PENAL CODE: HOMOSEXUAL ACTS, TORTURE, AND TIP ARE

C O N F I D E N T I A L BUJUMBURA 000181 LONDON, PARIS, PLEASE PASS TO AFRICA WATCHERS E.O. 12958: DECL: 04/06/2019 TAGS: BY KDEM PHUM PREL SUBJECT: PENAL CODE: HOMOSEXUAL ACTS, TORTURE, AND TIP ARE CRIMES REF: A. 08 BUJUMBURA 675 ¶B. 08 BUJUMBURA 353 Classified By: Ambassador P. Moller for reasons 1.4 (b) and (d). ¶1. (C) Summary: The Burundian National Assembly passed a draft law revising the Burundian Penal Code March 26, rejecting a Senate amendment that would have removed a provision criminalizing homosexual activity. UN Representative for Human Rights in Burundi Jean Luc Marx told PolOff March 25 that the revised penal code, if signed by President Nkurunziza as expected, could be challenged in the Constitutional Court. Marx said that his office will prepare a "friends of the court" brief arguing that the provision is unconstitutional and inconsistent with various international human rights conventions that Burundi has signed. The brief will be available to the defense team of any person prosecuted under the new provision criminalizing homosexual acts. In light of other changes contained in the revised penal code, such as the criminalization of human trafficking and torture, the anti-homosexual provision is an unfortunate tarnish on the more welcome components of the Code. END SUMMARY. -------------- -------------- Criminalization of Homosexual Acts in the Revised Penal Code -------------- -------------- ¶2. (C) Briefing PolOff March 25 on the status of the revised Burundian Penal Code, Marx said parliamentarians and their constituencies interpreted opposition to the criminalization of homosexual acts as an endorsement of homosexuality; consequently the vote in Parliament had become one of "for or against" homosexuality. Marx suggested that civil society organizations may appeal to the Burundian Constitutional Court to overturn the provisions criminalizing homosexual acts. He noted a December 2008 Ugandan court decision that found that criminal investigation of homosexual acts constituted a violation of the right to privacy, and indicated a similar interpretation could essentially nullify the homosexual acts provision in Burundi. Marx also questioned whether the Burundian police and judicial services would be willing to investigate charges of homosexual acts as required under the revised Code. He noted that the revised Code also contained several positive changes, including criminalizing human trafficking and torture, and listing penalties for specific acts of gender-based violence. ¶3. (C) During an April 1 update with PolOff, Marx said that his office will draft a "friends of the court" brief arguing that the provision criminalizing homosexual acts is unconstitutional and inconsistent with Burundi's obligations under the various international human rights conventions it has signed. Marx's office will make the brief available to the defense team of any person prosecuted under the new provision. He also said the UN Human Rights Office will increase monitoring of the treatment of homosexuals through expanded cooperation with local NGOs. Marx candidly offered that he felt the UN and others in the international community had lobbied parliamentarians too hard to vote against the anti-homosexual provision. He expressed concern that his access to parliamentarians had been reduced because of resentment over lobbying pressure. ¶4. (C) COMMENT: The National Assembly, which originally introduced language criminalizing homosexual acts into the revised Penal Code (ref A),passed the draft law March 26 after consultation with the Senate. The compromise version contains the homosexual acts clause, which punishes the guilty with prison sentences of up to two years. International actors, including the Ambassador (ref A),had initially convinced the majority of the Senate to reject the clause, but were unsuccessful with the National Assembly. When lobbied, Assembly members told the Ambassador, DCM and other EmbOffs that the people in their villages simply would not understand a "vote for homosexuality." Although parliamentarians said they recognized criminalization would likely cause homosexuals to forego HIV/AIDS testing and treatment; create a new group of victims in a country that has already suffered greatly from victimization; create a new law that would be difficult (if not impossible) to enforce; and violate Burundi's international obligations, they felt obliged to be seen as "against this sin." The bill was sent to President Nkurunziza for signature, and most observers expect he will sign the draft law in April. ¶5. (C) The language criminalizing homosexual acts may reflect, to some degree, Nkurunziza's evangelical leanings and his influence over parliamentarians and CNDD-FDD party faithful. It may also represent CNDD-FDD manipulation of a "hot button" social issue to raise popular support prior to 2010 elections. In any case, prior to the introduction of the amendment (over a weekend and with little discussion) homosexuality had been a little-remarked issue in Burundi. ¶6. (C) The strategy suggested by Marx to challenge the constitutionality of the anti-homosexual provision offers the benefit of isolating the provision while safe-guarding other welcome changes in the Penal Code. When asked to determine in 2008 whether the government could expel 22 former ruling party members from Parliament, the Constitutional Court found that the GOB acted within the law. Most legal scholars found this a dubious ruling (ref B). If a case is brought before the Constitutional Court (still led by CNDD-FDD party adherents),the Court's ability to rule against the homosexual acts provision (and party line) may well signal the true depth of judicial independence. END COMMENT. MOLLER