THE RWANDAN JUDICIARY AS INSTRUMENT OF POLITICAL REPRESSION

The Supreme Court in Kigali.

INTRODUCTION

During a judicial retreat held at Rubavu, Me GATERA Gashabana, then president of Rwanda Bar association(2006-2007), intervened deploring the lack of judicial independence and he faced threats of thePresident Paul Kagame who was part of the session.  Independence of the judiciary is the principle that the judiciary should be politically insulated from the legislative and the executive power. That is, courts should not be subject to improper influence from the other branches of government, or from private or partisan interests.

Different nations deal with the idea of judicial independence through different means of judicial selection, or choosing judges. One way to promote judicial independence is by granting life tenure or long tenure for judges, which ideally frees them to decide cases and make rulings according to the rule of law and judicial discretion, even if those decisions are politically unpopular or opposed by powerful interests. But they may have conflicts with republicanism and they could support it.

In some countries, the ability of the judiciary to check the legislature is enhanced by the power of judicial review. This power can be used, for example, when the judiciary perceives that legislators are jeopardizing constitutional rights such as the rights of the accused. Constitutional economics study such issues as the proper national wealth distribution including the government spending on the judiciary, which in many transitional and developing countries is completely controlled by the executive. The latter undermines the principle of powers’ “checks and balances”, as it creates a critical financial dependence of the judiciary. It is important to distinguish between the two methods of corruption of the judiciary: the state (through budget planning and various privileges – being the most dangerous), and the private. 

The lack of such independence affects exercise of the right of access to justice and creates mistrust and even fear of the courts, which discourages those who would otherwise turn to the courts for justice. Judicial independence means that judges are not subject to pressure and influence, and are free to make impartial decisions based solely on fact and law. Judicial independence is often misunderstood as something that is for the benefit of the judge. It is not. It is the public’s guarantee that a judge will be impartial.

Are these requirements for an effective independence of the judiciary met in the Rwandan judicial system? There is not easy to confirm it. Indeed, since 2004, Rwanda launched a judicial reform that intended among areas to insure an effective independence of the judiciary by guaranteeing the implementation of the principle of separation of powers granting to judicial institutions legal and financial autonomy. The independence vis-à-vis the executive is the natural consequence of the principle of separation of powers discussed above (art. 60 Const.). It can also be deducted from the article 150 and 151 of the constitution by virtue of which “in exercise of their judicial functions, judges shall, at all times, follow the law and shall be independent from any power or authority. However, these indicators of judicial independence are not duly reflected by the Rwandan laws which are supposed to domesticate the principle since the country is party of international instruments enshrining it; worse, the judicial practice daily violates it. 

Primo, with the new constitution, the article 142 of the constitution of 2003 which was providing for irremovability of judges was revised and the principle of irremovability was replaced by the tenure of office for judges. Secundo, the amnesty undermines the courts sentences and thus involves the interferences of the legislative power in judicial mattes. Tertio, the presidential mercy contradicts judicial decisions. It is a measure of forgiveness from the President of the Republic by which a convicted person is relieved from total or partial execution of his/her sentence. Quarto, the release on parole in favor of inmates who spent ¼ period if the sentence decided Ministry of justice is evidence that the executive intervenes in judicial affairs. Quinto, the appointment of the President, Vice-President and Judges of the Supreme Court and Appeal Court by the Senate on absolute majority of its members on a proposal by the President of Republic proves sufficiently that the independence of the judiciary is jeopardized. Given all those considerations, the following questions among areas deserve to be asked: To what extent the Rwandan judicial system and magistrates are independent in their daily functioning? If such independence is not really guaranteed, what are the rooting reasons underlying such a concerning fact?

The developments below intend to address these legal and institutional issues raised on the respect of the principle of judicial independence in Rwanda. As far as the structure of the research is concerned, this study will be composed of two parts. The first part deals with general considerations on the judicial independence, whereas the second part looks at the critical analysis of infringements of judicial independence in Rwandan law. Finally, a general conclusion will come up with summary of the work and recommendations.

