VII. Recent Government Action

The draft penal law

At the time of writing, proposed amendments to the criminal law, already approved by the council of ministers, were before the Burundian parliament. Prepared by Burundian legal experts in conjunction with staff of the UN Office of the High Commissioner for Human Rights, the proposed amendments are meant to address inequalities and gaps in the current penal law which dates from 1981.[121]

The proposed amendments make some substantial changes to the treatment of children in conflict with the law. They would raise the age of criminal responsibility from 13 to 15 years old and would reduce the prison sentences for those between the ages of 15 and 18 to a quarter of the sentence of an adult convicted of the same crime.[122] Most importantly, the proposed amendments create alternatives to incarceration in prisons, such as the possibility of placing children in conflict with the law in foster families or in specialized institutions. They require that a child sentenced to a year or less in prison must instead perform community service, the nature of which would be determined by a judge considering the age and social context of the child.[123]

Should it be passed, the amendments could represent a significant step forward in addressing the problem of children in conflict with the law in Burundi. Changes to the law, however, are only the first step. Effective implementation of provisions like those for alternatives to prison is required. Specialized institutions would have to be established as would services to locate and supervise foster families and to monitor conditions of the community service. These would require considerable donor support.

Presidential initiatives to release prisoners

The president recently announced two measures to reduce overcrowding in prisons and to deal with excessive time spent in pre-trial detention. On December 22, 2006 President Nkurunziza ordered the release of several categories of prisoners, including those who had been convicted and sentenced for crimes committed when they were younger than 15 years old.[124]

This measure will affect a relatively small number of children since only 83 of the 401 children in prison in December 2006 had been brought to trial and not all of them for crimes committed when they were younger than 15 years old.[125] The Ministry of Justice established a commission to compile a list of qualifying prisoners but it is not known how or when the children will be released.[126]

In a second measure announced on December 31, 2006 the president directed judicial authorities to identify prisoners held in pre-trial detention for long periods of time in violation of the law. In a New Year's speech to the nation, he said that these prisoners would be granted provisional liberty while awaiting trial.[127] The minister of justice subsequently indicated that persons accused of violent crimes, such as murder, rape and armed robbery, would be excluded from this measure.[128]At the time of writing, judicial officials were identifying eligible prisoners and releases were expected to begin imminently.[129]

The second measure will end the illegal detention of some persons, children as well as adults, held long beyond the limits prescribed by law. It should also reduce overcrowding in the prisons and thus at least marginally improve conditions of incarceration. The extent of any improvement will depend at least in part on the number of persons newly arrested and detained. According to the data gathered by one local organization, in 2005, authorities released 2796 prisoners but by the end of the year they had detained another 2568, significantly eroding the improvements resulting from the earlier release.[130]

Important measures in themselves, these two initiatives do not address the violations of children's rights which regularly occur in the justice system nor do they provide the systematic reform of the justice system needed to meet international standards for juvenile justice.