February 16, 2009
To His Excellence the President of the Republic of
Burundi;
To the Members of the Senate of Burundi:
Your Excellence, Ladies and Gentlemen,
On behalf of Human Rights Watch, I am writing to express concern that the Senate of Burundi
is on the verge of approving legislation that would strip away fundamental human rights.
A draft criminal code, scheduled for a Senate vote on February 17, would criminalize consensual
homosexual conduct for the first time in Burundi's history. The draft's Article 552 proposes a sentence of three months to two years in prison and/or a fine, for such conduct.
At the UN Human
Rights Council's Universal Periodic Review of Burundi in December 2008, many member states asked Burundi to reconsider the proposed law in order to comply with its treaty obligations. Those
obligations are clear. The law would violate the African Charter on Human and Peoples' Rights and the International Covenant on Civil and Political Rights (ICCPR), to which Burundi is a party.
According to the United Nations Human Rights Committee's 1994 ruling in the case Toonen v. Australia, laws criminalizing homosexual conduct violate the right to privacy protected by article
17 of the ICCPR.
The United Nations Working Group on Arbitrary Detention has also found that arrests for consensual homosexual conduct are, by definition, human rights violations. Burundi's own constitution guarantees the right to privacy (Article 28) and the right to non-discrimination (Article 17). Under Article 19, rights protected by the international conventions to which
Burundi is a party, including the ICCPR, are integrated into Burundian law and recognized as "fundamental."[i]Â Moreover, this new provision would severely damage Burundi's efforts to combat the HIV/AIDS pandemic. HIV/AIDS is primarily transmitted by heterosexual contact in Burundi, as in the rest of
sub-Saharan Africa, but Burundi cannot afford the public health consequences of forcing a part of its population into silence and invisibility. Such a move would cripple
life-saving outreach, education, and care efforts.
Human Rights Watch recognizes the significant efforts made by both the National Assembly and the Senate Justice Commission, which
drafted amendments to the criminal code, to bring other sections of the code in line with international human rights standards. It now falls upon the Senate and the President of the Republic to
correct this remaining deficiency in the law. If the Senate does not do so, the duty will lie with the President of the Republic, who may demand a second reading of the law or submit it to the
Constitutional Court for evaluation.
We urge you, as President of the Republic and as Senators, to act in accordance with Burundi's legal obligations under international human rights law by
rejecting Article 522 of the draft criminal code.
Sincerely,
Scott Long
Director, Lesbian. Gay, Bisexual and Transgender Rights Division
Human Rights Watch [i] Toonen v. Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992, 1994. Available at: http://www1.umn.edu/humanrts/undocs/html/vws488.htm.
Burundian peacekeepers from the African Union Mission to Somalia (AMISOM) ride from their base in an armoured personnel carrier (APC) before patrolling the streets of Mogadishu February 12, 2009. Islamist militants ...
