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AFRICAN CHARTER OF HUMAN AND PEOPLES’ RIGHTS
A SHADOW REPORT
In Response to the PERIODIC REPORT OF THE REPUBLIC OF BURUNDI Presented at the 50th Ordinary Session of the Commission in October and November 2011
African Men for Sexual Health and Rights Coalition of African Lesbians Harvard Law School International Human Rights Clinic Heartland Alliance for Human Needs & Human Rights Mouvement pour les Libertés Individuelle
AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS 50TH SESSION OCTOBER AND NOVEMBER, 2011 BANJUL, THE GAMBIA
This shadow report is a collaborative effort created and submitted by the Mouvement pour les Libertés Inviduelles (MOLI), the African Men for Sexual and Health Rights (AMSHeR), Heartland Alliance for Human Needs & Human Rights, and the International Human Rights Clinic, 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’s September 2010 periodic report during the 50th ordinary session of the Commission from October 24th to November 7th, 2011. In its first periodic report to the African Commission, the government of Burundi held up the report 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 rights violations on the basis of sexual orientation and gender identity seriously undermines this commitment. 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 serve as a tool for the promotion and protection of rights under the African Charter.
This report was drafted by Samara Fox (‘13 HLS), Clara Long ('12 HLS) and Jacqueline Bevilaqua, under the supervision 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, and Christian 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 international conventions to which Burundi is a party are integrated into the Burundian constitution.4 Burundi has signed and ratified numerous international human rights conventions. In addition to the African Charter, Burundi is a State Party to the International Covenant on Economic, Social and Cultural Rights (ICESCR),5 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 international obligations under these instruments are relevant in further clarifying its obligations under the African Charter. In interpreting and applying the Charter, Article 60 empowers the African Commission to “draw inspiration from international law on human and peoples’ rights...as well as from the provisions of various instruments adopted within the...United Nations of which the Parties to the present Charter are members.” Law Office of Ghazi Suleiman v Sudan specifically acknowledged the relevance of Article 60 by applying jurisprudence from the European Court on Human Rights and the Inter-American Court of Human Rights.10 In fact, several African Commission cases draw from jurisprudence decided in analogous regional human rights bodies.11 Article 567 of the Burundian Penal Code is in violation of Articles 2, 3 and 28 of the African Charter. In its specific application to same-sex practicing people (men who have sex with men and 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 their sexual 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 and promote 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.
Article 12: Le respect des droits et des devoirs proclamés et garantis par la Déclaration Universelle des droits de l’homme, les pactes internationaux relatifs aux droits de l’homme, la Charte africaine des droits de l’homme et des peuples 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. 5 Acceded on 9 May 1990. 6 Acceded on 9 May 1990. 7 Acceded on 8 January 1992. 8 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.
Burundians are vulnerable to the use of torture and cruel, inhuman or degrading treatment on the basis of their sexual orientation or gender identity. Yet impunity for torture exists in Burundi. This is in violation of Article 5 of the African Charter. Burundians are also disproportionately affected by the abuse of police powers, extortion and arbitrary arrests on the basis of sexual orientation and gender identity in violation of Article 6 of the African Charter. Finally, Burundians are disproportionately denied access to health care, education and employment on the basis of sexual orientation and gender identity in violation of Articles 15, 16 and 17 of the African Charter.
III. Substantive Violations of the Charter
Articles 2 and 28 (Equal Rights), Article 3 (Equality before the law), Article 5 (Dignity), Article 6 (Liberty and Security of Person)
Relevant Law and Jurisprudence While the African Commission does not have extensive jurisprudence outlining a clear interpretation of Articles 2 and 3, their primacy was clearly established in Purohit and Another v The Gambia: “Articles 2 and 3 of the African Charter basically form the anti-discrimination and equal protection provisions of the African Charter. Article 2 lays down a principle that is essential to the spirit of the African Charter and is therefore necessary in eradicating discrimination in all its guises, while article 3 is important because it guarantees fair and just treatment of individuals within a legal system of a given country. Their provisions are non-derogable and therefore must be respected in all circumstances in order for anyone to enjoy all the other rights provided for under the African Charter.”12 In Zimbabwe Human Rights NGO Forum v. Zimbabwe the Commission further elucidated the meaning of Articles 2 and 3 especially with regard to sexual orientation: “Together with equality before the law and equal protection of the law [as provided for by article 3 of the Charter], the principle of non-discrimination provided under article 2 of the Charter provides the foundation for the enjoyment of all human rights…equality and non-discrimination ‘are central to the human rights movement’. The aim of this principle is to ensure equality of treatment for individuals irrespective of nationality, sex, racial or ethnic origin, political opinion, religion or belief, disability, age or sexual orientation.”13 In addition to the explicit mention of sexual orientation, the Commission has spoken against laws that are used to target vulnerable minorities. In Purohit, the Commission held that the Lunatics Detention Act of Gambia, which authorized the detention of patients on the ground of mental health was in violation of Article 2 and Article 5 of the Charter. The Commission opposed the law in large part because of the way in which it would be applied: “The category of people that would be detained as voluntary or involuntary patients under the LDA are likely to be people picked up from the streets or people from poor backgrounds.”14
Purohit and Another v The Gambia (2003) AHRLR 96 (ACHPR 2003). Zimbabwe Human Rights NGO Forum v. Zimbabwe (2006) AHRLR 128 (ACHPR 2006), emphasis added. 14 Purohit at 37.
