By The Rwandan Lawyer
Some citizens (a group of women) who were not content with a court decision to release suspects accused of embezzling funds in a financial scheme. The incident occurred on July 9, 2021 where about 50 women reportedly stormed the court protesting the release by the suspects who were accused of conning the group of their money through a fraud pyramid scheme- called ‘Blessing’. At the time of the protest the ‘affected’ women argued that they had been conned by a group of people, and demanded justice and their funds refunded by the suspects who they had identified and made sure they were arrested. In this fracas, the Judiciary said that the group of women pitched camp outside the courthouse and assaulted a judge and a court registrar. Following the incident, a Supreme Court statement said that such actions cannot be tolerated and that there are legal means through which a person aggrieved by a court decision can seek redress.
Kamembe Primary Court-Rusizi District in Western Province has sentenced to one year in jail a group of eight women who threatened the lives of judges during a ruling on a financial case. The group was also slapped a Rwf 1 million court fine in a ruling read on August 11, 2021. This follows a court scandal mid last month in which the octet didn’t concede to a court decision to release a male suspect whom they had accused of embezzling funds in a financial scheme scam. The incident occurred on July 9, 2021 where about 50 women reportedly stormed the court protesting the release of the suspects who were accused of conning them through a pyramid scheme- called ‘Blessing’. In the fracas and rumble of verbal disagreements, some of the women were caught on camera (in photos and videos) causing chaos in and outside court, refuting the judgment and threatening court, in media interviews done after a ruling was passed. A group of eight women was subsequently arrested by Rwanda Investigation Bureau (RIB) following the incident and an immediate investigation was launched into the circumstances around the court saga- which the Supreme Court and RIB condemned as unacceptable.
The suspects were held at Kamembe RIB station pending their trial but prosecution used some of the images to indict and pin the suspected women to a crime of holding court in contempt and threatening lives of government officials while on duty. The crime of holding court in contempt, and attempting or assaulting court officials, legally gives the suspects a possibility of getting three to five years jail, but not exceeding the latter jail term. However, the prosecution had sought for each to get one and half years in jail for the crimes committed, but lawyer Nicolas Ruremesha, who represented some of the women, pleaded with the court saying his clients acted out of anger over their lost funds and circumstance in which they lost their money. However, another defence attorney, Elisée Ndikumana challenged the prosecution on using images that “don’t actually pin any of the women to an actual act of physically assaulting a court official and said this was not sufficient evidence for the court to consider.”The decision to hand the eight women a one-year jail term can be considered a much lenient sentence following statistical facts that the Kamembe incidence could arguably be the first of its kind to be reported in mainstream media in Rwanda. Kamembe court stated that the convicted women have a chance to appeal the ruling in a month, however, the court fine has to be paid in not more than two months from the date of the ruling. According to some lawyers representing the octet, they stated that they will appeal the case to have a fair judgment for their clients.
The judgment sentencing people who assaulted the court fed up by its injustice, was already ruled given that the supreme court condemned their action instead of examining the real reasons of the reactions and the unethical misconduct of its judges of primary court undoubtedly bribed. Besides, Rwandan rules governing the management of audience overtly violate fundamental rights of litigants and the principle of fair trial as analyzed below.
-Maintaining order during the hearing and violation of the principles of prosecution
Applying the hearing policy to one of the parties, a lawyer, a witness or an assistant at the hearing would violate certain principles enshrined in the law.Indeed, Judging and inflicting an 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 criminal procedure, 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.
-The judge as a criminal investigator
the law relating to 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 the criminal procedure which stipulates that the judicial police is responsible for finding offences, receiving whistleblowers, complaints and reports relating to 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.
-The judge as a Public Prosecutor
The Law relating to the code of 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.
-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.
–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 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 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.
-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, the Law 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.
In addition to being swindled, Kamembe plaintiffs are charged with court offenses and are punished with one year in prison while the crooks who extorted millions from them are free in perfect impunity and have not reimbursed any penny. Instead, they probably used a part of it to bribe judges. A judiciary without impartiality nor humanity. In short, this is the image of Rwandan justice where the poor should only expect disappointment.