Judiciary Reform: Arusha Peace and Reconciliation Agreement for Burundi

Protocol II, Chapter I: Article 9: The Judiciary

1. The judicial authority of the Republic of Burundi shall be vested in the courts.

2. The Judiciary shall be impartial and independent and shall be governed solely by the Constitution and the law. No person may interfere with the Judiciary in the performance of its judicial functions.

3. The Judiciary shall be so structured as to promote the ideal that its composition should reflect that of the population as a whole.

4. The courts and tribunals shall operate in Kirundi and the other official languages. Laws shall be enacted and published in Kirundi and the other official languages.

5. The Constitution shall provide for a Supreme Court of Burundi. Its Rules of Procedure, composition and chambers, and the organization of its chambers, shall be determined by an organic law.

6. The judges of the Supreme Court shall be appointed by the President from a list of candidates nominated by the Judicial Service Commission and approved by the National Assembly and the Senate.

7. There shall be a National Department of Public Prosecutions attached to the Supreme Court; its members shall be appointed in the same manner as the judges of the Supreme Court.

8. The other courts and tribunals recognized in the Republic of Burundi shall be the Court of Appeal, the High Courts, the Resident Magistrates' Courts and such other courts and tribunals as are provided for by law. The Ubushingantahe Council shall sit at the level of the colline. It shall administer justice in a conciliatory spirit.

9. The President of the Court of Appeal, the presidents of the High Courts, the public prosecutors and the state counsels shall be appointed by the President of the Republic following nomination by the Judicial Service Commission and confirmation by the Senate.

10. The Government, within the limits of its resources, shall ensure that magistrates possess the desired qualifications and necessary training for the performance of their duties, and that the resources needed by the Judiciary are made available to it.

11. No one shall be denied a post in the magistracy on grounds of ethnic origin or gender.

12. A Judicial Service Commission with an ethnically balanced composition shall be established. It shall be made up of five members nominated by the Executive, three judges of the Supreme Court, two magistrates from the National Department of Public Prosecutions, two judges from the resident magistrates' courts and three members of the legal profession in private practice. The judges, magistrates and members of the legal profession shall be chosen by their peers. All members of the Commission shall be approved by the Senate.

13. The Commission shall have a secretariat. It shall be chaired by the President of the Republic, assisted by the Minister of Justice. It shall meet on an ad hoc basis. Its members who are not members of the Judiciary shall not be construed as members of the Judiciary solely because they are members of this oversight commission.

14. The Judicial Service Commission shall be the highest disciplinary body of the magistracy. It shall hear complaints by individuals, or by the Ombudsperson, against the professional conduct of magistrates, as well as appeals against disciplinary measures and grievances concerning the career of magistrates. No magistrate may be dismissed other than for professional misconduct or incompetence, and solely on the basis of a finding by the Judicial Service Commission.

15. Trials shall be public except where the interests of justice or a compelling public interest require otherwise. Judgements shall be reasoned and shall be handed down in public.

16. Magistrates shall be appointed by decree of the President on the proposal of the Judicial Service Commission. The presidents of resident magistrates' courts shall be appointed in the same manner except that the nominees shall be proposed to the President after obtaining the approval of the Senate.

17. The Constitutional Court shall be the highest court for constitutional matters. Its jurisdictions shall be those set forth in the 1992 Constitution. The organization of the Court shall be laid down in an organic law. Reference is made for this purpose to the elements contained in Chapter II of the present Protocol.

18. The members of the Constitutional Court, seven in number, shall be appointed by the President of the Republic and confirmed by the Senate by a two-thirds majority. They shall have a term of office of six years non-renewable. The first Constitutional Court shall be that established under Chapter II of the present Protocol for the transition period. The members shall have the qualifications set forth in Chapter II of the present Protocol.

19. Matters shall be referred to the Constitutional Court by the President of the Republic, the President of the National Assembly or the President of the Senate, by petition by one quarter of the Members of the National Assembly or one quarter of the Members of the Senate, or by the Ombudsperson. In addition, every natural person with a direct interest in the matter, as well as the Public Prosecutor, may request the Constitutional Court to rule on the constitutionality of laws, either directly by means of an action or by an exceptional procedure for claiming unconstitutionality raised in a matter which concerns that person before an authority.

