Comment and analysis - As Burkina Faso’s conflict spirals, its judicial system appears unfit for purpose

Henry WilkinsMonday 6 July 2020

During his tenure, separatists fighting in Mali were given safe haven in Burkinabé territory on the basis they would refrain from staging attacks in Burkina Faso. The current, democratic president, Roch Kaboré, has no such agreement. Attacks against the state and civilians now occur almost daily, while terrorists exploit ethnic tensions and poverty to recruit and further their causes.

The impact on Burkina Faso’s judicial system is complex and far-reaching. As it stands, not a single trial for terrorism crimes has taken place in Burkina Faso since the conflict began. The judicial system is also under pressure from crimes committed by Burkinabé security forces and a new, government-backed, civilian defence force.

The country had a peaceful history until 2015 and its judicial system was ill-prepared for the war to come. Until 2019, it had no penal code for dealing with terrorism offences whatsoever. It is also one of the poorest countries in the world, so capacity within the judicial system is low, even under normal circumstances.

Today, there are hundreds of people languishing in Burkinabé prisons, awaiting trial for terrorism-related offences. Some have been there for as long as six years. There is only one maximum-security prison designed for detaining terrorism suspects in the country, which is said to be at capacity. The rate of prison occupation nationwide stands at over 180 per cent.

International partners, including France and other European Union countries, are working with the Burkinabé government to build capacity in the judicial system. The new penal code was an important step towards this, but implementing it is proving difficult.

One of the many reasons for this is that terrorism crimes are often cross-border cases. Magistrates and judges need to be better trained in dealing with these and implementing the new laws around terrorism.

As the courts remain at a standstill, demand for trials is growing. The country’s police and military are poorly trained in dealing with terrorism investigations. They have also lost faith in the judicial system to deal with terrorism suspects and fear becoming victims of terrorism themselves. As a result, human rights organisations say, they are arresting suspects en masse, without proper cause.

Corinne Dufka, the West Africa Director at Human Rights Watch, told Global Insight that ‘Many community leaders say those investigating the crimes are not making arrests on the basis of solid intelligence […] The sheer number of detainees from 2017–2019 has simply overwhelmed the judiciary.’

‘The government has cast its net very wide in arresting people on terrorism charges,’ she adds. ‘In many cases they appear to have gone for a lot of the low-hanging fruit, instead of the leadership […] There are very few lawyers who are willing to step up and represent those accused of terrorism-related crimes, as well.’

Extrajudicial killings have allegedly been taking place since early in the conflict.

In April, 31 detained civilians were allegedly killed by security forces in Djibo, a major town in the country’s north. In May, 12 terrorism suspects died while in military police (gendarme) custody, shortly after being arrested in Tanwalbougou, a commune in the country’s east.

The government has vowed to investigate both incidents, but the opacity of Burkina Faso’s military judicial system means it is difficult to know if that is actually happening.

‘Those mandated to investigate the killings – gendarmes – are from the same institution accused in many of the atrocities,’ explains Dufka.

Even when a military suspect is brought to trial, the verdict is not made public. The authorities thus can’t use it as a deterrent and there is little sense among the public that justice has been done. The separation of civilian and military courts, which comes from a law enacted in 1992, is therefore a major issue.

Another point of contention is the Volunteers for the Defence of the Homeland Act, introduced in January. It allows the government to recruit and arm civilians to defend the countryside, where the military is incapable of doing so. Volunteers are given two weeks training and there is increasing evidence to suggest they’re also being given automatic weapons.

Many believe the government has set in motion a policy that will put even more strain on the judicial system. Human rights groups have expressed grave concerns that the Act will lead to more violence than it prevents.

Indeed, it is widely thought the law has armed existing local militia groups, known as Koglweogos, which have already been accused of carrying out massacres against civilians. In particular, the Koglweogos are believed to have been involved in the Yirgou ‘massacre’, a series of attacks and reprisals that took place in late 2018 and early 2019. Around 200 civilians were killed, according to independent investigations by human rights groups.

Mahamadou Sawadogo, a Burkinabé analyst, tells Global Insight that if volunteers do go on to commit atrocities, it will open up a whole new set of challenges for the judicial system.

‘It will cause another blockage,’ he says. ‘Who will judge them? The common or the military court? They will not stand to be judged by either.’

The wording of the law introducing the volunteers is vague and states they are an auxiliary of the armed forces, but also remain civilians.

Asked about solutions to the myriad of issues facing Burkina Faso’s judicial system, Sawadogo says that ‘The first is addressing the efficiency of the institutions [within the judicial system], and the competency of the personnel within those institutions. The second, and most important, is addressing the separation of civilian and military courts.’

Unfortunately, there is a lack of political will to achieve this.

‘What is paradoxical is that we have available funds to address this,’ says Sawadogo. ‘We have almost five projects financed by the G5 Sahel and the EU to implement changes, but so far, those projects are ineffective.’