BNM & Co. Advocates

The Precautionary Principle in Environmental Law

BNM — Thu, 19 Jun 2025 10:30:52 +0000

Abstract

Global warming is a reality. It is therefore important to take measures to limit greenhouse gas emissions. Then, the precautionary principle has been developed in order to maintain a healthy environment which implies taking adequate and proportionate measures: laws and regulations. The purpose of this study is to dissect the precautionary principle in environmental law in order to highlight its definition and its content before identifying its application. We highlight that this is a difficult principle to understand due to the divergences in its conception. As such, two opposing visions impact its implementation. Thus, the absence of absolute scientific certainty in the said principle poses a dilemma. This is a key characteristic of the precautionary principle. On the one hand, this principle would constitute a brake on economic progress, especially since the measures taken would limit access to the resources necessary for human activity. It therefore constitutes a brake on economic development. On the other hand, this principle allows the establishment of regulatory mechanisms aimed at aligning the interests of companies with those of society in a context where companies often do not have to pay the full costs of damage to the environment and human health. This will then allow us to correct the mistakes of the past. It is therefore about the search for balance between human activity and environmental protection. This therefore results in a differentiated application depending on the position taken, the choice made. This is why the comparative approach was essential for this study.

1. Introduction

Human activities such as the burning of fossil fuels, the exploitation of tropical forests and the raising of livestock are having an ever-increasing influence on the earth’s climate and temperature (Edwards et al., 2019) . These activities release huge quantities of greenhouse gases, which are added to those naturally present in the atmosphere, reinforcing the greenhouse effect and global warming.

In fact, certain gases in the earth’s atmosphere act like the walls of a greenhouse: they allow solar energy to enter the atmosphere, but prevent it from escaping. Many of these gases are therefore naturally present in the atmosphere, but human activity increases the concentrations of some of them in the atmosphere, in particular: carbon dioxide (CO₂), methane, nitrous oxide and fluorinated gases.

According to the European Commission’s study on climate action and the causes of climate change, “CO₂ produced by human activities is the largest contributor to global warming”. By 2020, its concentration in the atmosphere had risen to 48% above its pre-industrial level (before 1750). Other greenhouse gases are emitted by human activities in smaller quantities. Methane is a more powerful greenhouse gas than CO₂, but has a shorter atmospheric lifetime. Nitrous oxide, like CO₂, is a long-lived greenhouse gas that accumulates in the atmosphere over decades to centuries. Non-greenhouse gas pollutants, including aerosols like soot, have different warming and cooling effects and are also associated with other issues such as poor air quality.

Natural causes, such as changes in solar radiation or volcanic activity are estimated to have contributed less than plus or minus 0.1˚C to total warming between 1890 and 2010” (Causes of climate change (europa.eu)).

In response to this situation, characterized by scientific uncertainty and high stakes, the precautionary principle was introduced, designed to enable decision-makers to take swifter action.

The precautionary principle is one of the solution to address environmental issues.

The current big environmental issue is air pollution: in both developed and developing countries, as technology develops and innovative ideas come through, there is an even greater threat to the increase in air pollution (Gonzalez-Martin et al., 2021) , deforestation: as a result of the urban sprawl and increased levels of pollutants, the environment is being damaged and human activities are pushing it towards a point beyond which there’s no coming back (Lawrence & Vandecar, 2015) , water pollution: the top causes of many life-threatening diseases is a polluted water due to dumping lots of chemicals and plastics in the water sources (Haseena et al., 2017) , ozone layer depletion: the main cause of the rise in skin cancer all around the world and the direct contributor to the increase in the temperature of the Earth is ozone layer depletion (Norval et al., 2011) , loss of biodiversity: the extinction of several species of plants, animals, birds, insects and other organisms. Since these species play a role in balancing the sustenance on Earth, this loss of biodiversity is creating a huge imbalance that further takes on a chain reaction. Then, the food chain and plant life threatens our ecosystem (Pimm et al., 2014) .

First introduced in recent decades, the precautionary principle is still evolving, both in terms of definition and implementation.

It is a principle that is seen by some as an unscientific approach that hinders progress while paving the way for over-regulation. Others, on the other hand, believe that the precautionary principle makes it possible to protect human health and the environment in the face of complex hazards, and to encourage progress that is more respectful of people and their environment. The 1998 ruling by the European Court of Justice in the mad cow case illustrates this trend. The Court rejected the British government’s challenge to the March 1996 embargo, stating that “it must be accepted that, where there is uncertainty as to the existence or extent of risks to human health, the institutions may take protective measures without having to wait for the reality and seriousness of those risks to be fully demonstrated” (Case C-180/96, United Kingdom of Great Britain and Northern Ireland v. Commission of the European Communities, 1998).

The debate on the precautionary principle has often been polarized by two opposing visions: on the one hand, “technological pessimism and the fear of sorcerers’ apprentices”, which would imply strong regulation of industrial activities; on the other, “technological optimism and faith in progress”, which would suggest that all regulation is unnecessary.

2. Methods and Methodology

We use the exegetical method, which consists in interpreting legal texts, and the documentary method, which consists in consulting works that have focused on this principle, publications, periodicals and others.

Once we had gathered the relevant information, we had to turn to a comparative method. To better define the precautionary principle, we reviewed a number of international agreements, dissected the divergent positions of institutions such as the European Commission, UNESCO and the European Environment Agency, and highlighted opposing visions. This has set us on the road to applying the principle in the concert of nations, in United States of America, Europe and Burundi.

3. Analysis Results

The precautionary principle has been conceived in different ways by different authors, institutions and/or associations (groupings) of human beings. This is why there is no single definition of the precautionary principle.

Opinions differ as to the method to be used to determine whether precautionary measures should be taken. The precautionary principle does not provide for any measure of its application. This is why it is applied in different ways by different States, communities and/or organizations, whether national, regional or international. Its application presents many challenges, but also opportunities.

In Burundi, this principle is much more evident in legal texts such as the environmental, water and the forestry codes. It should be noted that, although the legal arsenal exists, it is not enforced. Violations of these legal texts are commonplace, and cases go unpunished.

Nonetheless, there are a number of challenges to be overcome, notably in terms of hazard assessment, research into well-known chemical substances, while the research of emerging substances is still rare, regulations can be a source of legal uncertainty, hampering development, and early signs of dangerousness put companies in economic and financial dilemmas.

4. Discussion of the Results

4.1. The Origins of the Precautionary Principle

The precautionary principle was conceived in German law, under the term Vorsorgeprinzip (which can also be translated as “principle of foresight”), during the drafting of air pollution legislation in the 1970s. Since then, it has been taken up at other levels, and its application has been extended to areas other than environmental protection.

4.1.1. International Agreements

At international level, several environmental agreements have referred to the “Precautionary Principle” since the 1980s, starting with articles 2 and 3 of the Vienna Convention for the Protection of the Ozone Layer in 1985, the Ministerial Declaration of the Second International Conference on the Protection of the North Sea in 1987, the Ministerial Declaration of the Third International Conference on the Protection of the North Sea in 1990, and the Rio Declaration on Environment and Development in 1992, which makes “precautionary measures” one of the principles guiding forest management.

Others indicate that the absence of absolute scientific certainty in the said principle cannot be invoked to defer measures, as in the case of the United Nations Framework Convention on Climate Change (Rio Declaration) in its third article, paragraph 3. In France, for example, the French Environment Code (the 1995 Barnier law) specifies in a second formulation that “the absence of certainty, given the scientific and technical knowledge of the time, must not delay the adoption of effective and proportionate measures aimed at preventing a risk of serious and irreversible damage to the environment at an economically acceptable cost”. France has thus added the notions of proportionate response and economically acceptable cost to the Rio definition.

It wasn’t until the 1990s that the precautionary principle was more or less explicitly enshrined in virtually all international treaties on environmental protection (the 1992 OSPAR Convention and the Helsinki, Convention on the Baltic Sea, the 1985 Vienna Convention and the United Nations Framework Convention on Climate Change, UNFCCC in acronym of 1992, the Fort Lauderdale Resolution of 1994 relating to the CITES Convention, the Convention on Biological Diversity and the United Nations Fish Stocks Agreement, the Revised Management Procedure adopted by the International Whaling Commission in 1994, the Bamako Convention of 1992 or the Helsinki Water Convention of 1992).

Contrary to the European Union’s conception, the precautionary principle as a general principle of international law is disputed. Some authors believe that: “the precautionary principle is a non-binding political guideline that is not recognized in customary international law, based in particular on the legal weakness of the precautionary principle in international trade, particularly at the World Trade Organization”.

On the other hand, international conventions state that the precautionary principle has been widely adopted at international level, particularly since its inclusion in multilateral treaties such as the Convention on Biological Diversity and the United Nations Framework Convention on Climate Change, making it a general principle of international law¹. In the same vein, the European Commission considers that this principle has undergone a gradual consolidation in international environmental law, making it a genuine principle of international law of general application (Communication from the Commission on recourse to the precautionary principle, 2000).

4.1.2. Within the European Union

At European level, the precautionary principle was enshrined in the Maastricht Treaty in 1992, in article G, B. 3), k. The principle is now enshrined in article 191 of the Treaty on the Functioning of the European Union as one of the principles underpinning the EU’s environmental policy. Like the other principles (the principle of preventive action; the principle that environmental damage should as a priority be rectified at source and the polluter-pays principle), it is not defined in the Treaty.

The same principle has been reaffirmed by the judges of the European Union as a general principle of Community law requiring the competent authorities to take appropriate measures to prevent certain potential risks to public health, safety and the environment, giving precedence to the requirements of protecting these interests over economic interests².

Aware that climate change is an important global issue if nothing is done to reduce global greenhouse gas emissions, the European Union has taken several measures:

● Measures to combat climate change and reduce greenhouse gas emissions are therefore a priority. In particular, European leaders are committed to transforming Europe into a highly energy-efficient, low-carbon economy;

● It has also set itself the target of reducing greenhouse gas emissions by 80% – 95% by 2050 compared with 1990 levels (Strategy for a long-term reduction of greenhouse gas emissions in the European Union (europa.eu)).

The EU’s first climate and energy package was adopted in 2008, setting targets for 2020. The EU has made good progress towards these targets, but to provide greater certainty for investors, an integrated framework is needed for the period up to 2030.

It’s worth pointing out that the European Union and its 27 member states are signatories to the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol as well as the new Paris Agreement on Climate Change. According to the Paris climate agreement approved on December 12, 2015, the agreement is intended to be differentiated, fair, sustainable, dynamic, balanced and legally binding.