Article 60 of the African Charter encourages the consideration of international law and decisions from comparable human rights bodies in understanding the rights contained therein. In determining the meanings of the analogous non-discrimination protections in the ICCPR, the Human Rights Committee (HRC) stipulates that “non-discrimination, together with equality before the law and equal protection of the law without any discrimination, constitute a basic and general principle relating to the protection of human rights.” The HRC has also interpreted the ICCPR to articulate specifically prohibited bases of discrimination. In Toonen v Australia, the HRC interpreted references to “sex” in Articles 2(1) and 26 of ICCPR as including sexual orientation.15 It further stated that any domestic law criminalizing private, same-sex sexual behaviour between consenting adults violates the principle of non-discrimination. The United Nations Working Group on Arbitrary Detention has also held that arrests for consensual homosexual conduct are, by definition, human rights violations.16 In addition, Burundi’s own Constitution guarantees the right to privacy (Article 23)17 and the right to be free from discrimination (Article 17).18 It is clear, then, that Burundi cannot abridge the rights of its citizens on the basis of sexual orientation. Because Article 3 of the Charter guaranteeing equal protection applies to any legal right and is not restricted to those enunciated in the Charter, it should be afforded even broader application. As a consequence, denying equality before the law on the basis of sexual orientation is prohibited under international human rights law. In particular, the Human Rights Committee decision of Young v Australia held that Australia had violated Article 26 of the ICCPR – the analogous equal protection clause– by “denying the author a pension on the basis of his sex or sexual orientation.”19 In so doing, the Committee decided that a distinction made on the basis of sexual orientation was a denial of the right to equality before the law. Furthermore, Young extended the application of Toonen, by applying a standard set in relation to a criminal law to the administrative matter of pension benefits. Such an extension demonstrates the importance for respect of equality in relation to sexual orientation. In Legal Resources Foundation v Zambia the Commission highlighted the importance of the right to equality, noting
Toonen v Australia, Communication No. 488/1992, U.N Doc CCPR/C/50/D/488/1992 (1994). Report of the Working Group on Arbitrary Detention, E/CN.4/2004/3, 15 December 2003, para. 73; see also Working Group on Arbitrary Detention, Opinion No. 7/2002 (Egypt), para. 27, UN Doc. E/CN.4/2003/8/Add.1; Opinion No. 22/2006 (Cameroon), para. 19, UN Doc.A/HRC/4/40/Add.1. 17 Article 23 : Nul ne peut faire l'objet d'immixtion arbitraire dans sa vie privée, sa famille, son domicile ou sa correspondance, ni d'atteintes à son honneur et à sa réputation. Il ne peut etre ordonné de perquisitions ou de visites domiciliaires que dans les formes et les conditions prévues par la loi. Le secret de correspondance et de communication est garanti dans le respect des formes et conditions déterminées par la loi. 18 Article 17: Tous les hommes sont égaux en dignité, en droit et en devoirs sans distinction de sexe, d'origine, d'ethnie, de religion ou d'opinion. Tous les hommes sont égaux devant la loi et ont droit, sans distinction, à une égale protection de la loi. 19 Edward Young v Australia, Communication No. 941/2000: Australia. 18/09/2003. U.N Doc. CCPR/C/78/D/941/2000 (2003) at 10.4.
