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Experts of the Committee against Torture urge Burkina Faso to safeguard human rights while combatting terrorism and insecurity

Committee against Torture 

14 November 2019

Experts Raise Concerns about Self-Defence Groups Known as Koglweogo

The Committee against Torture this afternoon concluded its consideration of the second periodic report of Burkina Faso on measures taken to implement the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  Committee members stressed the need to uphold human rights despite the challenge posed by radicalization and terrorism.  They raised concerns regarding measures put in place to address insecurity issues, such as terrorism-related preventive detentions, warning against remedies that could prove worse than the illness.

Claude Heller Rouassant, Co-Rapporteur for Burkina Faso, asked how the Government was ensuring the protection of human rights defenders in the context of the state of emergency that had been declared in some provinces.  He stressed the importance of reconciling respect for human rights with the fight against terrorism.  Sometimes, the remedy was worse than the illness, and this could negatively affect the authorities' relationship with the population. 

The Co-Rapporteur said the State party had intensified regional and international cooperation to fight terrorism, notably through the G5 Sahel, but this mechanism's efficiency had been called into question.  There were allegations of arbitrary detentions, torture and ill-treatment against alleged terrorists or members of their families.  The Co-Rapporteur requested information on this matter.  Further, since 2016, there had been grave attacks on human rights attributable to members of self-defence groups, commonly known as "Koglweogo".  Would it not be advisable to create an oversight mechanism to address this issue?  It was clear that these groups were out of control.

Maminata Ouattara-Ouattara, Minister for Human Rights and Civil Promotion of Burkina Faso, recalled that Burkina Faso was going through a complex situation marked by upheavals and terrorist attacks, which posed a challenge to the promotion and protection of human rights.  The Government had declared a state of emergency through a process in line with the provisions of the International Covenant on Civil and Political Rights.  This decision had been communicated accordingly.  The state of emergency had not led to derogations of human rights nor fundamental freedoms, she assured. 

The Kolkowego were local security initiatives, and such groups were comprised of members of the local population.  They aimed to combat gang activity and, in that regard, had proven helpful in ensuring security.  Their members were never state agents.  For people held in custody for terrorism, the maximum length of detention was 15 days, which could be renewed for a 10-day period.  Such renewal could only be granted by the High Court, known as the Tribunal de Grande Instance.  In such cases, the person held in custody should be presented to the judge, except when investigation circumstances prevented it. 

In her concluding remarks, Ms. Ouattara-Ouattara thanked Committee members and paid tribute to the civil society organizations that had produced shadow reports.  The Government would consider the Committee's recommendations carefully.

Jens Modvig, Committee Chairperson, recalled that the Committee would request that the State party submit a report on the implementation of three urgent recommendations.  He thanked the delegation for its hard work.

The delegation of Burkina Faso was comprised of representatives of the Ministry for Human Rights and Civil Promotion, the Ministry of Foreign Affairs and Cooperation, the Ministry of Health, the Ministry of Women, National Solidarity, Family and Humanitarian Action, the Ministry of Defence, the Ministry of Justice, the National Commission for Refugees, the Ministry of Security, and the Permanent Mission of Burkina Faso to the United Nations Office at Geneva.

The Committee will next meet in public on Friday, 15 November at 10 a.m.  to begin its consideration of the fifth periodic report of Cyprus (CAT/C/CYP/5).

Report

The Committee has before it the second periodic report of Burkina Faso (CAT/C/BFA/2).

Presentation of the Report

MAMINATA OUATTARA-OUATTARA, Minister for Human Rights and Civil Promotion of Burkina Faso, said it was important to note that the implementation of the recommendations resulting from the presentation of the previous report had been made in a difficult context.  Indeed, as mentioned in paragraph 137 and others of the report, the popular uprising of 30 and 31 October 2014 and the failed coup of 15 September 2015 had strongly affected the realization of human rights in general, and the execution of actions to give full effect to the provisions of the Convention in particular.  In addition, since 2015, Burkina Faso had been confronted with renewed attacks by terrorist groups, which had created a climate of insecurity that threatened peace and social cohesion.  This situation had had a negative impact on the promotion and protection of human rights. 

