitz and regularly works in Africa. Stanislas Makoroka is the dean of the Faculty of Law at the University of Burundi, and teaches in several other universities of the region, i.e. in Rwanda and in the Democratic Republic of Congo. He is also member of the arbitrator’s panel of the Burundi Arbitration and Reconciliation Center (Centre d’arbitrage et de conciliation du Burundi; CEBAC), former member of the constitutional committee for the political democratisation of Burundi, former counselor for the government of Burundi during the negotiations of the Arusha Peace and Reconciliation Agreement for Burundi, former member of various technical committees in charge of drafting the implementing decrees for the protocols I and II of the above-mentioned agreement, and is doing research about the rule of law in Burundi. Published By: Rule of Law Program for Sub-Saharan Africa ©October 2011 AFRICAN LAW STUDY LIBRARY Vol 7 A KAS Law Study Library Vol 7 - English.indd 1 10/14/2011 4:11:28 PM Office : Mbaruk Road, Hse, No. 27 P.O. Box 66471-00800 Westlands, Nairobi, Kenya Tel: 254 20 272 59 57, 261 0021, 261 0022 Fax: 254 20 261 0023 Email: [email protected] Head Office : Klingelhöferstr. 23 D-10785 Berlin Tel.: 030/269 96-0 Fax: 030/269 96-3217 www.kas.de © Konrad Adenauer Stiftung & Authors, October 2011 ISBN: 978-9966-021-03-8 Typeset & Printing by:- LINO TYPESETTERS (K) LTD P.O. Box 44876-00100 GPO Email: [email protected] Nairobi-Kenya All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission by the publisher. No paragraph of this publication may be reproduced, copied or transmitted save with written permission. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. B AFRICAN LAW STUDY LIBRARY Vol 7 KAS Law Study Library Vol 7 - English.indd 2 10/14/2011 4:11:28 PM TABLE OF CONTENTS Foreword ............................................................................................................................................. i THE INDEPEDENCE OF THE JUDICIARY IN VIS-A-VIS THE EXECUTIVE By Aimé-Parfait NIYONKURU 1 ________________________________________________________ THE STATE AND SOCIAL RIGHTS OF HER CITIZENS: THE RIGHT TO HEALTH IN BURUNDI By Bernard NTAHIRAJA and Nestor NKURUNZIZA 18 ________________________________________________________ MUNICIPAL DECENTRALIZATION IN BURUNDI: THE CHALLENGES OF EFFECTIVENESS By Désiré NGABONZIZA 42 ________________________________________________________ THE PLACE OF CRIMINAL LAW IN THE PROCESS OF TRANSITIONAL JUSTICE IN BURUNDI By Berry Didier NIBOGORA 62 ________________________________________________________ CONSENSUS APPROACH IN THE CONSTITUTION OF 18TH MARCH 2005 AND ITS IMPLICATIONS ON THE BURUNDIAN POLITICAL REGIME By Alexis MANIRAKIZA 86 AFRICAN LAW STUDY LIBRARY Vol 7 C KAS Law Study Library Vol 7 - English.indd 3 10/14/2011 4:11:28 PM D AFRICAN LAW STUDY LIBRARY Vol 7 KAS Law Study Library Vol 7 - English.indd 4 10/14/2011 4:11:29 PM KONRAD ADENAUER STIFTUNG LIBRAIRIE D’ETUDES JURIDIQUES AFRICAINES VOLUME 7 AVANT-PROPOS The Burundian Constitution of 18th March 2005 as well as the Arusha Agreement for Peace and Reconciliation of 28th August 2000 is the basis for the establishment of “an independent, sovereign, democratic and unitary republic in Burundi which recognises and respects her ethnic and religious diversity” (article.1). The Constitution states that “all Burundians are equal in merit and dignity (article 3), “that the government is built on the will of the Burundian people and shall respect their freedom as well as fundamental rights” (article 15). “The government respects separation of powers, rule of law and principles of good governance as well transparency in conducting public affairs” (article 18 paragraph2). By referring to the principles and fundamental values of the government as well as on the fundamental rights and obligations of the government to the individual citizen, (article 1 to 74), the constituents want, from the Arusha agreement, to put to an end the root causes of the continuing state of ethnic and political violence in shortest period possible. They equally advocate for the creation of a political order and system of government that is based on democratic values that recognize human rights. This is simply to say a state where rule of law reigns. Rule of law is said to be present where institutions are established and are functional and the relationship between the governors and the governed is governed by law. This aspect is applicable to all and in particular the governors. The concept is largely acknowledged in the legal framework of Burundi at all levels of interventions. The values of justice, democracy, good governance, pluralism, respect of freedoms and fundamental rights of the individual as well as tolerance are on the lips of the Burundians. However, there seem to