20. The Constitutional Court may sit validly only if at least five of its members are present.

21. Decisions of the Constitutional Court shall be taken by an absolute majority of its members, except that the President of the Court shall have a casting vote if the Court is evenly split on any matter.

22. The Constitutional Court shall be competent to:

(a) Rule on the constitutionality of adopted laws and regulatory acts;

(b) Rule on the constitutionality of executive action;

(c) Interpret the Constitution and rule on vacancies in the posts of President of the Republic and President of the National Assembly if a dispute arises in regard thereto;

(d) Rule on the regularity of presidential and legislative elections;

(e) Administer the oath to the President of the Republic before she/he assumes office;

(f) Verify the constitutionality of organic laws before their promulgation, and of the Rules of Procedure of the National Assembly before their application;

(g) Rule on any other matters expressly provided for in the Constitution.

Protocol II, Chapter 2,

Article 17: Judicial and administrative reforms

1. Within 30 days of the commencement of the transition period, a commission of the transitional National Assembly in which all the parties are represented shall be established to monitor the reforms of the public administration and of the administration of justice and to submitrecommendations thereon to the transitional National Assembly and the transitional Executive.

2. The transitional National Assembly may for purposes of reforming the judicial sector amend by two-thirds majority any existing law, including the provisions of the 1992 Constitution, dealing with the structure and functioning of the Supreme Court.

3. For purposes of improving the judicial services in Burundi, the transitional Government shall implement the following reforms:

(a) The promotion of gender and ethnic balances in the Burundian judicial sector shall be undertaken, inter alia through recruitment and appointment;

(b) So as to correct the ethnic and gender imbalances in the Burundian judicial sector during and after the transition period, training colleges for employees of the judicial system shall be created, accelerated training shall be promoted, and the status and the internal promotion of magistrates shall be improved;

(c) Existing legislation relating to the organization of the Judiciary, the codes of criminal and civil procedure and the map of judicial jurisdiction shall be reviewed;

(d) All legislation shall be made available in Kirundi;

(e) Respect for the law shall be promoted;

(f) Steps shall be taken to discourage corruption, to denounce officials guilty of corruption, to enforce all legislation related to corruption, to establish effective oversight bodies, to improve working conditions in the judicial sector and to take necessary measures to require civil servants to reportinstances of corruption;

(g) The necessary measures shall be taken, including those specified in Protocol I to the Agreement, to deal with the problem of impunity and take any other steps required to ensure that any travesties of justice are dealt with or re-opened;

(h) The judicial sector shall be given the necessary resources so as to discharge its responsibilities impartially and independently.

4. Any appointment to the Judiciary required by Chapter I of the present Protocol to be made by the President shall, during the transition, be made by the transitional President and Vice-President in consultation with the Minister of Justice.

5. Any appointment to the Judiciary required by Chapter I of the present Protocol to be submitted for approval or confirmation to the National Assembly or the Senate shall, during the transition period, be required to be approved or confirmed by the transitional National Assembly by two-thirds majority.

6. There shall be a Constitutional Court possessing the jurisdiction and functions set forth in the 1992 Constitution of the Republic of Burundi.

7. The Constitutional Court shall be made up of seven members, two of whom shall be permanent (the President and Vice-President). They shall be appointed by the President of the Republic, subject to confirmation by the transitional National Assembly by a majority of two-thirds. Three of these judges shall be appointed for a period of three years only, and shall be replaced in the manner provided for in the post-transition Constitution. The remaining four shall be appointed for six years beginning at the commencement of the transition. The appointments shall be made within one month of the commencement of the transition. Judges of the Constitutional Court shall be persons of moral integrity and shall have legal training or experience. A member of a standing court must be amongst the nominees.

8. The Constitutional Court may sit validly only if at least five of its members, including its President or Vice-President, are present.

