New legislation, promulgated last week in Burundi by President Nkurunziza, which abolishes the death penalty but outlaws homosexuality, is both a cause for celebration and disappointment.
On the one hand the new Criminal Code abolishes the death penalty and makes torture, genocide, war crimes, and crimes against humanity punishable offences. But, on the other hand, those found guilty of engaging in consensual same-sex relations risk imprisonment of two to three years and a fine of 50,000 to 100,000 Burundian francs (42 to 84 US dollars).
Amnesty International’s Africa Programme Director, Erwin van der Borght, welcomed the abolition of the death penalty in Burundi, saying that it “further strengthens the international trend towards abolition.” Burundi has now become the 93rd country in the world to abolish the death penalty for all crimes.
But, says Erwin van der Borght, “this good news is undermined by the government's decision to criminalize homosexuality, in violation of Burundi's obligations under international and regional human rights law. It also flies in the face of Burundi's constitution, which guarantees the right to privacy.”
This new legislative provision could result in the imprisonment of people solely for their actual or imputed sexual orientation, including for private sexual relations between consenting adults.
Health organizations in Burundi have said that the new legislation may also limit the effectiveness of their work to curb HIV/AIDS. They have stated that the current amendment undermines attempts to ensure that people have access to voluntary counselling and testing, to information about prevention of infection and access to treatment where needed.
Article 2 of the African Charter on Human and People's Rights prohibits discrimination, Article 3 promises every individual equality before the law and article 26 prescribes that "every individual shall have the duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance."
The Executive Council of the African Commission on Human and Peoples' Rights has also stated that "together with equality before the law and equal protection of the law, the principle of non-discrimination provided under Article 2 of the Charter provides the foundation for the enjoyment of all human rights. The aim of this principle is to ensure equality of treatment for individuals irrespective of nationality, sex, racial or ethnic origin, political opinion, religion or belief, disability, age or sexual orientation."