26th Session:Commissioner Rezag-Bara
27th Session: Commissioner Rezag-Bara
28th Session: Commissioner Rezag-Bara
SUMMARY OF FACTS
1. Lawyers Fabien Sagatwa, Moussa Coulibaly and Cédric Vergauwen,
respectively called to the bars of Burundi, Niger and Brussels and members
of "Avocats Sans Frontières'' in Burundi and acting on behalf of Mr. Gaetan
Bwampamye, currently detained at the Mpimba Prison (Bujumbura) present the
facts of the case as follows:
2. On 25th September 1997, Mr. Gaëtan Bwampamye was sentenced to death by
the Criminal Chamber of the Appeal Court of Ngozi after being convicted for
having in Ruhoro on 21 October 1993, as author, co-author or accomplice,
incited the population to commit crimes and for having under the same
circumstance, organised as attack geared towards provoking massacres, set up
barricades with a view to hindering the enforcement of public order; all
offences under Articles 212, 417 and 425 of the Penal Code of Burundi.
3. On 2nd October 1997, he filed an appeal with the Supreme Court of
Burundi. In support of his appeal, he invoked six grounds, including the
violation of article 75 of the Penal Procedure Code of Burundi, Article 14
paragraph 3(d) of the International Covenant on Civil and Political Rights,
as well as Article 51 of Decree No. 100/103 of 29 August 1979, defining the
status of the profession of Lawyers. According to the Complainants, the
latter argument was invoked by the accused to denounce the fact that he was
denied the services of his counsel during the public prosecution's closing
address and that, in spite of his request for assistance, he was compelled
to prepare his own defence.
4. The Complainants assert that on 3rd June 1997, the Criminal Chamber of
the Court of Appeal closed the hearing of the witnesses, and on account of
the volume of the case, decided to adjourn the hearing to 20th August 1997.
5. During the hearing of 20th August 1997, the prosecution refused to make
its closing address, arguing that it needed more time to study the contents
of the statement of the defence counsel. The Criminal Chamber therefore
decided to adjourn the case to 25th September 1997. On that day, the counsel
for the defence was unable to attend the hearing due to ill-health. Inspite
of the repeated request of Mr. Bwampanye for the case to be adjourned to
another date, the Chamber decided to hear the prosecution, and compelled the
accused to defend himself, without the assistance of his lawyer. The verdict
sentencing him to death was rendered that same day at the end of the
6. The Complainants point out that the Supreme Court had rejected this
argument invoked before it by the accused, who wanted the ruling of the
Ngozi Court of Appeal quashed on the grounds that for the Court, the law
does not obligate the judge to designate a lawyer, but he may do so.
7. The Supreme Court continues in the following terms "further whereas for
the specific case in question, the accused has always been assisted by a
lawyer, the evidence being, that his lawyer had already submitted his 19
page written arguments on 20th August 1997, that furthermore they had
already pleaded together in the public hearing, whereas in the face of such
situation, the plaintiff has no justification in saying that the judge
should have designated a lawyer for him whereas he already had one who had
already accomplished all the essential duties expected of a lawyer; that
consequently, this argument is also to be rejected".
8. This line of argument of the Supreme Court is challenged by the
Complainants who raise a certain number of points of law, including inter
alia, the ignorance according to them by the said Court of the principles of
the right of defence and judicial assistance. They claim that, this ruling
of the Supreme Court is not only contrary to the provisions of article 73 of
Burundi's Criminal Procedure Code which unequivocally establishes the right
to judicial assistance but also the general principle of oral submissions in
9. They assert on the one hand that "whilst it is customary for a lawyer to
communicate his pleas to the prosecution before the closing address of the
latter, no written rule requires him to do so". On the other hand, the
Complainants assert that "the lawyer is obviously never bound by the
contents of a statement of defence deposited before the hearing. Such a
statement therefore is not exhaustive and may only be confined to certain
aspects of the case and not focus on issues that the defence intends to
elaborate on later at the bar. Counsel for the defence may also renounce
certain arguments contained in his note, depending on for instance the
issues raised by the prosecution. This freedom is at the very core of the
rights of the defence. Before any decision, they assert, there is the
unconditional right to oral submissions and freedom of speech".
10. The Complainants assert that this same freedom of speech was accorded to
the prosecution, and recall that the " prosecutor is never bound by the
written closing speeches of his office." The principle is furthermore
established by the old saying that "the written word is not, as free as the
spoken word". They vehemently assert, that in indicating in its judgement
that the lawyer had already submitted a 19-page statement of defence and
that in this respect, he had accomplished all the fundamental duties of a
lawyer" the Court ignores all the principles that have just been set forth
and, consequently, authorises a blatant violation of the rights of the
defence in general and the rights of judicial assistance in particular".