This context notwithstanding, Burkina Faso had taken a number of steps towards the implementation of its obligations under the Convention.  Article 512-5 of the Penal Code had established the universal jurisdiction of the Burkinabe courts to deal with offenses of torture and other cruel, inhuman or degrading treatment or punishment in accordance with article 5 of the Convention.  Also notable were the abolition of the death penalty and the commutation of death sentences handed down under the previous law to life imprisonment. 

The Code of Criminal Procedure introduced many fundamental legal guarantees related to custody.  For instance, arrested individuals were immediately informed in a language which they understood of the time of the beginning of police custody, the right to be assisted by a lawyer, the qualification, the date and the alleged place of the offense.  In order to strengthen these guarantees, custody was under the control of the Procurator of Burkina Faso.

The deterioration of the security situation had led Burkina Faso to declare a state of emergency in seven regions.  This state of emergency did not, however, authorize any derogation incompatible with the provisions of the International Covenant on Civil and Political Rights and other international instruments to which Burkina Faso was a party.

The security situation had led to the development of local security initiatives in certain areas, which had set themselves the goal of contributing to the fight against organized crime.  While the actions of these groups had often been praised by local populations, Ms. Ouattara-Ouattara regretted the serious violations of fundamental rights and freedoms that they had caused.  To meet this challenge, the Government had taken measures to put an end to abuses.  Thus, a decree regulating the participation of the population in community policing had been adopted in November 2016.  Likewise, training and awareness-raising actions were being undertaken for the benefit of these groups.

At the institutional level, major innovations had been made to the benefit of the national human rights commission and the national mechanism for the prevention of torture.  In May 2018, the Government had adopted a sectoral "justice and human rights" policy for 2018-2027 which set the protection of prisoners' rights as a priority.

Burkina Faso was aware that shortcomings and challenges remained in the prevention and suppression of the practice of torture and other cruel, inhuman or degrading treatment or punishment.  Most of these shortcomings and challenges were related to the deterioration of the security situation as a result of the terrorist attacks.  Burkina Faso would spare no effort to address them, and in that regard, it counted on the collaboration and support of the international community.

Questions by the Committee Experts

SÉBASTIEN TOUZÉ, Committee Co-Rapporteur for Burkina Faso, said that while the death penalty had been abolished and death penalty sentences had been commuted according to the Government, non-governmental organizations said that this decision was not being effectively implemented.  He sought reassurances in that regard.

The prohibition of torture was expressly provided for in article 2 of the Constitution of 11 June 1991 and this prohibition had been translated into a 2014 law, which partly took up the definition of torture outlined in the Convention, some aspects of which were lacking.  Could the delegation comment on this?  Were there other legal provisions that supplemented this definition?

It seemed that the Burkinabe authorities allowed certain private groups to engage in law enforcement operations in the absence of a legal framework. 

Did the definition of State agents put forth in the 2014 law encompass the Koglweogo or not?  It was important for the Committee to understand the degree of accountability of the authorities vis-à-vis the actions of these private groups.

It was understood that the arrangements for implementing the partnership between the police and the different communities were determined by decree.  However, the provisions of the decree had no real and practical effect on the activity of the Koglweogo who refused to submit to it. 

On the law on the general regulation of intelligence in Burkina Faso, which had been adopted in June 2018, the Co-Rapporteur noted that it stipulated that "Intelligence is based on intelligence and secrecy".  Literal interpretation of this principle could lead to arbitrariness and thus promote impunity.  Some the law's provisions seemed to exempt from liability State officials who, as part of an intelligence mission, could engage in illegal activities.  He requested information on the "specific and exceptional methods" that this law authorized.  Was it just surveillance or did it extend to coercive measures against persons with a view to obtaining information?

Turning to the 2009 law on terrorism, and the related 2015 amendments, he acknowledged that the situation was complex and that the fight against terrorism was a major security issue.  He requested more detailed information on the measures that could be adopted in such a context.  In that regard, and taking into account that the state of emergency had been extended for six months in January 2019, he asked how the need to adopt exceptional measures or derogations was assessed.

