ANALYSIS REPORT ON THE BILL RELATED TO THE RATIFICATION BY THE REPUBLIC OF BURUNDI OF THE REVISED GENERAL COOPERATION AGREEMENT BETWEEN THE GOVERNMENT OF THE DEMOCRATIC REPUBLIC OF CONGO AND THE GOVERNMENT OF THE REPUBLIC OF BURUNDI BY THE STANDING COMMITTEE RESPONSIBLE FOR ADMINISTRATIVE MATTERS, DECENTRALIZATION AND CONTROL OF REPRESENTATIVENESS IN THE INSTITUTIONS

I. INTRODUCTION

On May 4, 2022, the senators who are members of the Standing committee in charge of administrative issues, decentralization and the control of representativeness in the institutions met to analyze the bill mentioned above.

The session was marked by the presence of the Minister of Foeign Affairs and Development Cooperation, who had represented the Government to present the bill to the senators members of the Committee referred to and to enlighten them on the most important aspects of this bill.

During the analysis of this bill, the following documents were used:

• The Constitution of the Republic of Burundi;
• The bill for the ratification of the revised General Cooperation Agreement between the Government of the Democratic Republic of Congo and the Government of the Republic of Burundi and its explanatory memorandum;
• The instrument of ratification of the General Cooperation Agreement;
• The text of the General Cooperation Agreement and;
• The ratification bill as adopted by the National Assembly.

II. INTEREST OF THE AGREEMENT

The General Cooperation Agreement between Burundi and the Democratic Republic of Congo, DRC in acronym, is 42 years old. It was based on Economic, Scientific, Social and Cultural Cooperation. Thus, it is appropriate to revise it in order not only to strengthen and extend the areas of cooperation but also to adapt it to current politics.

III. CONTENT OF THE AGREEMENT

In addition to its preamble, the revised General Cooperation Agreement is structured around fourteen articles:

• Article 1 of the Agreement relates to the promotion of general cooperation based on equality and the principle of win-win in accordance with the legislation of each Party;

• Article 2 specifies the areas of cooperation which are as follows: Politics and diplomacy, Defense and security, Judicial cooperation, Trade, Agriculture, Fishing and breeding, Industry, Mines, Education and Scientific research, Culture and Arts, Health, Environment Protection, Tourism, Small and Medium Enterprises, Transport, Information and Communication Technology, Energy, Finance and Investment, Infrastructure Development, Governance, Urban Planning and Habitat, Land Affairs, Hydrocarbons, Standards, Employment, Labor , Security and Social Welfare;

• Article 3 mentions the exchange of experiences and informations as much as necessary;

• Article 4 provides for facilitation of entry and stay for nationals of both Parties to undertake projects under this Agreement;

• Article 5 indicates the Authorities responsible for the coordination and implementation of this Agreement: Ministry having Regional Integration in its attributions and that in charge of Foreign Affairs and Development Cooperation respectively for the DRC and Burundi;

• Article 6 specifies that specific agreements may be entered into in order to achieve the objectives of this Agreement;

• Article 7 indicates the procedures for holding the sessions of the ordinary and extraordinary Mixed Commissions;

• Article 8 specifies that the host country is responsible for the expenses related to the work of the session of the Mixed Commission. However, the travel and accommodation costs of the delegation are in charge of by each country;

• Article 9 provides that the Parties may seek the funding and participation of bilateral and multilateral partners in the implementation of projects relating to the aforementioned areas and sectors of cooperation;

• Article 10 provides that the International, Regional and Sub-regional Treaties/Agreements already signed by the Parties remain intact;

• Articles 11 and 12 deal with the possibilities of amendment by consent and the settlement of disputes through consultation and mutual negotiation between the Parties;

• Article 13 relates to the date of entry into force which is provisionally the day of its signature and definitively the day of its promulgation. Moreover, this Agreement has duration of 5 years renewable by tacit agreement;

• Finally, article 14 specifies the terms of termination.

IV. QUESTIONS ASKED TO THE GOVERNMENT REPRESENTATIVE AND ANSWERS GIVEN

Question 1

To confirm that this current General Cooperation Agreement will bring added value for our country, it would have been necessary to revisit the Agreement under revision to engage ourselves in the content of the articles subject to revision.

Mister Minister,

1. As we do not know the content of this Agreement, could you brief us on it in order to judge the appropriateness of its revision?

ANSWER

In general, there are times when certain legal texts are no more relevant and require possible updates that take into account the realities of the moment. This is the case of the General Agreement on economic, technical, scientific, social and cultural cooperation between the Government of the Republic of Burundi and the Executive Council of the Republic of Zaire of 1980.