4.1.3. In the Domestic Law

At national level, several member states of the Maastricht Treaty, in addition to Germany, have enshrined the precautionary principle in their domestic legal ordinances. Other countries, such as France in 2005, have incorporated the precautionary principle into their constitutions. Still others have enshrined it as a guiding principle of their environmental and public health policy, by including it in their environmental code. This was the case in Sweden, for example, in 1999.

The precautionary principle is also recognized by the courts of certain states, provided it has been enshrined in a specific law (Flemish Region Framework Decree of 05/04/1995, Federal Law of 20/01/1999, Regulation 178/2002, Flemish Region Decree of 18/07/2003). In other states, if the provisions in question stem from european legislation, the Courts and Tribunals base their decisions on the precautionary principle. These include countries such as Spain and the United Kingdom.

Apart from the European Union, other countries have formally incorporated the precautionary principle into their environmental policies, such as Australia in 1992 (Demaze, 2009) . We’ll come back to Burundi in the next few lines.

4.2. Different Institutional Positions on the Same Principle

The European Commission, UNESCO and the European Environment Agency (EEA) are just some of the institutions that have given their positions on the use or application of the precautionary principle. However, their positions diverge because of the different definitions they give to this principle.

4.2.1. Position of the European Commission

In early 2000, the European Commission adopted a Communication on the precautionary principle (Communication from the Commission on the use of the precautionary principle, 2000), in response to a request from the Council (European Council Resolution of June 28, 1999). In this communication, the Commission sets out to define:

– Its guidelines for applying the precautionary principle;

– Establish agreement on how to manage risks that science is unable to fully assess, and;

– Avoid any unjustified use of the precautionary principle as a disguised form of protectionism.

In its definitional approach, the Commission states that invoking or not invoking the precautionary principle is a decision taken when scientific information is incomplete, inconclusive or uncertain, and when there are indications that possible effects on the environment or on human, animal or plant health could be dangerous and incompatible with the chosen level of protection (Communication from the Commission on the use of the precautionary principle, 2000).

The commission also pointed out that the precise contours of this principle are a matter for political decision-makers, and ultimately for the courts. It also points out that recourse to the precautionary principle is not a discretionary decision, and presupposes the identification of potentially adverse effects and a scientific assessment of the risk, characterized by uncertainty.

What’s more, according to the commission, precautionary measures should respect other principles, in particular:

– The principle of proportionality, particularly in relation to the level of protection sought;

– The principle of non-discrimination;

– The principle of consistency with similar measures adopted previously;

– The principle of cost-benefit analysis of action or lack of action;

– The principle of reconsideration in the light of new scientific data;

– The principle of capacity to assign to a player the responsibility of producing the scientific evidence needed to enable a more complete assessment of the risk (Communication from the Commission on the use of the precautionary principle, 2000).

4.2.2. UNESCO’s Position

According to the report by UNESCO’s World Commission on the Ethics of Scientific Knowledge and Technology (COMEST), the practical definition of the precautionary principle is: When human activities risk leading to a morally unacceptable danger that is scientifically plausible but uncertain, measures must be taken to avoid or reduce this danger (The Precautionary Principle, World Commission on the Ethics of Scientific Knowledge and Technology, UNESCO, 2005 ).

In this report, the commission specified that if the hazard threatens human life or health, is truly irreversible, is unfair to future generations, or is imposed without due regard for the human rights of those who suffer it, it is considered morally unacceptable.

To do this, a scientific analysis submitted for review must determine whether the danger is plausible. Thus, the measures taken at the end of a participatory process must be proportional to the seriousness of the potential danger. Moreover, their positive and negative consequences, as well as their moral implications for human life or health, must be taken into consideration (The Precautionary Principle, World Commission on the Ethics of Scientific Knowledge and Technology, UNESCO, 2005 ).

4.2.3. Position of the European Environment Agency (EEA)

In its 2013 report on the precautionary principle, the European Environment Agency proposes a definition.

The precautionary principle provides a justification for public policy and other actions in situations of scientific complexity, uncertainty and ignorance, where it may be necessary to act in order to avoid or reduce potentially serious or irreversible threats to human health and/or the environment, using an appropriate degree of scientific evidence and taking into account the advantages and disadvantages of action and inaction as well as their distribution (European Environment Agency, 2013) .

It is important to point out that this definition is formulated in an affirmative way, unlike other definitions, notably that of the Rio Declaration. It is a definition that underlines the complexity of biological and ecological systems characterized by multi-causality, where scientific knowledge is uncertain or non-existent.

4.3. Opposing Visions of the Principle

There are two opposing views. On the one hand, the principle is useless because it is based on ideological values, and therefore unscientific. On the other hand, the principle is useful because it can prevent serious, even irreversible, dangers.

4.3.1. Arbitrary and Unscientific Principle

For some, it is a useless and potentially dangerous principle, arbitrary and unscientific (Marchant & Mossman, 2004) . It is a principle that could paralyze and threaten human progress, because it is based on ideological but not scientific values.

In their view, the precautionary principle should not be elevated to the status of a principle for the following main reasons:

– The scientific uncertainty of the principle that could logically apply to any activity;

– Its strong conception could not only hinder progress by depriving society of useful products, but also deprive it of a source of knowledge;

– The precautionary principle could lead to the isolation of the European Union on the international stage, hinder world trade and considerably complicate international regulatory cooperation (Hannesson, 2014; Majone, 2002) .

4.3.2. Pragmatic Principle

For others, the precautionary principle is a useful way of avoiding complex hazards and reducing serious and irreversible dangers to the environment and human health, including by learning from past mistakes.

Unlike those in the first category, their arguments are based on the following reasons:

– It is a principle that can enable the implementation of regulatory mechanisms aimed at aligning the interests of companies with those of society in a context where companies often do not have to pay the full costs of environmental and health damage;

– It enables a better balance to be struck in public health policies, and overcomes the difficulties associated with scientific demonstration before preventive measures can be justified (Le Menestrel & Rode, 2013) .

4.4. Application of the Precautionary Principle

4.4.1. Mechanisms for Taking Precautionary Measures

The precautionary principle does not require or advocate any particular action, even in its strict interpretation. Depending on the different conditions of scientific uncertainty, this principle calls for informed, transparent and responsible decisions. Its application can result in a reversal of the burden of proof, which, according to some authors, is one of its main characteristics. But other authors, more numerous in fact, indicate that such a reversal is a possible consequence of the interpretation made of the principle. In its communication on the precautionary principle, the European Commission took the same view as these second-rate authors (Communication from the Commission on recourse to the precautionary principle, 2000).

The following methods can be used to determine whether precautionary measures should be taken:

– Cost-benefit analysis, taking into account risk probabilities. In its communication, the European Commission states that the screening should include an economic cost-benefit analysis where this is appropriate and feasible, while specifying that other methods of analysis (e.g. socio-economic impact) and non-economic considerations (e.g. health) may be taken into account;

– Risk trade-off is another method sometimes used in administrative law in the United States. However, it has been criticized for overestimating the negative effects of regulation;

– Cost-effectiveness analysis, which aims to achieve, at the lowest cost, a tolerable level of risk previously set by political decision-makers, without however specifying how this level is determined.

In general, the precautionary principle is implemented wrongly. Initially, it is applied to situation where the risk is unknown but potential consequences are extremely grave. Then, it is applied most clearly when the consequences of a failure to act are so great that it may destabilize society or the whole ecosystem and lead to unacceptable permanent consequences. So, that description hardly applied to short term exposure to chemical residues that may provoke individual cancer risks (Guidotti, 2012) .

4.4.2. Application of the Principle within the Concert of Nations

Article 3 of the UNFCCC states that, in the measures to be taken by the States Parties to the Convention to achieve the objective of the Convention and to implement its provisions, they shall be guided, inter alia, by the following:

1) Preservation of the climate system in the interests of present and future generations, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. It is therefore incumbent on the developed countries party to the Convention to be at the forefront of the fight against climate change and its adverse effects;

2) Consideration of the specific needs and special situation of developing countries: These include countries that are particularly vulnerable to the adverse effects of climate change, as well as developing countries to which the Convention would impose a disproportionate or abnormal burden;

3) Taking precautionary measures to anticipate, prevent or mitigate the causes of climate change and limit its adverse effects. Where there is a risk of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing such measures, it being understood that the policies and measures called for by climate change must be cost-effective, so as to guarantee global benefits at the lowest possible cost. To achieve this aim, such measures and policies should take account of the diversity of socio-economic contexts, be comprehensive, extend to all sources, sinks and reservoirs of greenhouse gases as appropriate, include adaptation measures and apply to all economic sectors. Initiatives to tackle climate change may be the subject of concerted action by interested parties;

4) Measures and policies to protect the climate system from climate change must be adapted to the specific situation of each country and integrated into national development programs, since economic development is essential for adopting measures to deal with climate change;

5) States Parties must work together towards a supportive and open international economic system that leads to economic growth and sustainable development for all Parties, in particular developing country Parties, to enable them to better address the challenges posed by climate change. Measures taken to combat climate change, including unilateral measures, must not be allowed to constitute a means of imposing arbitrary or unjustifiable discrimination or disguised barriers to international trade.

4.4.3. Comparative Analysis of the Application of the Principle in the United States and Europe

Prior to the emergence of the precautionary principle in Europe in the 1970s, the USA applied a generally more cautious approach than Europe. It was not until the 1990s, when Europe adopted a stricter approach than the United States, and enshrined the precautionary principle in the Maastricht Treaty, that the approaches of the two powers converged.

At this moment, there is no real difference in the application of precautionary measures on either side of the Atlantic, i.e. in the USA and Europe. In fact, the only difference lies in the specific subjects to which precautionary measures are applied:

– The European Union has a much more cautious approach to growth hormones in beef than the United States;

– while the United States has taken more precautions than the European Union with regard to mad cow disease. However, some U.S. laws, for example on food safety, apply the precautionary principle without naming it (Klass, 2005) .

4.4.4. Application of the Principle in Europe

The precautionary principle is now enshrined in numerous European Union (non-) legislative acts, including Regulation 1907/2006 (REACH Regulation), the Directive on the cultivation of genetically modified organisms (Directive 2001/18/EC), the Regulation establishing the European Food Safety Authority (Regulation 178/2002) and the Regulation on plant protection products (Regulation 1107/2009).

In its reports on the application of the precautionary principle, the European Environment Agency has identified cases where the precautionary principle has been applied to varying degrees. These cases are often linked to chemical substances, effects on ecosystems, technologies or feed additives (European Environment Agency, 2013) .

