ISSUE OF MANAGEMENT OF AUDIENCES IN RWANDAN JUDICIAL LAW

Kagame and his justice minister Busingye.

INTRODUCTION

According to Article 137 of the Rwandan criminal procedure, if a person commits an offence of contempt of court punishable with maximum imprisonment of five (5) years, the court may immediately sentence him/her. If a person commits an offence of contempt of court punishable with imprisonment of more than five (5) years, the court shall cause him/her to be arrested and draw up a statement of facts and produce him/her before a Prosecutor and submit incriminating evidence for prosecution. 

Likewise, Article 81 of the code of civil, commercial, labor and administrative procedure establishes that a person who, during the hearing, commits an offence punishable by a maximum sentence of imprisonment for five (5) years, the court may immediately sentence the perpetrator even if in practice the court has not jurisdiction to hear such an offence in the first instance. In such a case, the judge adjourns the hearing and orders security personnel to take the perpetrator out of the courtroom and calls the public in the hearing to order. The court registrar takes minutes of what has happened. The judge immediately writes a judgment basing on the facts and violated legal provisions, then gets the person having been expelled back to courtroom and reads to him/her the judgment rendered against him/ her in all its provisions, and re-opens the hearing. No other formalities take place and the parties are not allowed to take the floor with regard to the offence committed. If the offence committed in the hearing is punishable by a sentence of imprisonment for more than five (5) years, the court orders security personnel to arrest the perpetrator and makes a statement detailing the facts, and the perpetrator together with his/ her file are taken to the competent public prosecutor in order to prepare the file and submits it to the court. Decisions taken according to the provisions of this Article are enforced with immediate effect. In practice the court has not jurisdiction to hear such an offence in the first instance. In such a case, the judge adjourns the hearing and orders security personnel to take the perpetrator out of the courtroom and calls the public in the hearing to order. The court registrar takes minutes of what has happened. The judge immediately writes a judgment basing on the facts and violated legal provisions, then gets the person having been expelled back to courtroom and reads to him/her the judgment rendered against him/ her in all its provisions, and re-opens the hearing. No other formalities take place and the parties are not allowed to take the floor with regard to the offence committed. If the offence committed in the hearing is punishable by a sentence of imprisonment for more than five (5) years, the court orders security personnel to arrest the perpetrator and makes a statement detailing the facts, and the perpetrator together with his/ her file are taken to the competent public prosecutor in order to prepare the file and submits it to the court. Decisions taken according to the provisions of this Article are enforced with immediate effect.

Contempt of court is essentially seen as a form of disturbance that may impede the functioning of the court. The judge may impose fines and/or jail time upon any person committing contempt of court. The person is usually let out upon his or her agreement to fulfill the wishes of the court. Civil contempt can involve acts of omission. The judge will make use of warnings in most situations that may lead to a person being charged with contempt. It is relatively rare that a person is charged for contempt without first receiving at least one warning from the judge. Constructive contempt, also called consequential contempt, is when a person fails to fulfill the will of the court as it applies to outside obligations of the person. In most cases, constructive contempt is considered to be in the realm of civil contempt due to its passive nature. 

Indirect contempt is something that is associated with civil and constructive contempt and involves a failure to follow court orders. Criminal contempt includes anything that could be called a disturbance, such as repeatedly talking out of turn, bringing forth previously banned evidence, or harassment of any other party in the courtroom.[ Direct contempt is an unacceptable act in the presence of the judge (in facie curiae), and generally begins with a warning, and may be accompanied by an immediate imposition of punishment. Yawning in some cases can be considered contempt of court.

Considering the foregoing, there have been criticisms over the practice of trying contempt from the bench. In particular, Supreme Court Justice Hugo Black wrote in a dissent, “It is high time, in my judgment, to wipe out root and branch the judge-invented and judge-maintained notion that judges can try criminal contempt cases without a jury.

The Rwandan codes of judicial procedure predicts automatic referral for contempt of court punishable to less than 5 years while for the same offence qualified as felony are prosecuted on the normal procedure. Overtly, the legislator reduced a bit the serious violation of judicial rights which was observed in the previous codes but this automatic referral remains an infringement of judicial fundamental rights because in this circumstances the judges stays playing extrajudicial roles of judicial police and prosecution against the offender and in other words seems doing justice himself in sort of retaliation.

Besides, when the offence is committed by an advocate, the client is deprived from his right of legal assistance, fact which violates the principle of equality of arms between parties to the court.  Contempt of court has a significant impact on journalism in the form of restrictions on court reporting which are set out in statute in Rwanda. Furthermore, the involvements of such crimes are not legally determined and still left to the discretion of the judge fact which entails arbitrary and subjectivity. To what extent does the prosecution of the contempt of court jeopardize rights of litigants? What objectively should involve the offense of contempt of court? What legal and institutional should help the judge to base the reliability of the management of the prosecution of the contempt of court the prosecution of the contempt of court?

To address the above legal issues, the present study consists of two parts. The first part critically assess the credibility of trying the contempt of court in criminal and civil proceedings. the second part focuses on the legal and political mechanisms proposed to orient legal practitioners in trying the contempt of court in civil and criminal litigations. 

I.CRITICAL ANALYSIS OF THE RWANDAN LEGISLATION OF THE AUDIENCE MANAGEMENT

Article  80 of the Law no 22/2018 of 29/04/2018 relating to the civil, commercial, labor and administrative procedure stipulates that in their actions and words all those who take part in the debates, i.e. the parties , their representatives, witnesses and those attending hearings must be most correct to judges, their opponents and the public. In its second paragraph, it obliges those who take part in debates to speak freely with all due respect for justice and the clarity necessary for the trial of judges and to avoid departing from the subject or persisting in discourteous remarks and to stand discovered with respect and silence. With the merits of the hearing police in mind, it is important to analyze how it is exercised in Rwandan positive law. This is the purpose of this chapter for critical analysis. To properly conduct this critical assessment, we will first identify the various parties to which the hearing police are exercised, then make a critical analysis of the latter and finally highlight some practical cases relating to it occurred in our jurisdictions

1.1. Critical analysis of the legal regime of the contempt of court

1.1.1. The persons on whom the judge applies the hearing police 

As the hearing is public, in the courtroom, the parties to the trial may differ, depending on the matter to be dealt with. Thus, the parties in a criminal trial are not the same when it comes to a civil trial. In civil cases, the parties to the trial are the plaintiff, the defendant, the interveners, their representatives or their counsel and the witnesses. In criminal matters, there are defendants, their co-authors, accomplices, civil parties, civilly responsible parties, experts, interpreters, lawyers and the public prosecutor’s office. Hearing police may also be practiced by court staff and the public, but in this work we are content with the parties involved.