I. THE PRINCIPLE OF JUDICIAL INDEPENDENCE 

Throughout this point, I intend to briefly clarify a conceptual and theretical framework involving or arrounding the independence of justice on general basis.

 1.1. Judicial independence

Judicial independence is the concept that the judiciary needs to be kept away from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government, or from private or partisan interests. Judicial Independence is vital and important to the idea of separation of powers. Different countries deal with the idea of judicial independence through different means of judicial selection, or choosing judges. One way to promote judicial independence is by granting life tenure or long tenure for judges, which ideally frees them to decide cases and make rulings according to the rule of law and judicial discretion, even if those decisions are politically unpopular or opposed by powerful interests. In some countries, the ability of the judiciary to check the legislature is enhanced by the power of judicial review. This power can be used, for example, by mandating certain action when the judiciary perceives that a branch of government is refusing to perform a constitutional duty, or by declaring laws passed by the legislature unconstitutional(Peter Barenboim, 2009:90).

1.1.1. Typology of judicial independence

Independence of judiciary call upon not only the judicial system to mean the body of various courts and even public prosecution organs but also justice operators such as judges, prosecutors, lawyers, etc.

1.1.1.1. Institutional independence

Institutional independence refers to independence of the judiciary from other branches of government—that is, the legislature and the executive. This aspect is further expressed through the principle of separation of powers. A branch of government should not place pressure on or influence another branch of government to act in certain ways. However, the independence of the judiciary, rather than the executive or the legislative branch, is frequently discussed because the judiciary is more vulnerable to pressure or influence (John Bell, 2001:47).

The judiciary makes decisions that might negatively affect the executive or legislature. For instance, it may declare an act of a government official to be unconstitutional, unlawful, or outside the scope of the official’s powers. It may also declare a law passed by the legislature to be unconstitutional and of no force or effect. The judiciary has no means of enforcing its decisions without the assistance of the other branches of government. On the other hand, the executive and the legislature may play a crucial role in the appointment of judges and in determining their remuneration and conditions of service in a way that, if not circumscribed by law, may jeopardize the judiciary’s independence in doing its work. The other branches of government may also undermine the institutional independence of the judiciary through budgetary measures and through the administration of courts.

 This is why many constitutions, in addition to providing for the separation of powers, establish the financial and administrative independence of the judiciary. This is intended to enable the courts to prepare and administer their budgets without undue pressure, especially from the executive. This sometimes requires that judges’ salaries shall be determined by an independent body that is not aligned with the government and that reports to the head of state or the legislature, which in turn puts the proposals of the independent body into force (Lord Phillips, 2007).

1.1.1..2. Personal independence

Personal independence refers to the impartiality of a judge; that is, the judge’s ability to make a decision without fear, favor, or prejudice with regard to the parties irrespective of their position in society—it means the absence of bias. The judge should be able to resist intimidation or influence, whether pressure stems from governmental power, politics, religion, money, friendship, prejudice, or other inducements. Decisions should only be based on the facts and the law. It has been said that personal independence is protected by three things: 

(1) Security of tenure, usually ensured by a constitutional provision that a judge may only be dismissed for good cause such as gross misconduct or gross incompetence;

 (2) Decent remuneration and conditions of service (i.e., financial security); 

 (3) Immunity from civil liability for loss caused by performance of judicial duties. However, personal independence is also supported by the existence and enforcement of a code of ethics for judges and other court personnel. In many African and other developing countries, there has not always been respect for the rule of law and independence of the judiciary. Judges have been intimidated into giving rulings favorable to the government, forced to resign their positions, and in the worst cases, they have been killed. 

1.2. Basic Principles on the Independence of the Judiciary

The importance of an independent judiciary has been recognized in the following international and regional instruments: Universal Declaration of Human Rights (Article 10); the International Covenant on Civil and Political Rights (Article 14); the 1993 Vienna Declaration and Programme of Action (Para. 27); European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 6.1); and the African Charter on Human and Peoples’ Rights (Article 7.1). 