4.5. What about Burundi?

4.5.1. Application of the Principle by the Environment Code

As Burundi’s environment is a common heritage, we place particular emphasis on environmental impact assessment.

According to article 21 of law no 1/010 of June 30, 2000 on the environmental code of the Republic of Burundi, in order to minimize or eliminate the short, medium and long-term effects on the environment of developments and works, it is compulsory for tender documents to include an environmental impact study.

Under article 22 of the same code, when developments, works or installations are likely, by virtue of their size, the nature of the activities carried out there or their impact on the natural environment, to harm the environment, the petitioner or project owner must draw up and submit to the environmental authorities an impact study assessing the project’s direct or indirect impact on the ecological balance, the environment and quality of life of the population, and the impact on environmental protection in general.

Article 23 of the same code stresses that, without being exhaustive and without prejudice to other requirements that may be formulated by the administration, the following headings must be included in the environmental impact study:

– Analysis of the initial state of the site and its environment;

– an assessment of the foreseeable consequences of project implementation on the site and its natural and human environment;

– A statement and description of the measures envisaged by the petitioner to eliminate, reduce and, if possible, compensate for the harmful consequences of the project on the environment, and an estimate of the corresponding expenditure;

– The presentation of other possible alternatives and the reasons why, from an environmental protection point of view, the presented version of the project has been preferred.

While article 25 of the same code specifies that the environmental impact study is carried out by the petitioner or project owner himself, or by a natural person or legal entity authorized by the petitioner and acting in the name and on behalf of the petitioner, article 26 reiterates that the environmental administration, in collaboration with the Ministry in charge, monitors the execution by the petitioner or project owner of the measures contained in the environmental impact study, in order to avoid its degradation.

Finally, as stated in article 27 of the same code, failure by the petitioner or project owner to comply with the measures contained in the environmental impact study authorizes the administration to issue a formal notice inviting the petitioner or project owner to comply with the aforementioned measures within a period not exceeding three months. Failure by the petitioner or project owner to comply with the formal notice within the set time limit entitles the environmental authorities either to order the suspension of the operations or works undertaken, or to withdraw the authorization.

It should be pointed out that no compensation can be claimed by the petitioner or the project owner for any loss suffered as a result of these sanctions, unless the irregular nature of the sanctions is reported to the competent court.

4.5.2. Application of the Principle by the Water Code

Article 39 of law no 1/02 of March 26, 2012 on the Water Code in Burundi specifies that, to protect water resources, it calls for preventive or precautionary measures.

The Burundian water code confuses the principles of prevention and precaution.

The matter is organized by articles 41 to 66 of the Water Code set out above.

With a view to protecting water resources, the State has a duty to ensure, in time and space, a balance between the availability of water resources, in quantity and quality, and the needs to be met according to the various uses and functions of water. The protection of water quality and quantity is the responsibility of the State, which may, if justified by the general interest, take special protection measures, in particular by establishing protection perimeters. The Ministry responsible for water management retains the right to order, at any time, any control measures designed to regulate the qualitative and quantitative evolution of water resources within the protection perimeters.

Without prejudice to the protection perimeters that may be required under article 41 of the Burundi Water Code, when water resources are threatened, from a qualitative or quantitative point of view, in one or more specific localities, the Minister responsible for water management may institute water resource protection zones, involving either absolute or relative restrictions on water-related activities, or prior authorization depending on the nature or location of the needs to be met. The purpose of the protection perimeter is to ensure the protection of water quality, whether it comes from groundwater, surface water, rivers or other watercourses.

Within the protection perimeter, deposits, installations and activities likely to directly or indirectly harm water quality or render it unfit for consumption are prohibited.

The ban mainly concerns the following activities:

1) deposits of garbage, refuse and garbage;

2) spreading manure, watering, parking or raising animals;

3) deposits of hydrocarbons and all substances presenting toxicity risks, in particular chemicals, fertilizers and pesticides;

4) open-cast mining of quarries or other mineral substances;

5) installation of all types of wastewater pipes;

6) installation of cemeteries;

7) septic tank sludge disposal.

Qualitative protection must also be provided by means of a protection perimeter:

l) dams;

2) spring, well or borehole catchments;

3) water storage tanks;

4) vulnerable parts of the groundwater;

5) all bodies of water intended for human or animal consumption.

Furthermore, no abstraction or diversion of surface water that could temporarily or permanently alter its course, hinder its free flow or reduce its bed may be carried out without prior authorization from the Minister responsible for water management.

No one may drill wells or probe for groundwater without prior authorization from the Minister responsible for water management. The duly authorized driller or sounder must provide, at the request of the Minister in charge of water management, information and data relating to his activities.

Nor may any person discharge, dump or deposit water, directly or indirectly, in any manner whatsoever, or, more generally, engage in any act or deed likely to cause or increase pollution of surface or underground water, whatever its origin. The author of the pollution is required to pay compensation in an amount proportional to the degree of pollution caused, without prejudice to the related penal sanctions, especially under the provisions of the Water Code.

It is forbidden to dump corpses in water or bury them within five hundred meters of wells, fountains, public drinking troughs or water protection areas. In areas where the water table is less than two meters deep, it is forbidden to set up cemeteries, bury corpses, dig latrines, set up public dumps or bury waste in such a way as to pollute the water. It should be noted that: “Water resources likely to be polluted due to their location or suspicious activities or behavior in the vicinity are subject to periodic checks of their physical, chemical, biological and bacteriological characteristics.

Development projects and urban planning documents and plans must take into account the drainage and evacuation of rainwater, which are elements of the right to safety and a healthy environment. The design, execution and operation of structures and buildings for residential or other use, installed in drainage zones or flood-prone areas, must respect the free flow of water. The Minister responsible for water management and the environment has the power to modify or remove any embankment, deposit of bulky materials, fencing, planting, construction or any other work likely to obstruct the flow of water, or to restrict in a harmful way the scope of flooding on the submersible parts of watercourses.

In addition, it is forbidden to build on flood protection dykes, to leave structures or obstacles of any kind on them, or to carry out activities on them that are likely to damage the dykes, hinder the flow of water or restrict the scope of flooding.

Hydraulic structures of national, regional or local importance are protected by the public authorities to prevent any threat to public safety, and are subject to periodic inspection.

Sanitation infrastructure works are subject to the environmental and social impact assessment procedure, and can only be carried out after authorization from the Minister responsible for water and environmental protection.

Domestic wastewater, including kitchen wastewater, black water and septic tank effluent, may not be discharged into storm water drains or sewers, or directly into watercourses and lakes.

4.5.3. Application of the Principle by the Forestry Code

Articles 5, 83, 86, 88, 91, 93, 95, 97, 101, 102, 104 and 106 of law no 1/07 of July 15, 2016 revising the forestry code implicitly return to this principle.

In this way, the protection and development of forests are ensured through rational and balanced management that contributes to the preservation of the environment.

Rational and balanced forest management is essentially based on the following principles:

1) Principle of sustainable management: this involves meeting the forestry needs of present generations without compromising the similar rights of future generations;

2) Participatory approach: this is based on the effective involvement of all management stakeholders, in particular the State, forest operators, planters, landowners, grassroots communities, non-governmental organizations, etc. These stakeholders are involved at all stages of the initiation, implementation and monitoring-evaluation of forest resource management programs and projects. These stakeholders are involved at all stages of initiation, implementation and monitoring-evaluation of forest resource management programs and projects;

3) “Who cuts, replants” principle: this implies that anyone who cuts a tree automatically replaces it with new trees, the number of which is calculated on the basis of the real value of the trees cut and of the same species;

4) Principle of responsibility: within the framework of sustainable forest governance, the principle of responsibility aims to ensure the responsiveness of the institutions in charge of the forestry sector and the performance of the processes undertaken with a view to the sustainable management of forest resources;

5) Principle of equity: the different categories of population involved in the management of forest resources must be treated equitably; equity must be sought in the distribution of the benefits derived from the forest, in their economic use and in the provisions made for the protection and management of these forest resources;

6) The principle of transparency: in the field of sustainable forest governance, the ultimate goal is to be accountable to the public and to the various stakeholders;

7) Principle of good governance: taking into account the timing and risks of establishing and managing planted forests, as well as their use and marketing, the state facilitates a stable economic, legal and institutional environment to encourage long-term investment, sustainable land-use practices and socio-economic stability;

8) Principle of integrated decision-making and multi-stakeholder approaches: taking into account the multi-faceted interfaces of planted forests with community participation, agriculture, livestock, naturally regenerating forests and agroforestry land uses, policy-makers should encourage stakeholder-inclusive decision-making in the planning, management and use of planted forests;

9) Principle of effective organizational capacity: governmental, private-sector and other organizations require the capacity and skills to transfer knowledge, technology and other support services for sound management of planted forests at all levels;

10) Principle of recognition of the value of goods and services: planted forests, whether for production or protection, should be recognized for their provision of market and other benefits, including timber and non-timber forest products and social, cultural and environmental services;

11) Favorable investment environment principle: the State must create favorable conditions to encourage companies to make long-term investments in planted forests and produce a favorable return on investment;

12) Principle of recognition of the role of the market: to improve the likelihood of achieving acceptable returns, investors in planted forests, particularly those with production functions, should design their planning and management to respond to international and domestic market signals; the establishment and management of planted forests should be market-driven, not production-driven, unless they are established for environmental, protection or civic reasons;

13) Principle of recognition of social and cultural values: social and cultural values must be taken into account in the planning, management and use of planted forests, including the well-being and empowerment of communities, workers and other stakeholders;

14) Principle of maintaining social and cultural services: balancing competing objectives in forest plantation investments causes social and cultural changes; it is therefore necessary to adopt planning, management, use and monitoring mechanisms to avoid adverse impacts;

15) Principle of maintaining and conserving environmental services: the management of planted forests will have an impact on the provision of ecosystem services; planning, management, use and monitoring mechanisms must therefore be adopted in planted forests in order to minimize negative impacts, promote positive impacts and maintain or improve the conservation of environmental services;

16) Principle of biodiversity conservation: planners and managers of planted forests must incorporate biodiversity conservation at the stand, forest and landscape levels;

17) PRINCIPLE of maintaining forest health and productivity: agreements are needed at national and sub-national levels to ensure that planted forests are managed in such a way as to maintain and improve forest health and productivity and reduce the impact of destructive abiotic and biotic agents;

18) Principle of landscape management for social, economic and environmental benefits: in planted forests that interact with and impact local uses and livelihoods and the environment, integrated planning and management approaches must be adopted on a landscape or watershed basis to ensure that upstream and downstream impacts are planned, managed and monitored within acceptable social, economic and environmental standards.

