Burundi and Rwanda: on state protection offered by the Burundi government to individuals persecuted by Rwandan authorities, and who have citizenship in both countries; whether the Burundi government allows Rwandan authorities to enter their country and take individuals by force (2013-July 2014)

1. Legislation

1.1 Dual Citizenship and Jurisdiction

According to Article 7 of the Constitution of the Republic of Rwanda, dual citizenship is permitted for Rwandan nationals, and "no person may be deprived of Rwandan nationality of origin" (Rwanda 2003). Similarly, Article 21 of the Law 1/013 on the Reform of the Nationality Code of Burundi (Loi 1/013 du 18 juillet 2000 portant réforme du code de la nationalité) states that all citizens of Burundi are permitted to possess dual citizenship (Burundi 2000).

In regards to Burundi's jurisdiction, Article 10 of the 2009 Burundi Criminal Code (Loi No. 1 du 22 avril 2009 portant révision du code pénal) states the following:

[translation]

Any offence or crime committed outside of the national territory by a Burundian citizen or a foreigner is, subject to extradition agreements, punishable by the penal code of Burundi if the perpetrator is located within Burundi or if the victim is of Burundian nationality and the crime or offence is punishable under the legislation of the country in which it took place. (Burundi 2009)

Article 10 also states that if the crime committed involves torture, terrorism, genocide, crimes against humanity or war crimes, the

[translation]

judicial proceedings of offences committed abroad are subject to the filing of a complaint by the aggrieved party or an official complaint by the state authority in the country where the offence was committed.

The jurisdiction of Burundian courts, with regards to crimes involving genocide, crimes against humanity and war crimes, does not depend on whether such crimes are punishable under the law of the country where they were committed or on extradition agreements. (ibid.)

In terms of Rwandan jurisdiction, according to Article 33 of the Organic Law No. 30/2008 of 25/07/2008 Relating to Rwandan Nationality, "for persons holding more than one nationality, including that of Rwanda, only the latter shall be considered in cases involving compliance with Rwandan laws" (Rwanda 2008).

1.2 Extradition Agreements Between Rwanda and Burundi

A 15 October 2009 article published by the New Times, the "leading English daily" newspaper in Rwanda (The New Times n.d.), states that "two-day bilateral talks" took place between Rwandan and Burundian officials, resulting in a decision to sign an extradition treaty between the two countries. The article adds that the treaty would enable Rwanda to "seek the extradition from Burundi of any Genocide suspects who are hiding there" (ibid. 15 Oct. 2009).

The UN Committee on the Rights of the Child, in its report entitled Consideration of Reports Submitted by States Parties Under Article 44 of the Convention: Burundi, states that Burundi "has signed an agreement on mutual judicial assistance among the member States of the Economic Community of the Great Lakes Countries (Communauté économique des pays des Grands Lacs, CEPGL) for the extradition of persons tried and convicted in another member state" (UN 7 Jan. 2010, 47). Similarly, the UN Committee Against Torture, in its 2013 report entitled Consideration of Reports Submitted by States Parties Under Article 19 of the Convention: Burundi, indicates that Burundi has signed an extradition treaty with the CEPGL, which comprises Rwanda, Democratic Republic of the Congo and Burundi (UN 28 Feb. 2013, 9). The 2013 report further states that a draft treaty "is currently being developed by legal experts of the Tripartite Plus Joint Commission (Democratic Republic of the Congo, Rwanda, and Uganda, plus Burundi). In this draft treaty, perpetrators of torture are listed among the people who can be extradited" (ibid.).

The East African, a news website that is a partner of the Wall Street Journal and is operated out of Nairobi (The East African n.d.), reported in a February 2013 article that the extradition treaty that Rwanda has with Burundi "dates way back to 1979" under the treaty of the CEPGL (8 Feb. 2013). However, in correspondence with the Research Directorate, a representative from the Burundi National Office for the Protection of Refugees and Stateless Persons (Office national de protection des réfugiés et apatrides, ONPRA), stated that [translation] "as of today, 13 August 2014, Burundi and Rwanda do not yet have an extradition treaty or agreement" (Burundi 13 Aug. 2014).

