Your Excellence, Ladies and Gentlemen,
On behalf of Human Rights Watch, I am writing to express concern that the Senate of Burundi is on the verge of approving legislation that would strip away fundamental human rights.
A draft criminal code, scheduled for a Senate vote on February 17, would criminalize consensual homosexual conduct for the first time in Burundi's history. The draft's Article 552 proposes a sentence of three months to two years in prison and/or a fine, for such conduct.
At the UN Human Rights Council's Universal Periodic Review of Burundi in December 2008, many member states asked Burundi to reconsider the proposed law in order to comply with its treaty obligations. Those obligations are clear. The law would violate the African Charter on Human and Peoples' Rights and the International Covenant on Civil and Political Rights (ICCPR), to which Burundi is a party. According to the United Nations Human Rights Committee's 1994 ruling in the case Toonen v. Australia, laws criminalizing homosexual conduct violate the right to privacy protected by article 17 of the ICCPR.
The United Nations Working Group on Arbitrary Detention has also found that arrests for consensual homosexual conduct are, by definition, human rights violations.
Burundi's own constitution guarantees the right to privacy (Article 28) and the right to non-discrimination (Article 17). Under Article 19, rights protected by the international conventions to which Burundi is a party, including the ICCPR, are integrated into Burundian law and recognized as "fundamental."
Moreover, this new provision would severely damage Burundi's efforts to combat the HIV/AIDS pandemic. HIV/AIDS is primarily transmitted by heterosexual contact in Burundi, as in the rest of sub-Saharan Africa, but Burundi cannot afford the public health consequences of forcing a part of its population into silence and invisibility. Such a move would cripple life-saving outreach, education, and care efforts.
Human Rights Watch recognizes the significant efforts made by both the National Assembly and the Senate Justice Commission, which drafted amendments to the criminal code, to bring other sections of the code in line with international human rights standards. It now falls upon the Senate and the President of the Republic to correct this remaining deficiency in the law. If the Senate does not do so, the duty will lie with the President of the Republic, who may demand a second reading of the law or submit it to the Constitutional Court for evaluation.
We urge you, as President of the Republic and as Senators, to act in accordance with Burundi's legal obligations under international human rights law by rejecting Article 522 of the draft criminal code.
Director, Lesbian, Gay, Bisexual and Transgender Rights Division
Human Rights Watch
 Toonen v. Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992, 1994. Available at: http://www1.umn.edu/humanrts/undocs/html/vws488.htm.