In Burundi, the forest estate is protected against any form of degradation or destruction, notably as a result of mining and quarrying, illegal logging, over-exploitation, over-grazing, fires and slash-and-burn operations, as well as abusive clearing and deforestation. In particular, all acts of deforestation in protected areas, areas at risk of flooding and land with a slope of 35% or more are prohibited. What’s more, the introduction of exotic forest species into the national territory is subject to prior authorization by the Minister responsible for forests, following an environmental impact study and the opinion of the national forestry commission.

It should be noted that any clearing of forest land owned by the State, local authorities, public establishments or private individuals whose surface area exceeds half a hectare is subject to a clearing permit. The granting of a clearing permit is subject to an environmental impact assessment.

All forest and brush clearing is prohibited within 25 meters of the banks, water bodies and tributary rivers of Lake Tanganyika. For the country’s other rivers, this activity is prohibited within 5 meters on either side of the banks. Any clearing must be accompanied by reforestation equivalent in quality and area to the initial afforestation.

Before excavating, quarrying or mining, opening or straightening a road, or building on a State, municipal or public forest estate, or on a private forest estate of at least half a hectare, any natural or legal person is required to:

1) Obtain authorization from the Minister responsible for forests and, where applicable, a logging or clearing permit;

2) Take all protective and conservation measures to ensure that its activities do not cause or aggravate erosion, degrade soil or damage vegetation around work sites or operations, alter water quality or disrupt watercourse flows;

3) Restore excavation, extraction or construction sites to their original condition once prospecting and mining work have been completed.

Forest and bush fires are prohibited, with the exception of early fires in wildlife parks. It is also forbidden to herd or graze animals on burnt pastures. Domestic animals may not roam in State, municipal, public or private forest areas.

In order to protect forests, woodlands and woodlots subject to the present law from wildfire, forestry officers must, wherever useful:

1) Periodically carry out preventive fires, either inside or on all or part of these estates, or outside them, on a perimeter strip whose width does not exceed one hundred meters for nature reserves and parks and six meters for other forests and woodlands;

2) Build structures in the same areas to prevent the spread of these fires.

It is also forbidden to carry or light fires outside dwellings and farm buildings, and within 500 meters of forests, woodlands and woodlots, whoever owns them.

4.6. Challenges and Opportunities

Applying the precautionary principle presents many challenges. Dangerous effects on human health and the environment most often manifest themselves as interactions within complex systems influenced by multiple risk factors and causes. For example, the heightened vulnerability of certain sub-groups (e.g. children and the elderly) increases complexity and leads to differences in acceptable exposure thresholds.

There are a number of challenges involved in hazard assessment, not least the tension between false positives and false negatives. False positives occur when a study concludes, for example, that a substance is dangerous when it is not. Conversely, false negatives occur when a study concludes that a substance is not dangerous when it is. Many authors agree that scientific studies are designed to minimize false negatives, for the simple reason that science requires a solid foundation on which to build knowledge.

Several authors deduce that, in the field of environment and health, this means that the odds in favor of the environment or health are kept deliberately low. Furthermore, the method generally used to determine whether observed data are statistically significant is criticized for its weaknesses (Nuzzo, 2014) , does not always allow conclusions to be reached in a timely manner (Taylor & Gerrodette, 1993) .

In the field of research, too, the application of the precautionary principle highlights a number of challenges. An analysis of scientific articles published between 2000 and 2009 reveals that academic research into environmental hazards focuses on a small number of well-known chemicals such as heavy metals, while research into other widely-used substances, let alone emerging chemicals, remains rare. The author adds that, traditionally, research has focused on a single topic, which has the advantage of addressing a single factor in specific circumstances, but makes it ill-suited to apprehending the complexity of environmental hazards, where causes can be multiple and cumulative (Grandjean, 2013) .

For companies, applying the precautionary principle can present two main challenges:

– On the one hand, a change in regulations in the name of the precautionary principle can be a source of increasing costs and legal uncertainty for companies, and thus slow down their development or even jeopardize their existence;

– On the other hand, when companies discover early signs of danger posed by their products, they face economic and ethical dilemmas.

However, the application of the precautionary principle can also be a source of opportunities. A report by the Organization for Economic Co-operation and Development, or OECD for short, points out that the costs to society of inaction can be considerable, in some cases placing a heavy burden on economies (OECD, 2008) .

Applying the precautionary principle can help reduce these costs, even if it is not easy to estimate potential future costs, so that they can be compared with the costs of regulatory action. The precautionary principle can also help to correct certain market failures that arise when society has to bear the costs of environmental and health damage externalized by economic actors.

It can also help avoid lengthy legal proceedings for compensation that can drag on for decades. In a context of economic transition towards greater sustainability as envisaged by European policies (7^th general environmental action program adopted by the European Parliament and the Council in 2013 and Soer, 2015), the precautionary principle can help avoid dangers in highly complex and uncertain situations.

In environmental and health research, the precautionary principle may provide an opportunity to revise strategies to take account of societal needs for information on little-known hazards, methodologies to extend knowledge, and ways of communicating about risks to facilitate judgments on the potential scale of possible environmental hazards (Grandjean, 2004) .

5. Conclusion

The first part of our work consisted in examining the origins of the precautionary principle, its various conceptions by different authors, institutions and/or associations (groupings) of human beings, the references to it in international treaties on environmental protection, and the definitions elaborated by different institutions.

The precautionary principle enables decision-makers to take measures to protect the environment when scientific evidence of a danger to the environment or human health is uncertain and the stakes are high. This principle is the subject of opposing views, as some see it as useless, potentially dangerous and opposed to progress, while others consider it a useful principle for protecting human health and the environment in the face of complex hazards. It should be noted that there is no universally accepted definition of the precautionary principle. It is therefore conceived differently by different institutions, depending on the degree of scientific uncertainty at which action by the authorities is still possible. The European Commission, UNESCO and the European Environment Agency have each proposed a definition of the principle.

The second part deals with the application of this principle by States, communities and national, regional and international organizations. Indeed, its application is also subject to different interpretations. Most experts agree that the precautionary principle does not require specific measures, such as a ban or a reversal of the burden of proof. The application of the precautionary principle presents many challenges, particularly in terms of dealing with complexity, hazard assessment, research and economic activities. However, it should also be noted that the precautionary principle is a source of opportunities, particularly with regard to a possible reduction in the overall costs to society, and in research into the environment and human health.

It would be risky to claim to have exhausted the subject. For example, we have not been able to compare the precautionary principle with other closely related principles, such as the principle of prevention. Nevertheless, we hope to have made our contribution, however modest, to environmental law research in Burundi. We invite other researchers to delve deeper into the subject.

NOTES

¹(Article 3 of the Convention on Biological Diversity and Article 3 of the UNFCCC).

²(Artegodan judgment of November 26, 2002 (T-74/00), point 184).

Conflicts of Interest

The authors declare no conflicts of interest regarding the publication of this paper.

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The post The Precautionary Principle in Environmental Law appeared first on BNM & Co. Advocates .

Burundi’s Mining Code and Environmental Law

BNM — Thu, 19 Jun 2025 10:20:37 +0000

Abstract

The pursuit of economic interests must not undermine sustainable development, one of the pillars of which is respect for the environment. The mining sector contributes to economic growth through spin-offs from mining activities. The Constitution of Burundi advocates the rational management of natural resources. This management must not negate the right to a healthy environment. Laws have been enacted to respect, protect and implement this right, in particular the Mining Code. Derived from the Constitution and the Environmental Code, its purpose is to promote mining activities without compromising the right to a healthy environment. An analysis of this code leads to the conclusion that the environment is a sensitive issue and that a series of legal mechanisms are in place to protect it.

1. Introduction

The planet is facing disasters that are sometimes the result of human actions. The protection of the environment is therefore an urgent priority for the international community. This protection is guaranteed by legal instruments established at the international and national levels. Can the right to life, the right to physical integrity, the right to a life worthy of human dignity, the right to privacy, and the right to property be effective without guaranteeing that everyone can live in an environment that is physically and biologically compatible with the narrow ecological tolerances of the human species? (Born & Haumont, 2011; Verdussen & Bonbled, 2011)

People who protect the environment are both actors and beneficiaries, hence the right to a healthy environment that is now recognized. This right has emerged and developed over time. At the international level, Principle 1 of the Declaration of the United Nations Conference on the Human Environment, adopted in Stockholm in 1972, established for the first time a link between human rights and environmental protection: “Human beings have the fundamental right to freedom, equality and adequate living conditions in an environment of a quality that permits a life of dignity and well-being. It is his solemn duty to protect and improve the environment for present and future generations” (Born & Haumont, 2011). Principle 1 of the 1992 Rio Declaration states that human beings are at the centre of sustainable development concerns. They have the right to a healthy and productive life in harmony with nature.

These declarations were certainly not binding, but they had the merit of bringing to the surface the close link between human rights and the environment. Article 24 of the African Charter on Human and Peoples’ Rights, adopted in 1981, proclaims that “all peoples have the right to a satisfactory and complete environment conducive to their development”. The San Salvador Protocol (1988) to the American Convention on Human Rights makes the right to the environment an individual right. Article 11-1 states that “everyone has the right to live in a healthy environment”. If we consider only these international declarations and conventions, we can conclude that the right to the environment enjoys international recognition.

Partly on this basis, the right to a healthy environment now has constitutional status in many countries. For the world as a whole, in 2019, 170 national constitutions provided constitutional protection for the environment (Prieur, 2011.) Burundi has also historically evolved in the recognition of the right to the environment. The African Charter on Human and Peoples’ Rights is cited in the preamble of the 1991 Constitution. The 2005 Constitution, which marks the end of the civil war, gives constitutional value to the African Charter on Human and Peoples’ Rights. With this integration, the constitutional right to a healthy environment provided for in Article 24 of the Charter is incorporated.

What’s more, the 2018 Constitution more explicitly enshrines this right to a healthy environment. Article 35 states that “the State shall ensure the sound management and rational use of the country’s natural resources, while respecting the environment and preserving these resources for future generations”. This article is part of the chapter on the fundamental rights of the individual and the citizen. The provisions of this article show that the duties of good management and exploitation of natural resources, as well as preservation of the environment, fall on the shoulders of the state.