that “equality, or the lack of it, affects the capacity of one to enjoy many other rights.”20 The Commission's recognition of the importance of equality of the law should extend to guarantee equal-protection to individuals regardless of their sexual orientation as required under international human rights law. The Committee in Toonen also rejected Tasmania’s argument that the criminalization of homosexual practices was a reasonable and proportionate measure to “achieve the aim of preventing the spread of HIV/AIDS” and to preserve morals. The Committee held that the sodomy law was “arbitrary” in its failure to be “proportional to the end sought.”21 It further held that it was “undisputed that adult consensual sexual activity in private is covered by the concept of ‘privacy’.”22 In this same spirit, the newly created Committee of People Living with HIV/AIDS, and persons at risk, vulnerable and affected by HIV/AIDS of the African Commission includes in its mandate that special attention should be paid to certain vulnerable groups, including men who have sex with men, when working to combat the spread of HIV/AIDS.23 Thus, the Commission has supported the view that collaboration, as opposed to criminalization, is the most appropriate response to the spread of HIV/AIDS. Violations and Effects of Discrimination based on Sexual Orientation and Gender Identity Under Article 567 of the Burundian penal code, “whoever has sexual relations with a person of the same sex is punished by a prison sentence of 3 months to 2 years and a fine of 50,000 to 100,000 francs, or one of these penalties.” Such a penalty directly contravenes the spirit of the African Charter, as well as specific articles including Articles 2 and 28, which guarantee the enjoyment of the rights and freedoms of the Charter without distinction of any kind, Article 3 of the Charter which guarantees equality before the law, Article 5 which guarantees dignity, and Article 6 which guarantees the right to liberty and security of person. Article 567 also violates the rights to privacy and freedom from discrimination protected by Burundi's Constitution, the International Covenant on Civil and Political Rights, and the Universal Declaration of Human Rights. In addition to being discriminatory on its face, Article 567 can also be unequally enforced to target vulnerable populations. Most importantly, Article 567 has provided impunity for private individuals who persecute others on the basis of their sexual orientation or gender identity and has legitimized and encouraged acts of hatred and violence. As noted by the complainant in Toonen v Australia, the criminalization of homosexual acts “fuels discrimination and violence against and harassment of
Legal Resources Foundation v Zambia, [Communication 211/98 – 14th Annual Activity Report: 2000-2001], at 63. 21 Ibid. at 8.3. 22 Toonen v Australia at 8.2. 23 The African Commission on Human and Peoples’ Rights, meeting at its 47th Ordinary Session held in Banjul, The Gambia, from 12 to 26 May 2010. Available at:http://www.achpr.org/english/ resolutions/Resolution163_en.htm ,
the homosexual community.”24 This has indeed been the case in Burundi, where individuals have reported: “the police seem to be passing the message that the guy dresses like a girl so he is not deserving of protection.”25 This overall climate of hostility towards individuals on the basis of their sexual orientation or gender identity has been noted by the U.S. Department of State, “Representatives of the LGBT community stated that after the 2009 passage of the revised penal code criminalizing same sex relations, they were subjected to more discrimination on grounds of real or alleged sexual orientation or gender identity.26 Furthermore, broad based petitions for the repeal of Article 567 from civil society organizations in Africa and around the world have all highlighted a concern for the climate of discrimination and impunity that it creates.27 Public statements of Burundi’s head of state and government-organized “anti-homosexuality” rallies28 have further intensified this climate. President Nkurunziza has even claimed that he was awarded the international Assisi peace prize in part because of his opposition to homosexuality29 and has referred to same-sex practicing people as “those who bring unhappiness”30 In Purohit and Another v The Gambia, this Commission recognized that branding people with mental illness as ‘lunatics’ and ‘idiots,’ dehumanises those individuals and denies them any form of dignity in contravention of Article 5 of the African Charter. Likewise the government’s use of derogatory terms to berate individuals because of their sexual orientation or gender identity violates Article 5 of the Charter.