1.1.1.1. The parties involved

The parties are different in civil matters than in criminal matters. The criminal parties are the defendants, the co-authors, their accomplices, the civil parties, the civilly responsible parties, the lawyers and the public prosecutor’s office. In a civil trial, the parties are the plaintiff, the defendant, the interveners, their representatives and their counsel.

1.1.1.1. 1. The accused or perpetrator of the offence

Under French law, the accused is the person, physical or moral, who is the subject of legal proceedings before a correctional court or before a police court, before a court of assizes, the person being prosecuted is the accused. The passive subject is the perpetrator of the offence, the one who bears the effects of public action.Under Rwandan law, those who have carried out the offence or have cooperated directly in its execution are considered to be defendants or perpetrators, as specified in Article 90 of law relating to offences and penalties in general .

1.2.1.1.2. The co-author and accomplice

A violation of the criminal law may be the work of several persons who have acted properly. When each of the participants in this offence has personally carried out all the material acts constituting the offence, it is referred to as co-offenders. But if some of them have taken only a secondary part of it, they are said to be accomplices. Unlike some foreign rights, the French penal code envisions and punishes the accomplice, not in consideration of his own role, but in relation to the main offence. 

This is the legal theory known as the crime loan. Under Rwandan law, Article 91 of the law relating to offences and penalties in general specifies that are considered accomplices, those who by donations, promises, threats, abuse of authority or power, machinations or artificial culprits, will have directly provoked to this action or have given instructions to commit it, those who have procured weapons, instruments or any other means that will have been used in the action they were to serve, those who will have, with birth, helped or assisted the author or authors of the action, in the facts that prepared or facilitated it or in those who consumed it.

1.1.1.1.3. Civilly liable party

The civilly responsible party is either the parents or guardians who are civilly liable for the damages committed by their minor children, or principals (individuals or corporations) who are civilly liable to because of the facts committed by their attendants. It should be noted that they are not criminally prosecuted because criminal responsibility is personal. A person who must answer for the civil consequences (as opposed to the criminal consequences) of another person’s liability. Example the father, the mother, the state. If such a person is found to be civilly liable, then he must compensate you, either personally or by his insurance, but only if he has taken out a liability guarantee covering the type  of damage he has caused. The article 260 Civil Code Book III, defined the civilly responsible party as a person responsible not only for the damage caused by one’s own fact but also for the person caused by the persons to whom one must answer, or of the things that one has under one’s charge. The alinea2 of this article, specifies that they are responsible for the damage caused by the children, the father and mother living with them, apart from the father and mother we can add the guardian, the masters and the principal for the damage caused by their servants and attendant s and instructors for damage causes by their students and apprentices during the time they are under their supervision.

1.1.1.1.4. The Public Prosecution

The Public Prosecution is also called the standing magistrate. It is a body composed of prosecutors, members of the public prosecutor’s office whose current designation is the public prosecutor’s office. They’re not judges. The prosecution is a hierarchical body. While the judges of the sitting judiciary must not obey anyone, the members of the public prosecutor’s office receive orders, not only from their heads of public prosecutors but also from the guard of the seals i.e. the Ministry of Justice.Under Rwandan law, the public prosecutor’s office includes the judicial prosecution body as well as the military prosecution, it is responsible for prosecuting offences throughout the territory as specified in Article 1 of organic law nº 11/2012 of 18/01/2013 modifying and complementing organic law nº 04/2011/ol of 03/10/2011 determining the organization, functioning and competence of the national public prosecution authority and the military prosecution department.

1.1.1.1.5. The civil claimant

Any person who claims to be aggrieved by a criminal offence may, by filing a complaint, form a civil party before the investigating judge or, if necessary, before an investigating pole. The civil party is a lese part by an offence. It has the choice to take its action to law enforcement or civil courts. However, it cannot refer both the civil and criminal courts to the same damage. The civil party has the power to initiate public action by direct citation under the prescribed Article 2 of the Law nº 027/2019 of 19/09/2019 relating to the criminal procedure. It takes civil action to compensate the damage caused by the offence by targeting only civil interests.
1.1.1.1.6. Plaintiff, defendant and other stakeholders

The plaintiff is a litigant who initiates the trial is a complainant. It is the one who has the duty to give the evidence of what he asks, he must also advance the relevant arguments in order to win the trial. Defendant is a person against whom a lawsuit is filed. It is there to respond to the plaintiff’s claims and means. The stakeholders are persons to whom the law gives the right to intervene at all levels of jurisdiction, in any case that may jeopardize their interests. They may intervene voluntarily or by forced means under the prescribed article 112 of the CCLAP.
1.1.1.1.7. Lawyers 

Lawyers are persons whose law gives the power to be auxiliaries of justice, they have the right to assist or represent the parties to the trial before the courts. These persons mentioned above may resist the judge’s injunctions. Under Rwandan law, the lawyer is an auxiliary of justice responsible for assisting or representing the parties, postulating, concluding and pleading before the courts, he is, as such, associated with the judiciary as specified in Article 2 of law n°83/2013 of 11/09/2013 establishing the Rwanda Bar. Paragraph 2 of the article cited above provides that counsel can consult, advice, reconcile, draft acts under private seing, assist or represent parties outside the jurisdiction. The lawyer may be present to inform you in the face of the evolution of the law, whether it is your personal or professional projects, he advises you and conducts with you the necessary negotiations to bring them to fruition, he can intervene as an editor of deeds (employment contracts, company statutes, leases, sale of commercial funds, transactions), he can prevent legal action by finding with you amicable solutions to your conflicts. In a trial he represents you and defends your interests.