On the basis of this fundamental law, Article 1 of the Burundian Environmental Code lays down the basic rules for the management of the environment and its protection against all forms of degradation, in order to safeguard and promote the rational use of natural resources, to combat the various forms of pollution and nuisance, and thus to improve the living conditions of human beings while respecting the balance of ecosystems. This Code places the improvement of human life at the forefront and aims to protect the environment by promoting the rational use of natural resources. Moreover, article 4 makes a significant contribution in terms of obligations, since “the Burundian environment constitutes a common heritage, the protection of which is the responsibility of the State, local authorities, public institutions and citizens, individually or grouped in associations”. The burden of protecting the environment ultimately falls on the State and on everyone (Gowing et al., 2020; Matime, 2016; Sindayigaya, 2023).

The Burundian Environmental Code requires the rational use of natural resources. This obligation therefore extends to the exploitation of mining resources, which is regulated by Law No. 1/19 of August 4, 2023, amending Law No. 1/21 of October 15, 2013, on the Burundian Mining Code. The law specifically refers to the Constitution and the Environmental Code, which in turn refers to the duty of rational exploitation of natural resources. The rational use of these resources contributes to the development of the right to a healthy environment and protects it from degradation caused by human activities, in this case, mining (Jobbé-Duval, 1884; Schneider, 2001; Sindayigaya & Toyi, 2023).

This article analyzes Burundi’s Mining Code from the perspective of respect for the environment and the right to a healthy environment. We hypothesize that, based on the Constitution, which requires the State to exploit natural resources rationally, the Environmental Code provides legal levers to protect the environment and the right to a healthy environment in the exploitation of mining resources. The importance of this article is obvious. It allows us to define the scope of protection of the environment and the right to a healthy environment on the table of the sinews of war coming from mining. This scientific aspect has not yet been studied.

2. Methodology

Our methodology is based on comparative analysis. We put into perspective the Environmental Code, which is of a general nature in terms of environmental protection, and the Mining Code, which must be harmonized with the latter, in order to identify the way in which the latter, while contributing to the economic development of Burundi through the financial spin-offs from mining, lays down restrictive rules for environmental protection and, consequently, participates in the respect of the right to the environment. The study therefore focuses on the analysis of the Mining Code in relation to the basic principles set out in the Environmental Code.

3. Results

3.1. The Environmental Code and the Enshrinement of Environmental Protection Principles

The Environmental Code was introduced to implement, among other things, Article 35 of the Constitution. It lays down the principle of codification of sectoral aspects of the environment, subject to compliance with the Code’s provisions (article 3). It is therefore understandable that a mining code is needed to provide a legal framework for mining operations, which must nevertheless protect the environment. Article 2 of the Environmental Code lays down the principle of rational exploitation of resources and the fight against pollution and nuisance. The code also lays down the principles of natural resource management: sustainable development, information, prevention, precaution, the polluter-pays principle, the principle of responsibility and the principle of participation (article 15). The central question then becomes how, and thanks to what legal provisions, the exploitation of mining resources combines economic development with the imperative of environmental protection, and thus contributes to the right to the environment. In other words, to what extent the Mining Code complies with the requirements of the Environmental Code.

3.2. Legal Mechanisms to Protect the Right to the Environment

As we have just said, Burundi’s mining code has just been revised, so the code in force is new. It is important to review the various mechanisms it advocates to ensure respect for the right to a healthy environment.

As far as the legal framework for mining operations is concerned, Article 35 of the Constitution, which is the mother text of other domestic legal instruments, assigns the State the responsibility for the sound management and rational exploitation of the country’s natural resources and requires it to conserve the environment. It thus creates a duty for the State and a right for the individual, to whom it is accountable for this sound management and rational exploitation. Hence, and because of this right, the State has committed itself to three main obligations: respect, protect, and implement. The obligation to respect calls on the State, as the vertical debtor of this right, to respect it and ensure that it is respected by every individual, who is also the horizontal debtor (Majambere, 2023; Sindayigaya, 2022). The obligation to protect presupposes that the State adopts legislative or other measures to implement them.

This is the background to the introduction of the Environmental Code. Article 10 stipulates that “the implementation of a policy to protect and improve the environment constitutes, for present and future generations, a permanent obligation for the State and local authorities, as well as for any natural or legal person carrying out activities on the territory of the Republic of Burundi”. Furthermore, “the protection of the environment, the maintenance or restoration of natural resources, the prevention and limitation of activities and phenomena likely to degrade the environment and cause harm to human health and ecological balances, and the repair or compensation of damage to the environment are of general interest”.

Mining is one of the activities that cause damage to the environment and the right to the environment. Indeed, it’s important to emphasize that the exploitation of mining resources, over and above the economic and financial spin-offs, also has its share of consequences for our environment and our lives. As a result, this exploitation undermines our right to a healthy environment.

The Mining Code of the Republic of Burundi, which provides a framework for mining activities, is the result of Article 3 of the Environmental Code, which stipulates that “the provisions of the (…) Code is applicable without prejudice to the rules established by legislative and regulatory texts concerning sectoral aspects linked to the protection or enhancement of environmental elements, insofar as the said rules are not contrary to the spirit and provisions of this Code”. It was from this angle that the legislator established the Mining Code, which defines its purpose in Article 1. According to this provision, “this code applies to all prospecting, research, industrial and artisanal exploitation, processing, holding, transport and trading operations, as well as the closure of mines, mineral or fossil substances, thermal waters and quarry products on the territory and in the territorial waters of the Republic of Burundi…”.

By adopting the Mining Code, Burundi has already fulfilled two of its obligations, namely to respect and protect, by defining, through legislation, the mechanisms it intends to deploy to respect and protect the environment, and consequently the right to a healthy environment.

It is clear from the above that the mining sector in Burundi is not a lawless zone. Moreover, there can be no law without text. The existence of texts governing the mining sector is therefore the first characteristic element of respect for environmental rights in the mining sector in Burundi. The question then arises as to what should be retained from this text in terms of the imperative of respect for the environment. Burundi’s mining code comprises 260 articles. Our study will focus on 19 articles: 21, 26, 41, 43, 65, 68, 94, 96, 123, 133, 135, 187, 150, 157, 196, 198, 249 and 253.

3.3. Legal Mechanisms Provided by the Mining Code for the Protection of the Environment and the Right to the Environment

The definition of terms in Article 2 of the Mining Code avoids any confusion in the process and defines the language used by stakeholders. The legislator has thus defined three key concepts that set the tone for mining operations: the Environmental Impact Study, the Simplified Environmental Impact Study and the Environmental and Social Impact Study. From now on, everyone in the mining world (government officials or operators) is familiar with the concept and knows what it means in a mining file.

3.3.1. Prospecting Authorization

Article 21 of the Mining Code stipulates that prospecting permits are issued by the Minister in charge of mines and quarries. Article 13 requires all legal entities to have a permanent address in Burundi in order to obtain a prospecting license. This permit is an indicator of the orderliness of the sector. In fact, it is easy to obtain an exhaustive list of operators in the sector. As a result, it acts as a brake on illegal operators. Likewise, authorization is an indicator of commitment to the administration and the community. From now on, it will be possible to know who is prospecting where and to identify their commitment to respect the environment. The permit clearly defines the perimeter within which prospecting takes place. Prior authorization for prospecting is therefore an essential element in the implementation of environmental rights in the mining sector.

3.3.2. The Possibility of Revoking a Mining Title

According to Article 26, mining titles include exploration permits and operating permits for large and small mines. According to the Mining Code, the Minister of Mines and Quarries must be notified of the beginning and end of exploration and mining activities. The Minister appoints agents to monitor exploration and mining activities on a daily basis. Article 36 gives the Minister the right to revoke a mining title in case of violation of sanitary, health, environmental and safety regulations. This is an important lever for the protection of the environment and the right to a healthy environment, since the law makes it possible to stop mining activities that do not respect the environment. It is also praiseworthy that this decision is to be taken after a formal notice has remained without effect. This legal provision for environmental impact assessments is part of the implementation of the principle of prevention.

3.3.3. A research Permit Granted by Decree, with the Start of Research Subject to the Submission of an Environmental Impact Study

Article 41 of the Mining Code stipulates that research permits are granted by decree and after consultation with the Council of Ministers. We interpret this as an indicator of the importance of this research in the life of Burundi and of the seriousness with which the authorities intend to treat this mining title.

The legislator has made the simplified environmental impact assessment part of the dossier to be submitted to the Minister in charge of mines and quarries. Article 43, in turn, makes the commencement of work conditional on the submission of the environmental impact study. The purpose of this study is to ensure that the environment will not suffer as a result of the activity and, if this is the case, the authorities will ensure that remedial measures are taken. It is a crucial lever for the protection of the environment and the right to a healthy environment. These requirements lead to the conclusion that the absence of a simplified environmental impact study leads to the rejection of the application and that the absence of this environmental impact study at the beginning of the work means that the mining title remains on paper. This is a strong preventive element to counteract the possible irreversible degradation of the environment.

3.3.4. A Large-Scale Mining Permit Is Subject to Respect for the Environment

Like the research permit, the large-scale mining permit is issued by decree (art. 65) and, according to art. 68, “the underlying mining contract must include provisions for the protection of the environment in general and the rehabilitation of mined sites in particular, both during and after the period of the permit, whatever the cause, in the framework of the “environmental impact study”. This provision provides a lever for anticipation in terms of the operator’s commitment to respect the environment, and the environmental impact study will serve as a grid for reconciling the pre-operational and post-operational environmental situations.

This provision has the advantage of making the operator more accountable and providing the government with a basis for assessing and enforcing rehabilitation. In this respect, it is a lever for environmental protection and the right to the environment. It should be noted that the Mining Convention stipulates that environmental protection work carried out after the expiry of a large-scale mining permit is at the operator’s expense.

3.3.5. Environmental Conditions for Granting a Small-Scale Mining Permit

Like the large scale mining permit, the small scale mining permit is subject to the submission of an environmental and socio-economic impact study approved by the Minister of Environment (Article 94). The mining contract contains provisions on the applicant’s environmental protection obligations (Article 96). In addition, the operator who signs the mining contract undertakes commitments “relating to the protection of the environment in general and the rehabilitation of mined areas in particular, within the perimeter, both during the term of the concession and at its end, for whatever reason, following the environmental impact study”. In this respect, there are similar obligations for large and small mines. In this respect, there are similarities between the obligations of large and small mines. It is therefore a common point of environmental protection and, consequently, of the implementation of the right to a healthy environment.

3.3.6. Environmental Obligations for the Beneficiary of Semi-Mechanized Mining

The semi-mechanized operator’s permit is also subject to environmental requirements, in particular the obligation to ensure respect for the environment and to rehabilitate mining sites (Article 123). This rehabilitation obligation is transferred to the operator when the semi-mechanized mining permit expires, for whatever reason (Article 128). This reflects the company’s commitment to the environment.