What steps had been taken or envisaged to ensure that the legal duration of police custody was respected?  What concrete measures had been put in place to ensure that fundamental legal guarantees were effectively implemented to the benefit of persons deprived of liberty?

In Burkina Faso, penitentiary establishments had a high rate of overcrowding, sometimes as high as 400 per cent, as was the case in Bobo Dioulasso.  In general, the overcrowding rate was 189 per cent.  This had been confirmed by figures provided by the State party.

The Co-Rapporteur sought clarification regarding the two types of inmate treatment regimes: half-board and closed.  How was the Rapid Intervention Brigade of the Prison Security Guard structured and what role did the chiefs of ward play? 

According to the African Commission on Human and Peoples' Rights, poor hygienic conditions, overcrowding, inadequate food, and a lack of care and ventilation amounted to ill-treatment.  The hygienic conditions in the country's prisons remained deplorable despite the few actions undertaken by the Burkinabe authorities to improve them.

He noted that 45 per cent of prisoners in Burkina were in pretrial detention.  The occupancy rate of all prisons in the country in 2017 stood at 190.3 per cent.  In that regard, two establishments stood out: on July 3, 2017, the Ouagadougou Detention and Correctional Centre had an occupation rate of 318.8 per cent, and in January 2016, the Bobo-Dioulasso Detention and Correctional Centre reported an occupancy rate of 348.88 per cent.   

What measures had been undertaken to improve the living conditions and the treatment of detainees, including access to adequate medical care and separation of detainees according to the detention regime, in accordance with the Nelson Mandela Rules?  He had not been able to find any concrete evidence demonstrating that the measures outlined in the State party's report had been implemented.

The Co-Rapporteur requested information on deaths in custody - notably that of Rasman Kouanda, Bertrand Bouda, Salif Bokoum and Yéro Sidibé - and the practice of placing detainees in isolation.

What steps had been taken to ensure that courts gave full effect to the rule of non-admissibility of evidence obtained through torture?  The Co-Rapporteur requested detailed and up-to-date data on this matter.  He would be grateful if the delegation could clarify whether investigations had been opened into the allegations of torture by former members of the Presidential Security Regiment.

Which internal control body was competent to investigate allegations of torture or ill-treatment by prison or military personnel?

In cases where there was a strong suspicion that a complaint relating to torture or ill-treatment was founded, were authors of alleged acts automatically put away on furlough or transferred during the investigation.

CLAUDE HELLER ROUASSANT, Co-Rapporteur for Burkina Faso, noted that the national human rights commission had made visits to prisons, gendarmerie brigades and police stations.  What were the results of these visits?  Did the authorities accept the recommendations stemming from them?

He requested more information on the composition of the national human rights commission.  Who were its 11 members?  Did they include representatives of civil society?  How were they elected?  The Committee would be grateful for information on the national human rights commission's financial situation.  Was it sufficiently funded?

It was concerning that since 2013 the national human rights commission had not received complaints of torture and bad treatment.  The report indicated that the Commission was currently examining the cases of 11 individuals who had died while held in custody by the National Police's Drug Unit.  The delegation's comments on this matter would be welcome.

Could the State party provide more information on ongoing investigations into crimes of "a political nature" perpetrated between 1960 and 2015 that had not been solved, as well as on the measures that were envisaged to provide redress or alleviate the trauma suffered by the victims.  Was there an overlap between these investigations and the mandate of the national human rights commission?

It seemed that the National Observatory for the Prevention of Torture was not yet operational and that this caused some of its responsibilities to rest with the national human rights commission, which was grappling with limitations that were discussed earlier.  The Committee would be thankful for information on this matter.  If the Observatory was indeed operational, could the delegation indicate the number of recommendations it had put forward and how they had been implemented by the Government?

Since 2016, attacks by terrorist groups had intensified, particularly in the Sahel, the northeast and the east-central regions of the country.  More than 200 recorded attacks had killed more than 500 people as well as caused the destruction of public and private assets.  Some Peule Burkina Faso nationals were reportedly part of terrorist groups.  For that reason, this ethnic group seemed to be stigmatized and assimilated to terrorists.  Could the delegation comment on this matter, as well as on radicalization happening at the local level due to the emergence of a pastor called Ibrahim Malam Dicko?

