The outbreak of the COVID-19 pandemic is unprecedented. COVID-19 has spread worldwide, and the Republic of Burundi has adopted preventive measures that have affected institutions’ activities in different ways.
On March 20, 2020, the Minister in charge of Public Security and Disaster Management released a statement ordering the suspension of flights for seven days and called on the Minister in charge of Transport to implement the measure. Soon after, in a statement dated March 27, 2020, the Ministry in charge of Transport, Public Works, Equipment and Spatial Planning ordered the closure of the airport for flights until further notice. On April 7, 2020, the Ministry of Foreign Affairs announced measures to limit the spread of COVID-19 which resulted in closing borders for cross-border truck drivers from or to Rwanda and the Democratic Republic of the Congo (DRC). On April 15, 2020, the same minister informed that – for the sake of free movement of goods and as agreed at East African Community (EAC) level – the borders that had initially been closed were to be reopened for goods vehicles. However, Burundi is yet to make a decision enabling courts and tribunals to continue regular activities during the lockdown.
This article explores how COVID-19 has affected civil lawsuits in Burundi, and what measures have been taken to protect litigants and third parties.
How has COVID-19 affected civil lawsuits in Burundi?
Since the beginning of the pandemic, public hearings have not been interrupted. The measures mentioned above have – indirectly – affected the continuity of civil lawsuits. For example, the decision to permanently close Melchior Ndadaye International Airport has prevented passengers who were outside the country from returning and attending cases pending before courts. Likewise, other countries have imposed measures such as travel restrictions and mandatory quarantine for passengers, or have prevented people from travelling overseas.
As a result, the above measures have affected civil lawsuits in several ways. Below we outline some of the effects.
Files have been put on hold
Appearance before labor courts requires the physical presence of the employee in public hearings.1 If a party was in lockdown outside Burundi and was not able to appear, the case would be put on hold. The legal framework allows for employment court hearings to be postponed three times, unless the other party agrees to further postponement.2 The law does not provide guidelines for when one of the parties is prevented from appearing at a court public hearing due to force majeure, and it requires the judge to assess each case individually.
Delay in court schedules due to cases not being properly served
Cases before the courts involving defendants who are abroad have been pending for a long time because they were not properly served.3 Even though regular procedures are being followed, a malicious defendant could take advantage of the pandemic to delay their trial date. Delaying tactics may include either refusing to appoint a lawyer or using the pandemic as case of force majeure, preventing them from fulfilling procedural obligations.
Issues regarding notification of judgments and exercising remedies
Several issues have emerged regarding the notification of parties of judgments handed down during the pandemic. For example, there are judgments where one or both of the parties has not assigned a lawyer and need to be served in person or by alternative means provided for by law. This could not be completed for a party under lockdown abroad, making it impossible for them to be properly served, even using alternative means. This needs to be reviewed so law effects can be enforced as the case may be.
What about people who have been locked down after being properly served of judicial decisions rendered against them and who would like to exercise the available remedies?
Under Burundian law, after a judgment is rendered, the time limits to lodge an appeal begin on the next day and there are various time limits for different matters.4 The Code of Civil Procedure provides for death as the sole reason for interrupting an appeal on time limits.5 On the other hand, the law governing the Supreme Court extends the grounds for interrupting the time limits for appealing in a case of force majeure but leaves the decision to the court,6 which does not constitute a sufficient guarantee for litigants.
In other cases, it is up to the law to determine the fate of individuals who, due to COVID-19, have been unable to appeal decisions.
Communication with lawyers
For anyone who has a pending case or a legal issue that needs attention, communication with a lawyer is crucial, especially during a crisis like COVID-19. This situation affects pending cases as well as cases that require lawyers to lodge appeals.
For pending cases, the courts may require, either ex officio or at the request of one of the parties, a submission of a mandatory document detained by another party7 or a third person8 during the proceedings or during public hearings. If the party or their lawyer is unable to deliver the document as they are not in Burundi, this could slow down the procedure.
For cases where an appeal procedure or any other strategic action is necessary, difficulties may be faced by lawyers who cannot communicate with their clients because of lockdown measures.
Effects of COVID-19 on litigants’ interests and potential measures
As with most levels of Burundian society, COVID-19 has had detrimental effects on Burundian litigants’ interests. With no clear end to the global crisis, litigants are facing enormous challenges due to internal and external measures. It is, therefore, important to ask what measures have been taken to help litigants during this unforeseen situation.
First and foremost, the judiciary and relevant legislation state that court decisions will be based on the nation’s laws and the Constitution of the Republic of Burundi. Both are vested with the power to enact the legal framework that helps maintain the principle of fair trial. The right to a fair and public hearing in civil proceedings is one of the guarantees in relation to legal proceedings.9
The exceptional circumstances caused by COVID-19 have resulted in the postponement of legal deadlines so as not to deprive litigants of the access to justice and the limitation period to bring a case to court.
The law provides for a time limit within which legal action may be taken in the courts to resolve a grievance.10 The purpose of the time limit is to stop some practices such as negligence and lack of due diligence of litigants who do not assert their rights within the periods provided. But in certain situations, such as this, the limitation period should be extended for people who are unable to attend the courts due to COVID-19 as a case of force majeure. Thus, a law should be enacted to include this special situation.
In regard to limitation periods, the appeal time limits should also be amended depending on whether the litigant is unable to challenge a judicial decision that they disagree with. It would be unfair to impose time limits on a party who has been deprived of the right to appeal because of unforeseen circumstances such as lockdown happening outside Burundi. To avoid decisions being based solely on the judge’s sovereign appreciation, legal provisions should be adopted by policymakers.
For cases that were already pending before courts and tribunals and where one of the parties cannot physically appear or mandate another person or a lawyer, the fundamental principle that defendants must be heard should be upheld. Therefore, the Supreme Court shall take appropriate measures as vested with administrative and jurisdictional power over other ordinary courts11 and the latter shall draw inspiration from it accordingly.
These suggested measures have not yet been adopted, which puts at risk the interests of litigants affected by the pandemic who can neither bring legal action nor exercise the rights of appeal against judgments not rendered in their favor.
Even though the country has faced COVID-19 challenges, it has not yet implemented legal measures pertaining to legal process in this period of COVID-19. The courts have continued to offer public services to litigants, and one might think that because activities have not been suspended in the judicial sector, that it did not need to implement measures to overcome the effects of COVID-19 – however, this is not true.
The management of certain cases in which one of the parties could not undertake necessary due diligence to defend their rights because of lockdown or their inability to travel to Burundi due to COVID-19 pandemic measures argues in favor of adopting decisions relevant to their particular situation. In addition, litigants whose judicial cases have been hampered by the pandemic should be given an additional limitation period. Thus, no one would be deprived of their right of access to justice to assert their interests or the right to be given a fair trial.
2Article 85 (2), the Law No.1/010 of May 13, 2004, on the Code of Civil Procedure.
3Ibid., Article 47 (6).
4The time limits for filing an appeal are 10 days for cases submitted in matters of labor law, 30 days for other matters and 60 days for filing the cassation appeal as well as the review appeal.
5Article 198, the Code of Civil Procedure.
6Article 65 (last para), the Law governing Supreme Court.
7Article 82, the Code of Civil Procedure.
9Article 38, the Constitution of the Republic of Burundi promulgated on June 7, 2018.
10Gérard Cornu, Vocabulaire Juridique, Paris, Presses Universitaires de France, 2007, P.709
11Article 35, Supreme court law promulgated on August 3, 2019.