Burundi: President of Opposition To Challenge OFAC Sanctions

Mr Alexis Sinduhije, President of Burundi’s Movement for Solidarity and Democracy party (MSD), has engaged Richard J Rogers to apply to be delisted from the Office of Foreign Assets Control (OFAC) Specially Designated Nationals (SDN) and Blocked Persons List.

By way of background, prior to his involvement in Burundian politics, Mr Sinduhije was an accomplished and celebrated journalist. In a Boston Globe article authored by Pulitzer Prize winning journalist Farah Stockman, Mr Sinduhije was described as:

[O]ne of the few who had the courage to speak the truth. He worked at a radio station started by Search for Common Ground, a nonprofit organization that promotes peaceful coexistence. [He] was famous for getting Hutus who’d killed Tutsis and Tutsis who’d killed Hutus to confess their crimes on air—and express remorse. […]

He was an exceedingly rare thing in Burundi: a Tutsi who spoke up for the rights of Hutu. In a country where ethnic identity could mean the difference between life and death, the only tribe to which he displayed allegiance was journalism. Over the years, he became an international symbol of how the media can promote peaceful democratic change. He won a Shorenstein Fellowship to Harvard, where he became friends with Samantha Power, who ran the Carr Center for Human Rights Policy at the Kennedy School. […] Power helped him get funding from the Soros Foundation to start his own radio station in Burundi, Radio Publique Africaine. She served on its board. […]

[He] received a prestigious award from the Committee to Protect Journalists. He appeared on [ABC News’] ‘Nightline’. Time Magazine named him one of the 100 most influential people in the world. (Farah Stockman, ‘An Icon of Peace in Burundi Turns to War’, Boston Globe, 21 February 2016.)

The citation in Time was written by veteran international correspondent Christiane Amanpour, who described Mr Sinduhije’s approach to journalism as ‘a means of fostering peace between the Tutsi and the Hutu in his war-torn country’. (Christiane Amanpour, ‘The 2008 Time 100: Alexis Sinduhije’, Time, 12 May 2008.)

Likewise, Mr Sinduhije’s political campaign in the run-up to the 2015 presidential election was focused on reconciliation and security for all communities.

On 22 November 2015, US President Barack Obama issued Executive Order 13712 (hereinafter, ‘EO 13712’), finding that:

“[T]he situation in Burundi, which has been marked by the killing of and violence against civilians, unrest, the incitement of imminent violence, and significant political repression, and which threatens the peace, security, and stability of Burundi, constitutes an unusual and extraordinary threat to the national security and foreign policy of the United States.”

Declaring ‘a national emergency to deal with that threat’, President Obama ordered the range of sanctions currently in place. While EO 13712 did not specifically identify Mr Sinduhije, his name was added to OFAC’s SDN List on 18 December 2015. OFAC alleged that Mr Sinduhije:

“Is a particularly active supporter of armed rebellion in Burundi and has recruited and trained opposition forces. Sinduhije is considered a major military leader within the Burundian opposition as a result of his logistical network and the competent fighters under his command. Sinduhije has been linked to plans to assassinate senior Burundian officials and has continued to actively plan attacks on government targets.”

Mr Sinduhije denies these allegations, which appear to be based on factual inaccuracies and/or Burundian Government propaganda.

Pursuant to 31 CFR 501.807, an individual placed on OFAC’s SDN List ‘may seek administrative reconsideration of his […] designation […] or assert that the circumstances resulting in the designation no longer apply, and thus seek to have the designation rescinded’.

On 10 May, Richard J Rogers, sent a formal letter to OFAC requesting disclosure of any and all public information in the possession or knowledge of OFAC forming the basis of the current sanctions against Mr Sinduhije (i.e. a public summary of the evidence). According to the relevant case law, due process requires that an individual seeking reconsideration be entitled to review the unclassified administrative record justifying his designation in order to effectively attempt to rebut the rationale behind the listing. As the US Court of Appeals for the DC Circuit put it, an applicant should not be ‘forced to stumble towards a moving target’.