by Charles Ntampaka, 15 November 1997
THEME = JUSTICE
In any legally constituted State, Justice implies a guarantee of respect for human rights. Dispensed by Courts and tribunals, it goes beyond the legal framework and encompasses social justice, without which the judicial apparatus cannot restore peace to society.
This article describes the judiciary in Rwanda, as organised by the Constitution and the country's laws, but does not cover judicial practice, which does not always follow the legally prescribed course. Unlike the situation elsewhere, in Rwanda, the law, as voted does not necessary reflect or translate the people's real- life experience; rather it is the expression of a political will to lead the people to adopt new institutions inspired by Western laws.
These days, Rwanda has a population of about 7 million. Before the genocide in April 1994, there were 742 judges (both on the Bench and in the Attorney-General's Department), of whom 52 had Law Degrees or Diplomas [jurists]).
This issue is covered under four headings: 1) The judiciary's organisation, training, appointment of judges; 2) The judiciary's role; 3) The prosecution; 4) The Defence.
The Courts - Under the terms of Article 25 of the Arusha Peace Agreement relating to power-sharing (Protocol of 30 October 1992) : "Judicial power is exercised by courts and tribunals and other jurisdictions; it is independent of the legislative and executive power". According to Article 27-a : "The Supreme Court is the guarantor of this independence".
Justice in Rwanda is structured as follows: a Supreme Court consisting of five sections: the Final Court of Appeal, the Constitutional Court, the Revenue Court, the Council of State and the Courts and Tribunals Department, four Appeals Courts (situated in Kigali, Ruhengeri, Nyabisindu and Cyangugu), twelve District (County) Courts and 143 Local (Magistrates) Courts. There are special divisions organised within the District Courts, responsible for investigating crimes of genocide and crimes against humanity.
In addition to the civil courts of law, there are also military courts: the Council of War and the Military Court, competent to try breaches of the law committed by the military.
Judges (who are career officers), are not free from outside pressures during the course of their duties. Their promotion depends on their loyalty to the present system. A Public Prosecutor's Department exists for each court.
The judges. Out of the 742 judges functioning before April 1994, 260 have returned to Rwanda following the genocide, 12 of these are jurists. In order to fill the gaps, a three-month training programme for future judges was arranged by the Belgian "Citizen Network Association", in cooperation with the Belgian Ministry of Justice. More than 400 people were trained in this way.
The Higher Judiciary Council "decides on the appointment, dismissal and in general on judges' promotion, (that is to say, apart from the president and vice-presidents of the Supreme Court." (Art. 39). The President of the Supreme Court signs the appointments for judges sitting on the Bench, likewise their dismissal notices, after the decision of the Higher Judiciary Council.
Officially, ethnic background plays no part in judges' appointments; but there is no doubt that in reality, administrative selection does take it into account, and that the ethnic background of the judiciary is unfortunately a reality which could jeopardises the image of justice.
A Rwandan judge's salary is in proportion to other salaries. Despite devaluation, judges are not well off, and the risk of bribery still exists.
In an article published in the magazine Dialogue (number 199), a former judge questions the lack of independence in the judiciary: "The judiciary is supposed to be independent in its actions. Don't judges realise this, or perhaps the three- months' training they receive is far too short for them to grasp the importance of this fundamental issue? The fact that many of these half-trained judges are appointed to these specialised courts, seems to be a deliberate decision by the politicians - to have judges loyal to the Executive, and especially to the army".
Even if the Constitution guarantees the judges' independence while exercising their functions, facts prove they aren't independent. Their appointment is actually preceded by an "administrative selection", carried out by the Executive, which takes the final decision. Whenever a government changes, judges, who are government-appointees, they automatically have to leave office as well. So it's difficult to speak of an "independent judiciary" when in fact, there are no independent professional structures for judges.
Moreover, the Executive is increasingly interfering in judicial matters. Judges have been imprisoned or sacked, because they refused to carry out orders given by the authorities, or because they decided to release people wrongly imprisoned. This happened in the case of the Public Prosecutor for Butare District Court, who was arrested and accused of genocide; likewise the Public Prosecutor for Kibuye, who was stripped of his functions.
The judiciary's independence is also threatened by external pressures. Some pressure groups have succeeded in creating disturbances in the courts and thus hindering proceedings, or organising demonstrations on the public highway when the courts have released a detainee on bail. Defence witnesses dare not show their faces.
The Prosecution Service includes a general Public Prosecutor's office at the Supreme Court, four similar offices at the Appeal Court, one at each District Court, a Prosecutor for Courts Martial, and a Prosecutor at an ordinary military court. The Defence Minister has direct control over military court officials.