The State party had intensified regional and international cooperation to fight terrorism, notably through the G5 Sahel.  This mechanism's efficiency had been called into question.  What was the State party's assessment of the current situation?  Did its international cooperation endeavours include human rights components such as the prevention of torture?

Some law-enforcement bodies, such as the G5 Sahel Battalion deployed in the north of the country, had been denounced for engaging in abusive practices in the context of anti-terrorism work.  More specially, there were allegations of arbitrary detentions and acts of torture and ill-treatment against alleged terrorists or members of their families, as well as against persons suspected of being perpetrators or accomplices of terrorist activities in order to obtain confessions or information. 

There were also allegations that human rights defenders had been victims of abuse in that context.  For instance, in August 2018, human rights defender Safiatou Lopez Zongo had been arrested by the Special Intervention Unit of the Gendarmerie without an arrest warrant.

The Committee was concerned about the 2015 amendment to the law on terrorist crimes.  They had extended the length of police custody from 72 hours to 15 days.  The amendments also provided for an additional 10-day extension after the initial 15 days.

The Co-Rapporteur then broached the issue of arrested individuals who were held in preventive detention for long periods of time in the context of the fight against terrorism.  These individuals were held in custody without having had a chance to be heard on the accusations brought against them.  According to the Government, 700 presumed terrorists were being held in custody.  Could the delegation comment on this matter and explain why as of today no one person accused of terrorism had been tried?

How was the Government ensuring the protection of human rights defenders in the context of the state of emergency that had been declared in some provinces?  The Co-Rapporteur stressed the importance of reconciling respect for human rights with the fight against terrorism.  Sometimes, the remedy was worse than the illness, and this could affect the authorities' relationship with the population. 

Emergency programmes for the Sahel region had to be revised to address social needs stemming from inequalities, he added, emphasizing the importance of remedying the insecurity.

Since 2016, there had been grave attacks on human rights attributable to members of self-defence groups, commonly known as "Koglweogo".  These facts had been acknowledged by the State party's own national commission on human rights.  According to non-governmental organizations, there were 40,000 such groups.  Their actions had led to killings in January 2019 in Yirgou and Barsalogho.  They defied the authority of the State.  While legal actions against some of these groups were ongoing, authorities must adopt vigorous measures to put an end to their illegal activities which violated human rights.  Non-governmental organizations had said that the decree that legitimized the Koglweogo was not adapted to the reality on the ground.  The delegation's comments, as well as further information on this issue would be appreciated.

Other Committee members raised various issues of concern, such as the duration of pretrial detention for women; the situation of children held in detention with their mothers; and violence against children.

Replies by the Delegation

MAMINATA OUATTARA-OUATTARA, Minister for Human Rights and Civil Promotion of Burkina Faso, reaffirmed Burkina Faso's commitment to combat torture and ill-treatment.  She expressed her conviction that the dialogue would contribute to the implementation of the Convention in the country.  It should be noted that Burkina Faso was going through a complex situation marked by upheavals and terrorist attacks, which posed a challenge to the promotion and protection of human rights.

To follow-up on the visit of the Sub-Committee for the Prevention on Torture, the Government would submit responses to its recommendations.

The defence and security forces and the civilian population had shown resilience in the face of terrorist threats.  Regarding the recruitment of volunteers, Ms. Ouattara-Ouattara said guidelines had yet to be defined.  Once a procedure for recruitment was adopted, specific measures would be taken to ensure that volunteers abided by the rules. 

As for the state of emergency, the Government had declared it through a process in line with the provisions of the International Covenant on Civil and Political Rights.  This decision had been communicated accordingly.  The state of emergency had not led to derogations of human rights nor fundamental freedoms, she assured.

The Peule were wrongly referred to as a minority.  Their languages was the third most spoken in the country.  Contrary to allegations of their stigmatization, members of this ethnic group lived in harmony with other segments of the population, throughout the territory. 