The following basic principles, formulated to assist Member States in their task of securing and promoting the independence of the judiciary should be taken into account and respected by Governments within the framework of their national legislation and practice and be brought to the attention of judges, lawyers, members of the executive and the legislature and the public in general. 

1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary. 

2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. 

3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law. 

4. There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law. 

5. Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals. 

6. The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected. 

7. It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions (Shimon Shetreet, 2012:61-76).

After the brief overview of theoretical framework of the judicial independence, there is deemed to know whether this sacred principle established by the international covenant on civil and political rights (ICCPR) of 1966 is effectively applied in Rwandan law in terms of its domestication in internal laws and in different courts daily settling litigations. This concern is addressed within the coming chapter.

II.CRITICAL ANALYSIS OF INDICATORS OF LACK OF JUDICIAL INDEPENDENCE IN RWANDA 

In the research questions of the present study, there is wondered whether the Rwandan judiciary is really independent. Along the following lines, we shall confirm or refute the hypothesis of yes or not enlighted by facts, caselaws and reports of organizations of human rights and suggest alternatives to come up such challenges on legal and institutional levels. 

2.1. Violations of independence inherent in the laws 

Even if the constitution, the organic law relating to organization and jurisdiction of courts and even the code of conduct of judges provide that judiciary power in general and judges in particular are independent, there same legal instruments contradict such a principle as evidenced below.

2.1.1. Rwandan legal framework of Independence of the judiciary 

The independence vis-à-vis the executive is the natural consequence of the principle of separation of powers. It can also be deducted from the article 150 of the constitution by virtue of which “in exercise of their judicial functions, judges shall, at all times, follow the law and shall be independent from any power or authority. 

This constitutional provision is supplemented by the law on the statutes for judges and other judicial personnel, which clearly state that judges are fully independent in the discharging of their activities. In the exercise of their duties, they shall only be subject to the law. They shall be fully independent of the legislative and executive powers. They shall have unfettered discretion in assessing cases before them and making decisions on them without any pressure.

2.1.2. Legal provisions infringing the principle of independence of judges

Some provisions of the constitution and laws implicitly violate the principle of independence of the judiciary vis-à-vis other powers and that of the judges specifically.

1. Removability

The independence of judges was formally strengthened by the article 142 of the Constitution of June 4th, 2003, and the article 23 of the statutes for judges and other judicial personnel  pointing out that judge who have been confirmed in their posts are irremovable. They could not be suspended, transferred, even if it is for the purposes of promotion, retired or otherwise removed from their job, with the exception of the manner provided for by the law. This is what was referred to as the principle of “irremovability ”.

However, those judges could be transferred by the Superior Council of the Judiciary in the interest of duty only. “Likewise, it was and it is still provided that the President of the High Court may, by way of ordinance, transfer for a period not exceeding six (6) months, judges from one intermediate Court or primary Court to another of the same level in case of insufficiency in the number of judges or where it is deemed necessary to reinforce lower instance Courts in a bid to speed up trials in those Courts (GOR, 2008).  

However, with the constitutional amendment of 13/8/2008, the article 142 of the constitution of 2003 which was providing for irremovability of judges was revised and the principle of irremovability was replaced by the tenure of office for judges.  

2. Tenure of office

According to article 142 of the Constitutional as modified and complemented by the amendment of 13/08/2008, the tenure of office for heads of Courts and judges shall be determined as follows: the President and the Vice President of the Supreme Court shall be appointed for an eight (8) year term that is not renewable; the President of the High Court, the President of the Commercial High Court, the Vice President of the High Court, the Vice President of the Commercial High Court shall be appointed for a five (5) year term renewable only once; the President of the Intermediate Court, The President of Commercial Court, the Vice President of the Intermediate Court, the Vice President of Commercial Court and the President of the Primary Court shall be appointed for a four (4) year term renewable only once by the High Council of the Judiciary; other judges shall be appointed for a determinate term of office that may be renewable by the High Council of the Judiciary in accordance with the provisions of the law relating to their status, following their evaluation. 