Articles 4 (Life), 5 (Dignity), and 6 (Liberty and Security of the Person)
Edward Young v Australia, Communication No. 941/2000: Australia. 18/09/2003. U.N Doc. CCPR/C/78/D/941/2000 (2003) at 2.7. 25 Interview with Chrisitan Rumus of Moli, October 4th, 2011. 26 2010 Human Rights Report: Burundi, U.S. Department of State, April 8, 2011. Available at: http://www.state.gov/g/drl/rls/hrrpt/2010/af/154334.htm , 27 Petition for the Repeal of Article 567 signed by: African Rights Activists Group; African Services Committee; Alliance Burundaise contre le SIDA; Alliance Rights Nigeria (ARN); Alternatives-Cameroun; Amnesty International; Arc-en-Ciel (Côte d'Ivoire); ARC International (Switzerland / Canada); Association Africaine Solidarité (Burkina Faso); Association Nationale de Soutien aux séropositifs et Malades du Sida (ANSS, Burundi); Changing Attitude Nigeria; Dignity Association (Sierra Leone); Egyptian Initiative for Personal Rights; Foundation for Aids Research - Amfar; Friends of RAINKA (Zambia); Front Line - The International Foundation for the Protection of Human Rights Defenders; Gay and Lesbian Coalition of Kenya (GALCK); Gays and Lesbians of Zimbabwe (GALZ); Global Rights; Groupe de réflexion des homosexuelles du Burundi; Health Gap; Human Rights First; Human Rights Watch; ICJ Kenya; INCRESE Nigeria; International Gay and Lesbian Human Rights Commission (IGLHRC); International Women Health Coalition (TBC); Intersex South Africa; Ishtar (Kenya); Joint Working Group (South Africa)*; Kenyan Human Rights Commission; Ligue Iteka (Burundi); Minority Women in Action (East Africa); Observatoire Ineza pour la Défense des Droits des Enfants (Burundi); Renaissance Santé Bouaké (Côte d'Ivoire); The Independent Project for Equal Rights (Nigeria); Sexual Minorities Against AIDS in Nigeria (SMAAN); and Transgender Education and Advocacy (Kenya). Available at: http://www.hrw.org/news/ 2009/04/24/petition-burundian-and-international-human-rights-ngos-criminalization-homosexuality 28 Burundi: President furious as Senate rejects anti-gay law. The East African. March 30, 2009. Available at: http://www.afrika.no/Detailed/18123.html . 29 International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA). Burundi: President Claims Honour for Fighting Homsexuality. Available at: http://ilga.org/ilga/en/article/maU2vv01pR . 30 Interview with staff member of MOLI, October 4th, 2011.
Relevant Law and Jurisprudence Articles 4, 5, and 6 of the African Charter provide for “respect for [each individual’s] life and the integrity of his person,” the right to “respect of the dignity inherent in a human being,” and the right to “liberty and security of his person.” Additionally, in its 2005 Consideration of the State Report submitted by Cameroon, the African Commission cited “intolerance against sexual minorities” as an area of concern regarding that country’s compliance with the African Charter.31 Article 5 of the African Charter also specifically prohibits all forms of “exploitation and degradation of man particularly slavery, slave trade, torture, cruel inhuman or degrading punishment and treatment.”32 The African Commission has held that Article 5 of the Charter prohibits “not only cruel, but also inhuman and degrading treatment...[which] includes not only actions which cause serious physical or psychological suffering, but which humiliate or force the individual against his will or conscience.”33 This prohibition encompasses a wide array of abusive conduct. In Curtis Francis Doebbler v Sudan, the Commission held that whether an act constitutes a violation of Article 5 will depend on the circumstances of the particular case, but it also decided that “torture, cruel, inhuman or degrading treatment or punishment is to be interpreted as widely as possible to encompass the widest possible array of physical and mental abuses.”34 This broad interpretation of what behaviour is prohibited is also complemented by the Human Rights Committee’s interpretations of the correlative provisions under the ICCPR. The Human Rights Committee’s General Comment No. 20 established that the purpose of the prohibition against torture and cruel, inhuman or degrading treatment is to “protect both the dignity and the physical and mental integrity of the individual.”35 Violations and Effects of Discrimination Based on Sexual Orientation and Gender Identity In Burundi, MOLI has documented numerous violations of Articles 4, 5 and 6 on the basis of an individual’s sexual orientation. However, incidents of harassment, violence, torture and cruel inhuman or degrading punishment and treatment motivated by the victim’s sexual orientation are greatly underreported. This is largely due to the fear of being “out-ed” in a culture of intolerance
African Comission on Human and People’s Rights. Concluding Observations and Recommendations on the Periodic Report of the Republic Cameroon. Thirty-Ninth Ordinary Session 11 – 25 May 2005, Banjul, The Gambia. Para 14. Available at: http://www.achpr.org/english/other/Con_Oberservations/Cameroon/ 2nd_COs Cameroon.pdf . 32 African Charter of Human and People’s Rights, Article 5. 33 Curtis Francis Doebbler v Sudan, [Communication 236/2000 – 16th Annual Activity Report], at 36. 34 Id. (emphasis added). 35 OHCHR, “General Comment No. 20: Replaces general comment 7 concerning prohibition of torture and cruel treatment or punishment (Art 7):. 10/03/92.” Available at: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/6924291970754969c12563ed004c8ae5?Opendocument. Accessed on 8 October 2011.
