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ACHPR Burundi Shadow Report

ACHPR Burundi Shadow Report

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Published by Christian Rumu

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Published by: Christian Rumu on Nov 09, 2011
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THE VIOLATION OF RIGHTS ON THE BASIS OF SEXUALORIENTATION AND GENDER IDENTITY IN THE REPUBLICOF BURUNDI UNDER THE AFRICAN CHARTER OF HUMANAND PEOPLES’ RIGHTS
 
A SHADOW REPORT
In Response to thePERIODIC REPORT OF THE REPUBLIC OF BURUNDI Presented at the 50th OrdinarySession of the Commission in October and November 2011Prepared by
African Men for Sexual Health and RightsCoalition of African LesbiansHarvard Law School International Human Rights ClinicHeartland Alliance for Human Needs & Human RightsMouvement pour les Libertés Individuelle
------------AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS50TH SESSION OCTOBER AND NOVEMBER, 2011BANJUL, THE GAMBIA
OCTOBER, 2011
 
 
I. Introduction
This shadow report is a collaborative effort created and submitted by the Mouvement pour lesLibertés Inviduelles (MOLI), the African Men for Sexual and Health Rights (AMSHeR),Heartland Alliance for Human Needs & Human Rights, and the International Human RightsClinic, and Human Rights Program at Harvard Law School.
1
 Burundi signed the African Charter on Human and Peoples’ Rights ("the Charter")
2
on June 28,1989 and ratified it on July 28, 1989. The African Commission will consider Burundi’sSeptember 2010 periodic report during the 50th ordinary session of the Commission fromOctober 24th to November 7th, 2011.In its first periodic report to the African Commission, the government of Burundi held up thereport as a symbol of its “commitment to the respect for the fundamental rights and freedoms of the human being.”
3
The Burundian government’s failure to remedy or report on human rightsviolations on the basis of sexual orientation and gender identity seriously undermines thiscommitment. Every day in Burundi, individuals continue to face criminalization, violence,intimidation and threats because of their sexual orientation or gender identity.We hope that the findings in this report will be useful to the African Commission and also serveas a tool for the promotion and protection of rights under the African Charter.
1
This report was drafted by Samara Fox (‘13 HLS), Clara Long ('12 HLS) and Jacqueline Bevilaqua, under thesupervision of Mindy Jane Roseman (J.D., Ph.D. HLS), special thanks to Stefano Fabeni (J.D., LL.M.), Director of the Global Initiative for Sexuality and Human Rights of Heartland Alliance, Joel Nana, Dave Thatcher, andChristian Rumu.
2
Organization of African Unity, African Charter on Human and Peoples' Rights ("Banjul Charter"), 27 June 1981,CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982),
available at:
www.unhcr.org—3ae6b3630.html
3
First implementation report. Burundi. African Charter on Human and People’s Rights. Sept 2010
 
 
II. Executive Summary
 
Under Article 12 of the Burundian constitution, the rights protected by the internationalconventions to which Burundi is a party are integrated into the Burundian constitution.
4
Burundihas signed and ratified numerous international human rights conventions. In addition to theAfrican Charter, Burundi is a State Party to the International Covenant on Economic, Social andCultural Rights (ICESCR),
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the International Covenant on Civil and Political Rights (ICCPR),
6
 the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),
7
 the Convention Against Torture and other Cruel Inhuman or Degrading Treatment or Punishment(CAT),
8
and the Convention on the Rights of the Child (CRC).
9
Burundi’s internationalobligations under these instruments are relevant in further clarifying its obligations under theAfrican Charter. In interpreting and applying the Charter, Article 60 empowers the AfricanCommission to “draw inspiration from international law on human and peoples’ rights...as wellas from the provisions of various instruments adopted within the...United Nations of which theParties to the present Charter are members.”
 Law Office of Ghazi Suleiman v Sudan
specificallyacknowledged the relevance of Article 60 by applying jurisprudence from the European Court onHuman Rights and the Inter-American Court of Human Rights.
10
In fact, several AfricanCommission cases draw from jurisprudence decided in analogous regional human rightsbodies.
11
 Article 567 of the Burundian Penal Code is in violation of Articles 2, 3 and 28 of the AfricanCharter. In its specific application to same-sex practicing people (men who have sex with menand women who have sex with women), it is also in violation of Articles 4, 5 and 6.Burundians are vulnerable to violence, intimidation and discrimination on the basis of theirsexual orientation and gender identity. This is in violation of Article 2, 3, 4, 5, 15, 16 and 17 of the African Charter. In particular, Burundian activists working to counter discrimination andpromote health regardless of sexual orientation or gender identity are targeted and persecuted.This is additionally in violation of Articles 9 and 16 of the African Charter.
4
Article 12: Le respect des droits et des devoirs proclamés et garantis par la Déclaration Universelle des droits del’homme, les pactes internationaux relatifs aux droits de l’homme, la Charte africaine des droits de l’homme et despeuples ainsi que la Charte de l’unité nationale est garanti par le présent Acte Constitutionnel.Aucune restriction de ces droits ne peut etre imposée que par la loi.
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Acceded on 9 May 1990.
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Acceded on 9 May 1990.
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Acceded on 8 January 1992.
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Adopted on 10 December 1984, entered into force on 26 June 1987, Burundi ratified it on 31 December 1992.
9
Adopted on 20 November 1989, and it entered into force on 2nd September 1990.
10
Communication 228/1999 – 16th Annual Activity Report at 48-50.
11
For example,
Curtis Fancis Doebbler v Sudan
[Communication 236/2000 – 16th Annual Activity Report] applied jurisprudence from the European Court of Human Rights.

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