According to one source, the Rwandan Senate Committee on Foreign Affairs recently approved a new extradition bill that is "expected" to enhance Rwanda's "effort to bring back genocide suspects living abroad to Rwanda for prosecution" (The East African 8 Feb. 2013). Further information on this bill could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

According to Article 50 of the Law No. 1/010 on the Enactment of the Constitution of the Republic of Burundi (Loi No.1/010 du 18 mars 2005 portant promulgation de la constitution de la République du Burundi), no citizen of Burundi can be extradited to another country unless he or she is being prosecuted under international criminal law for genocide, war crimes, or other crimes against humanity (Burundi 2005).

Similarly, the ONPRA representative stated that an extradition could only be conducted through the appropriate diplomatic channels and according to applicable agreements, and through official bodies such as the police or INTERPOL, and that [translation] "[t]he Burundian government would by no means authorize the Rwandan authorities to enter its territory for the purpose of capturing ... a person" (Burundi 13 Aug. 2014).

The UN reports that Burundi is "cooperating on the eradication of transnational crime with virtually all the countries of the world through Interpol" (UN 7 Jan. 2010). Interpol reports that it has been working closely with Rwanda over the last 10 years under Interpol's Rwandan Genocide Fugitives Project, which has led to "the identification and arrest of 40 individuals in 14 countries" (Interpol 14 Apr. 2014). The same source states that

INTERPOL, through its Fugitive Investigative Support unit and law enforcement tools, has been a key partner to the Rwanda National Police in bringing some of the fugitives to justice, and we encourage other member countries to follow suit and contribute in closing the impunity gap. (ibid.)

2. State Protection

Information on state protection offered by the Burundi government to individuals persecuted by Rwandan authorities who have citizenship in both countries could not be found among the sources consulted by the Research Directorate within the time constraints of this Response. However, the following information may be useful.

2.1 Extradition of Rwandan Déogratias Mushayidi in 2010

Media sources report that Rwandan political opponent Déogratias Mushayidi was extradited from Burundi in 2010 and sentenced to life in prison in Rwanda (BBC 17 Sept. 2010; Jambonews 25 Feb. 2012; RNW 27 Feb. 2012). According to sources, Mushayidi was known in Rwanda as an important opposition leader and critic of the government, and was convicted of "plotting to overthrow President Paul Kagame's government" (ibid.; BBC 17 Sept. 2010). According to Radio Nederland Wereldomroep (RNW), an independent media organization that offers information in countries where freedom of expression is restricted (RNW n.d.), Mushayidi "became the most critical journalist of the current regime" (RNW 27 Feb. 2012).

The East African reports that the 1979 extradition treaty with the CEPGL "formed the basis" for Mushayidi's extradition from Burundi to Rwanda (8 Feb. 2013). In a 6 March 2010 article, the New Times reported that Mushayidi was arrested "following cooperation by law enforcement organs" of Burundi. Amnesty International (AI) similarly reported on 10 March 2010 that Mushayidi was detained in Burundi by Burundian security forces, who "handed him over to Rwanda two days later. It is not clear whether he was formally extradited." The same source's Annual Report 2011 refers to the case as an "illegal extradition" and reports that Mushayidi's "arrest appeared to contravene formal extradition proceedings" (AI 2011). Similarly, Jambonews, an information website on "current events affecting the Great Lakes of Africa in general and Rwanda in particular" (Jambonews n.d.), reports that Mushayidi was [translation] "kidnapped" and transferred to Rwanda (Jambonews 25 Feb. 2012). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

References

Amnesty International (AI). 2011. "Burundi." Amnesty International Report 2011: The State of the World's Human Rights. [Accessed 11 July 2014]

_____. 10 March 2010. "Document- Rwanda: Politician Arrested, Risks Ill-treatment, Deogratias Mushayidi." [Accessed 29 July 2014]

British Broadcasting Corporation (BBC). 17 September 2010. "Rwanda: Kagame Critic Mushayidi Jailed for Life." [Accessed 21 July 2014]

Burundi. 13 August 2014. Office national de protection des réfugiés et apatrides (ONPRA). Correspondence from a representative to the Research Directorate.

