Governance & legal system
Burundi is a member of regional governmental organisations affecting refugee affairs and they are as follows:
- The African Union (AU): The African Union (AU) is a continental body consisting of the 55 member states that make up the countries of the African Continent. The AU is an organization spear-heading Africa’s development and integration through key program areas such as infrastructure and energy; agricultural development; peace and security, conflict resolution; human rights; trade and industrial development; Migration, labour and employment, etc. Burundi joined the AU on 25th May 1963. Its governing instruments are the OAU charter, Addis Ababa of 25th May 1963, the Constitutive Act of the African Union adopted on 11th July 2001, the protocol on the amendments to the constitutive act of the AU adopted on 11th July 2003 and the protocol to the constitutive act of the African union relating to the Pan-African parliament adopted on June 27th June 2014.
- The East African community (EAC):The EAC is a regional intergovernmental organisation of 7 partner states with a mission to widen and deepen economic, political, social and cultural integration in order to improve the quality of life of the people of East Africa through increased competitiveness, value added production, trade and investments. Burundi Joined in July 2007. Its governing instruments are the Treaty for the Establishment of the EAC, the Protocol on the Establishment of the EAC Customs Union, the Protocol on the Establishment of the EAC Common Market and the Protocol for the Establishment of the EAC Monetary Union.
- The Communauté Economique des Etats de l'Afrique Centrale (CEEAC): According to its Treaty, the Community aims to promote cooperation and the strengthening of regional integration in Central Africa in all areas of political, security, economic, monetary, financial, social, cultural, scientific and technical activity with a view to achieving collective autonomy, raising the standard of living of the populations, increasing and maintaining economic stability, strengthening and preserving close peaceful relations between its Member States and contributing to the progress and development of the African continent. Its governing instruments are the constitutive act of the CEEAC signed on 18th October 1983; the revision of the constitutive treaty adopted on 18th December 2019.
- The Economic Community of the Great Lakes Countries (CEPGL): It was created on September 20, 1976 by three founding Member States; BURUNDI, DR CONGO and RWANDA.
The member states have assigned CEPGL four objectives, namely: (1) ensure first and foremost the security of states and their populations so that no element disrupts the order and peace on their respective borders, (2) design, define and promote the creation and development of activities of common interest; (3) promote and intensify trade and movement of people and goods; (4) to cooperate closely in the social, economic, commercial, scientific, cultural, political, military, financial, technical and tourist fields, more especially in judicial, customs, health, energy, transport and telecommunications matters.
Its governing instrument is the Convention establishing the Economic Community of the Great Lakes Countries (CEPGL) Concluded at Gisenyi on 20 September 1976.
- International Conference on the Great Lakes Region (ICGLR): is an inter-governmental organization of the countries in the African Great Lakes Region. Its establishment was based on the recognition that political instability and conflicts in these countries have a considerable regional dimension and thus require a concerted effort in order to promote sustainable peace and development. Its governing instruments are the December 2006 Pact on Security, Stability and Development in the Great Lakes Region which includes the Dar es Salaam Declaration, Programmes of Action and Protocols. It is important to note that the ICGLR secretariat is based in Bujumbura, Burundi.
Burundi applies the dualist system when it comes to International treaties. International treaties are only valid once they have been ratified through a rule of domestic law authorizing the application of the treaty.
This is in accordance with article 277 of the Constitution which provides that Peace treaties and commerce treaties, treaties relative to international organization, treaties which engage State finances, and those that modify legislative provisions as well as those which relate to the status of persons may only be ratified through a law. In addition, article 279 of the constitution of the Republic of Burundi which provides that treaties shall not take effect until they have been duly ratified and are subject to their application by the other party in the case of bilateral treaties and to the performance of the conditions required for their entry into force in the case of multilateral treaties.
Also, article 19 of the Constitution provides that the rights and duties proclaimed and guaranteed by the international texts concerning human rights regularly ratified constitute an integral part of the Constitution.
The Republic of Burundi has a unitary government system. This is according to article 1 of the Constitution of the Republic of Burundi which provides: “Burundi is a …, unitary republic which respects its ethnic and religious diversity”.
According to article 96 and article 128 of the Constitution of the Republic of Burundi, 2018, the president of the Republic is the head of the state and he/she appoints the prime minister who is the head of the government. Moreover, according to article 143 of the constitution of the Republic of Burundi, executive power is delegated at the provincial level to a provincial governor, who is responsible for coordinating administrative services.
The legal system in Burundi is a Civil law system. Having been colonised by Belgium, Burundi inherited the Belgian civil law. It applied positive law: all legislation, including the constitution, is codified. According to article 48 of the constitution, the constitution is the supreme law and any law that does not comply with the constitution is null and void.
However, although the constitution does not mention Customary law, it is important to note that some laws, although very few, apply certain customary norms as a way of filling in gaps within the law.
For example, Article 444 of Law n°1/13 of 9 August 2011 revising Burundi's land code states: “….Marshland is governed by customary law and cannot be registered.”
Also, Article 126 Decree-Law No. 1/024 of 28 April 1993 reforming the Family Code provides: “…the following are deemed to be dependent on the conjugal community unless proven otherwise by a legal, conventional or customary provision: - land acquired by devolution ...”
The judiciary has a clear hierarchy:
First, there is the supreme court which is the highest ordinary jurisdiction of the Republic (Article 227 of the 2018 Constitution of the Republic of Burundi).
