—Hakim Nkengurutse, PhD candidate in Public Law, CY Cergy Paris University, affiliate of the Centre for Legal and Political Philosophy (CPJP)
On 8 December 2025, the Constitutional Court of Burundi issued a ruling declaring article 35 paragraph 2 of the law on judicial organisation and jurisdiction constitutional. This provision removes minor (contravention) and criminal (délit) offences/convictions[1] from cassation.[2] The ruling is particularly important given its negative impact on the right to equal protection before the law. Unfortunately, it also fits into a dynamic of curtailing the powers of the Burundi Supreme Court. To understand its significance, this post will first provide a brief context and background of the case (1) before analysing the court’s reasoning which is two-fold: the Court refused to consider one of the core claims advanced by the petitioner (2) and reframed the question sua sponte (3).
1. Context and Background of the Case
Since 2014 (Organic law No. 1/17 of 15 May 2014 abolishing Supreme Court cassation in rural land cases), Burundi has enacted a series of laws designed to curtail the cassation powers of the Supreme Court, that is, the power to “oversee the correct application of the law by the lower courts and tribunals.” As a consequence, the latter have issued competing and contradictory solutions to the same legal issue (see here), in violation of the constitutional principles of legal certainty and the equal protection before the law. Paradoxically, the Constitutional Court has endorsed this endeavour (see here). The RCCB 464 case should be understood against this backdrop.
Relying on article 35 paragraph 2 of the law on judicial organisation and jurisdiction which prohibits quashing of minor (contravention) and criminal (délit) offences/convictions adjudicated by the lower courts and tribunals, the Supreme Court refused to hear Mr Patrice Ndikumana’s petition (RPC 7110 case). So, the latter took the matter to Constitutional Court. Before the Court, the petitioner claimed that his right to equal protection before the law had been violated when the Supreme Court refused to hear his petition as a result of article 35 paragraph 2 of the law on judicial organisation and jurisdiction. In support of his claims, he advanced two legal arguments. By removing minor (contravention) and criminal (délit) offences/convictions from cassation, the challenged law:
- violated article 227 of the Constitution of Burundi (2018) according to which “the Supreme Court of Burundi is the highest ordinary court of the Republic.”
- violated international legal instruments ratified by the Republic of Burundi such as article 3 (equal protection before the law) of the African Charter on Human and Peoples’ Rights, article 7 (equal protection before the law) of the Universal Declaration of Human Rights and article 2(3)b (the right to judicial remedy) of the International Covenant on Civil and Political rights.
The Constitutional Court dismissed the petitioner’s claims and declared article 35 paragraph 2 of the law on judicial organisation and jurisdiction constitutional.
2. Reasoning by omission: A critique of the Constitutional Court’s Approach
As discussed above, one of the core arguments raised by the petitioner was that, by removing minor (contravention) and criminal (délit) offences/convictions from cassation, article 35 paragraph 2 of the law on judicial organisation and jurisdiction contradicted the very purpose of article 227 of the Constitution, which vests in the Supreme Court the power to “oversee the correct application of the law by the lower courts and tribunals.” The Constitutional Court, however, does not address this issue in its reasoning. This deliberate omission undermines the spirit of article 227 which is to harmonise the law in the Republic of Burundi. However, it should be noted that limitation or removal of minor offences from cassation is not something un-heard of in comparative law. In common law jurisdictions such as South Africa, Courts must generally grant leave to appeal (see here). In this context, it is a measure designed to curb unnecessary appeals as well as to avoid wasting courts’ time. Unfortunately, this line of argument is also overlooked by the Constitutional Court.
In the same vein, the Court does not indicate how it arrives at the conclusion that article 35 paragraph 2 of the law on judicial organisation and jurisdiction is consistent not only with the Constitution but also with international legal instruments ratified by the Republic of Burundi. Furthermore, the Constitutional Court avoids addressing the issue discussed above while simultaneously reframing it sua sponte.
3. Disregard of the Petitioner’s argument and sua sponte reframing of the issue
The Court moves the question from article 227 to article 210 of the Constitution of Burundi, according to which, “justice is administered by the courts and tribunals throughout the territory of the Republic in the name of the people [and] the organisation and jurisdiction of the judiciary are determined by an organic law.” With this approach, the Court attempts in vain to fill the gap left by not addressing the question of the law harmonising function of the Supreme Court. In fact, article 210 of the Constitution governs the lower courts and tribunals, not the Supreme Court (see here article 10 of the law on judicial organisation and jurisdiction).