and stigmatization perpetuated by the government’s homophobic statements and actions, lack of police protection and fear of prosecution under Article 567. The cases that MOLI has thus far documented are serious causes for alarm and suggest the existence of further violations of the right to life, security and liberty under Articles 4 and 6. In February of 2011, one 20-year old individual reported being harassed and physically abused on a daily basis by a group of youth in his neighborhood. The assailants, claiming their victim was promoting homosexuality, would surround him on his way to or from home, frequently insulting and then beating him.36 This violence and discrimination has continued up to the time of this report because the victim does not feel safe reporting to local authorities. Another victim has reported that a group of perpetrators attacked him on his way to a local club by throwing rocks at him as he exited a taxi, but did not report his attack for fear of further abuse from authorities.37 Human Rights Watch has reported similar events including one in which a victim was beaten while dancing at a bar and told, “I don’t want my brother to be a faggot like you.” 38 In another incident, a lesbian woman was threatened with death by a co-worker because of her relationship with another woman but did not follow through with her initial complaint to a tribunal court because she was afraid her relationship would be revealed.39 The impunity from persecution created by the government’s action and inaction is clearly in violation of Articles 4 and 6. Burundi has also failed to provide any protection or recourse for activists working on behalf of those who are persecuted or denied essential services because of their sexual orientation and gender expression. Regardless of their actual sexual orientation, these activists are usually perceived to be homosexual. Because of their work, they have reported threats to their lives, property and safety in person, via text message, phone call and home invasion.40 In one case, perpetrators broke into an activist’s home and wrote a message on his wall that warned: “You will go, you will go, if not...”41 This threat and others, such as "You are going to burn in hell" and "We are going to kill you"42 are rarely reported to law enforcement officials. Even if the public disclosure of an individual’s sexual orientation does not lead directly to government prosecution, it can be life threatening because the government has repeatedly either refused to or failed to provide appropriate protection. This failure to act exists at least in part as a result of Article 567 which brands sexual minorities as criminals rather than citizens deserving respect and dignity. In February of 2011, a local Mosque in Bujumbura published the name, sexual
Mouvement pour les Libertes Individuelles (MOLI). Situation des Personnes LGBTI au Burundi. Sommaire de Cas. 2011. HA051-BI. 37 Id. at HA 048-LB. 38 Forbidden. Institutionalizing Discrimination against Gays and Lesbians in Burundi. Human Rights Watch. July 29, 2009 p.10. Available at: http://www.hrw.org/reports/2009/07/30/forbidden-0 . 39 Id. at 7. 40 Mouvement pour les Libertes Individuelles (MOLI). Situation des Personnes LGBTI au Burundi. Sommaire de Cas. HA048-LB. 41 Id at HA048-LB; HA049-BW. 42 Id at HA051-BI.