_____. 2009. Loi No. 1/05 du 22 avril 2009 portant révision du code pénal. [Accessed 25 July 2014]

_____. 2005. Loi No. 1/010 du 18 mars 2005 portant promulgation de la constitution de la République du Burundi. [Accessed 25 July 2014]

_____. 2000. Loi 1/013 du 18 juillet 2000 portant réforme du code de la nationalité. [Accessed 11 July 2014]

The East African. 8 February 2013. Emmanuel Rutayisire. "Senate Committee Gives Nod to Extradition Law." [Accessed 22 July 2014]

______. N.d. "About Us." [Accessed 25 July 2014]

Interpol. 14 April 2014. "'Closing the Impunity Gap' Focus of INTERPOL Genocide, War Crimes and Crimes Against Humanity Meeting in Rwanda." [Accessed 11 July 2014]

Jambonews. 25 February 2012. Pacifique Habimana. "Rwanda : La perpétuité confirmée pour Déo Mushayidi." [Accessed 21 July 2014]

_____. N.d. "About Jambonews." [Accessed 25 July 2014]

The New Times. 6 March 2010. "Mushayidi Arrested for Terrorism, Extradited." [Accessed 29 July 2014]

_____. 15 October 2009. James Karuhanga. "Rwanda-Burundi to Sign Extradition Treaty." [Accessed 23 July 2014]

_____. N.d. "About." [Accessed 29 July 2014]

Radio Nederland Wereldomroep (RNW). 27 February 2012. Josephine Uwineza. "Life Sentence for Rwandan Political Leader." [Accessed 21 July 2014]

_____. N.d. "About Us." [Accessed 25 July 2014]

Rwanda. 2008. Organic Law No. 30/2008 of 25/07/2008 Relating to Rwandan Nationality. [Accessed 25 July 2014]

_____. 2003. The Constitution of the Republic of Rwanda. [Accessed 11 July 2014]

United Nations (UN). 28 February 2013. Committee Against Torture. Consideration of Reports Submitted by States Parties Under Article 19 of the Convention: Burundi. [Accessed 23 July 2014]

_____. 7 January 2010. Committee on the Rights of the Child. Consideration of Reports Submitted by States Parties Under Article 44 of the Convention: Burundi. CRC/C/BDI/2 [Accessed 25 July 2014]

Additional Sources Consulted

Oral sources: Attempts to contact the following organizations and individuals were unsuccessful within the time constraints of this Response: Avocats sans frontières (Burundi); Burundi - Embassy of the Republic of Burundi in Ottawa, Embassy of the Republic of Burundi in Washington; Collectif des ligues et associations de défense des droits de l'homme au Rwanda; criminal law professor, Université du Burundi; Global Rights (Burundi); Groupe juridique international des droits humains, Bujumbura; lawyer in Burundi; lawyers in Rwanda; lecturer, University of Antwerp; Ligue des droits de la personne dans la région des Grands Lacs; Ligue burundaise des droits de l'homme (Ligue Iteka); Ligue rwandaise pour la promotion et la défense des droits de l'homme; professor emeritus, Université catholique de Louvain, Belgium; professor, Faculty of Law, University of Ottawa; professor, University of Antwerp; research associate, School of Oriental and African Studies, University of London; Réseau Citoyens-Citizens Network Justice et Démocratie; Rwanda - Embassy of the Republic of Rwanda in Washington, Office of the Ombudsman of Rwanda, Rwanda High Commission in Ottawa; Senior Human Rights Advisor with the UN.

Internet sites, including: Australia - Department of Immigration and Border Protection; Avocats sans frontières; Belgium - Office of the Commissioner General for Refugees and Stateless Persons; Burundi - Embassy in Canada; Ecoi.net; France - Office français de protection des réfugiés et apatrides; Freedom House; Global Rights; The Guardian; UN - Refworld, UNHCR; US - Department of State, Library of Congress.