11. On the basis of the foregoing, the Complainant whilst stressing that the
aim of the present complaint is to highlight the above-mentioned violations,
call on the Commission to rule that:
(a) By refusing Mr. Gaetan Bwampamye the assistance of his legal Counsel to
plead his case, the Criminal Chamber of the Ngozi Court of Appeal held a
hearing which was not equitable under the African Charter on Human and
People's Rights and all the relevant international instruments.
(b) To establish the violation by the Republic of Burundi of the rights
enshrined in the Charter more specifically, the violation of article 7,
paragraph ( c) of the Charter and the general principles on the rights of
(c) To report its findings to the parties concerned and to the Assembly of
Heads of State and Government of the OAU.
12. The communication is dated 11th April 1999. It was sent to the
Secretariat by E-mail.
13. On account of the fact that the judgement of the Ngozi Court of Appeal
(a major piece written in Kirundi) was still being translated, the
communication could not be brought before the Commission during its 25th
Ordinary Session held in Bujumbura in May 1999. Towards the end of the said
Session however, the plaintiffs forwarded to the Secretariat the outstanding
documents, thus enabling it to complete the file on the communication and
bring the matter before the 26th Session of the Commission.
14. At its 26th session, the Commission heard from the representatives of
Mr. Bwampamye who had come to present their position on the matter. After a
long debate, the Commission reached a decision to be seized of the
communication. Mr. Bwampamye was represented by:
- Segatwa Fabien;
- A. Moctar;
- Seydou Doumbia
- Boubine Touré.
All members of Avocats Sans Frontières.
15. On 13th December 1999, the Secretariat informed the parties of this
decision and a letter signed by the Chairman of the Commission, requesting a
stay of execution was addressed to the Burundian Head of State.
16. On 15th February 2000, the Burundi office of Avocats Sans Frontière
acknowledged receipt of the letter of 13th December 1999, addressed to it by
the Secretariat without, however communicating its observations as regards
the admissibility of the communication.
17. At its 27th ordinary session held in Algiers, Algeria, the Commission
examined the case and declared it admissible and requested parties to
furnish it with arguments on its merits. It also requested the Chairman of
the Commission to repeat its earlier appeal for stay of execution pending
the determination of the communication.
18. The above decision was communicated to parties on 1st August 2000.
19. During its 28th Session, the Respondent State and Counsel for the
Complainant presented their written and oral submissions before the
20. Article 56(5) of the Charter stipulates that "communications relating to
Human and Peoples' Rights...received by the Commission shall be considered if
they...are sent after exhausting local remedies, if any, unless it is obvious
that this procedure is unduly prolonged..."
21. It is apparent from an examination of the documents appended to the
dossier that the verdict handed down on 25th September 1997, by the Ngozi
Court of Appeal, sentencing Mr Gaëtan Bwampamye to death was confirmed on
5th October of the same year by the Supreme Court of Burundi. The Commission
notes, consequently, that the domestic remedies had been duly exhausted. For
these reasons, it declares the communication admissible.
22. In its oral submission, the Respondent State argued that the Complainant
had not exhausted other local remedies which include "le recours dans l'
interet de la loi", revision and the plea for pardon.
23. The Commission however holds the view that the Complainant could only
benefit from the first two remedies at the initiative of the Ministry of
Justice and also as a result of discovery of new facts that may lead to
reopening the file. With regard to the plea for pardon, it is not a judicial
remedy but serves to affect the execution of a sentence. For these reasons
the Commission maintains its decision on admissibility.
24. Article 7,1(c) of the Charter states that "every individual shall have
the right to have his cause heard. This comprises:
"...the right to defence, including the right to be defended by counsel of his
25. In its verdict of 5th October 1997, the Supreme Court of Burundi
adjudged and stated:
"Whereas this Court is of the view that the law implies no obligation on the
part of the judge to nominate a lawyer, though he may do so;
Whereas in the case under consideration, the accused had always been
assisted by a lawyer, proof being that his 19 page written plea of 20th
August was filed by his lawyer; and that they had appeared together at the
Whereas, in view of such situation, the appellant has no reason to claim
that the judge should appoint a lawyer for him, since he already had one who
had performed all essential functions of a lawyer for him; this procedure
is, therefore, also hereby rejected..."
