KONRAD ADENAUER STIFTUNG AFRICAN LAW STUDY LIBRARY Volume 16 Edited by Hartmut Hamann and Stanislas Makoroka Hartmut Hamann is a lawyer specialized in providing legal support for international projects between states and private companies, and in international arbitration proceedings. He is a professor at the Freie Universität Berlin, and at the Chemnitz University of Technology, where he teaches public international law and conflict resolution. His legal and academic activities often take him to 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. Konrad Published By: Adenauer Stiftung Rule of Law Program for Sub-Saharan Africa AFRICAN LAW STUDY LIBRARY Vol 16 A Konrad Adenauer Stiftung 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, Nov 2013 ISBN: 978-9966-021-12-0 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 16 TABLe Of cONTeNTS fOReWORD i ___________________________________________________________________________________________________________ INSTITUTIONAL pROTecTION OF MINORITY RIGHTS IN UNITARY STATeS: USe OF THe SecOND cHAMBeR OF PARLIAMeNT IN THe BURUNDIAN cASe. By Berry Didier NIBOGORA 1 ___________________________________________________________________________________________________________ DepRIVATION OF LIBeRTY BefORe TRIAL UNDeR BURUNDIAN LAW: eXcepTION OR RULe? By Bernard NTAHIRAJA 13 ___________________________________________________________________________________________________________ ANTI-cORRUpTION cOURT OF BURUNDI: WHeN THe QUeSTION OF JURISDIcTION ARISeS IN ReVeRSe DIRecTION By Aimé parfait NIyONKURU 35 ___________________________________________________________________________________________________________ STATe OF POSITIVe LAW IN BURUNDI WITH ReGARD TO THe IMpLeMeNTATION OF THe ROMe STATUTe OF THe INTeRNATIONAL cRIMINAL cOURT By emery NUKURI 47 ___________________________________________________________________________________________________________ THe pROBLeM OF BURUNDI’S INTeGRATION IN MANY SUB-ReGIONAL INTeRNATIONAL ORGANIZATIONS By Désiré NGABONZIZA 67 AFRICAN LAW STUDY LIBRARY Vol 16 C D AFRICAN LAW STUDY LIBRARY Vol 16 KONRAD ADENAUER STIFTUNG AFRICAN LAW STUDY LIBRARY VOLUME 16 Foreword Young Burundian researchers share the results of the second research workshop on the rule of law in Burundi, by contributing their findings in this issue of the “African Law Study Library.” As in the first workshop, they have benefited from the scientific supervision of the Dean of the Faculty of Law of the University of Burundi, Professor Stanislas Makoroka and Professor Hartmut Hamann of the Freie Universität Berlin, with funding from the “Konrad Adenauer Foundation.” This issue focuses once again on the concept of the rule of law as a political order, system of government and a driving force of regional integration in very diverse ways. It is always a question of whether, in the involvement of its institutions, Burundi continues to convey democratic values and if it’s always respectful of human rights. Each research endeavors, in this regard, to perceive the reality on the ground, make as accurate as possible observations in the field on the question and, with pragmatism, analyze and report the results which are discussed, amongst young researchers from the sub-region, before being translated into scientific publication. Five papers cover the different fields of constitutional law, both formal and substantive criminal law, international humanitarian law and public international law, specifically the sub-regional organizations. In his article, “ Institutional Protection of Minority Rights in Unitary States: Use of the Second Chamber of Parliament in the Burundian Case,” Mr. Berry Nibogora questions the Senate’s capability to protect minority rights, in a unitary state. His analysis leads him to conclude that, with appropriate constitutional powers, the Senate may be an effective protector of the rights of minorities in a majority rule system. In a sharply divided society, different identities can be adequately protected by the Senate, particularly in the exercise of central power. It depends, however, on the powers conferred to it and on the legitimacy of the representation of the diversities of the components of the population provided by its members. Three other researchers have taken interest in the criminal field. Bernard Ntahiraja raises the question of whether “in Burundian law, deprivation of liberty before trial is a rule or an exception.” The interest of the analysis lies less in the response as it does the rational search for the causes of the systematic use of preventive detention whether there are serious suspicions of an offense, or not. While the fundamental documents of Burundi proclaim the principle of freedom as a rule and detention as an exception, informed and detailed reading of the Code of Criminal Procedure rather encourages reservation. It turns out, in fact, that when interpreting the relevant provisions of the Code of Criminal Procedure, the Courts of Burundi, reverse the implication of this principle, making the deprivation of liberty before trial the rule rather than the exception. AFRICAN LAW STUDY LIBRARY Vol 16 i To resolve the situation, an overhaul of the penal institutions in the sense of further separation of justice and a rebalancing of the powers of prosecutors and criminal courts, is needed. The same applies to the questioning of the responsibilities of perpetrators of powers of preventive detention. Still on criminal matters, Mr. Aimé-Parfait Niyonkuru proposed reflection on “The Anti- Corruption Court of Burundi: When the question of jurisdiction arises in reverse direction.” Since 2006, a new special mechanism to prevent and punish corruption and related offenses was introduced in Burundi. It consists of a three organs: the Anti-Corruption Court, the Prosecutor General of the said Court and the Special Anti-Corruption Brigade responsible for conducting investigations. The Court and its Prosecutor General have management autonomy, its own budget and a General Secretariat. While the 2006 law on the prevention and punishment of corruption lists the offense of abuse of corporate assets in the list of offenses related to corruption, the Penal Code of 2009 breaks this order and takes the offense of “misuse of corporate assets” in the category of offenses relating to public and private companies. From this editorial “inconsistency”, the Anti-Corruption Court inferred an important consequence of jurisdiction. Reviewing in the direction of restricting its judicial subject matter, it transferred, for competence reasons, all records relating to the offense of abuse of corporate assets to the High Court and the Prosecutor’s Office, following the state of pretrial procedures. On the contrary, regarding the offense of false declarations, likely offense and punishable in Article 14 of the law on the prevention and punishment of corruption and related offenses, but that does not automatically constitute a body and in an independent manner, an offense related to corruption, the Anti-Corruption Court has always ruled, without justification, that it had jurisdiction in this case and has already delivered judgments of conviction and acquittal. It has, therefore, acknowledged jurisdiction of the offense, solving the issue of jurisdiction in a direction opposite to that in which the same question arises in the case of the offense of misuse of corporate assets. If, in relation to both offenses, the question of the jurisdiction of the Anti-Corruption Court was not discussed in court, nonetheless it calls for some interest. Monitoring the legal news of the anti-corruption court has demonstrated that the anti-corruption court considered itself incompetent where the law recognizes it jurisdiction (misuse of corporate assets) and acknowledged its competence for an offense for which the law that establishes it does not give jurisdiction (misrepresentation). That is why it is important that the anti-corruption court, due to an offense that the prosecution considers within its jurisdiction, establishes, through a sufficiently