1.2. Critical Analysis of the procedure applied in maintenance of order 

Individuals quote above, participate in hearings, and may display a move during the hearing. With this in hand, the judge has the power to take steps to ensure the smooth running of debates, one who resists the judge’s injunctions may be deprived of his liberty.
The president of the headquarters draws this power from Article 147 of Law nº 027/2019 of 19/09/2019 relating to the criminal procedure which provides that the president of the seat to the police hearing and direction of debates. When, at the hearing, one of the assistants disturbs the order in any way, the Chair orders that he be expelled from the courtroom. If, during the execution of this measure, he resists this order or causes of tumult, he is on the spot, places on the warrant of deposit, judges and punished with imprisonment from one month to one year, without prejudice to the penalties provided in the penal code against the perpetrators of contempt and v to judges in the performance of their duties.

1.2.1.Maintaining order during the hearing and violation of the principles of prosecution

Applying the hearing policy to one of the parties, one of the parties, a lawyer, a witness or an assistant at the hearing would violate certain principles enshrined in the law. Putting a person on the warrant of deposit. Judge and imprisonment of one month to one year without thinking about the duty of the judicial police officer, the public prosecutor and also witnesses, shows that the judge becomes at the same time judge, party and public prosecutor. In this case, his impartiality will be doubted. This is against the provisions of article 22 of the CPC, which provides that judicial police officers conduct preliminary investigations either automatically, foolishly on complaint or denunciation, or on the instruction of the Public Prosecution. They have a monopoly on the preliminary inquiry except in cases of negligence, where the Public Prosecution would be allowed to conduct such investigations but not the judge.

1.2..2.The judge as  a criminal investigator

Article 147 of the Code of Criminal Procedure gives the judge the power to find the offence, place on the warrant of deposit, to sentence a prison sentence of one month to one year, the disruptor of the order in the hearing without the latter having time to to defend.
At this time the judge plays directly the role of the judicial police officer contrary to the requirements of Article 19 of Law nº 027/2019 of 19/09/2019 relating to the criminal procedure which stipulates that the judicial police is responsible for finding offences, receiving whistleblowers, complaints and reports relating to aces offences, looking like evidence against and discharge, and searching for perpetrators, co-authors and their accomplices for the purpose of carrying out the action public prosecution by the public prosecutor’s office.In this case, the judge finds the offence, seizes himself and makes the decision to deprive a person of liberty. It is already an exorbitant power granted to the judge who may be abused. The government could run counter to the fair trial enshrined in several international instruments in Rwanda.
1.2..3.The judge as a Public Prosecutor

Article 219 of Law nº 027/2019 of 19/09/2019 relating to the criminal procedure, provides that public action is an action taken on behalf of the company before the repressive judge and which is aimed at the application of a sentence convicted of an offence. In paragraph 2, this article specifies that public action is set in motion by the Public Prosecutor’s Office.
In conducting the hearing police, the judge plays the role of the court by setting the public action in motion when that is the Public Prosecution’s job. Moreover, in principle, the judge would not be, it is before the Public Prosecution or the civil party in the event of a direct citation, the fact, for the judge to seize in the event of a crime of hearing constitutes a breach of this principle.

1.2..4.The judge as  a complainant or victim

During the hearing, the parties to the trial may make the utmost correction to the judges in their actions and words. The latter, if they are assaulted, the law gives them the power to sanction the disruptor of the order of the procedure. In this case the assault is directed against the judge’s person, and at this time he is a complainant or victim. It is the latter that will initiate the prosecution and take public action to the judicial police or the public prosecutor’s office.

1.2..5. Maintaining order during the hearing and right of defence 

Article 67 paragraph 2 of Law no 22/2018 of 29/04/2018 relating to the civil, commercial, labor and administrative procedure, stipulates that if the disturbances are caused by a party to the trial, the head office president returns to order and warns him that if it persists, he will expel her and that the judgment will be deemed contradictory. This appears to be unfair in a rule of law because the disruptor of the order will no longer have time to respond to his opponent’s claims and means, the right of defence would be violated.This kind of punishment that the judge imposes on this party not only that it appears unjust, also violates the right of defence provided for by the constitution of the Republic of Rwanda in Article 18 and the Universal Declaration of Human Rights in Article 11. The offence of hearing it should not deprive him of his right to be heard and to present his claims and defences. In such a case, a party is punished is punished twice for the same fact: criminal conviction for the offence of hearing and judgment by default deemed contradictory. Article 18 of the Constitution of the Republic of Rwanda in Article al.2 states that no one can be prosecuted, arrested, detained or convicted only in the case provided for by the law in force at the time of the commission of the act.

In its paragraph 3, the same article specifies that it must be informed of the nature and grounds of the charge, the right of defence is the absolute right to all states and degree of procedure before all administrative and judicial bodies and before all other decision-making bodies. The hearing police would also violate the right of defence as enshrined in the Universal Declaration of Human Rights.

Article 10 of the Universal Declaration of Human Rights adopted and which came into force on 18/09/1962 stipulates that every person has the right, in full equality, to have his case heard fairly and publicly by a court. Independent and impartial, who will decide either its rights and obligations or of course any criminal charges against it. Article 11 adds that any person accused of a criminal act is presumed innocent until his guilt has been legally established during a trial or all the necessary guarantees for his defence have been assured.
1.2..6. Maintaining order during the hearing and the impartiality of the judge

After analyzing that the judge has the exorbitant power over the parties to the point of violating the principles of judicial prosecution, we find that playing the role of the judicial police officer, the Public Prosecution, the witnesses and being a judge, confirms that the judge may fall into bias in violation of his ethics.

