Burundi : the new powers of the CVR, a serious violation of the Constitution (lawyer Janvier Bigirimana)

The bill endowing the CVR with powers to render decisions not subject to legal appeal in matters of land and other property constitutes a flagrant violation of the Constitution and betrays the spirit and letter of the Arusha Agreement, according to lawyer Janvier Bigirimana, representative of Tournons la Page-Burundi.

In order to end the war and be able to break the cycles of violence, parties involved in the conflict which had ravaged Burundi for several decades engaged in negotiations which resulted in the Arusha Agreement for Peace and Reconciliation in Burundi signed on August 28, 2000, in the presence of the international community.

Among the transitional justice mechanisms that were provided for by the Arusha Agreement, it is worth mentioning:

The creation of a National Commission for Truth and Reconciliation, responsible for shedding light and establishing the truth on serious acts of violence committed during the cyclical conflicts which have bereaved Burundi since independence, and to arbitrate, reconcile and clarify the entire history of Burundi.

The establishment of an international judicial commission of inquiry into genocide, war crimes and other crimes against humanity.

It is also worth mentioning the establishment of an International Criminal Court responsible for judging and punishing the guilty.

Besides the fact that it is established that the work of the CVR (Truth and Reconciliation Commission) is biased and politically oriented, providing it with the powers to render decisions not subject to any appeal on a matter as sensitive as Burundi people’s lands is a true consecration of arbitrariness in defiance of constitutional provisions which are nevertheless clear.

Opinion – lawyer Janvier Bugirimana (SOS Médias Burundi)

Among the provisions of the text under analysis which pose serious problems, article 11 which provides that decisions taken by the CVR are not subject to judicial appeal while article 16 recognizes the CVR’s right to propose to parliament the cancellation of property titles obtained fraudulently on the properties of victims of the crises concerned by the law in question.

At first glance, on a purely organizational or functional level, we know well that the CNTB (National Commission for Lands and Other Property) bequeathed tens of thousands of files that it was unable to close before it ceased to exist on March 12, 2022. Indeed, if the CVR were to carry out its mandate in an exhaustive and objective manner, its specifications are so extensive that it would do poorly with these new responsibilities which were devolved to another commission which was broader but which was not able to empty all the cases entrusted to it, believes lawyer Bigirimana.

What’s more, it is known that to this day, the CVR has put all its efforts into the tragedy of 1972 and the related report has been transmitted to political authorities.

Logically and to respond to the criticisms addressed to it, the TRC should then begin the other tragic episodes which mourned Burundi before and after 1972, notably that of 1993, he continues.

However, with these new attributions, there is a well-founded fear that the CVR will become busier than ever to deal with the cases bequeathed to it by the CNTB and in this way, it will find “legal” excuses not to continue the original mandate.

This thinly veiled strategy is counterproductive and only discredits and forever crumbles the credibility of the work of this commission which is becoming more and more politicized

Then, in terms of law, such a text is a hammer blow against the 2018 Constitution which rightly prohibits any power from enacting an inferior standard which could be in contradiction with the Constitution, analyzes the activist.

On this subject, article 48 of the Constitution is unequivocal when it teaches us that “Fundamental rights must be respected throughout the legal, administrative and institutional order.

The Constitution is the supreme law. The legislature, the executive and the judiciary must enforce it.” Any law not in conformity with the Constitution is void.

Furthermore, under the first paragraph of article 210 of the same Constitution, it is clearly specified that “Justice is rendered by the courts and tribunals throughout the territory of the Republic in the name of the Burundian people.”

This provision does not recognize any other institution other than the courts and tribunals as competent to render justice

The two provisions read together demonstrate to what extent Burundian authorities are in the process of adopting unconstitutional measures which, logically, must be declared null and void, according to the representative of Tournons la Page-Burundi.

A CVR agent at an exhumation site of remains of human bodies of victims of the 1972 massacres which took away more Hutus than Tutsis

Moreover, article 36 of the Constitution tells us that the right to property must be guaranteed and that the only exceptions allowed are expropriation for reasons of public utility in the cases and in the manner established by law after fair and prior compensation as well as the situation of a judicial decision having the force of res judicata.

As for article 60 of the Constitution and to reaffirm the exclusive competence of the courts and tribunals to do justice in Burundi, it adds for all practical purposes that the judicial power is guardian of rights and freedoms and that it is the the same power which ensures their respect in accordance with the law.

“From the above, it follows that the Burundian political power is not empowered to provide the powers to do justice to the CVR unless it transforms the latter into a special jurisdiction, which is not the case for the moment”, said lawyer Janvier Bigirimana.

Beyond all these considerations, another danger which is obvious is that in relation to the fact that the text under analysis provides that the decisions rendered will not be subject to judicial appeal, which foreshadows that these decisions could be rendered last spring.

Without returning to the vital and sensitive nature of disputes relating to land in Burundi, it is appropriate to recall that the right of appeal or to a double degree of jurisdiction is a fundamental right without which other rights and freedoms would be exercised with great difficulty.

With such a provision and in the Burundian context, there is reason to fear that there will be economic destabilization and expropriation on the basis of political and ethnic affiliation and this would largely affect social and political cohesion in Burundi.

This suspicion is all the more justified as article 16 of the analyzer text provides for the possibility of cancellation of property titles by the National Assembly referred to by the CVR. Once again, this is legally and even logically a competence devolved to the courts and tribunals under the Constitution.

In Burundi as elsewhere, the legislature has classic powers which are recognized and enshrined in the Constitution which do not rhyme well with that of rendering decisions concerning disputes over land properties.

In conclusion, it is clear that the ultimate objective pursued could consist of diverting the CVR from its original mandate so that it cannot investigate tragic events other than that of 1972 and/or establishing the CVR as a tool of expropriation without any possibility of appeal, which would certainly affect opponents or citizens presumed to be such, particularly because of their political or ethnic affiliation.

“The power in place is blatantly violating the Constitution that it was supposed to uphold. We strongly recommend the withdrawal of this unconstitutional text and suggest letting the CVR deal with other events that have plunged Burundi into mourning since the Burundian tragedy is not limited to that of 1972″, concludes the activist who lives in exile today.

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A CVR agent at an exhumation site of remains of human bodies of victims of the 1972 massacres which took away more Hutus than Tutsis