orientation, and address of a human rights activist in an attempt to force him into hiding.43 The clear government opposition to homosexuality embodied in the Article 567, discriminatory public statements and organized mass-protest would make such reporting ineffective at best and life threatening at worst. Torture and other cruel, inhuman and degrading treatment also frequently occur because of a victim’s sexual orientation. In a case of torture documented by MOLI, two perpetrators victimized a peer health educator because of his sexual orientation. The perpetrators demanded money and when the victim did not pay they beat him unconscious and raped him.44 The victim explained that he did not report his attack to authorities for fear of further stigmatization and punishment under Article 567. In another case in 2009, perpetrators drugged a woman and attempted to rape her to see if “sexual acts with men would not please her.”45 Again, the victim did not report her to authorities for fear of further discrimination, abuse by law enforcement and penalization under Article 567. The impunity from persecution created by government action and inaction is clearly in violation of Article 5. Cases of Discrimination Based on Gender Identity Burundians also face constant violence, intimidation torture and threats from private individuals and law enforcement officials because of their gender identity. While sexual orientation can sometimes be concealed, individuals with non-normative gender identity may be at even greater risk because of their visibility. In August of 2011, MOLI received a report from a transgender woman of police abuse. A man had stolen her wallet and when she brought him to the police station, he accused her instead of stealing his license. Without further inquiry, the police arrested her, beat hear and cut her hair short.46 When a friend tried to intervene on her behalf, the police responded by saying: “"We are sure that he is homosexual because of his hair style."47 The victim was held for a total of three days and during that period was denied access to essential medicines and permission to attend a scheduled surgery at a national clinic.48 Abuse of state power also comes in the form of extortion. For example, in April of 2011, MOLI received a complaint that the local district official of Kamenge had targeted two individuals on the basis of gender identity, threatening to have them evicted and arrested if they did not pay him.49
Id. at HA034-OM. Id. At HA030-TN. 45 Mouvement pour les Libertes Individuelles (MOLI). Situation des Personnes LGBTI au Burundi. Sommaire de Cas. 2011. HA037–CN. 46 Id. at HA09-BW. 47 Id. 48 Id. 49 Id. at HA48-LB.
Because individuals who are discriminated against on the basis of their gender identity are often assumed to be homosexual, they are also reluctant to report crimes for fear of penalization under Article 567. For example, in one 2011 case, an individual was repeatedly accosted by a local mechanic in his neighborhood who beat and harassed him, threatening him with further injury and death because of his gender presentation.50 As with the previous attacks described, this persecution was never reported for fear of state inaction, police discrimination and penalization under Article 567. In an August of 2001 case of torture, a young woman returned to a Catholic orphanage in the village of Mugera, where she was raised until the age of 14. She was there to celebrate a religious holiday. Not long after arriving there, the orphanage staff accused her of stealing a cellphone and tied her up in a shower as punishment. The phone was discovered shortly thereafter but the perpetrators did not untie the victim. She remained bound from 10 in the morning until 7 at night. During this period the perpetrators harassed her about her nonconforming gender identity and threatened her by saying, “we are going to undress you to see if you are a girl or a boy,” and “if ever you think of coming back to Mugera we will show you who we are.”51 The victim subsequently sustained debilitating loss of function in her arms and hands for which she is receiving physical therapy.52 Her attackers benefited from this governmentfostered impunity in violation of Article 5 of the Charter.
Article 15 (Right to Work), Article 16 (Right to Health) and Article 17 (Right to Education)
Relevant Law and Jurisprudence In addition to direct threats to equality, liberty and physical security, individuals in Burundi are constantly denied access to basic social and economic human rights on the basis of their sexual orientation or gender identity. The right to work under Article 15 of the African Charter is clearly violated when individuals are denied access to employment based on their sexual orientation or gender identity. Similarly, Article 16 of the African Charter establishes the right of everyone, regardless of sexual orientation or gender identity, to the best attainable standard of physical and mental health. The mandate of the African Commission's recently established Committee of People Living with HIV/AIDS, and persons at risk, vulnerable and affected by HIV/AIDS is to give "special attention to persons belonging to vulnerable groups," including men who have sex with men53 has further emphasized that right. Finally, Article 17 of the
Id. at HA023-OM. Id. at. EC001-CBR. 52 Id. 53 The African Commission on Human and Peoples’ Rights, meeting at its 47th Ordinary Session held in Banjul, The Gambia, from 12 to 26 May 2010. Available at:http://www.achpr.org/english/ resolutions/Resolution163_en.htm .
