The National Assembly passed on Wednesday, April 18, 2018, a bill on the revision the Code of Criminal Procedure, a second revision since 2013. Voted less than a month before the forthcoming constitutional referendum, this law is controversial. It gives security agents new investigative powers. For example, on the basis of the verbal authorization from the prosecutor, they will be allowed to conduct collective searches during the day without warrant (Article 29, paragraph 3) and thus make arrests. The text also authorizes night searches (Article 126, paragraph 2), the control of social networks, the monitoring of telephone or Internet conversations, the interception of emails or the concealment of surveillance cameras in a house or a vehicle of a person suspected of planning a crime.
What do the two articles mentioned above stipulate? Article 29:« … the search warrant is not required in the case of terrorism, counterfeit manufacturing offense, trafficking and illegal possession of firearms, drug trafficking and use of illicit drugs, as well as sexual offenses « . Article 126 stipulates that« Site visits and searches cannot take place before 6 a.m. and after 6 p.m.
The provisions of the preceding paragraph shall not apply in the event of flagrancy or serious threat to the physical integrity of persons, terrorism, manufacturing offenses, trafficking and illegal possession of firearms, trafficking and use of illicit drugs, as well as sexual offenses « .
According to some observers, the bill infringes the right to privacy.
Some people representatives worried
A reporter from Ivomo attended a question-and-answer session during which the Minister of Justice, Aimée Laurentine Kanyana, answered questions from the MPs about the bill at the Congress Palace in Kigobe (Bujumbura). Discussions lasted for about five hours and opened the MPs’ eyes. In fact, thanks to the bill, MPs realized that the blockades and searches conducted by the police in neighborhoods known to be hostile to the third presidential term since the outbreak of the 2015 crisis were « illegal ». Some elected representatives felt that, in asking them to carry out this revision, the government was seeking to manipulate them so as to cover up errors made. « I often saw security forces blockade some neighborhoods and thought this was legal. I also saw them comfortably conduct collective searches. But I am surprised to learn that all these activities were not governed by any laws. The bill, doesn’t it aim to seek support from the National Assembly in order to correct mistakes you made?” an MP asked the Minister. His colleague, Ladislas Nindereye, spoke against the new search system, which he said was likely to lead to settling of accounts. « During a night search, a security agent may kill the person whose house is being searched and argue that it was self-defense. Nobody will contradict him as the incident will have occurred at night, »he indignantly said before adding, » if a policeman came to your house to arrest you arguing that he asked for the prosecutor’s approval by phone, how would you know if he actually called him? ».
The Minister of Justice quickly responded to the concerns raised. To begin with, she acknowledged the « illegality » of the collective searches frequently conducted in different localities of the country. « It has been found that these searches have repeatedly caused problems because they were not provided anywhere in Burundian legislation. Therefore, this is a serious violation. That’s the reason why we thought of revising the code, » Kanyana replied. Still about the searches, she said that the privacy of a citizen has limitations: « National security is the top priority. If there is an indicator that someone’s privacy puts security at risk, the individual must accept some restrictions. This doesn’t happen only in Burundi; even in France or United States it’s just like that, « she pointed out.
According to the Minister, Burundi faces particularly « serious » forms of criminality, another reason which has pushed the government to revise this law. These include terrorism, illegal trafficking and possession of firearms, use of drugs as well as sexual crimes. « The government advocates for the elaborationof special procedures to fight against these phenomena because the capacity of the police proves to be insufficient, » she said before adding, « these new methods include observation, infiltration, interception of telephone calls, capture of computer data, sound and image recording in some places or vehicles, ».
As the National Assembly is composed in its majority of members of the ruling party, CNDD-FDD, the bill was rejected by 22 MPs (mostly members of the coalition Mizero y’Abarundi) while 90 voted in favor.
« A law that can be challengeable before the Constitutional Court »
According to Tatien Sibomana, the opposition politician, the law that has been adopted by more than 80% violates the Burundian constitution in article 43, paragraph 1. « To allow night searches, searches without warrant, the concealment of cameras in homes or vehicles, is an outright violation of this constitution’s article, » he said.
The article states in particular that; « No one shall be subjected to arbitrary interference with their private life, family, home or correspondence, nor to attacks on their honor and reputation ».
In legal terms, as Tatien Sibomana clarifies, the Constitution (the mother of all laws) cannot be contradicted by a hierarchically inferior law. He therefore considers that the new Code of Criminal Procedure can be challengeable before the Constitutional Court. « Any Burundian can now refer the matter to the Constitutional Court because it is clear that the constitution has been violated, » he indicated.
Apart from this politician, the Burundian Ombudsman and some lawyers, in correspondence addressed to the Committee of MPs responsible foranalyzing the bill, had also expressed their concerns. « They were worried that the project violates human rights and the Burundian constitution, » Felix Niragira, the chairman of the commission, underlined during the plenary.
Burundi has been going through a political and security crisis since President Pierre Nkurunziza announced he would run for the third term in office in 2015. The decision triggered a spontaneous protest movement that was repressed, the regime calling it an « insurrection ». Since then, searches and arrests have multiplied in neighborhoods opposed to the third-term bid. For example, the Minister of Public Security, Alain Guillaume Bunyoni, announced on Tuesday, April 17, 2018, during the presentation of the quarterly report, that the police had conducted more than 5,000 searches in the last three months.