Burundi urged not to criminalise homosexual acts

Illustrated rainbow pride flag on a white background.

A leading human rights group has called on politicians in Burundi to drop plans to amend the penal code and prohibit same-sex acts.

Human Rights Watch said that many of the proposed changes to the penal code are to be welcomed, but drew attention to three areas of concern.

Following a last-minute proposal by the Parliamentary Justice and Human Rights Commission, the Burundi National Assembly amended the code last month so that, for the first time, sexual acts between persons of the same sex would be prohibited.

Gays and lesbians face three months to two years in jail and a fine.

The Assembly also deleted a provision of the existing code that prohibited “abuses of individuals’ rights by public functionaries,” including arbitrary detention and 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 Alison Des Forges, senior advisor to the Africa Division at Human Rights Watch.

“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.”

The National Assembly adopted important human rights advances as part of the new penal code, which they approved on November 22.

They include abolishing the death penalty and making torture, genocide, war crimes, and crimes against humanity punishable under Burundian law.

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 criminalises 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.

“The enforcement of a prohibition of homosexual conduct is likely to undermine attempts to combat the spread of HIV/AIDS,” according to HRW.

“Persons stigmatised for their sexual conduct may shun treatment for fear of being identified as homosexual.

“Civil society groups that educate gay men about HIV fear they will find it more difficult to carry on their work.

“Self-identified gay Burundians interviewed by Human Rights Watch expressed fears that gays would be more likely to be beaten and mistreated by police or ordinary citizens if the code provision is passed.

“The president of the National Assembly’s Human Rights Commission, Fidele Mbunde, a proponent of the amendment, told Human Rights Watch that he did not intend for arrests to be made under the law, but for it to “send a message” about Burundian values.”