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.

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Criminalization of Homosexual Acts in the Revised Penal Code
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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