Following this constitutional amendment, there is a strong debate among legal practitioners who express their worries about the independence of the judges whose tenure of office shall be renewed following evaluation. For them, the judge will be hardly independent if he/she knows that the renewal of the term of office will depend on the evaluation made by his/her superiors.

Briefly, the judiciary is independent from other state powers.  The Supreme Court is the guarantor of the independence of the judiciary. To this end, it ensures the respect for professional ethics.

As for the management of the career of judges, it has been entrusted to the High Council of the Judiciary which has among other powers to decide on the appointment and dismissal of judges other than judges of the Supreme Court. This departs from the former tradition whereby the management of the career of judges was in the hands of the executive power (the President and the Ministry of Justice). Note that contrary to the situation that was prevailing before 2003 constitution, whereby the Supreme Court depended financially to the Ministry of justice, the article 140 par. 2 of the Constitution grants financial and administrative autonomy to the Supreme Court (GOR, 2015).

3. Case of amnesty

The amnesty is any law that retroactively exempts a select group of people, from criminal liability for crimes committed. It is the pardon from the legislative power, a measure of forgetfulness which removes retroactively the criminal character to the facts to which for which it is granted. It therefore suppresses the legal element from the facts which, in normal circumstances were punishable and decriminalizes them. Consequently, if there was a conviction, the effect of the amnesty is to suspend the execution of the sentence and all its penal consequences.

After some troubled situations (revolutions, coups and civil war), the criminal policy imposes sometimes the resort to the forgiveness as alternative to punishment. It was revealed that the amnesty has become more and more a perverted institution as it is sometimes used to serve electoral purposes and a regulator of the prison population for it is generally granted for political crimes. It was strongly opposed by human rights organizations, their argument being that an amnesty law violates local constitutional law and international law by upholding impunity.

However, if the amnesty is considered a cause of extinction of the public action and consequently clears the sentence, it doesn’t erase the material facts and their civil consequences.  The victims can therefore bring a civil action against their authors for the compensation and reparation of the prejudice caused by the crime to the victim.  It is then well understood that the right of granting the amnesty belongs to the legislative power.  The provisions on the amnesty are found in the Criminal Procedure Code in article 247 to 249 which specify the effects of the amnesty but other conditions are found in each specific law granting it (GOR, 2013).

 4. The presidential mercy

It is a measure of forgiveness from the President of the Republic by which a convicted person is relieved from total or partial execution of his/her sentence. The presidential mercy does not extinguish the effects of the sentence, especially those related to recidivism, to the application of provisions related to the deferment in case of future prosecution and those related to civil damages (GOR, 2012).

5. The appointment and dismissal of the President, Vice-President and Judges of the Supreme Court

The president and the vice-president of the Supreme Court are elected for a single term of eight (8) years by the Senate, on a majority vote of its members, between two candidates proposed by the President of the Republic, after consultation with the Cabinet and the High Council of the Judiciary. They are appointed by a presidential order. 

The judges of the Supreme Court are elected by the Senate on absolute majority of its members on a proposal by the President of Republic who submits two candidates by post after consulting the Cabinet and the High Council of the Judiciary. They are appointed by order of the President of the Supreme Court.  

The President, the Vice-president and other judges of the supreme court may be dismissed from their duties for lack of dignity, incompetence or serious professional misconduct by the parliamentary vote on majority of two-thirds of each chamber and on the initiative of three fifth of the members of the Lower chamber of the Parliament or the Senate. 

2.2. Analysis of weaknesses or infringements cases of judicial independence

Different facts amongst areas do testify or confirm that the sung independence of the judiciary seems theoretical because the practice is far from the constitutional and legal provisions recognising this independence.