The Kolkowego were local security initiatives, and such groups were comprised of members of the local population.  They aimed to combat gang activity and, in that regard, had proven helpful in ensuring security.  Their members were never state agents.

Delegates explained that 60 attorneys had been trained, which would increase the ranks of attorneys working in the northern region.  The Government's policy on dialogue, justice and human rights included a strategic component which fostered access to justice.  Defendants were provided with information and guidance regarding judicial procedures. 

Turning to the fight against terrorism, delegates explained that the threat was heightened and could now be described as a daily menace.  The Government had provided for the training of officials in that context.  Due to the need to conduct surveillance of terrorism activities and deploy actions to address them, it had also created a new criminal code and created a specialized law-enforcement unit.  The Criminal Procedure Code had been amended; it now provided for a special investigation process for terrorism-related crimes.  The sectoral policy on justice and human rights was implemented in that context.

With the reform of the Criminal Code, there had been a marked improvement in temporary detention, to ensure the effective presumption of innocence.  When the potential sentence was below or equal to one year, the duration of the trial could not exceed three months.  The trial could not exceed one year for longer sentences.

Sentences of the death penalty were commuted to life imprisonment.  It was no longer necessary to take any specific legal action to obtain such commutations. 

Community work was used as an alternative to detention, and the Ministry of Justice had organized awareness-raising campaigns to promote this measure.  Awareness-raising measures had also been taken to reduce the length of sentences handed down, as well as for their replacement with fines. 

To address radicalization, the Government had bolstered the capacity of vulnerable communities.  Delegates said that society needed to be inclusive: all members should be able to make their voice heard.  A national social and economic development programme had been put in place to improve safety and development, as well as reduce inequalities.  Another programme supported initiatives for young people, including through job creation schemes that targeted this segment of the population.  These measures contributed to efforts to reduce radicalization.

The length of policy custody was 48 hours, renewable every 24 hours.  All individuals held in police custody were informed of the grounds on which they were being detained.  Following that, they could be assisted by a lawyer.  Detainees could be examined by a doctor of their choice, notably if a member of their family requested it. 

For people held in custody for terrorism, the maximum length of detention was 15 days, which could be renewed for a 10-day period.  Such renewal could only be granted by the High Court, known as the Tribunal de Grande Instance.  In such cases, the person held in custody should be presented to the judge, except when investigation circumstances prevented it. 

On the Yirgou events, following police investigations, the High Court had launched proceedings.  Currently, the magistrate had brought charges against 12 people, including genocide, arson, organized crime and aggravated battery.

On allegations of abuses by security and defence forces, notably in the northern part of the country, military courts had launched investigations in allegations of extrajudicial killings.  Three cases were now in the investigation phase, which would be finalized by judicial police officers. 

Given the scale of the region and the alleged abuse reported by Human Rights Watch, it had been necessary to conduct a prior assessment of the resources required by an investigation into these allegations.  While the investigation had finally been launched, insecurity impeded it: investigators' movements were hampered; some victims and witnesses had fled the region; and questioning could not be conducted on site.

To ensure security on the Burkinabe territory, security forces had organized patrols in regions grappling with terrorism.  The State was always recruiting defence and security personnel to increase the ratio of security personnel to the population.

Turning to detention conditions, delegates remarked that the sectoral human rights policy encompassed places of detention.  To reduce prison overcrowding, a Constitutional provision allowed presidential pardons, which were granted yearly at the end of the year.  Provisional freedom was granted to detainees, allowing them to exit the detention facility for short periods of time.  Conditional release was afforded to those who had served at least half or two thirds of their sentence, or 25 years, for those condemned to life imprisonment. 

Furthermore, the Ministry of Justice had undergone a reform which implemented a regime of mixed or suspensive sentences.  The maximum duration of preventive detention had been reduced.  The Ministry also promoted alternative measures to imprisonment, through training of legal staff, notably on suspended sentences.  Over 100 people had attended workshops on alternatives to imprisonment.  Through all these measures and others, the Government had managed to address the issue of prison overcrowding. 