Normally during the hearing, article 11 of Law 09/2004 of 29/04/2004 relating to the code of ethics, requires the judge to be impartial and that his impartiality must be demonstrated during the hearing and through his decisions. But during the hearing, the law gives the judge the power to deprive a person of liberty without defending himself. Other points cannot be made without illustrating the judge’s exorbitant power to deprive a party at trial through practical cases.

1.3. Case laws in court policing

There are many cases of court offences tried in most Rwandan courts and tribunals. But for example, we have selected three cases dealt with respectively by the Butare Provincial Court, the Musanze High Court and the Nyamabuye Primary Court.

1.3.1.RP GEN 0025/04/TP/BUT

The first case is a case of genocide which was tried by the Huye High Court, registered under the number Gen 0025/04/TP/BUT. During the hearing on 15/11/2004 when the witnesses were appearing before the judge, defence counsel M. L. wanted to intervene while sitting. The judge asked him to wait for the witness to finish his testimony, but the lawyer resisted the judge’s injunctions: he stood up and began to speak at the same time as the witness. The judge decided to get him out, the lawyer refused to leave. It was after the intervention of a military officer who was there that the lawyer left but with great contempt. The judge then ordered the police officer to place him in the dungeon of the place. The lawyer was reluctant and refused to comply, arguing that he could not enter without exhibits. Finally, the judge sentenced him to one year’s imprisonment. The latter appealed to the High Court, Nyanza’s detached chamber, which acquitted him.

1.3.2.RC 0235/tb/nymye
On 15/05/2006, when a public hearing was being held for the RC 0235/tb/nymye case in a room borrowed from the Nyamabuye district authorities, a social affairs officer came to pick up chairs in the room. The judge forbade him to disturb the hearing by removing the messy chairs and asked him to leave. The latter resisted the judge’s injunctions, saying 

that he was entitled to take them. Following this overt resistance, the judge sentenced him to a firm prison sentence of 7 days. The convict appealed to the Muhanga High Court. The latter in turn sentenced him to a one-year suspended prison sentence. In all cases, even in this case, where the judge did the right thing to safeguard the nobility of his profession, he remained a victim, a public prosecutor and an arbitrator, which is contrary to the laws in force in Rwanda. But in this case, he cannot be accused of bias because the convict edit was not a party to the main trial, the order of which he disturbed.


1.3.3.RCA 0125/07/TGI/MSZE 

As of 16/05/2007, in the civil case RCA 125/07TGI/MSZE, the judge decided to postpone the case of X and Y. X was not convinced of this surrender and began to insult the seat. On his way out, he also insulted the guards who were outside; the presiding judge asked the supervisor to bring him back into the room, the other refused and began throwing stones at them. On that day of the hearing, X appeared to be intoxicated. The judge sentenced him to one month’s imprisonment.
There is understood that Article 71 of no 22/2018 of 29/04/2018 relating to the CCLAP, grants judges the exorbitant power to even violate certain principles of the prosecution, including the preliminary inquiry, defence law and the principle of adversarial debate. Worse is, in this case of species, the civil judge played the role of the repressive judge.
We cannot also close this chapter without mounting that, even if the hearing police play a big role in the smooth running of debates, it may violate certain principles provided for by the constitution of the Republic of Rwanda and ‘certain conventions to which our country is a party. That is why we will suggest certain mechanisms for the proper application of the hearing policy so that at least the parties involved can defend themselves against the allegations and arguments put forward by their opponents.

1.4. Should civil contempt have a punitive element?

 In the 1991 Consultation Paper on Contempt of Court, the Commission considered that it was “beyond argument” that there should be some element of coercion in the enforcement of orders of the court.The Australian Law Reform Commission noted that the coercive power to compel obedience to orders of courts by means of attachment or committal for contempt originated in the Court of Chancery in England, probably as early as the 16th century, as a means to secure the rights of the disadvantaged party and to ensure that the defendant performed his or her “moral obligations.” Although there may not be any moral or religious imperative to obey court orders in modern times, the Australian Law Reform Commission noted that the imposition of coercive sanctions may still be justified as a way of upholding the rights of the injured party. According to the Australian Law Reform Commission, however, the existence of just one remaining justification for coercive sanctions in civil contempt means that such sanctions should only be imposed when they are the only means of enforcing an order and only in circumstances where that coercive order will be effective. If an alternative method of enforcement is available, the Australian Law Reform Commission did not feel that coercive contempt sanctions should be used.  In addition to coercive sanctions, some jurisdictions allow punitive sanctions to be imposed for civil contempt.The Commission noted that the availability of punitive sanctions would deter future litigants from defying court orders as they would be aware that such sanctions exist.The Commission also noted that punitive sanctions may be justified based on the need to preserve the dignity of the courts and to uphold public confidence in the legal system. Although the Commission was satisfied that both of these arguments held “much force”, other law reform bodies have expressed different views. 

1.4.1. Should imprisonment be available as a sanction for civil contempt? 

 In its 1994 Report, the Commission concluded that imprisonment as a coercive sanction should be retained in cases of civil contempt and felt that the term of imprisonment should continue to be open-ended but that it should also be possible to impose fines for civil contempt. In its 1991 Consultation Paper, the Commission explained that the sanction of imprisonment for civil contempt had a necessary role in “bending the will” of those persons who will not adhere to lesser sanctions. In that Paper, the Commission also rejected the proposition that a fixed term of imprisonment should apply in cases of civil contempt. The Commission felt that a fixed term would reduce the coercive aims of such imprisonment; that it would not protect the court’s standing and authority; and that a fixed term would not be fair to the person in contempt because he or she would remain in prison even if the contempt is purged. 

1.4.2. Should criminal safeguards apply in cases of civil contempt?

 If punitive sanctions are to apply in cases of civil contempt, it is arguable that the safeguards that exist in respect of criminal prosecutions should apply equally to civil contempt. A number of jurisdictions now apply such safeguards in cases of civil contempt. 