3.3.7. Artisanal Miners’ Obligation to Respect the Environment

Artisanal miners must have an operating permit. They must carry out their mining activities in a rational manner and in compliance with public health, occupational safety and environmental protection standards (Article 133). He is obliged to rehabilitate at the end of the permit, whatever the cause (Article 135).

3.3.8. Requirement for the Consent of Natural or Legal Persons

The exploitation of mineral resources endangers the environment and human life in local communities. Mining damages the atmosphere, infrastructure, private property and health. Aware of these harmful consequences, the legislator has taken care to specify certain relationships between the holders of mining or quarrying rights and landowners. Article 181 stipulates that the consent of natural and legal persons must first be obtained for activities or works involving the exploration or exploitation of mineral substances in the vicinity of enclosed properties, villages, groups of dwellings, settlements, wells or boreholes, religious buildings and burial sites.

The legislator has taken care to limit the authority’s right of authorization by requiring the consent of the surrounding population. The protection of communities is of paramount importance when it comes to basic infrastructure that is of vital interest to the population. The involvement of the public is therefore welcome and their rights are taken into account.

3.3.9. Special Regulations for Certain Zones

The Mining Code provides for the possibility of establishing prohibited, protected and reserved zones. This power is vested in the Minister of Mines and Quarries. Within these zones, mineral exploration and exploitation may be regulated in order to protect public works, certain fragile habitats and ecosystems, and any area of general interest (Article 187). This provision puts a brake on the unbridled pursuit of economic interests at the expense of the environment and the people living in the area.

3.3.10. Requiring Quarry Permit Holders to Provide a Rehabilitation Guarantee, and Creating a Guarantee Fund for Site Rehabilitation

The Mining Code contains provisions regarding quarries. Quarry operators must register with the Mines and Quarries Authority. An industrial quarrying permit is issued by decree, while a mechanized or artisanal quarrying permit is issued by order of the Minister of Mines and Quarries (Article 150). Holders of industrial, mechanized or artisanal quarrying permits are required to carry out rehabilitation work in accordance with environmental regulations.

To this end, holders of industrial, mechanized and artisanal quarrying permits are required to provide a guarantee. These are sums intended to guarantee the execution of rehabilitation works and various irregularities. The Mining Code stipulates that the terms and amounts of this guarantee are determined by a joint decree of the Ministers of Finance, Environment and Mining (Article 157). Holders of large and small mining concessions are required to progressively rehabilitate the sites they operate. To this end, the State has set up a “Guarantee Fund for the Rehabilitation of Sites”, the operating and financing procedures of which are established by decree (Article 196).

We believe that these guarantee mechanisms are encouraged by the lack of certainty regarding the actual rehabilitation of the sites. In this sense, it is a positive point, because otherwise the environment would be degraded without any prospect of rehabilitation. This mechanism fills a possible gap and thus ensures the certainty of environmental protection (Sindayigaya, 2022; Strauss, 1974).

3.3.11. Lump-Sum Contributions for Orphan Site Rehabilitation

Under Burundi’s Mining Code, holders of mining or quarrying rights and mineral transport permits are required to make a lump-sum contribution to the rehabilitation of orphan sites. The purpose of this contribution is to increase the base for environmental rehabilitation.

3.3.12. Reports

The government requires holders of mining and quarrying permits to submit an annual activity report detailing the environmental impact of their operations. Similarly, holders of other types of prospecting permits or authorizations are required to submit an annual environmental impact report (Article 198). This is a good control mechanism for the authority to be able to assess the state of the environment as a result of operations and thus initiate remediation (Bakken, 2011).

3.3.13. Monitoring

The Mining Code establishes that mining operations are subject to administrative and technical supervision by civil servants. Holders of prospecting, exploration and mining permits are obliged to comply with measures issued by the Minister of Mines and Quarries and the Minister of the Environment. Holders of permits for prospecting, research and exploitation of mineral substances are obliged to comply with measures ordered by the Minister of Mines and Quarries and the Minister of the Environment. Refusal to comply with the measures will lead the Ministry to carry them out at their expense (Bastida, 2013). The Minister of Mines and Quarries has the power to enforce such orders (Majambere, 2023; Woody et al., 2010). The law thus empowers the authorities to take immediate remedial action to end the hazard. Monitoring contributes to the democratic management and protection of the environment (Majambere, 2023; Mispoulet, 1907).

3.3.14. Recourse to Criminal Law

Burundi’s Mining Code includes a penal component to protect the environment resulting from mining and quarrying activities. A total of 24 offences are provided for and punished by the Mining Code. By way of example, we can refer to the fact of carrying out activities that do not respect public health, work safety and the preservation of the environment (Article 249). Article 253 of the Mining Code makes it a criminal offense to violate obligations to rehabilitate the site in accordance with environmental protection regulations. The use of mining criminal law to protect environmental rights plays an important role (Dupuy, 2014). It guarantees compliance with the standard, as the various regulations would be doomed to failure without this criminal power to enforce them (Nkurunziza et al., 2021).

4. Discussion

As we said at the beginning, the Environmental Code was enacted to establish the principles of environmental protection. It follows that all sectoral texts must be adapted to this Code. The same applies to the Mining Code, which regulates the mining sector in Burundi. An analysis of the Mining Code shows that the legislator has taken into account the legal mechanisms for environmental protection in the mining sector. A number of provisions in the Mining Code require that environmental protection be taken into account at every stage of the mining process. Environmental protection is therefore at the heart of the process, both in the administrative phase of the interaction between economic mining operators and the public authorities in charge of the mining sector.

5. Conclusion

As we said at the beginning, the Environmental Code was enacted to establish the principles of environmental protection. It follows that all sectoral texts must be adapted to this Code. The same applies to the Mining Code, which regulates the mining sector in Burundi. An analysis of the Mining Code shows that the legislator has taken into account the legal mechanisms for environmental protection in the mining sector. A number of provisions in the Mining Code require that environmental protection be taken into account at every stage of the mining process. Thus, environmental protection is at the heart of the process, both in the administrative phase of the interaction between economic mining operators and the public authorities in charge of the mining sector.

The pursuit of economic interests must aim at sustainable development, one of the pillars of which is environmental protection. The mining sector contributes to this development through the spin-offs of mining operations. Burundi, through its Constitution, has committed itself to the good management of natural resources. It recognizes the need not to compromise the future of future generations. Accordingly, Article 35 of the Constitution recognizes the right to a healthy environment. The respect, protection and implementation of this right requires the adoption of laws and other texts to protect it.

In this sense, a Mining Code has recently been promulgated to regulate mining activities. However, the exploitation of mining resources must respect the environment so as not to harm it or the right to a healthy environment. We have analyzed the various provisions of this Code in order to identify the legal mechanisms put in place by the legislator to protect the right to a healthy environment. We conclude that the Code is sensitive to this right in terms of the elements that protect it.

Of course, these are legal mechanisms whose non-observance allows the authorities to take remedial action, which also gives the judiciary grounds to take up cases.

For other researchers, it is interesting to analyze the effectiveness of these mechanisms in order to determine the real impact of this Code on environmental protection and the right to a healthy environment.

Conflicts of Interest

The authors declare no conflicts of interest regarding the publication of this paper.

References

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The post Burundi’s Mining Code and Environmental Law appeared first on BNM & Co. Advocates .

Suppressing Environmental Damage in Burundi

BNM — Wed, 18 Jun 2025 19:12:08 +0000

Abstract

The Republic of Burundi provides constitutional protection for the environment and the right to the environment. As part of this protection, various laws have been enacted to protect the environment. The Environmental Criminal Law plays its part in this protection. It is a law with its own peculiarities that feeds the repressive apparatus in the fight to protect the environment. However, the statistical data available from the courts, while confirming the prosecution and conviction of environmental criminals, show that the level of repression is low compared to the statistics for cases involving other recorded offenses.

1. Introduction

The state of the environment has become a global concern. The enjoyment of human rights is closely linked to the state and quality of the environment. The International Covenant on Economic, Social and Cultural Rights has led States Parties to recognize the right of everyone to the highest attainable standard of physical and mental health.

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. A better state of health therefore presupposes a healthy environment conducive to good health: uncontaminated water, unpolluted air, a noise-free environment, etc.

A good environment is one in which the elements that make it up, and in particular human beings, can live healthy lives, and this presupposes that it is protected from damage, which is essentially of two kinds: natural or man-made. Damage caused by the disruption of nature cannot be remedied by sanctions. The opposite is true of damage caused by human action. The perpetrators can be punished. For the most part, such damage is the result of human socio-economic activities aimed at survival, which unfortunately sometimes cause damage and harm to the surrounding environment and the people who live there.

The community of nations is now aware of the need to protect the environment, on which the quality of life depends, from what I would call “environmentally destructive” human activities. This has led to the consecration of a human right to a healthy environment, a right that is now constitutional in scope.

Statistics for 2019 show that 170 national constitutions provide constitutional protection for the environment, 85 of which explicitly recognize the human right to a healthy environment (Prieur, 2018; Prieur et al., 2016). The corollary of this right is that 100 constitutions around the world impose duties to protect the environment (Prieur et al., 2016). In the wake of this right and duty, Article 24 of the Greek Constitution of June 9, 1975, establishes a duty of the state: “The protection of the natural and cultural environment is an obligation of the State. The State is obliged to take special preventive or repressive measures for its preservation”.

In France, the Charter of the Environment was adopted in 2004, proclaiming a new generation of human rights. It is a legal instrument designed to protect the environment and thus promote human well-being.

Article 1 of the Charter states that “everyone has the right to live in a balanced and healthy environment”. Likewise, “everyone must contribute to the preservation and improvement of the environment” (Article 2). This Charter, which has constitutional status, reflects the will of the French people to ensure effective compliance with environmental protection rules. It enshrines environmental rights and duties.

Article 23 of the Belgian Constitution states that: “Everyone has the right to lead a life in keeping with human dignity. These rights include in particular (…) 4˚ the right to protection of a healthy environment”.

With this provision, it is clear that the Belgian constituent sees a close link between human dignity and the protection of the environment, this dignity being the result of the enjoyment of a certain number of rights, in particular social rights. The two examples from the European area lead us to highlight the awareness of the rights and duties enshrined in constitutions, which are two sides of the same coin when it comes to the environment.

