World Policy Journal begins each issue with the Big Question, where we ask a panel of experts to provide insight into the cover theme. The question for the summer 2017 Justice Denied issue is: What legacies of colonialism prevent indigenous peoples from achieving justice? Below, Janvier Bigirimana describes how the European-style courts introduced by Belgian colonizers continue to clash with Burundi’s customary justice system.
By Janvier Bigirimana
Burundi is a small country, about the size of Vermont. For centuries, it was governed through an administrative system led by a monarchical dynasty before being colonized by Germany from 1896 to 1912 and Belgium from 1912 to 1962. The League of Nations placed the kingdom of Burundi formally under Belgian mandate in 1919. The Burundian judicial system has not been spared the effects of these decades of outside rule.
The Belgian colonizers swept away the justice system long maintained by customary institutions, setting up a European-style court structure run by the colonial administration and guided by written law. The pre-existing Burundian justice system had been hierarchical and led by Abashingantahe, or the Institution of Notables, comprised of respected elders who regulated life in society. Thus, legal decisions drawing on foreign traditions were not easily understood by Burundians and did not reflect their lived social reality. By way of illustration, under the Burundian Civil Code inherited from Western tradition, if an item is sold at an agreed-upon price but is lost before reaching the buyer—and the seller is not at fault—then the entire cost is borne by the buyer. According to custom and the Abashingantahe, such a situation was settled by having both parties bear the loss.
In post-colonial Burundi, the justice system is regarded as belonging to the elite—it protects the strong and tramples on the rights of the weak. The current system is costly and unconcerned with social realities. Customary justice, on the other hand, takes into account the social situation of the individual offender and endeavors as far as possible to protect the disadvantaged. For example, in Burundian customary law, there are prohibitions and even severe social sanctions that apply to anyone who violates the rights of vulnerable people, especially orphans and widows.
In criminal matters, customary law values the social rehabilitation of the offender. If a debtor is brought before elders, for instance, any penalties are adjusted to take into account the particular circumstances; the sanction is not intended to ruin the guilty party, but rather seen as a means of resocialization. If necessary, social assistance is provided, and this is usually done with the offender’s family in mind. But with the justice system introduced by the colonizers, the main intent of penal sanctions is to punish. Instead of customary law’s reconciliatory form of justice, the court system prioritizes codified law and practice over all other considerations.
In Burundi, until the introduction of the new Code of Civil Procedure of 2004, it was compulsory to pass through the Abashingantahe before turning to the civil courts for certain matters. The Abashingantahe has three main missions: mediation, conciliation, and arbitration. The Notables make commitments to follow the principles of neutrality, impartiality, and collegiality. But since 2004, it is no longer mandatory that cases first pass through this institution. The political regime at the time did not value its role in the judicial system.
The Abashingantahe is the crucible of Burundi’s values. This institution is thus a useful complement to the contemporary justice system due to its proximity to the population and its reconciliatory approach, which takes into account individual situations and attempts to improve relations between the parties to the conflict. As such, it has become an indispensable instrument in the administration of justice in today’s Burundi. But a blend of modern and traditional justice must be supported by political will that acknowledges the necessity of interweaving the two mechanisms for social justice and the welfare of all the people of Burundi.
Janvier Bigirimana is a Burundian lawyer and human rights activist and an East and Central Africa Legal Officer (consultant position at Minority Rights Group International. Bigirimana is also secretary general of FOCODE, a Burundian NGO working on human rights and governance Issues.
[Photo courtesy of Tequendamia]