The Republic of Burkina Faso

Background

Although a relatively stable country for past thirty years, Burkina Faso has been characterized by a culture of impunity for the coup d’état that occurred in 1987 and for serious human rights violations that have occurred since. The collapse of former President Blaise Compaore’s 27-year regime in 2014 marked a new era for Burkina Faso. A constitutional reform that would introduce the Fifth Republic and reinforce the democratic achievements of the Burkinabe People is underway. In fact, the draft constitution proposes strict presidential term limits and precludes any constitutional amendment which would change the number or duration of presidential terms. Also, it weakens presidential powers, proposes to introduce a more independent judiciary system, abolishes the death penalty, ensures more civil and political rights, and puts more emphasis on gender equality. The above are clear indications of Burkina Faso’s desire to reinforce its democracy and to have strong institutions rather than strongmen. However, since 2015, the country has been facing an increase in terrorist attacks and organized crime. Its recent decision to establish a joint counter-terrorism force with other Sahel countries (Mali, Mauritania, Niger and Chad) reflects the country’s willingness to put counterterrorism at the top of his government’s priorities.

Treaty ratification Process

According to the Constitution of Burkina Faso of 1991 (as amended), the President of the Republic negotiates, signs and ratifies international treaties and agreements. Some treaties, however, can be ratified only by enactment of a law, including peace treaties, trade agreements, treaties that engage the finances of the State, treaties which modify legislative provisions, and treaties relative to the status of persons. For these treaties, the Council of Ministers prepares a draft law authorizing the ratification, which is sent to the National Assembly by the Government for adoption along with a memorandum outlining the case for ratification. Once the bill arrives at the National Assembly, it is examined by a standing technical committee, usually the National Assembly Commission on Foreign Affairs and for Burkinabe Citizens Abroad (Commission des affaires étrangères et des burkinabè de l’étranger, CAEBE), which reviews draft legislation on treaties and agreements before any plenary debate in the National Assembly.  If adopted, the law is sent to the President for ratification. Other treaties, namely those relating to the entry of Burkina Faso into a Confederation, a Federation or a Union of African States, must be submitted to a popular referendum for approval. Regardless of the path to ratification, once a treaty has been ratified, the Ministry of Foreign Affairs prepares the Instrument of Ratification and transmits it to the depositary. The Secretary of the Government and the Council of Ministers is in charge of publishing in the Official Gazette of Burkina Faso (Journal Officiel du Faso) duly approved and ratified treaties. In the event there are grounds to believe that a provision of an international treaty violates the constitution, the Constitutional Council (Conseil Constitutionnel) may be seized with the question. If it determines that the treaty includes an unconstitutional provision, ratification is only possible after an amendment to the constitution. Finally, Burkina Faso is a monist country. It recognizes the supremacy of regularly ratified or approved international treaties over national laws. But one condition must be met: the reciprocal application of the treaties by the other party.

State of legislation on International and transnational crimes

Burkina Faso ratified the Rome Statute on April 16, 2004. In 2009, the government enacted a law addressing both the complementarity and the cooperation of Burkinabe judicial system and the International Criminal Court (ICC). The law criminalizes the core international crimes with the sole exception of the crime of aggression and adopts the definitions of the crimes consistent with those of the Rome Statutes’. Unlike the Penal Code that criminalizes some forms of crimes against humanity and punish them with a death penalty, the 2009 law is comprehensive and the international crimes are punishable by a maximum life imprisonment. In addition to the core international crimes mentioned above, the Burkinabe domestic legislation also addresses some other domestic and transnational crimes of a particular concern for the African continent. The crime of unconstitutional change of government is addressed by 1991 Constitution which condemns “coup d’état and putsch” and all other illegal means of accessing power. The crime of terrorism is comprehensively addressed by the law of 2015 on the punishment of the acts of terrorism in Burkina Faso. With regard to corruption, it is criminalized by both the penal code and a specific law on corruption enacted by The National Transitional Council in 2015. The Penal Code also partially punishes mercenarism.

Money laundering is addressed by a law voted in 2016. The country also has a specific law on the fight against trafficking in persons and similar practices adopted in May 2008 and a law penalizing drug trafficking and drug usage. Hazardous wastes are also addressed by the environment law which prohibits, inter alia, their importation, exportation, and illicit trafficking.

As for the illicit exploitation of natural resources, the country adopted a law in 2011 that introduced fundamental principles aiming at regulating the sustainable management and exploitation of forest resources. In 2015, under pressure from international donors and civil society organisations, the National Transitional Council adopted a new mining code – in replacement to the 2003 one – which came to reinforce the criminalization of, inter alia, unauthorized exploitation of mines, and to ensure a transparent management of mining contracts and to allocate more resources from the exploitation of mines to local communities. However, the country has not yet adopted the Kampala Amendment of the Rome Statute related to the crime of aggression. Notwithstanding that, Burkina Faso has a solid domestic legislation on both the international and transnational crimes.

Human Rights treaty signing and ratification trends

Burkina Faso is party to all the 9 core UN international human rights treaties and has also ratified the main UN crime-based instruments. The average time between signature and ratification of these UN instruments is 16 months.^[1] At the continental level, Burkina Faso is among the few African countries that have signed and ratified most of the AU treaties. It takes an average of 58 months between the signature and the ratification of AU treaties.^[2]

AU Judicial bodies membership

[1] See Annex: Treaty signing and ratification trends, Calculation chart, Burkina Faso.

[2] Id.