2.2.1. Violation of administrative independence

Many persons active in the delivery of justice in Rwanda take pride in the new autonomy of the courts, seeing it as a potential shield behind which judicial independence can grow stronger. Yet, as an example from October 2007 demonstrated, such autonomy is still incomplete. At that time the cabinet moved three judges (two from the High Court, one from an Intermediate Court) and one national prosecutor from their posts to newly created positions as deputy attorneys general in what had been the ministry of justice (now the office of the Attorney General). According to one well-placed lawyer who had discussed the matter with judicial officials, the cabinet-an organ of the executive-made the appointments without the approval of the Supreme Council of the Judiciary, the body that is supposed to control the posting of judges.

2.2.2. Misuse of prosecutorial power

In some cases, prosecutors’ decisions about whom to prosecute, on what charges, and based on what evidence appear to have been made for reasons other than simply enforcing the law. In a few cases, the pressure for prosecution is public, as in cases where the Head of the Executive Power publicly pressed for the arrest of persons who were arrested soon after.

2.2.3. The Production of Evidence

Anxious to obtain or to assist foreign colleagues in obtaining convictions, some Rwandan prosecutors have presented testimony in court which they knew or should have known was obtained through duress or torture. In other cases, they have distorted or assisted witnesses in distorting the plain meaning of written evidence, or have kept exculpatory evidence from counsel for the accused.

2.2.4. Interference in Judicial Cases

A former minister of justice, judges and former judges, former prosecutors, and lawyers all recounted cases of interference with the judicial system that they had experienced or knew of in some detail. A former official well-acquainted with such practices said that judges in important cases were rarely bought off, but were subject to pressure from the executive as well as from powerful persons outside the government. He said that judges “would know what to do.” Or, if there was any doubt about the decision, they would receive a call to tell them “this is what is expected.”In cases where judicial personnel have been subject to pressure, they have disregarded procedure, ignored allegations that evidence was coerced through abuse, willfully misread or distorted evidence, and substituted substantially different charges when the original charge fails. Some prosecutors and judges who have been subject to influence have taken decisions that fail to reflect the law and the facts of the case.

2.2.5. Consequences of trying to remain Independent

Some prosecutors and judges try to resist pressure, whether from politically powerful persons or from wealthy businessmen. “Turn off your phone,” was the practical counsel from one judge to colleagues less experienced in such circumstances. Unfortunately, those who do “turn off the phones” pay a price for their attempt to protect the independence and integrity of the judicial process.

2.2.6. Lack of respect for Judicial Orders 

The rule of law requires that judges be able to require state agents to obey lawful orders of the court. According to the 2003 Constitution and the code of penal procedure, judges have the authority to require such obedience, but in fact they are not always able to do so. 

In a landmark case in May 2005, for example, Tharcisse Karugarama, then president of the High Court, ordered police to produce a detainee who was illegally held, a first use of the habeas corpus power established by one of the 2004 judicial reforms. The police released the detainee but failed to obey the order to produce him in court. Because the new penal code that is to provide sanctions for state agents who fail to obey judges’ orders had not then-and has not yet-been adopted, President of High Court had  no way to punish police officers for not complying with his order.

2.3. Factors favoring violation of judicial independence 

Some reasons determine lack of independence pushing some judges or prosecutors to consent to pressure, fearing for their individual safety or their carrier stability.

2.3.1. Probation periods

The law in Rwanda provide for a probationary period of 1 year extendable to additional 6 months to determine whether a person will, in the end, be admitted into the judicial career service. This duration is visibly very long compared to other civil servants who pass just 3 months of appraisal.Not unlike what happens in the case of provisional status, justice operators required to undergo a probationary period may sometimes be subjected to pressures to take certain decisions or courses of action that serve the interests of the authority upon whom his or her permanent appointment depends, thereby putting his or her independence at risk.

2.3.2. The role of political organs

Which organs should intervene in the procedure for selecting and appointing justice operators? Normally, each State must decide for itself the norms for selection and appointment must include adequate safeguards to prevent other branches of government from influencing the independence of justice operators. To begin with, as a rule, a separate selection system is in place for the heads of the Prosecution or for the members of the highest courts. 

