“The respect of the right to a defence is an important measure of a state’s democracy”
(-Reagan Kaputa)
In Burundi, the right to a defence is vested with a Constitutional character, recognized by Burundi’s supreme law, the Constitution of 18 March 2005 and carried forward with the Constitution recently promulgated, on 7 June 2018, in its article 39, paragraph 3 “the right to defence is guaranteed in all courts”. Its international character is embodied under article 7 of the African Charter on Human and People’s rights (Organization of African Unity, 27 June 1981), article 14 of the International Covenant on Civil and Political Rights (United Nations’ General Assembly, 16 December 1966), and in the Universal Declaration of Human Rights (United Nations’ General Assembly, 10 December 1948): the right to equality before the law (article 7); the access to justice (article 8); the right to a fair trial (article 10) and the right to the presumption of innocence (article 11).
The right to a defence is therefore understood as a guarantee offered to the defendant of fair treatment when the latter has allegedly perpetrated an offence, whether in a civil or penal case. This right is especially important in criminal law, particularly when the defendant is deprived of his or her liberty.
Article 138 of the Criminal Procedure law n°1/09 of 11 May 2018 in Burundi lists a set of the requisite guarantees to ensure the right to a defence, including, but not limit to, the assistance of legal counsel, the right to choose the counsel, and the right to communicate freely and in full confidentiality with the counsel.
The experience in Burundi has shown that the difficult and decisive task of enforcing these rights of the defence in most, if not all, scenarios falls on the lawyer. The lawyer with his or her set of tools is the one tasked with to (1) identify the breach of his/her client’s fundamental rights, and (2) provide the best assistance to the defendant.
In times of Covid-19, when human contact has been made more and more difficult, where does the application of these basic rights of defence stand in a country like Burundi?
Burundi, as many other countries in the world, is living through unprecedented times: a fight against a global pandemic, Covid-19. The government of Burundi has insisted on reminding its citizens – initially through regular press releases, followed by the launch of a national campaign – of the importance of safe distancing, restricted physical contact, and handwashing. Among the measures implemented has been the restriction of public access to prisons – lawyers included (Burundi’s prisons are notoriously overcrowded and physical distancing almost impossible). Added to this, in spite of the country not having implemented a lockdown, contact between lawyers and clients has however been restricted.
In ordinary times, the right to a defence is not always respected in Burundi, but these measures are further compromising defendants’ rights. Other services have been operating without restriction, investigations are still running through police offices, trials are still scheduled, etc., and yet interviews between the defendant and his or her client are not possible. Additionally, Burundi is a country where the internet penetration has been reported to be less than 10%; Burundians are still navigating and tentatively trying to be as connected as the rest of the world, but many obstacles remain. This digital illiteracy, coupled with a lack of means, extends to the legal system: e-communications that may otherwise facilitate lawyer-client meetings are rendered completely impossible since the equipment is unavailable and the access to internet services is still out of reach for the majority of the population.
And yet, even if this type of communication could be facilitated, Burundian culture dictates that face-to-face meetings will always be preferred. There is little to no trust in electronic communication as the average Burundian is not even aware of how to secure the information shared on such platforms. The lack of confidence for both the lawyer and the defendant that their conversations will remain fully confidential is likely to further impact upon the right to a defence in times of Covid-19 restrictions.
On a broader level, both the defendant and the lawyer are put at a great risk regarding their potential exposure to the virus. Courtrooms are always overcrowded, including with family and friends of the defendant joining to show their support, and the necessary distancing already difficult to implement in other areas of life is made especially challenging for the lawyer who needs to be physically present for every phase of the proceedings: police offices, corridors of prisons, trials, etc. The practice of the profession is thus done with the fear of not only contracting the virus but also putting lawyers’ families at risk. And when the lawyer is not present, the defendant finds himself or herself vulnerable to seeing the respect of their rights recognized by the Constitution of Burundi and internationally ignored.
In one of the cases the firm handled last month, we had a client in prison who was notified of the judgement of a court of first instance. Procedurally, a copy of the judgement must be given to the accused when being notified, as it is one of the requirements in order to appeal. There is very little chance the defendant was aware of this particularity and the restriction of interviews between the defendant and the lawyer made it more challenging for the lawyer to provide the right kind of assistance. This lack of knowledge is what makes the respect of the right to a defence critical and once again highlights the importance of lawyer-defendant communication, as well as the imperative that rights are fully respected throughout the judicial system. One single act can trigger and lead to several legal consequences.
Luckily enough, in this particular instance, because of the diligence of the firm, our lawyers, and the collaboration of the judicial authorities, our team came up with a creative solution to this challenge, avoiding the expiration of the time of appeal. A copy of the judgement was obtained in record time.
Solutions are available; solutions are easily applicable; solutions require all parties to understand the need and the importance to tackle and deal with these issues. Such solutions could include: the strict restriction to a certain number of people in courtrooms; the availability, at the Registry of Tribunals and Courts, of material and trained human resources ensuring the accessibility of documents in legally prescribed periods, thus reducing physical and frequency’s contacts; the constant availability of communication channels between the defendant and his or her lawyer, such as an office available to conduct interviews, regularly sanitized, and where the confidentiality of the meeting is assured; and finally the strict compliance to the number of hearing postponements available per level of jurisdiction, hence reducing physical appearances to courts and therefore decreasing the risk of contamination.
In the meantime, our firm has had to stay alert and available in the face of adversity. In a country where hearings can now be postponed for many months, the necessity of being cautious has spiked in the profession. The firm has had to be extremely diligent, particularly in the month of July, making sure ahead of time that prisoners were granted exit permission for the allotted day, as per the prison regulations, and ensuring that they were physically present at courts. Since August is the judicial year’s monthly break, missing your trial in July means the defendant must wait for a postponement to November at the earliest, and sometimes even December, which is extremely problematic for defendants deprived of their liberty. The lawyer has no other choice than strengthening his or her arsenal as a “rights’ enforcer.”
The Covid-19 pandemic has exacerbated a situation where the right to a defence was already subject to multiple challenges. Equally, the pandemic has shone a light on the crucial importance of lawyers when it comes to the protection and the enforcement of the rights of defence. It has also exposed areas of Burundi’s legal system where changes are needed that would impact positively on defendant’s rights.