 In Ireland, Article 38 of the Constitution provides that criminal matters must be tried “in due course of law.” In other words, the accused has a constitutional right a fair trial. The elements of the right to a fair trial are non-exhaustive. Included is that: the accused must benefit from a presumption of innocence, the burden of proof is placed on the prosecution,  the standard of proof is applied beyond a reasonable doubt, there should be no punishment without law: legislation should not be retroactive; there should be maximum certainty and clarity in the law; and penal statues should be strictly construed.The accused must be adequately informed of the charge and have it tried by an impartial and independent court, the accused must have the opportunity to prepare a defence,  the trial must be conducted with reasonable expedition, there is a right to legal representation and legal aid if required,  there is a right to an interpreter, if required,  there is a right to pre-trial disclosure.

 Imprisonment and the imposition of substantial fines are usually deemed to be criminal sanctions. If such sanctions can be imposed in cases of civil contempt, it is arguable that the person accused of civil contempt should enjoy the same safeguards as those enjoyed by persons charged with criminal contempt. The ECHR requires that criminal trial safeguards apply to civil proceedings in circumstances where those civil proceedings can be classified as criminal under the criteria developed by the European Court of Human Rights (ECtHR).  In Engel and Others v Netherlands, the ECtHR identified 3 criteria for the purposes of this classification: the domestic categorization of the offence; the nature of the offence; and the severity of the penalty. The domestic categorisation will not be determinative of the matter, but rather the Court will take into account the punitive or deterrent purpose of the offence, the nature of the possible punishment and whether this would involve a period of imprisonment, the classification of the offence in other States, whether the legal rule applies to a particular group or has general application, whether a finding of guilt is required before the penalty is imposed and whether a criminal record will attach for the offence.

1.5.Uncertainty of scope

Under the common law, it is not possible to define with precision what conduct might be liable to punishment as a contempt of court.In 1906, Justice Cussen in the Supreme Court set out a broad definition of contempt of court which has since been cited with approval many times, including by the High Court: Its essence is action or inaction amounting to an interference with, or obstruction to, or having a tendency to interfere with or obstruct the due administration of justice, using that term in a broad sense. Following from this definition, Victorian courts have, in general terms, held that the offence of contempt will be established if it can be proved beyond reasonable doubt that the alleged contemnor wilfully engaged in conduct and that conduct had a tendency to interfere with the administration of justice; it is not necessary to prove that the alleged contemnor had an intention to interfere with the administration of justice; it is not necessary to prove that the conduct did in fact interfere with the course of justice. 

Case law and academic texts list and describe general categories of contempt. However, these do not provide an exhaustive catalogue of the ‘many and varied’ ways in which a person may be found to be in contempt of court. At its highest, a list of the categories of contempt is a list of thematically grouped examples of conduct which the courts have found, in the past, to be an interference with the proper administration of justice and therefore punishable as contempt. Conduct which constitutes contempt of court may fit within multiple categories or it may not fit within any established category but still be regarded as contempt.

1.6. Lack of clarity

It has already been pointed out that the offence of in facie contempt may take many forms and hence, it may be urged, it is so imprecise and uncertain in its scope as to be both inherently unfair and constitutionally objectionable. The flexibility thus conferred on judges to punish what they consider they ought to punish may make it more difficult for persons contemplating conduct to know whether it will fall foul of the judge.

As against this, it may be argued that the history of the offence gives little support to the view that it is so imprecise and uncertain in its scope as to make life unreasonably difficult for potential offenders. If the criminal law were to insist on exhaustive and specific definition of every crime, then much conduct which, in the interests of the common good, should undoubtedly be treated as criminal, would escape entirely. Offences such as conspiracy and the creation of public nuisances or public mischief, which can encompass a vast range of human conduct, would have to be expelled from the criminal law.

It may be said that the observations of Henchy J in Walsh, already referred to, to the effect that juries are constitutionally ill-equipped to determine what conduct constitutes contempt, lends force to the case for abolition of the offence now under consideration, on the ground that it is far too uncertain. Those remarks were, of course, directed at a different form of contempt, i.e. scandalizing the court. However, even if they were relevant to the offence now under consideration, it must be borne in mind that Henchy J was at pains to stress that the resolution of any disputed issues of fact was perfectly within the competence of the jury. What he questioned was the competence of the jury to prescribe legal standards in the particular area of contempt of court. This, of course, was not to suggest that the conduct would be necessarily difficult to identify, but rather that the task was one more appropriate to a judge without a jury, since it involved the setting of minimum standards for the due administration of justice.

II.MECHANISMS FOR THE FAIR MANAGEMENT OF THE CONTEMPT COURT IN RWANDA

Facing the various legal issues arising from the proceeding triggered in case of contempt of court, there is proposed various ways forward to address them to make the Rwandan justice fairer when dealing with such litigation.

2.1. The need for flexibility of definition

It may be argued that the definition of in facie contempt must be broad and to some degree uncertain in its potential scope because of the manifold and unpredictable ways whereby the administration of justice may be interfered with. Provided there is a guarantee that the courts will use their in facie contempt power sparingly, the flexibility of the offence is a virtue which should not be carelessly sacrificed. A further argument in defence of flexibility of definition is that a more precise definition “would then be abused by people who knew to a nicety how far they could go before offending. A defendant might be able to use tactics that would at common law amount to contempt of court”.

We are doubtful as to the merits of this latter argument. The idea that an offence should lack specificity so that would-be offenders will refrain from conduct that may not be unlawful out of uncertainty as to where the line of criminal responsibility is drawn seems to us a pragmatic and unjust one. There may be a view underlying the argument that it would be unpalatable to render criminal in express terms conduct not actually criminal but shrouded by the disguise provided by a flexible formula. If this view underlies the argument, we have no hesitation in rejecting it. This, of course, leaves intact the argument already advanced that a definition at once precise and exhaustive is simply not practicable. 

2.2. The pater familias management of the hearing police

Article 11 of Law No. 04/2004, which states code of ethics, stipulates that the judge must be impartial. Impartiality must be manifested during the hearing and through its decisions.

Paragraph 2 of this article states that the judge must recuse himself from any case related to his personal arrests, those of his parents, brothers and friends, and whenever it is obvious or there are grounds to doubt his bias.