As part of its constitutional evolution, the Burundian electorate decided to give constitutional value to the right to a healthy environment, recognizing it as a right of the individual and the citizen. The Constitution of the Republic of Burundi of March 13, 1991, which marks the era of the arrival of democracy, contains a significant dose of commitment to the protection of the right to a healthy environment: “Proclaims its attachment to the respect of fundamental human rights as they result from the Universal Declaration of Human Rights of December 10, 1948, the International Covenants on Human Rights of December 16, 1948, the African Charter on Human and Peoples’ Rights of June 18, 1981 and the Charter of National Unity”.

Admittedly, the wording doesn’t bring out the environmental aspect at first glance, but the fact that it marks our attachment to the African Charter on Human and Peoples’ Rights makes us jump to Article 24 of this Charter, which states that “All peoples have the right to a satisfactory and integral environment, conducive to their development” (Charte Africaine des droits de l’homme et des Peuples). According to this Charter, the right to a satisfactory environment is not only a human right, but also a collective right, a right of peoples. In this sense, the people of Burundi have the right to a healthy environment; consequently, every Burundian who is part of this people also has this right.

The 2005 Constitution not only expresses its commitment to the African Charter on Human and Peoples’ Rights in its preamble, but also stipulates in article 19 that the rights it guarantees are an integral part of the Constitution. Thus, the right of peoples to a healthy environment, and thus the right of the Burundian people, is an integral part of the Constitution.

The 2018 Burundian constitution goes one step further, enshrining in the chapter on the fundamental rights of the individual and the citizen the State’s obligation to exploit natural resources while preserving the environment: “The State shall ensure the sound management and rational exploitation of the country’s natural resources, while preserving the environment and conserving these resources for future generations” (Constitution de la République du Burundi). This Constitution makes good environmental management a duty of the State on the one hand, and a right of individuals and citizens on the other.

The Burundian legislator defines the environment as “all the physical, chemical and biological elements, natural or artificial, as well as economic, social, political and cultural factors that have an impact on the life-supporting process, on the transformation and development of the environment, on natural and non-natural resources and on human activities” (Burundi Environmental Code).

The Burundian Environmental Code, which defines the environment, was promulgated to establish the basic rules for the management of the environment and its protection against all forms of degradation, in order to safeguard and promote the rational use of natural resources, to combat the various forms of pollution and nuisance, and thus to improve the living conditions of human beings, while respecting the balance of ecosystems.

The proclamation of rights and duties in this area of the environment cannot have any legal scope without the adoption of effective sanctions to combat degradation. Consequently, the application of and compliance with legal norms, in this case environmental, requires a strengthened legal framework, and therefore the adoption of dissuasive criminal sanctions.

Environmental damage must be punished, and punished effectively. To this end, in addition to administrative sanctions, which are one way to achieve this, the world has become aware of the need to resort to criminal sanctions. As the European Directive states, “Experience has shown that existing systems of sanctions are not sufficient to ensure full compliance with environmental legislation. Such compliance can and must be reinforced by the existence of criminal sanctions, which reflect a social disapproval that is qualitatively different from that expressed by administrative sanctions or civil compensation”. In this global context of growing awareness of the human right to a healthy environment, Burundi has responded by modernizing its general and sectoral legal framework for environmental protection.

Since the environment covers a wide range of aspects, the legislator has gone beyond the general law of the Environmental Code, which establishes a general framework, to include sectoral protection standards for the various aspects that make up the environment. There can be no doubt that the objective of the various laws, whether general or sectoral, is nothing other than to protect the environment and, moreover, to guarantee the right of man to a healthy environment.

The purpose of this article is therefore to assess the contribution of criminal law to environmental protection in Burundi. It will also examine the correspondence between the protection of the environment, as provided for in the instruments adopted for this purpose, and the reality on the ground.

In short, the ultimate goal is to answer the question of whether Burundian criminal law, for that is what it is, is fulfilling its mission to protect the environment. This question leads me to formulate the following hypothesis: “Criminal law is a driving force behind the implementation of the human right to a healthy environment in Burundi”.

The interest of this article is twofold. On the one hand, it notes the lack of research on this subject in Burundi. Dedicating an article to the protection of the environment through criminal law will not only open the mind to the state of the question, but also fill the numerical gap in studies on the subject. The results could thus provide a framework for questioning not only the political decision-maker but also the soul of “Murundi” on the imperative of environmental protection (Ghestin & Goubeaux, 1983).

On the other hand, given that environmental crimes are a social phenomenon whose state of repression by the judiciary must be assessed on the basis of the instruments in force, the content of the statistics on the prosecutions initiated by the Public Prosecutor’s Office, culminating in judicial decisions issued by the Burundian criminal justice system, will enable us to identify the extent of environmental crimes and to consider the relevance of strengthening incriminations and the procedural framework.

Cet article vise un double objectif. D’une part, il importe de dégager les textes légaux qui forment le droit pénal de l’environnement. D’autre part, circonscrire à l’aide des statistiques, comment le juge pénal contribue à la protection de l’environnement.

2. Methodology

As far as the method is concerned, we used the exegetical or legal method, which consists of the jurist looking for the solution to his problem in legal texts. Since the law is entirely contained in the written law, the lawyer must extract it by seeking the will of the legislator.

Second, we need to collect statistical data from prosecutors’ offices and courts in order to identify repressive trends in environmental crime.

In the absence of centralized statistics, I will have to consult the available archives of prosecutors’ offices and courts to determine the quantitative status of the sentences handed down.

In terms of time, the study will cover the period from 2000 to 2020, between the promulgation of the Environmental Code on June 30, 2000 and its amendment in 2020.

Spatially, the study will be limited to the courts of Ruyigi and Cankuzo. The choice of these two provinces is justified, on the one hand, by the recurrence of forest fires in the province of Ruyigi, caused by man’s search for grazing land, and, on the other hand, by the fact that the province of Cankuzo contains a large part of the Ruvubu Natural Reserve.

3. Results

Burundi’s environmental criminal law covers a number of offences in different sectors of environmental law. Thus, the Environmental Code provides for 29 offences, the Water Code for 14 offences, the Forestry Code for 28 offences, the Mining Code for 8 offences, the Town Planning, Housing and Construction Code for 4 offences, the Law on the Organization of Fisheries and Aquaculture for 5 offences, the Law on the Organization of the Seed Sector for 6 offences, the law on the permanent stabilization and prohibition of the divagation of domestic animals and basse court provides for 2 incriminations, the 2017 law on plant protection provides for 1 incrimination, the law on the production and marketing of plant seeds provides for 6 incriminations, the law on the hygiene and sanitation code provides for 14 incriminations and the law on the management of pesticides provides for 4 incriminations.

What are the statistics of repression for all these offenses that are provided for and punished by the various laws that regulate the environmental sector?

4. Discussion

The repression of environmental offenses is part of Burundi’s criminal environmental policy. Aware of the urgency of environmental issues, the Burundian legislator uses criminal law to protect the environment.

The “organization of the fight against a predefined crime, a fight carried out in various forms, using a variety of means and directed towards precise objectives” (Bouloc, 2021) is a symptomatic feature of any criminal policy. The Burundian legislator has laid the foundations for the repression of environmental crime.

Bearing in mind the principle of “nullum crimen, nulla poena sine lege”, the Burundian legislator has defined the scope of environmental offences and the corresponding criminal penalties. In so doing, it has followed the general framework of criminal law, the determination of material and legal elements.

With these introductory elements in mind, our research shows that Burundi, as in other parts of the world, has turned to criminal law to protect the environment. An analysis of legal instruments for the criminal protection of the environment in Burundi reveals several characteristic features: 1) a quantitative criminal law, 2) a sparse codification, 3) a characteristic codification of areas of protection, 4) a multitude of incriminated facts, 5) varied offences in terms of their nomenclature, 6) custodial sentences and/or fines with no environmental reparation effect, 7) diversified protection in terms of procedure and actors of repression, 8) repression combining deprivation of liberty and/or fines and 9) protection suffering from a lack of qualification in the environmental field.

4.1. Quantitative Criminal Law

Burundian environmental criminal law is quantitative in terms of the number of texts that make up its corpus. The multiplicity of texts is a symptomatic feature of Burundian environmental criminal law. This multiplicity of texts testifies to the awareness of the legislator and, by extension, of the community of the environmental issue. There is a tendency towards exhaustive incrimination of protected areas.

The consequence of this multiplicity of texts is a quantitative understanding of incriminations, characterized by their abundance. From a quantitative point of view, the leading text in this field is the Constitution of the Republic of Burundi. In its chapter on the fundamental rights of the individual and the citizen, the Constitution establishes as a duty of the State the sound management and rational exploitation of the country’s natural resources. It must preserve the environment and contribute to the conservation of these resources for future generations.

This duty assigned to the State is therefore the measure/genesis of all environmental policies and legislation in favor of environmental protection. Since criminal law must be used for this purpose, it must be enacted by law, since crimes are a matter of law. As it happens, the Constitution is the source of most of the texts that regulate the repression of environmental offenses. Nevertheless, we must take into account the adoption of texts of legislative scope, whose genesis is the domestication of treaties ratified by Burundi.

Specifically, the right guaranteed by this Constitution is the right to a satisfactory environment (which must be healthy) provided for in Article 24 of the African Charter on Human and Peoples’ Rights, with a reminder that this right has constitutional value based on Article 19 of the Constitution of Burundi. This Charter has the merit of legally enshrining the human right to the environment as a people’s right (Kamto, 1996).

Among the texts based on the Constitution, the Law on the Environment stands out. This law establishes the general framework for environmental protection in Burundi. In addition to this general text, there are sectoral texts on environmental protection, as provided for by the legislator in article 3 of the Environmental Code. These sectoral texts, which cover different areas, complete the Environmental Code. They all have one thing in common: they criminalize all forms of environmental damage. With regard to the protection of the environment through criminal law, it can be said that there is no legal vacuum in this area in Burundi.

4.2. Scattered Codification

As mentioned above, Burundian environmental criminal law exists in quantitative terms. Another characteristic of this law is that it is scattered. This is the logical consequence of the multiplicity of texts. Whereas in other countries the offences are contained in a single text, such as the French Penal Code, environmental offenses are provided for in a number of legal texts of different dates, each with its own scope of protection. The Burundian legislator has created a peculiarity by not including all environmental crimes in the Penal Code. The Code contains very few environmental offenses.

In my opinion, the multiplicity of texts is a shortcoming, a reproach that could be levelled at Burundian environmental criminal law, which is built on a multiplicity of texts, leading to referential gymnastics in repression. Those who deal with environmental criminal law have to refer to many different texts.