be a gap between what is being proclaimed and the daily experience. There is a disparity between verbatim and reality. Young Burundian researchers took the initiative to verify, analyze and understand the integration concept of the Rule of law in different spheres of political, social and economic lives of Burundi. In their research work, they benefited from the training by the Dean of the Faculty of Law of the University of Burundi, Professor Stanislas Makoroka and Professor Hartmut Hamann from the Free University of Berlin within the framework of the Rule of Law Program for Sub-Saharan Africa from of the Konrad Adenaur Foundation. Under the theme “Rule of Law in Burundi”, 5 articles have been selected for publication in this volume seven. On the question of the consensus approach in the Constitution of the 18th March 2005 and its implications on the Burundian political regime, the author intends to understand the mechanism in some provisions of the said Constitution on the principle of power-sharing and its implementation. The author observes unorthodox implementation of the provisions which seem to perpetuate monolithic exercise of powers. AFRICAN LAW STUDY LIBRARY Vol 7 i KAS Law Study Library Vol 7 - English.indd 1 10/14/2011 4:11:29 PM The article on “Municipal decentralization in Burundi: the Challenges of effectiveness” indicate multiple difficulties of political, social and economic nature in the transfer of power to local authorities. This is said to be another requirement for governance and good functioning of democratic systems. On judicial matters, two articles, one being dedicated to the independence of the judiciary in Burundi and the other focusing on the place of criminal law in the process of transitional justice in Burundi, deals with crucial issues pertaining to the functioning of the judicial system and perspectives of restoring judicial service that reconciles populations after a major socio- political crises of more than ten years. This is intended to ensure existence of an efficient arm against impunity and re-establishing state’s confidence towards the governed. Finally, the analysis on the “The State and Social Rights of her citizens; the case of Burundi” the authors note that the level of implementation of the right to health in Burundi remains insufficient despite some measures that bring hope to populations. They also do indicate that poverty in Burundi does not explain everything. They suggest several initiatives to be taken by the State so as to overcome difficulties related to the level of accessibility to social rights. From the analysis of these young researchers in addition to other research work done in the past, it seems that the rule of law in Burundi has to be rebuilt. This is not surprising for a country that has emerged from a violent conflict and which has only retraced her democratic path in the recent past. But the researchers are interrogating themselves on the chosen democratic path just to make sure that there is no return to the past and that all citizens are protected and do enjoy democratic values along with human rights. In conclusion, we would like to appreciate and acknowledge the efforts of the entire team for such an impeccable job. Our sincere appreciation and special thanks go to other research teams in the sub-region for their good work during the Butare seminar held between the 2nd and 4th November 2010 that has enriched this publication. Prof. Dr. Hartmut Hamann Prof. Dr. Stanislas MAKOROKA ii AFRICAN LAW STUDY LIBRARY Vol 7 KAS Law Study Library Vol 7 - English.indd 2 10/14/2011 4:11:29 PM THE INDEPENDENCE OF THE JUDICIARY VIS-À-VIS THE EXECUTIVE By Aimé-Parfait NIYONKURU* INTRODUCTION “At the heart of any system based on the rule of law, there is a strong judicial system, independent and equipped with powers, financial resources, material and skills that are necessary to protect human rights within the framework of administering justice”1. Under the rule of law2, the judiciary is the custodian of rights and fundamental freedoms of citizens. It is for this reason that the Constitution of the Republic of Burundi emphasizes that the judiciary is the guardian of these rights and freedoms3. In order to carry out this function, the judiciary must be independent. According to a Non-Governmental Organization - Avocats Sans Frontières (Lawyers without boundaries), this independence can be construed as non-interference externally with the affairs of the court; it is the act of being exempt from all pressure emanating from a higher authority. In this line, the independence is therefore crucial for judges4. Independence would require that judges make decisions with full freedom and without any external pressure or instructions5, from the executive power.
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