Article 14 paragraph 2 of The Code of Ethics Act 09/2004 of 29/2004 obliges each judge to avoid a language or conduct that may reflect his or her unfavorable or favorable position towards a party. He must avoid making public statements in relation to a case before him.

Simply put, the impartiality of the judge is the absence of bias, it is generally associated with neutrality, fairness, objectivity and the notion of justice. The proper management of the hearing police is evident in the way the judge asks the questions to parties pending trial.

Questioning techniques consist of a set of strategies, processes that can enable the right practitioner to collect, through answers to questions, the information he needs in the processing of a file.

To avoid disturbances at the hearing, the judge must ask positive questions, open-ended questions in order to obtain the necessary information and avoid untimely questions. He must give the parties equal time to explain himself and finally control his bodily gestures during the hearing.

2.3. The judge’s best attitudes in the management of the hearing police 

Sanctions may vary depending on the categories of persons who have troubled the hearing policy. For example, the parties involved will not be subject to the same sanctions as the assistants or the public in the hearing, they will not be punished as the staff of that jurisdiction. For us, we argue that the hearing police are applied to ensure security in the courtroom, to ensure justice and to protect the personality of the judge. But in order to safeguard his impartiality, the judge must adopt certain attitudes towards the parties to the trial.

2.2.1. Towards  the parties involved

The trial belongs to the parties according to the principle of the device. When the judge deprives the liberty of one of the parties, the remaining party often triumphs over his opponent. With the judge’s anger over the other party who disturbed the order in the hearing. It could fall into bias. Therefore, a judge who falls into this situation should not deprive the liberty of this litigant and continue the hearing, rather, it is necessary to suspend the trial and send this case back to another seat, order the surrender, sentence the disruptor to a sentence  to pay the fine or in case of preserved resistance to lead him before the officer of the public prosecutor.

2.2.2. Suspending  the trial and referring  the case to another seat

Sometimes a judge is approved by a party at trial, as is the case in France, where a magistrate has violently thrown you to the ground and scratched by a woman in the process of divorce to whom she announced that her case was going to be postponed. The judge, who suffered a leg wound and back pain, was briefly hospitalized but was able to reach the high court in the afternoon. The woman who assaulted him was taken into custody and the public prosecutor requested that she be examined by a doctor.

In this case in France, we understand that the judge did not make the decision herself to immediately convict the woman who assaulted him, rather, she left the task of prosecuting at other proceedings. Instead of immediate sentencing, Rwandan judges should suspend the trial and refer the case to another seat that will make the decision on this offence that had just committed itself, in which case the party will have time to defend itself before this new seat. The judge may also order a postponement of the case in order to stoke his anger and so that the disruptor returns to his mind.

It is not only in France, even in Rwanda there was a case that occurred at the Muhanga High Court dated 16/08/2007 when the judges were on the ground in the case of RCA0254/07/TGI/MHGA. One of the parties refused to answer the judges’ questions, telling them that he did not wonder why they were in this chaos. He began to revolt against them telling them that he knew nothing and began to smoke next to them. As a result of this undignified behavior towards the judges, the headquarters made a report and referred him to the Kiyumba Basic Court, which sentenced him to six months’ imprisonment.

In this case, we greatly appreciate judges who were on the ground, because although they were competent to convict the failure, these judges preferred to refer the matter to the nearest judge of the nearest basic court in order to rule on the case of a hearing police happened against them instead of being a victim and judge at the same time.

2.2.3. The postponement of the case

To avoid bias, the main case must be rescheduled and awaiting the decision of the hearing misdemeanor judge. In such circumstances, the anger of the assaulted judge will be eased and he will be able to make a fair and objective decision. The litigant will have time to correct himself, ask for forgiveness and change his behavior during the hearing. This surrender would allow the convicted litigant to defend himself on his main cause during which the offence of hearing was committed. The right of defence would therefore be better assured.

2.2.4.Fine

Another alternative is to fin the offender. This conviction would have the effect of suspending the trial until the day the fine is fully paid. This, too, would be a good way to correct and behave well for litigants towards the judge who remains the head of the hearing police.

It has been found that the fine is a very deterrent sanction and can discourage disruptors of the order during the hearing. This sanction would also allow the party convicted on the day of the reopening of the main trial to defend itself against the arguments put forward by its opponent. If the latter show resistance, the judge would make the ad hoc report and immediately refer them to the relevant PMO.

2.2.5. Immediately drive the disruptor before the competent prosecution

The judge retains the power to arrest the accused and immediately lead him before the competent public prosecutor. In order for the judge not to be biased or arbitrarily, once one of the parties to the trial disturbs the proper functioning of the proceedings during the hearing and exhibits intolerable behaviour, the judge should not make a decision immediately depriving that party of liberty at trial. He may take a precaution to arrest her and take her to the appropriate Public Prosecutor to proceed with the prosecution of the offence committed during the hearing and to refer the matter to the appropriate repressive judge. Otherwise, it would be absurd to see a judge sitting in civil matters who convicts a party at the trial that has just committed an offence.Article 69 of the CCLAP states that if, in the courtroom or wherever a judicial inquiry is publicly conducted, one or more of the assistants interrupt the silence, give outward signs of approval or disapproval, cause disturbances or tumult in any way, the president of the headquarters brings them back to order by warning, if they persist, he has them deported and, if necessary, resorts to law enforcement, without prejudice to other penalties provided by law. For assistants or the public who disturb the smooth running of the hearing, we are in support of the sanctions provided for in the above article because we cannot speak of the impartiality of the judge with respect to a third party who has no connection with the trial.

Notwithstanding this, however, ceteris rebus sic stantibus, the judge remains a victim, prosecutor and judge, which is contrary to the laws in force in Rwanda. The only case that spares him bias is when the convict edinist is not a party to the main trial.

2.3. Suggested criteria for an objective qualification of contempt of court 

As raised in the problem statement, there is applied a sort of arbitrariness in the prosecution of the contempt of court because the law does not determine facts to be considered as constituting this offence. Therefore, the researcher was inspired from the Canadian judicial law which established objective guidelines for this kind of offence.

