Ten of the 12 African states on the UN Human Rights Council voted for a resolution this week that, in effect, will ensure that serious human rights abuses taking place in Burundi will never actually be prosecuted - and South Africa was one of the countries that supported the resolution.
The resolution, drafted by the Africa group, was in response to the recently released report of the Commission of Inquiry mandated by the UN Human Rights Council to investigate serious human rights abuses perpetrated in Burundi over the past two years. The damning report was released 12 days ago.
The commission was created in September last year to conduct thorough investigations into human rights abuses in Burundi since April 2015, and to determine whether they constitute crimes against humanity. The commission was tasked to identify alleged perpetrators, recommend how to hold them accountable, and engage with the authorities in Burundi on how to improve the human rights situation.
The report found that serious human rights violations have mostly been perpetrated by organs of the state - specifically high-level officials in the intelligence service who report directly to the president, the Burundi national police force, the military, and the Imbonerakure - the youth wing of the ruling party CNDD-FDD.
The report concluded that given the gravity, nature and scale of the acts and direct involvement of state bodies, the violations are likely to constitute crimes against humanity. The report further found that the climate of widespread impunity in Burundi is being sustained by hate speech uttered by Burundi government representatives, members of the ruling party and its youth league.
The report made it very clear that the Burundi justice system lacks independence and therefore there will be impunity for these crimes as the Burundian state is neither willing nor able to carry out effective investigations or prosecutions.
The Government of Burundi refused to engage in dialogue or to co-operate with the commission, despite the fact that they were obliged to as a member of the UN Human Rights Council.
When the commission requested to go to Burundi and meet with authorities they received no response, and Burundi argued they rejected the very resolution that created the commission. But, despite the obstacles, the commission managed to document 500 testimonies from people inside Burundi and from those who have fled the country.
President of the commission, Fatsah Ouguergouz, a former judge from Algeria who served as the vice-president of the African Court of Human and Peoples’ Rights from 2006-2016, has reported on the extensive extra- judicial killings and torture, rapes, forced disappearances, arbitrary arrests and detention in Burundi.
In response to the commission’s findings, the Africa Group at the UN Human Rights Council drafted a resolution asking the Office of the High Commissioner for Human Rights to send a team of three experts to work with the Burundi government in pursuing the perpetrators of these “deplorable crimes”. But that proposal is a non-starter when the very perpetrators of the crimes are in fact high-level members of the government and its security sector. It is tantamount to asking the perpetrators to investigate and prosecute themselves.
Why would the government work with three new experts when all along they refused to work with the commission? There is also no assurance that the team would be independent. The resolution drafted by the African group specifically stipulates that the information collected must be submitted to Burundi’s judicial authorities. In essence, any documented evidence of gross human rights violations collected by the team would need to be given to the very organ of state that has to date been protecting the perpetrators of the crimes.
It is no wonder that the European Union spoke out against the text, saying: “It in no way reflects the scale or severity of the situation in Burundi.”
On Friday, the UN Human Rights Council voted to extend the mandate of the commission for an additional year to investigate further. South Africa voted against extending the mandate, as did some of the other African countries.
One wonders how the African states realistically expect that the Burundi government will hold its own leadership and officials to account for crimes against humanity, when their instructions come from the top down.
It is also telling that there has been a move to shut down the work of the commission, almost in an effort to hide the truth.
* Ebrahim is Independent Media's Group Foreign Editor