The Attorney-General's immediate superior is the Justice Minister. He has powers of injunction, (i.e. a judicial process whereby he can order prosecutions or cancel them). But, alongside the Prosecutor authorised to carry out prosecutions, there is an administrative "triage" board, authorised to decide on the release or detention of people being prosecuted for genocide.
The Criminal Investigations Department (CID) is manned by police officers from the Attorney-General's office. The CID's job is to investigate crime. Its inspectors are of two kinds, depending on their work: Those having general powers, especially officers and non-commissioned officers of the Gendarmerie, customs and tax officials; those with limited authority, especially detectives, forestry inspectors, labour inspectors, mayors and military camp commanders. Their areas of authority vary according to what's happening, the territory covered by their operations, or the people to be prosecuted.
In principle, the Prosecution Service remains aloof from the investigations in hand. It only answerable to the Justice Minister. But, in reality, this independence is a mere formality, since there is evidence of serious interference by the army and administrative authorities in judicial matters. However, according to the Constitution, these last two mentioned bodies, only have powers of arrest, in matters not determined by the law. What's happened is that many people have been arrested by the military, and held in prison without the Prosecution Service being able to intervene.
The Bar Association, formed in Ruanda-Urundi in 1950, has never operated in Rwanda. A system of representing accused persons in court, was agreed to in 1984, without sufficient thought being given to how a Bar Association is set up and how it should operate, especially the duty of ensuring that everyone receives suitable Defence Counsel. However, on 30 July 1997, legislation was passed establishing the Rwandan bar, and forty lawyers took the oath on 30 August 1997.
Both the Constitution and Rwanda's laws, guarantee the right to adequate defence, but those who are observing the current series of genocide cases before the courts say that this right is not always respected in Rwanda.
The increase in the number of people being prosecuted, means that their defence cannot always be ensured. Presently, Rwanda has about 130,000 detainees being prosecuted for crimes of genocide. From January to October 1997, the Rwandan courts returned 195 verdicts, of which 79 were for the death penalty, 57 for life imprisonment and there were 10 acquittals.
There are two Defence Associations: Lawyers Without Frontiers for both defendants and plaintiffs claiming damages, and the Association of Volunteers Working for Peace (AVP), for victims of violence and their families. There's far too many people waiting for their cases to be heard in the genocide trials, and it's absolutely impossible to be able to defend all those accused. What's more, the small number of lawyers, and the risks run by independent lawyers engaged in defence work, are significant factors. A report from the Rwandan Association For The Defence of Human Rights (ARDHO), states that there are very few Rwandan lawyers, but they are also afraid of popular reaction, which accuses them of complicity in the genocide if they undertake to defend those accused of crimes connected with the genocide.
It's clear there can be no adequate defence, if the witnesses for both sides cannot appear freely. The problem of defence witnesses giving evidence is acute, both in the genocide trials in Rwanda, and those taking place at Arusha, Tanzania. (The International tribunal for Rwanda).
The most striking example of this appears in the magazine: La Lettre du CLADHO) (number 18, July/August 1997, page 14). It states: "Most of the hearings which have taken place up to now, have been noted for the failure of witnesses for the defence to appear, even though called by the defendant. And when they do appear, the witnesses are threatened, as happened recently with the witness for the defence in the case of Munyagishari Silas at Gitarama. After giving evidence during the hearing on 3 May 1997, Mrs Nyirajyambere Annonciata was subject to serious threats, so that she had to move away to seek safety elsewhere; worse still, she had to leave her post so that her aggressors could not find her; finally she did not dare to give evidence at the hearing on 10 May 1997, when she was to be the main defence witness. Similarly, two other defence witnesses, who should have appeared on the same day, 10 May, were so terrified by this case that they were afraid to give verbal evidence to the court: they asked the court to accept their written testimony. The court simply rejected this request out of hand."
Obstacles to the proper workings of justice: These may originate with the control of the Executive over the judiciary, coupled with the gross lack of professionally trained judges, and the fact that the State has complete control over judges' salaries and promotion prospects, likewise complete control over the selection of judges.
There's not much to be said for the so-called "training" given to judicial personnel. Obviously, those who have followed the "training courses" are not going to have much respect for their chosen career. This leads to a lack of confidence and a risk of political and other pressures being applied.
Accused persons cannot hope for much in the way of justice when they come to court. There's so much pressure put on the judge from outside sources, that they cannot but force judges to take a decision one way or another, especially in cases relating to the genocide. The people do not understand the legal process very well. There is a real risk of extra-judicial revenge (all too often the accused is assumed to be guilty...).
The high number of defendants and the poor resources available to the courts, also handicap the administration of justice.
But, there is another way of looking at justice. It's the way of conciliation. Traditional society favours conciliation, and as far as possible seeks to avoid cases which only crystallise antagonism, instead of removing it.
This aspect of justice, merits greater study.
END