It is with this in mind that the Government of the Republic of Burundi via the Ministry of Foreign Affairs and Development Cooperation has proposed the revision of the aforementioned Agreement to the Government of the Democratic Republic of Congo. Thus, the two Parties, without however making a major modification to its content, have noted some irregularities in the aspects of substance and form which required updating.

These include, among others:

• the change of name of the country where Zaire changed its name to become the Democratic Republic of Congo;

• the Executive Council of the Republic of Zaire is replaced by the Government of the Democratic Republic of Congo;

• the areas of Cooperation listed under the old agreement are much more detailed in the content of the new agreement to better inform the actors involved in the implementation of this Agreement.

Question 2

This bill does not allow a rank and file soldier to access the category of non-commissioned officers of Burundi National defense Forces for (BNDF), which is not the case for Burundi National Police (BNP)

Your Excellency Minister, is this provision not discriminatory with regard to some rank and file soldiers who meet the conditions, whereas in the other corps, the BNP, this alternative is possible?

Answer

The BNDF recruits annually unlike in the past. Recruitment at the BNDF takes into account the levels of education for each category. Basic training and on-the-job training allow BNDF members to acquire the necessary professional knowledge and experience are organized for each category. There is therefore no need to change categories.

Question 3

Article 39 of this bill lists a number of bonuses and allowances which the non-commissioned officer enjoys alongside the basic salary. Among these bonuses and allowances, the function bonus does not appear there, whereas in article 7, it is stipulated that the non-commissioned officer is entitled to a function.

Your Excellency Minister,

1. Is this an omission?

• If not, why is this advantage not recognized for non-commissioned officers of the BNDF when their fellow non-commissioned officers of the BNP can benefit from it?

Answer

Yes indeed, this is an omission that needs to be corrected.

Question 4

Article 40 of the Constitution of the Republic of Burundi provides that “any person accused of a criminal act is presumed innocent until his guilt has been legally established by a trial during which the guarantees necessary for his free defense will have been assured”.

However, in article 53, paragraph 2 of this bill, it is stipulated that “without prejudice to article 60, litera c, the decision resulting from the disciplinary procedure cannot be called into question by the decision resulting from the judiciary process “. In addition, in article 49 of this bill, it is stipulated that without prejudice to article 48 of this law, the acquitted non-commissioned officer is regularized both administratively and financially.

Mister Minister,

1. Would not this provision of this bill be unconstitutional under Article 40 of the Constitution?

• Are Articles 49 and 53 of this bill not contradictory in terms of their content?

Answer

1. There is no unconstitutionality because the article of the Constitution lays down the criminal procedures which must obey recognized judicial principles and guarantees, whereas the article of the statute is in the purely disciplinary field. Moreover, even in disciplinary matters, there is a procedure that must be followed to preserve the character of free defense of the person concerned, in particular to have him appear before a legally constituted disciplinary board.

• Articles 49 and 53 are not contradictory. Here the ultimate issue is discipline in the army. It would be dangerously serious if the BNDF allowed the undisciplined military to populate its ranks.

    Honourable senators, please allow me to explain by examples:

• a soldier who goes on home leave and is arrested by the local judicial authorities for ordinary criminal cases, the command is informed and only waits for the court decision;

• But a soldier who commits offenses being in camp or on duty, the command immediately triggers his disciplinary case, without preventing criminal proceedings from taking place. As the disciplinary and the criminal are two different areas, the command for the good of the administration and of the BNDF in general will consider the disciplinary decision and execute it even though the criminal proceedings have not yet been completed, or will be completed later.

Question 5

In article 45 paragraph 2 of the bill on the Statute of Non-Commissioned Officers of the BNDF, it is stipulated that the dismissal for a fixed period for disciplinary reasons is from one month to three months. During this period, the non-commissioned officer benefits from the salary reduced by half and retain the other advantages granted to non-commissioned officers by the BNDF.

Mister Minister,  

Are there other benefits granted by the BNDF other than those granted by the law governing the different categories? If yes, which ones?

Answer

All rights and benefits are prescribed by law; the BNDF is only the administrative body that executes them. There are no benefits offered by the BNDF.

VI. CONCLUSION

The bill under examination complies with the prescriptions of Organic Law No. 1/21 of June 27, 2022 amending Organic Law No. 1/04 of February 20, 2017 on the missions, organization, composition, instruction, conditions of service and operation of the National Defense Force, recently promulgated. The innovations that it brings take into account the professional and social considerations of the moment. In addition, the conditions of service of this category are improved.

To do this, the Standing Committee in charge of political, diplomatic, defense and security issues, which first of all endorses the formal and substantive amendments formulated by the National Assembly, asks the plenary assembly of the Senate to adopt this bill as presented.