African Charter establishes the right of everyone to education, a right that should apply to everyone regardless of sexual orientation or gender identity. Violations and Effects of Discrimination Based on Sexual Orientation MOLI has received numerous reports of discrimination against those seeking access to employment, health care and education. For example, a woman in Bujumbura was fired from her job as a teaching assistant because of her sexual orientation.54 In another case, a man was expelled from a primary care clinic when staff discovered he was homosexual.55 The denial of services on the basis of sexual orientation and gender identity also increases the risk of spreading sexually transmitted infections such as HIV/AIDS. Burundi is one of a few countries in Africa receiving funds from the Global Fund to fight AIDS, Tuberculosis and Malaria (GFATM) to expand their HIV intervention to include men who have sex with men (MSM). It must be underlined that the sexual practices most at risk among men who have sex with men have not been considered up to date by prevention, raising awareness and clinical policies. This situation creates obstacles for individuals who have anal intercourse, which is considered a very high risk practice, to accede health services as those services are not taking into specific account those practices. However, because peer health educators are often persecuted when reaching out to same-sex practicing individuals and because the state offers no protection for these health workers, the right to health of the larger Burundian population is also threatened. In connection to Article 16’s guarantee of the right to health individuals are also frequently deprived of housing because of their sexual orientation and gender identity. For example, the local district chief of the city of Gitega ordered the eviction of a human rights activist because of his perceived sexual orientation. A few days after the eviction notice, a local police officer came to the victim’s home and arrested him without a warrant or convocation notice and took him to the local police station where he was detained and questioned for two hours. The following week, police informed him that he was banned from his neighborhood and had to vacate the premises immediately or risk imprisonment.56 Access to education has also been denied to individuals on the basis of sexual orientation or gender identity.57 Article 17 of the Charter is also violated when activists and health educators
Forbidden. Institutionalizing Discrimination against Gays and Lesbians in Burundi. Human Rights Watch. July 29, 2009 p. 7. Available at: http://www.hrw.org/reports/2009/07/30/forbidden-0 . 55 Id. 56 Mouvement pour les Libertes Individuelles (MOLI). Situation des Personnes LGBTI au Burundi. Sommaire de Cas. HA038-TH. 57 Interview with staff member of MOLI, October 4th, 2011.
are harassed by the State or afforded no police protection, and thus prevented from disseminating information that is vital to the health and well-being of the communities they serve. Finally, MOLI has noticed the existence of a measure established by the Ministry of Education in June 2011 with regard to the new school regulation. According to the provision, homosexuality is one of the main cause for general expulsion from the Burundian educational system once the homosexuality of a student is proven. Homosexuality is listed as one of the reasons that provoke the general expulsion of a student from the Burundian educational system, together with other causes such as "possession of firearm, use of firearm, political propaganda within the school or having political party tools, such as t-shirts, caps and others..." The school regulations of different institutions have been adopted following the introduction of the new regulation approved by the Ministry. This provision is against any commitment of Burundi related with the protection of children and the right to education. For these reasons, the Ministry of Education should repeal the provision from the new regulation. Although efforts to reach out the authorities of the Ministry of Education have carried out, to find out the reasons of such a provision, the attempts have been unsuccessful.
Image of the new regulation posted in June 2011 at the Lycée St Esprit en juin 2011 in Bujumbura.
IV. Concluding Notes and Observations
Burundi has been a State Party to the African Charter for 22 years. It is plainly bound by the requirements of Article 1 to “recognize the rights, duties and freedoms enshrined in the Charter and…to adopt legislative or other measures to give effect to them.” Yet this report illustrates the extent to which the country is failing to comply with its obligations under the African Charter. Central to human rights protections is the principle of non- discrimination and equality before the law. In Burundi, a climate of social and state- sponsored discrimination has developed to exclude people on the basis of their sexual orientation and gender identity from the enjoyment of basic human rights on an equal footing with their heterosexual and gender conforming counterparts. This denial has in some cases culminated in serious violations including impunity for the use of torture, inhuman and degrading treatment, discrimination and denial of basic social and economic rights.
V. Proposed Questions for the Government
1. What are the justifications for maintaining Article 567 of the Penal Code given its inconformity with international and regional human rights law? 2. What steps does the government intend to undertake to protect individuals who are subject to torture and cruel, inhuman or degrading treatment on the basis of sexual orientation or gender identity? 3. What initiatives does the government intend to undertake to protect individuals subject to violence, discrimination and harassment on the basis of their sexual orientation or gender identity in violation of the rights to respect for life and integrity of each person and in violation of the right to respect for dignity?
1. The government of the Republic of Burundi should amend the Penal Code and repeal Article 567 to decriminalize private, consensual, adult same-sex sexual activity. 2. The government, particularly the Ministry of Interiors, the Ministry for Public Security, and the Ministry of Justice, should improve access to police protection for sexual minorities and ensure that they are treated by the police with sensitivity and respect. 3. The government, particularly the Ministry of Health, the Ministry of Social Affairs and the rights of the individual, the Ministry of Education, should establish an open dialogue with organizations advocating for individuals on the basis of sexual orientation or gender identity. 4. The state party should ensure equal access to health, education, and employment within Burundi regardless of an individual’s sexual orientation or gender identity.
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