The legislative and executive branches have a direct hand in appointing the judges on the highest courts. In some countries, only the legislative branch participates, while in others the executive branch plays the larger role.

In a number of countries comprising Rwanda both the legislative and executive branches participate in the selection and appointment process.

2.3.3. Promotion

In Rwandan judicial institutions, one can be promoted president of court, judge of high court, Supreme Court, national prosecutor without having scaled all the required stages of experience in judicial career.Thus we have people who were recently appointed juges of Supreme Court after having been just law lecturers at University of Rwanda. 

In countries of the region that have judicial career service laws, the latter tend to regulate the matter of promotions. Some laws establish objective criteria for promotions, which include personal merit, long working experience for the judges of Supreme Court or the tasks of heading a court, the need of the justice operator and his or her capacity and efficiency. However, not every country’s laws set such clearly defined criteria.

Some include vague clauses like “as dictated by the service or “the requirements of the service which could actually enable the authorities in charge of promotions to exercise broad discretion. In some cases, the discretion exercised in making appointments may be reinforced by criteria such as “adherence to the doctrine used by the respective court.”

2.3.4. Transfers on subjective basis

In Rwandan judiciary, while the constitution of 04 June 2003 had established the principle immovability of magistrates to reinforce their independence, transfers were soon after restored and practically are entirely discretionary. The act of separating a justice operator from the case he or she is hearing or from his or her workplace can be in retaliation for his or decisions. The threat of transfer can become a disincentive to independent performance of one’s functions

2.3.5. Little salaries

When people are poor in other words not financiallly independent,they are exposed to any influence to maintain the little salary they get or to increase it.the reason why, with the issue of unemployment that threatens in Rwanda, judges who receive instructions from their superiors or external but influent authorities cannot keep the decisional independence.

There is still a problem with financial autonomy of the judiciary and the financial security of judges. This is not because the government would not like to make the constitutional promise of financial independence a reality. The problem is that the “national cake” is too small compared to the real needs of the country.

The judiciary receives less than 1% of the budget. The bulk of the budget goes to arguably more urgent social needs, with education at 17% and health at 8%. Consequently, judges and prosecutors, especially in the lower courts, struggle to divide their pay to accommodate the basic necessities of life: food for their families; shelter; transportation; and education for their children. Only their sense of dignity and commitment to justice helps them resist the temptation of corruption

2.3.6. Issues of ombudsman jurisdiction against Supreme Court rulings

The office of ombudsman is competent to require the special review of enforceable judgments which were deemed overtly unjust or suspected of corruption. We all know that this institution of ombudsman belongs to the executive power. Isn’t there a sign of the executive interference in the judicial affairs? Undoubtedly. Indeed, Based on the article 15 of the law nº 76/2013 of 11/09/2013 determining the mission, powers, organization and functioning of the Office of the Ombudsman stipulates that : “In the interest of the justice, the Office shall have powers to request the Supreme Court to reconsider and review judgments rendered at the last instance by ordinary courts, commercial and Military courts, if there is any persistence of injustice. The reconsideration and review shall be made in accordance with the Organic Law establishing the organization, functioning and competence of the Supreme Court. Based again on the article 16 of law nº 76/2013 of 11/09/2013 determining the mission, powers, organization and functioning of the Office of the Ombudsman indicates judgment execution, courts decisions and enforceable formula in case the concerned institutions didn’t do their responsibilities and it is requested by the Office of the Ombudsman in writing.