On the health and hygiene of inmates, measures had been taken to allow for the suspension or splitting-up of sentences handed down against pregnant women.  Legal provisions addressing the situation of women and children in detention had been adopted.  Measures had been taken to improve the provision of food in detention facilities to better meet the nutritional needs of inmates.

Several legal provisions provided for remedies to complaints of prisoners relating to their detention conditions.  Detainees could seek out assistance if they deemed the response provided to their complaint was not satisfactory.

Follow-Up Questions by Committee Experts

SÉBASTIEN TOUZÉ, Committee Co-Rapporteur for Burkina Faso, said the Koglweogo were filling a State void, thus playing a role usually played by the State.  They engaged the responsibility of the State.

On access to justice, the problem was that there were too many people in prison and not enough lawyers to assist them.  Could the Government not envisage measures to remedy the system's shortcomings?

He requested information on the extension of the pretrial detention process for people suspected of having engaged in terrorism-related activities.  It was surprising that a decision by the High Court was required.  Could the delegation provide more details on this matter?

On non-custodial measures and alternatives to imprisonment, did the delegation really believe that Presidential pardons were a solution to prison overcrowding?  In the Co-Rapporteur's opinion, that was not the purpose of Presidential pardons.  Reviewing or reducing sentences could be effective means of addressing prison overcrowding. 

Could individuals who were held in preventive detention benefit from non-custodial alternatives to imprisonment?

CLAUDE HELLER ROUASSANT, Co-Rapporteur for Burkina Faso, stressed the need for an effective national human rights commission.  Lack of financial and other resources was preventing the current commission from discharging its mandate; it had not been able to carry out visits, for instance.

The ratification of the Optional Protocol to the Convention called for the establishment of a national prevention mechanism, the Co-Rapporteur recalled.

Turning to the G5 Sahel, he asked if this regional mechanism had any human rights component.  This was all the more relevant, given the hard blow terrorism had dealt on the Burkinabe population.

When it came to the severe violations of human rights allegedly committed by the Koglweogo, would it not be advisable to create an oversight mechanism?  It was clear that they were out of control.  These groups had come to be because the State was overwhelmed by the insecurity.

Follow-Up Replies by the Delegation

MAMINATA OUATTARA-OUATTARA, Minister for Human Rights and Civil Promotion of Burkina Faso, said the delegation had taken due note of the Committee's proposals on the recruitment of volunteers and measures to safeguard the security of witnesses.

The delegation explained that there were 700 people allegedly involved in terrorism who were held in pretrial detention, not 700 cases.

On non-custodial measures, it should be noted that community service could only be used with the consent of the convict.  Furthermore, there had to be a structure in place to receive these criminals.  Communities were weary of the convicts.  The problem, therefore, lay not so much with the judge, but rather with the administration.  Efforts had to be made to restore the trust of the communities where convicts were to carry out their service.

Prosecutors were informed when a procedure was ongoing to extend the preventive detention of individuals suspected of having taken part in terrorism.  Terrorism was sometimes a trans-border phenomenon which could hamper evidence gathering efforts.  While human rights had to be respected, these circumstances – the complexity of terrorism and the transnational nature thereof – had to be considered by the Committee when assessing the situation.

The decision to put somebody in pretrial decision always was the result of a careful consideration of arguments; it was not taken lightly.

The Government would build more prisons to properly service the 45 provinces of the country.  What was more, efforts were underway to refurbish existing prisons to address the issue of prison overcrowding and improve detention conditions.  Figures had shown that new arrangements put in place by the Government had led to a reduction of the prison population by 20 per cent.  The building of prisons would follow international standards.

The Rapid Intervention Brigade had been disbanded by the Minister of Justice this year and subsequently replaced by a new body, which was called the Intervention Brigade for Penitentiary Detention. 

Concluding Remarks

MAMINATA OUATTARA-OUATTARA, Minister for Human Rights and Civil Promotion of Burkina Faso, thanked Committee members and paid tribute to the civil society organizations that had produced shadow reports.  The Government would consider the Committee's recommendations carefully.

JENS MODVIG, Committee Chairperson, recalled that the Committee would request that the State party submit a report on the implementation of three urgent recommendations.  He thanked the delegation for its hard work.

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