(Bujumbura) - The Burundian National Assembly adopted important human rights advances in a penal code voted in on November 22, 2008, including abolishing the death penalty and making torture, genocide, war crimes, and crimes against humanity punishable under Burundian law, Human Rights Watch said today.

But three changes to the code are detrimental to human rights. These changes would make consensual homosexual conduct a criminal offense, decriminalize arbitrary detention by state agents, and limit the responsibility of the state to address spousal violence. To become law, the code must be approved by the Senate and signed by the president.

"We applaud the National Assembly for its positive steps," said Alison Des Forges, senior advisor to the Africa Division at Human Rights Watch. "But we look to the Senate to retain the strong advances in the new penal code while amending the negative provisions concerning homosexual activity, spousal violence, and abuse of power by state agents."

The code defines torture and makes it a crime, carrying out Burundi's obligations as a party to the Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment. Similarly, the code defines and criminalizes genocide, war crimes, and crimes against humanity, integrating these crimes as defined by international conventions into domestic law. All three crimes are punishable by life sentences.

The Assembly adopted a clearer and more comprehensive definition of rape, along with harsher penalties, than provided for in the current code, adopted in 1981.

The Assembly also approved changes that provide greater protection to children in conflict with the law. The new code raises the age of criminal responsibility from 13 years old to 15 years old, and provides reduced penalties as well as alternative sentences for youth ages 15 to 18.

In adopting the code, the Assembly also approved three changes detrimental to human rights.

Following a last-minute proposal by the Parliamentary Justice and Human Rights Commission, the Assembly amended the code so that, for the first time, sexual acts between persons of the same sex would be prohibited, and imposed a penalty of imprisonment from three months to two years and a fine for such acts.  

In a second retrograde step, the Assembly deleted a provision of the existing code that prohibited "abuses of individuals' rights by public functionaries," including arbitrary detention.

The Assembly also inserted an arbitrary distinction between victims of spousal violence and victims of other kinds of attacks. It would require victims of spousal violence to file a complaint before the state takes action to prosecute the abuse, which is not the case in other acts of violence.

"Senators have a historic opportunity to put Burundi at the forefront in defending human rights," said Des Forges. "To do so, they should make the changes necessary to ensure that the judicial system protects all Burundians, especially women at risk of sexual and gender-based violence at home, persons with partners of the same sex, and all persons threatened by arbitrary detention or other abuses by state agents."