The review of a final decision due to injustice shall only be applied for on any of the following grounds: when there are unquestionable evidences of corruption, favoritism or
nepotism that were relied upon in the judgment and that were unknown to
the losing party during the course of the proceedings; when there are provisions and irrefutable evidence that the judge  ignored in rendering the judgment; when the judgment cannot be executed due to the drafting of its content. However, the party entitled to other ordinary. However, the party entitled to other ordinary and extraordinary procedures to appeal who did not exercise this right within the time limit prescribed by law shall not be entitled to invoke the provisions of this Section to apply for review of a decision of the case he/she los Request of judgment review is not applicable to the decisions of Gacaca courts. The Office of the Ombudsman informs those who have judgments which were in courts before 09th July 2012 the timeframe to file the cases at the Office of the Ombudsman which was stipulated by the organic law 03/2012/OL of 13/06/2012 

CONCLUSION

From the considerations above, there should be deducted that the independence of the judiciary in our country remains a theory, an ideal that still has to be a reality.Indeed, various many facts witness that this crucial principle guaranteeing the rule of law in any country and the confidence of citizens in the judicial institutions to which they daily resort to in the purpose of seeing their litigations settled.

To insure the effectiveness of the respect of this principle recommended by international and regional instruments to which our country was a party and that it signed, ratified and domesticated in internal laws, some ways forward should be suggested:

-Ensuring the provision of financial, technical and human resources sufficient and adequate to ensure that judges, prosecutors and public defenders can effectively perform their respective roles in the access to justice, so that no delays are incurred due to lack of resources

-Ensuring the rule of law in disciplinary grounds used to sanction justice operators.

-Where systems include the possibility of promotion, establishing predictable procedures as objective criteria for the promotion of justice operators considering the merits and professional capacity of such operators

– Establishing in its regulatory framework a selection and appointment processes that has the purpose to select and designate justice operators based on merit and professional skills

-In Rwanda where the public prosecution depends on the Executive, to adopting measures to ensure its institutional independence and meanwhile ensure functional independence especially by suppressing injunctions; or removing this institution from the hierarchical authority of the ministry of justice and integrating it under the umbrella of the high council of judiciary as legally organized in other countries such as France, Belgium, etc.

-Finally, inspection services of the judiciary may regularly assess the implementation of principles established by international and regional instruments.

By The Rwandan Lawyer

REFERENCES

  1. Constitution of the Republic of Rwanda of 2003 as amended in 2015 in O.G. special of 24/12/2015
  2. Organic Law N° 03/2012/OL of 13/06/2012determining the organization, functioning and jurisdiction of the Supreme Court
  3. Law  nº 47/2015 of 29/08/2015 modifying and complementing Law n°10/2013 of 08/03/2013 governing the Statutes of  Judges and judicial personnel
  4. Council of Europe. Recommendation No. R (94) 12 of the Committee of Ministers to the States on the Independence, Efficiency and Role of Judges, October 13, 1994, principle I. 2.c).
  5. UN General Assembly, Report of the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy, A/HGRC/11/41, March 24, 2009, para. 
  6. Report of the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy, A/HRC/11/41, March 24, 2009, para. 29.
  7. Case of the former President Pasteur Bizimungu who had ordered the arrest of Bishop Misago Augustine during the genocide memory at Kibeho in April 1999.
  8. Human Rights Watch electronic communication with Rwandan jurist, May 11, 2008. 
  9. Peter Barenboim (2009). Defining the rules, The European Lawyer. 7 Fordham J. Corp. & Fin.L. 159 
  10. John Bell (2001).Judicial Cultures and Judicial Independence. 4 Cambridge YB Eur Legal Studies 47 
  11. Lord Phillips (2007).Constitutional Reform: One Year On, The Judicial Studies Board Annual Lecture. International Journal of Multidisciplinary Educational Research, Volume 7, Issue 4(1), April 2018
  12. Shimon Shetreet(2012).Fundamental Values of the Justice System. 23 The European Business Law Review, 61-76
  13. Grawitz,M. (1993). The methods of the social sciences, 9th edition, Paris, Dalloz, p. 53.
  14. Charles Eisenmann(2003).Genesis and dynamic compared the process of decentralization in sub Saharan Africa. Paris, Karthala-PDM , p. 45.
  15. Battifol Henri,(2002). Aspects philosophiques du Droit international privé, Paris, Dalloz, p.6

LEAVE A REPLY