Second, there is the constitutional court which is the jurisdiction of the state in constitutional matters (Article 231 of the 2018 Constitution of the Republic of Burundi).
As of other courts, the 2005 Code of Judicial Organization and Competence distinguishes ordinary courts form specialized courts: (a) ordinary courts include: courts of residence, high courts and courts of appeal; (b) Specialized courts include labor courts, commercial courts and administrative courts.
The traditional justice mechanism is applied at hill level by hill notables. The Law no. 1/03 of 23 January 2021 supplementing the provisions of the Code of Civil Procedure relating to the re-establishment of the Council of Hill Notables provides on the mission of this council, which is that of conciliation of disputing parties. The Council of Notables is responsible in particular for:
(1) Receiving complaints from disputing parties and giving its opinion on all civil matters falling within the jurisdiction of the courts of residence.
(2) To conciliate the parties in dispute when the dispute is not of public order and does not concern morality.
Under no circumstances may the Council of Notables rule on sentences.
The agreement reached and ratified at the end of the conciliation procedure becomes enforceable and has the force of a final judgment.
If the conciliation fails, the party that considers itself wronged may refer the matter to the competent court within 15 days from the date of receipt of the minutes.
The procedure followed before the council of notables is determined by local custom. It is free, public, oral and adversarial.
Before any civil case that falls within the jurisdiction of the local court is heard, the court verifies that the parties have first referred the matter to the council of notables of the hill. The witnesses to be heard are mainly those who have testified before the council of notables. The court is not bound by the recommendation of the Council of Notables. Rejection of the recommendations of the council must be justified.
At the central level, the Ministry of interior is responsible for all matters in relation to refugees. Article 54 of the law n.1/32 of 13 November 2008 on asylum and the protection of refugees in Burundi provides that admission to refugee status is subject to an order by the Minister of Interior. Article 62 of the same law also provides that the loss of refugee status is subject to an order by the Minister of Interior.
At the sub central level, there are three entities:
- The Consultative Commission for Foreigners and Refugees (CCER): Article 2 of Ordinance No.530/443 of 07/04/2009 on implementing measures for Law No 1/32 of 13 November 2008 on asylum and refugee protection in Burundi and on the composition, organization, and operation of the CCER and the Appeals Committee provides for the missions of the CCER and states that the CCER:
- Ensures the physical, material, legal and administrative protection of asylum seekers and
- examines and decides on applications for refugee status and any influx of refugees or asylum seekers, in accordance with current international standards and practices.
- Examines and decides on applications for derived refugee status.
- Decides on the termination of refugee status by cessation, annulment or revocation.
- Gives its opinion prior to the execution of any expulsion or refoulement order.
- Examines requests for resettlement in Burundi and, in the event of a favourable decision, to take all necessary steps to facilitate the reception of refugees in the best possible conditions of safety and dignity.
- Studies and proposes to the Government any measure likely to improve the living conditions of refugees and asylum seekers in Burundi and to seek lasting solutions to refugee problems.
- Provides, within the means at its disposal, for the needs of refugees and asylum seekers on Burundian territory under the protection of the Government in matters of, inter alia, food, housing, health and education, it being understood that it may, for this purpose, call upon the assistance of national and international organizations concerned with the problems of refugees and asylum seekers.
- The Appeals Committee / Comité de recours (CR): According to articles 23 and 24 of Ordinance no. 530/443 of 07/04/2009 on implementing measures for Law no. 1/32 of 13 November 2008 on asylum and refugee protection in Burundi and on the composition, organization, and functioning of the CCER and the Appeals Committee, the CR receives and examines appeals lodged by asylum seekers against negative decisions of the CCER. The CR is the last instance. It also hears, in the last instance, decisions made by the CCER concerning any matter relating to refugees and asylum seekers, particularly in relation to expulsion and deportation.
- The National Office for the Protection of Refugees and Stateless Persons (ONPRA): according to article 2 of decree n. 100/069 of 30 May 2022 on the organization, missions, and functioning of the National Office for the Protection of Refugees and Stateless Persons, ONPRA is a technical structure responsible for the management of asylum and the protection of refugees and stateless persons. It is placed under the supervision of the Minister responsible for refugee management.
At the local level, there are registration centers, the management of which is entrusted to the consultative commission may be created by the Minister having the interior in his attributions. Registration centers are a starting point for all refugees. The functions of the registration centres makes them closer and more accessible to refugees than the other administrative entities are.
According to article 78 of the law n.1/25 of 05 November 2021 regulating migration in Burundi, registration and transit centres may be created in the event of a mass influx of asylum seekers, in which case they are jointly created by the ministers responsible for territorial administration and public security. They are managed by ONPRA and secured by the police. A registration or transit centre may not be set up in the neutral zone and no other activity may be carried out there.
As of their functions, article 50 of the law n.1/32 of 13 November 2008 on asylum and the protection of refugees in Burundi states that the registration center collects the applicant's personal data, fingerprints, and photographs. It may summarily question the applicant about the reasons why he or she left his or her country and the route he or she took.
Also, asylum applications may be deposited at a registration center according to article 75 of the law n.1/25 of 05 November 2021 regulating migration in Burundi.
In cases where an asylum application is submitted at the border, article 31 of law n.1/32 of 13 November 2008 on asylum and the protection of refugees in Burundi provides that the border post or registration centre shall authorise the entry into Burundi of the person wishing to apply for asylum.