26. The Commission recalls that the right to fair trial involves fulfilment
of certain objective criteria, including the right to equal treatment, the
right to defence by a lawyer, especially where this is called for by the
interests of Justice, as well as the obligation on the part of Courts and
Tribunals to conform to international standards in order to guarantee a fair
trial to all. The Commission shall examine the verdict of the Ngozi Court of
Appeal, as well as that of the Supreme Court in light of the above criteria.
27. The right to equal treatment by a jurisdiction, especially in criminal
matters, means, in the first place, that both the defence and the public
prosecutor shall have equal opportunity to prepare and present their pleas
and indictment during the trial. Simply put, they should argue their cases
before the jurisdiction on an equal footing. Secondly it entails the equal
treatment of all accused persons by jurisdictions charged with trying them.
This does not mean that identical treatment should be meted to all accused.
The idea here is the principle that when objective facts are alike, the
response of the judiciary should also be similar. There is a breach of the
principle of equality if judicial or administrative decisions are applied in
a discriminatory manner. In the case under consideration, it is expected of
the Commission to attend to the first aspect, that is, observation of the
rule of equality of the means utilised by the defence and the prosecution.
28. The right to defence also implies that at each stage of the criminal
proceedings, the accused and his counsel be able to reply to the indictment
of the public prosecutor and in any case, to be the last to intervene before
the court retires for deliberations.
29. The Ngozi Court of Appeal had on 25th September 1997, handed down a
verdict sentencing Mr. Bwampamye to death, thereby following the prayer of
the public prosecutor, paying no heed to the accused's prayer for
adjournment of the case, pleading the absence of his lawyer. The Commission
holds the view that the judge should have upheld the prayer of the accused,
in view of the irreversible character of the penalty involved. This was all
the more imperative considering that during the 20th August 1997 hearing, he
had upheld the arguments of the prosecutor who had refused to proceed with
his pleading claiming that he needed time to study the written plea
presented by counsel for the accused. The criminal court then decided to
adjourn the case to 25th September 1997. The Commission holds that by
refusing to accede to the request for adjournment, the Court of Appeal
violated the right to equal treatment, one of the fundamental principles of
the right to fair trial.
30. The Supreme Court, in its verdict, upholds the position of the lower
court judge in refusing to designate a defence lawyer as follows: "... this
Court is of the view that the law implies no obligation on the part of the
judge to nominate a lawyer, though he may do so". The Commission
emphatically recalls that the right to legal assistance is a fundamental
element of the right to fair trial. Moreso where the interests of Justice
demand it. It holds the view that in the case under consideration,
considering the gravity of the allegations brought against the accused and
the nature of the penalty he faced, it was in the interest of Justice for
him to have the benefit of the assistance of a lawyer at each stage of the
31. In its consideration of what appears to be the liberty allowed the judge
under Burundian law to designate or not to designate a defence lawyer for
the accused, the Commission recalls the fundamental principle enshrined in
Article 1 of the Charter, that not only do the States Parties recognise the
rights, obligations and freedoms proclaimed in the Charter, they also commit
themselves to respect them and take measures to give effect to them. In
other words, if a State Party fails to ensure respect for the rights
contained in the African Charter, this constitutes a violation of the said
Charter. (See communication 74/92, para. 35). It is apparent, consequently,
that Burundian legislation, in this regard, does not comply with the
country's treaty obligations emanating from its status as a State party to
the African Charter. The Court's argument flies in the face of a well-known
general legal principle, which states that "no one may profit from his own
turpitude". The argument should furthermore be rejected because by
considering the various instruments cited in his opening statement by
counsel for the accused, the Court, though admittedly it does not state a
position on them, had become aware of the country's obligations as regards
human rights, especially the provisions of the International Covenant on
Civil and Political Rights and, subsequently, those of the African Charter
on Human and Peoples' Rights. By upholding the position of the appellate
judge, the Court ignored the obligation of Courts and Tribunals to conform
to international standards of ensuring fair trial to all.
FOR THESE REASONS, THE COMMISSION
Finds the Republic of Burundi in violation of Article 7(1)(c) of the African
Requests Burundi to draw all the legal consequences of this decision; and to
take appropriate measures to allow the reopening of the file and the
reconsideration of the case in conformity with the laws of Burundi and the
pertinent provision of the African Charter on Human and People's Rights;
Calls on Burundi to bring its criminal legislation in conformity with its
treaty obligations emanating from the African Charter.
Done at the 28th ordinary session held in Cotonou, Benin from 23rd October
to 6th November 2000.