 (1) Contempt of court is the mechanism which the law provides for the protection of the authority of the court from improper interference. 

(2) Contempt of court powers do not exist for the protection of the personal dignity, honor or reputation of the judges, only for courts and judges as judges.

 (3) Contempt of court is part of a court’s inherent jurisdiction and, as it is not precisely prescribed or enacted, should be exercised with scrupulous care and only when the circumstances are clear and beyond reasonable doubt.

 (4) Contempt of court can be: in the face of the court, i.e. actually in court or in the cognizance of the court; or out of court; and, either form of contempt can be: civil contempt by a breach of the Rules of Court, disobedience of a court order or other misconduct in a private matter causing a private injury or wrong; or criminal contempt by any private or public conduct that interferes with a court’s process or seriously threatens the proper administration of justice. 

(5) Civil contempt is governed in the context of an existing proceeding according to the Rules of Court. 

(6) Criminal contempt is governed by summary process fixed by the court to meet the exigencies of the situation. This process is not governed by the Rules of Court. This document, prepared in 2001, is for reference only. As case law and practices have evolved since then, it should not be relied upon as a definitive source of information, or as representing the current position of the Canadian Judicial Council in matters of contempt. 

(7) In trying contempt summarily, the judge can act upon his or her personal knowledge regarding any matter of which the court has cognizance, but he or she must otherwise act upon evidence. 

(8) Judges should be quick to identify and deal with abuse or misconduct in some way, but slow to commence contempt proceedings. The court’s jurisdiction should be exercised not on personal grounds but only to preserve the court’s process and authority. 

(9) Insults and other indignities in court should be dealt with other than by contempt proceedings, unless the conduct is such that the ability of the court to administer justice properly is significantly impaired. Insults against a judge out of court that do not actually interfere with the administration of justice, or are not intended to cause disrepute to a court, are not an offence. This is particularly so with respect to proceedings that have been completed. 

(10) Except in exceptional circumstances immediately affecting the proper administration of justice, the preferred course is to leave the initiation and conduct of proceedings for contempt out of court to the parties in litigation or to the Attorney General. 

(11) A judge should conduct contempt proceedings calmly and judicially and it is usually preferable to refer any matter to another judge if there is any reasonable perception of bias or prejudgment. A judge should not sit in judgment on his or her own conduct. However, a judge should never hesitate to deal firmly and immediately with misconduct that arises in the course of proceedings, particularly if other parties will be prejudiced by delay or unpunished misconduct. 

(12) Even where it is necessary to act immediately to preserve the court’s authority, contempt proceedings must be conducted fairly and, in most cases, there will be no reason not to adjourn the actual hearing to a later time when the alleged contemnor may have proper legal representation. 

(13) Criticism is not necessarily contempt even though it may be defamatory. Criticism during the course of a trial not calculated to interfere with the course of justice is not contempt. When the case is over, all participants, judges, juries, witnesses, counsel and the law are subject to robust criticism, but no one has the right during the course of proceedings intentionally to interfere with such process.

CONCLUSION 

Conducting the proceedings during the hearing for a judge is a wise job. The parties before him, expecting him to have sound justice, can also disturb the order and harmony of the procedure. Even the audience can engage in such an adventure. In this case, the judge has the right to sanction anyone who disturbs security in the courtroom in accordance with rwandan judicial procedure.

If the party at trial is arrested and put in prison to serve the sentence decided by this judge his trial is tried by default but deemed contradictory. In such circumstances, the judge may be accused of bias. That is why the judge should remain impartial especially to the parties involved, as stated in Article 6 of the European Convention on Human Rights, which stipulates that every person has the right to have his case heard fairly, publicly and within a reasonable period of time, by a competent and impartial court.The contempt of court is a compromising offence considered its specific prosecution and judgment and this issue occupied the above analysis through the two parts as succinctly follows.

Within the first part dealing with the critical analysis there was noted that the Rwandan law is not clear about the facts to be considered as constituting the offence of contempt of court letting the appreciation to the discretion of the judge; that the judge deciding immediately plays the role of investigator, prosecutor, judge and even victim characteristics which infringes the constitution and various international instruments to which Rwanda is party according to which none can be judge and party. Worse, when the contemnor is a counsel, the party represented being absent, the trial is overtly interrupted and when the party was assisted the latter is deprived of his/her rights of defence.

The second part proposed a series of mechanisms to address those issues like revisiting the law to establish criteria to qualify the contempt of court; referral of all the cases of contempt of court to the normal procedure of criminal trials and why not simply suppressing such a compromising offence. Indeed, Impartiality is the fundamental quality of judges and the central attribute of the judicial function. The statement and principles do not deal with, and are not intended to address, the law relating to the recusal of judges. In this regards, Le Dain in R. C. Valente said in his statement that impartiality refers to a state of mind or attitude of the court with respect to the issues at issue and the parties in a given proceeding. The term “impartial” connotes an absence of prejudice, real or apparent. Consequently, judges must observe and possess four essential qualities, whether in or out of court, namely: listening courteously, answering wisely, considering the case with restraint and deciding impartially. During a public hearing, the judge must treat the parties equally by giving them equal time to respond to the opposing party’s allegations. These are alternatives all but a few that should be used to prevent the legal concerns that we have analyzed throughout the above developments.