4.3. Typical Codification of Areas of Protection

As mentioned above, Burundi has a large number of texts dedicated to environmental protection. An analysis of these texts shows that this diversity is due to the environmental areas of protection. In general, the Burundian environmental code protects water, soil and subsoil, air, forests, protected natural areas, biological diversity and cultural heritage. More specifically and by sector, Burundi’s various laws protect water, wildlife, forests, subsoil, protected areas and aquatic fauna.

4.4. A Multitude of Incriminating Facts

The previous section highlighted the multiplicity of environmental laws. This results in a multiplicity of criminal offenses, as each law targets its own area of protection and therefore contains its own set of specific offenses. It is clear that each law has its own provisions for environmental offenses. The Environment Code has 29 offenses, the Water Code has 14, the Forest Code has 28, the Mining Code has 8, the Town Planning, Housing and Construction Code has 4, the Fisheries and Aquaculture Act has 5, the Hygiene and Sanitation Act has 14, the Permanent Stabilization of Domestic Animals Act has 2, the Plant Protection Act has 1, the Seed Sector Act has 6, and the Pesticides Act has 4.

Clearly, all of these laws designed to protect the environment have a criminal component, resulting in a variety of punishable acts.

4.5. A Variety of Offences in Terms of Nomenclature

When we speak of the nomenclature of offenses, we are referring to their classification. A review of the various texts that deal with the repression of environmental crimes, as mentioned above, shows that none of them classifies the crimes that they provide for and punish. We must therefore refer to the Penal Code, and more specifically to article 12, which provides for a triple classification of offenses: contraventions, “délits” and crimes (Code penal du Burundi).

An analysis of the various laws on the protection of the environment shows that the Burundian legislator classifies most environmental offences as misdemeanors. Crimes are therefore less numerous.

4.6. Penalties Involving Deprivation of Liberty and/or Fines with No Environmental Repercussions

The criminal sanctions provided for in the various environmental protection laws punish environmental offenders with imprisonment and/or fines. For most offenses, the legislator has provided for the cumulative application of a prison sentence and a fine, with the judge also having the discretion to apply either a prison sentence or a fine. In terms of environmental reparation, imprisonment is intended to punish environmental offenders. Seen in this way, the aim of these sanctions is not to repair the environment, but to reform the offender and deter potential offenders. Like fines, imprisonment does not involve the offender in restoring the damaged environment. What’s more, since the fine is paid into the public treasury, it does not go directly to restoring the environment damaged by the criminal act.

4.7. Diversified Protection in Terms of the Procedure and Actors Involved in Repression

One cannot speak of repression without referring to the actors involved in the chain of repression. As in the case of the Code of Criminal Procedure, any citizen/individual who observes the commission of an environmental offense is empowered to seize the offender and bring him before the police. This is even more precise in the case of flagrante delicto, which refers to public outcry. In addition to the public’s role in the repression of environmental offenses, the police also have a role to play: on the one hand, officers of the judicial police with general jurisdiction, and on the other, sworn agents who have the status of officers of the judicial police with limited jurisdiction, with the same missions as the former, but within the limits of their jurisdiction limited to their missions.

As provided for in the Code of Criminal Procedure and other environmental legislation, once the perpetrators have been identified and the evidence has been gathered, the cases are referred to the Public Prosecutor’s Office for investigation. At this stage, the prosecutors’ magistrates intervene and, at the end of the chain, the judges, if the case is referred to the court. It is clear, therefore, that the criminal chain of repression for environmental offenses involves several actors, with the peculiarity of sworn agents acting as judicial police officers with limited jurisdiction. This is a specificity of the environmental field compared to the normal framework established by the Burundian Code of Criminal Procedure. There is no doubt that the legislator has chosen to involve civil servants whose daily work involves monitoring the environment.

4.8. Repression Combining Deprivation of Liberty and/or Fines

The various environmental protection laws give the judge the latitude to apply both the principal penalty of imprisonment and the fine, to make an optional combination by applying either the penalty of imprisonment or the fine, or to apply the fine alone.

4.9. Protection Lacking in Environmental Qualifications

With regard to the protection of the environment in Burundi, the various laws in force provide for the appointment of sworn agents with the status of judicial police officers with special jurisdiction to intervene at the beginning of the chain of repression of environmental offenses. Their main role is to investigate and record offenses, carry out seizures, prepare seizure reports and forward files and seizures to the Public Prosecutor’s Office. They exercise these powers in conjunction with the judicial police officers of general jurisdiction.

Once a case has been referred to the Public Prosecutor’s Office, it is examined by a magistrate, who either dismisses the case (if no offense has been committed, if the facts are minor, if a fine has been paid, or if prosecution is inappropriate) or refers it to a judge.

From this point of view, environmental protection in Burundi suffers from a lack of qualified human resources, and it is for this reason that officials are appointed who are sworn to assist the natural actors in the repression of offences (officers of the general police with general jurisdiction, magistrates of the public prosecutor’s office and judges).

As for the officers of the judicial police with general jurisdiction, although they are relatively numerous, the fact remains that environmental aspects are not integrated into their police training. This leads to a clear lack of sensitivity in this area.

With regard to magistrates, environmental law has only recently been integrated into the Burundian academic curriculum, which means that most magistrates, both prosecutors and judges, have never taken this course. This contributes to the lack of environmental sensitivity in the law enforcement apparatus.

The Current State of Environmental Law Enforcement in Burundi: The Case of the High Courts of Ruyigi and Cankuzo In order to determine the current state of repression of environmental offenses, we consulted the criminal files in the archives of the two High Courts.

The first signs of repression of environmental offenses, as provided for by environmental legislation, are emerging. During the reporting period, the Public Prosecutor’s Office closed 18 and 22 cases, respectively, in the Ruyigi and Cankuzo High Courts. In terms of convictions, 16 environmental offenders were sentenced, while 2 defendants were acquitted in the Ruyigi High Court. In the same matter, all those prosecuted were convicted, i.e. 22 environmental offenders at Cankuzo High Court. Taking into account the type of offense, according to the classification of offenses in the Burundian Criminal Code, most of those convicted were for “délits”, i.e. 28 environmental offenders, slightly fewer for crimes, i.e. 7 environmental offenders, and 2 offenders were convicted for contraventions.

Of all these convictions, the most severe sentence imposed was 20 years of penal servitude, a sentence prescribed for a crime. Analysis of the data on these sentences shows that in some cases the judge imposed a sentence of imprisonment with a fine, and in other cases only a fine. Taking into account the status of the defendants during the judicial phase, the files show that most of those prosecuted were detained, i.e. under arrest warrant, while others were free defendants. The files consulted reveal only one case of an offender prosecuted under the flagrante delicto procedure.

The files examined show that non-traditional actors in the search for and suppression of crimes contributed to the arrest of the perpetrators. For the most part, these were public officials with the status of judicial police officers with limited jurisdiction, as provided for in environmental protection legislation. In some cases, the arrests were made by the defense forces, especially in the Ruvubu Reserve. These were soldiers stationed in the park.

With regard to the nature of the offences committed, the files examined show that the main offences committed were arson, illegal exploitation of minerals, destruction of animals in protected areas and illegal fishing.

Statistics available from the Ruyigi High Court show that from 2008 to 2020, out of a total of 4715 cases filed with the court, only 18 cases related to environmental crimes. This shows that environmental repression accounts for 0.38% of the total number of repressions. We can conclude that a considerable number of environmental offenses are not known to the law enforcement apparatus. This suggests that the grassroots (the population, sworn officers and judicial police) are not sufficiently active in detecting these offenses. As a result, there is a large number of economic criminals in the environmental field.

5. Conclusion

As we have seen from existing environmental documentation, the concert of nations has become aware of the need to protect the environment. This priority has led to the recognition of the right to the environment, which has been recognized and enshrined in constitutions around the world. Burundi is one of the republics that have included the right to the environment as a human right in its own right. This constitutionally recognized right requires protection by both the state and its citizens. One of the protection mechanisms put in place is the environmental penal code. Burundi has put in place instruments to manage the environment in its various components. We would have concluded that there are various laws designed to protect the environment. Numerous offenses are provided for and defined in their material, moral and legal elements.

The existing files at the Ruyigi and Cankuzo High Courts have led us to conclude that environmental crimes, as provided for by environmental protection laws, are investigated and punished. However, the number of files on environmental crimes is small compared to the number of files on ordinary crimes. Records from the archives of the Ruyigi High Court show that it has recorded repressive cases of environmental crimes in the order of 0.38%, which leads us to conclude that many environmental crimes are not investigated and punished. We recommend that the government, through the Office Burundais de Protection de l’Environnement (OBPE), intensify the training and sensitization of public officials sworn to perform the role of judicial police officers and redouble their efforts to detect, arrest and bring to justice environmental criminals.

Conflicts of Interest

The author declares no conflicts of interest regarding the publication of this paper.

References

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New Labour Code: Major Changes

BNM — Tue, 26 Jan 2021 16:41:41 +0000

The new Labour Code has been in effect since November 24, replacing the one that dated back to 1993. Its main objective: to align with various international conventions ratified by the country over the years, and more importantly, to adapt to the context of regional and international integration. Insight by Me Rodrigue Majambere, Partner at BNM & Co. Advocates and a specialist in labour law.

The previous code had only 307 articles, while the new one contains 639—more than double. Like the former code, the new Labour Code applies solely to employees and employers in the private sector. Civil servants, magistrates, defense and security personnel, and members of the national intelligence service are excluded.

Key Innovations

Fixed-term contracts (FTCs) are now only permitted for specific, short-term, or non-permanent tasks. Any other form of contract not meeting these criteria is considered a permanent (open-ended) contract (PEC). Permanent contracts are now recognized as the standard form of employment relationship.

Greater Flexibility in Contracts

Under the new Labour Code, a probation period is now allowed even in fixed-term contracts. A security deposit mechanism has also been introduced. In the event of loss or theft of work equipment entrusted to an employee, the employer may recover the equivalent value from the deposit.

Employees can now negotiate part-time contracts according to their preferences. In other words, an employee who wishes to reduce their working hours—for personal reasons—can request it. This provision also gives the green light for employees to work for multiple employers.

Another key change: unilateral contract modification is now possible in four specific cases—physical incapacity confirmed by a doctor, an accident or non-occupational illness, financial hardship of the company, or business restructuring.

More Refined Procedures

The concept of leave of absence has also been introduced. For any valid reason, an employee may request to be placed on unpaid leave for a certain period.

The formula for calculating damages in cases of wrongful dismissal has been clarified. Instead of the widely used court practice of awarding six months’ salary per year of service, the new formula now grants compensation equal to one-third of the sum of the employee’s age and years of service, multiplied by their monthly salary. Compared to the former method, the new calculation is more favorable to employers.

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