Second, the Court adopts a textual interpretation of article 210, linking it directly to article 35 paragraph 2 of the law on judicial organisation and jurisdiction. It holds that the former empowers the latter to “determine judicial organisation and jurisdiction,” the exclusion of minor (contravention) and criminal (délit) offences/convictions from cassation is consistent with the Constitution. The Court further notes that the legislature, acting in its organic capacity, intended to structure the judiciary accordingly. Naturally, the Court concludes by not finding any inconsistency between the challenged law and the Constitution and international legal instruments. However, the question was not whether the challenged law was consistent with article 210 of the Constitution but whether the former, in removing minor (contravention) and criminal (délit) offences/convictions from cassation, violated article 227 of the Constitution and other international legal instruments (see above).
In conclusion, while the case concerns equal protection before the law, it should be understood in connection with the Supreme Court’s cassation powers which the executive, aided by the Constitutional Court, has been gradually weakening. The Constitutional Court has transformed itself into the “mouth of the executive” (la bouche de l’exécutif), instead of acting as an independent judicial branch, that is, a counter-power to the executive and legislative branches. This a result of interconnections between law and (ethnic) politics in Burundi with the latter trumping the former, on the one hand, and judicial self-restraint, on the other hand.
Since gaining independence in 1962, Burundi had been dominated by Tutsi ethnic minority military Governments (about 14% of the population) who ruled over the Hutu majority (84%). In the spirit of the wave of democratisation that swept the country in the 1990s, the country restored multiparty democracy and in 1993 the first Hutu president, Melchior Ndadaye, was elected. Unfortunately, he was assassinated few months later. In the ruling declaring the vacancy of the office of the president, the Constitutional Court concluded that, collegially, the Government would be exercising the powers of the president in an interim capacity until new presidential elections were held. It should be noted that, at the time, the judiciary had been heavily staffed by the Tutsi elite, which came to be seen as an obstacle to “the will of the majority” by the interim (Hutu) Government. Tensions between the former and the latter reached a climax when the Constitutional Court declared that the interim Government lacked powers to amend the (1992) Constitution and declared its attempt to do so unconstitutional (see here). The Government retaliated by dismissing 5 (Tutsi) judges while other 2 (Hutu) judges resigned (see here pp. 511-514). In this first period, by refusing to submit to the will of the executive, the Constitutional Court epitomised “legal constitutionalism”, that is, the supremacy of the Constitution through the courts.
The transformation of the Constitutional Court into an obedient agent of the executive coincides with the State’s capture by the Hutu majority since 2005. Indeed, despite the fact that the Arusha Accords (2000) and Burundi Constitution (2018) provide for a power-sharing mechanism between the Hutu majority and Tutsi minority, the former enjoys virtually unconstrained authority (see here). For example, while article 213 of the Constitution provides that “the judiciary is structured in such a way that its composition reflects the diversity of the entire population”, the president has a leeway in the appointment of justices to the Constitutional Court, whom (the majority) are usually Hutu. Senatorial consent for these judicial appointments is generally cosmetic. This phenomenon ensures a loyal Court while simultaneously avoiding a (Tutsi) Court that would frustrate the “majority’s” agendas. In nutshell, it is against the backdrop of law and (ethnic) politics that the Constitutional Court’s capture by the executive should be understood.
However, judicial constraint through executive appointments of Hutu judges, standing alone, does not fully account for this (negative) transformation. The Constitutional Court has restrained itself even when the executive’s agendas are not (seriously) threatened. In fundamental rights litigation, the Court uses the inadmissibility of requests as a strategy to avoid deciding cases on their merits (see here pp. 285-292), leaving petitioners empty-handed. When the Court admits requests, it often dismisses the petition on the merits, sometimes without providing any reasoning whatsoever (as is evident in the present case). It is in this sense that the present case constitutes the tip of the iceberg of the ramifications of the Constitutional Court’s approach to fundamental rights.
Suggested citation: Hakim Nkengurutse, Judicial Erosion of Equal Protection in Burundi: The RCCB 464 Case, Int’l J. Const. L. Blog, Jan. 29, 2026, at: http://www.iconnectblog.com/judicial-erosion-of-equal-protection-in-burundi-the-rccb-464-case/
[1] Contravention, Délit and Crime roughly correspond to Summary, Either-way and Indictable offences.
[2] In civil law systems, the French term “cassation” means annulment or quashing of lower court’s decision by a higher court.