By The Rwandan Lawyer

____________________________________________

1Law nº 027/2019 of 19/09/2019 relating to the criminal procedure, Official Gazette n° Special of 08/11/2019

2 Law no 22/2018 of 29/04/2018 relating to the civil, commercial, labor and administrative procedure, Official Gazette nº Special of 29/04/2018 Official Gazette nº Special of 29/04/2018

3 Hill, G. (2008). Contempt of Court. Retrieved April 12, 2008 from, Law.dictionary.com 

4 Hill, G. (2008). Contempt of Court. Retrieved April 12, 2008 from , Law.dictionary.com 

5 Liu, Caitlin (April 20, 2005), Sleepy Juror Gets Rude Awakening, Los Angeles Times

6 Howard Rosen; Patricia Donlevy-Rosen. “The Importance of Proper APT Design & Counsel”. The Asset Protection News. 

7 See M. Chesterman, ‘Contempt: In the Common Law, but not the Civil Law’ (1997) 46 ICLQ 521.

8 See M.K. Addo, Freedom of Expression and Criticism of Judges (Ashgate Publishing, 2000).

9 Ibid.

10 Felix Frank, Power of Congress over Procedure in Criminal Contempts in Inferior Federal Courts – A Study in Separation of Power’s, 37 Harvard Law Review, 1923, p. 1023.

11 Oswald’s, Contempt of Court, 3rd edition, Butterworth, London, 1993.

12 Ramachandran, The Contempt of Court under the Constitution, 5th edition, Eastern Book Company, Lucknow, 1983, p.123.

13 Ibidem 

14  Bray, Samuel (2014). “The Myth of the Mild Declaratory Judgment”. Duke Law Journal63: 1091. SSRN 2330050.

15 Ibidem 

16 Hill, G. (2008). Contempt of Court. Retrieved April 12, 2008 from , Law.dictionary.com Web site: [2]

17 Liu, Caitlin (April 20, 2005), Sleepy Juror Gets Rude Awakening, Los Angeles Times

18 Robinson, Natasha (9 December 2016). “Islamic State recruiter’s wife Moutia Elzahed may be first charged under disrespectful behaviour laws”. ABC News. Australian Broadcasting Corporation. Archived from the original on 9 December 2016.

19 Fischer, James M. (2010-12-07). Understanding Remedies. LexisNexis. ISBN 9781422486559.

20 Jane, The Coming of Parliament (1905); McIlwain, High Court of Parliament (1910).

21 Beck, Contempt of Congress 2 (1959).

22 Chesterman, Improper Behaviour in Court, (1984). Professor Chesterman rejects this argument: id, para 30.

23 Canadian judicial council, guidelines on the use of contempt powers , May 2001

REFERENCES 

I.Legislations

Law no 22/2018 of 29/04/2018 relating to the code of civil, commercial, labor and administrative law, in O.G no special of 29/o4/2018 

Law nº 027/2019 of 19/09/2019 relating to the criminal procedure, Official Gazette n° Special of 08/11/2019

Universal Declaration of Human rights of 10 december 1948  

European Convention on Human Rights of 3 September 1953

II.Books

Howard Rosen; Patricia Donlevy-Rosen. “The Importance of Proper APT Design & Counsel”. The Asset Protection News. 

M. Chesterman, ‘Contempt: In the Common Law, but not the Civil Law’ (1997) 46 ICLQ 521.

M.K. Addo, Freedom of Expression and Criticism of Judges (Ashgate Publishing, 2000).

Felix Frank, Power of Congress over Procedure in Criminal Contempts in Inferior Federal Courts – A Study in Separation of Power’s, 37 Harvard Law Review, 1923, p. 1023.

Oswald’s, Contempt of Court, 3rd edition, Butterworth, London, 1993.

Ramachandran, The Contempt of Court under the Constitution, 5th edition, Eastern Book Company, Lucknow, 1983, p.123.

Bray, Samuel (2014). “The Myth of the Mild Declaratory Judgment”. Duke Law Journal63: 1091.  Hill, G. (2008). Contempt of Court. Retrieved April 12, 2008 from , Law.dictionary.com 

Phillips, Sam. “In re Marciano – an analysis of the impossibility defense in contempt”. Donlevy-Rosen & Rosen, P.A.

Barth, Government by Investigation (1955); O’Brian, National Security and Individual Liberty (1955).

Lucinda Coventry, Oxford Pocket Dictionary of Current English, Oxford University Press, Oxford, 2009, p. 134.

Campbell, The Lives of the Chief Justices of England 125-42 (1994).

Maslow, Fair Procedure in Congressional Investigations: A Proposed Code, 54 Colum. L. Rev. 839 (1954)

Comm L R 162, at 186 (1979), quoted by the Law Reform Commission of Australia in their Report, supra, para 93.

Pekelis. Legal Techniques and Political Ideologies: A Comparative Study, 41 Mich. L. Rev. 665, 671 (1943)

Chesterman, Improper Behaviour in Court, (1984). Professor Chesterman rejects this argument: id, para 30.

Munday, Handcuffing the Defendant, 140 New LJ 47 (1990).

Thomas, Problems of Contempt of Court 5 (1934).

Canadian judicial council, guidelines on the use of contempt powers , May 2001

Liu, Caitlin (April 20, 2005), Sleepy Juror Gets Rude Awakening, Los Angeles Times

Hill, G. (2008). Contempt of Court. Retrieved April 12, 2008 from, Law.dictionary.com 

Fischer, James M. (2010-12-07). Understanding Remedies. LexisNexis. 

Robinson, Natasha (9 December 2016). “Islamic State recruiter’s wife Moutia Elzahed may be first charged under disrespectful behaviour laws”. ABC News. Australian Broadcasting Corporation. 

III.Caselaws 

RCA 0125/07/TGI/MSZE 

RP GEN 0025/04/TP/BUT

RC 0235/tb/nymye

RCA0254/07/TGI/MHGA

Lane v The Registrar of the Supreme Court of New South Wales (Equity Division) (1981) 148 CLR 245, 257.

  R v Vasiliou [2012] VSC 216 [13]–[20]; R v Slaveski [2011] VSC 643 [17]–[20]; R v The Age Co Ltd [2006] VSC 479 [15]; DPP (Vic) v Johnson [2002] VSC 583 [7]–[9]; Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd (2014) 47 VR 527, 582. 

DPP (Vic) v Kelly [2013] VCC 2030; R v McLachlan [1998] 2 VR 55, 59.

 Refrigerated Express Lines (A/Asia) v Australian Meat and Livestock Corporation (1980) 29 ALR 333.

Solicitor-General v Cox [2016] 2 Cr App R 15 193.

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