9. Decisions of the Constitutional Court shall be taken by an absolute majority of its members, except that the President of the Court shall have a casting vote if the Court is evenly split on any matter.

10. International co-operation and legal assistance will be required by the transitional Government to assist it in improving and reforming the legal system. Foreign jurists, including former Burundian nationals living outside the country, shall be requested to assist in the reform of the judicial system. The transitional Government may appoint any such persons to judicial positions so as to promote confidence in the Judiciary.

11. Members of the public administration, including local government and the diplomatic corps, shall be so appointed by the transitional Executive as to ensure that imbalances observed in these sectors are corrected. The Government may appoint a commission with expert participation to assist it in making appointments.

12. Provincial governors and commune administrators shall be appointed by the President, subject to confirmation by the transitional National Assembly. They shall be natives of the territorial entity placed under their authority. They shall be civilians.

Implementation History

2003

Intermediate Implementation

Not all major parties to the conflict signed the agreement until 2003. During this three year gap, implementation of the judiciary reform provision did begin.

In Arusha accord, parties agreed for extensive reform in the judiciary including establishment of a constitutional court. The accord called for the establishment of ethnically balanced Judicial Service Commission along with establishment of a multiparty commission within a transitional national assembly to monitor the administration of justice and to submit recommendations to the assembly. The accord asked for promotion of gender and ethnic balance in the judiciary. According to the accord, transitional president and vice-president in consultation with the Minister of Justice can make appointments in the judiciary but the appointment needs to be approved or confirmed by the national assembly by two-third majority.

On 11 June 2002, the transitional government adopted a draft law on the organization and function of the Constitutional Court. According to the draft law, members of the Constitutional Court would be seven and they would be appointed for a six-year term,1 The law was adopted by the national parliament on 18 July 2002. And, as provided in the accord, the transitional president and vice-presidents were officially sworn into their new positions on 30 April 2003 before members of the constitutional court.2

In June 2003, law regarding the structure and function of the Judicial Service Commission was passed.3 In September 2003, Burundi’s magistrates started open-ended strike over judicial independence and wages, which was unilaterally called off in October 2003. The judiciary was still being dominated by minority Tutsis whereas the Arusha accord called for ethnic balance according to which 60% judiciary jobs had to be allocated to majority Hutu groups.4

  • 1. "Burundi: Government adopts draft law on Constitutional Court," BBC Summary of World Broadcasts, June 13, 2002.
  • 2. "Burundi: Newly president promises to speed up peace process," BBC Summary of World Broadcasts, May 2, 2003.
  • 3. Fabienne Hara, "Human Rights in Negotiating peace Agreements: Burundi," International Council on Human Rights Policy,(Working Paper, 2005).
  • 4. "Burundi govt suspends pay of striking magistrates," Agence France Presse, September 3, 2003; "Burundi judges call off strike," Agence France Presse, October 19, 2003.
2004

Intermediate Implementation

While some progress was made, establishing ethnic balance in judiciary was not achieved. Notwithstanding all laws adopted on judiciary and its reforms, judiciary was not able to carry out its functions independently. Also, Arusha accord’s provision on establishing ethnic balance in judiciary was not fully implemented as of 2004.5

  • 5. "Burundi parties react to new interim constitution," BBC Sumary of World Broadcasts, November 1, 2004.
2005

Intermediate Implementation

Article 208 of Burundi’s constitution came into effect on 19 March 2005 provided for the regional, ethnic and gender balance in recruitment and appointment in judiciary. It was reported that the judicial personnel were predominantly Tutsis.6

  • 6. "Brundi: Constitution and institutions," Economic Intelligence Unit, September 29, 2005.
2006

Intermediate Implementation

The minority ethnic group still dominates the Judiciary. The judiciary lacks resources and cannot function independently and effectively.7

2007

Intermediate Implementation

No further developments observed.

2008

Intermediate Implementation

No further developments observed.

2009

Intermediate Implementation

No further developments observed.

2010

Intermediate Implementation

No further developments observed.

2011

Intermediate Implementation

No further developments observed.

2012

Intermediate Implementation

No further developments observed.