William R Pruitt. Contemporary Justice Review. Volume 20, Issue 2. April 2017.
The 1994 genocide in Rwanda lasting 100 days may be the most clear-cut case of genocide since the Holocaust (Des Forges). In just over three months from April to July, nearly one million Tutsi and moderate Hutu were massacred in Rwanda, a country the size of Vermont. The government and the criminal justice system of Rwanda were devastated following the genocide. Many judges and lawyers either fled the country or died in the slaughter (Human Rights Watch). The legal profession in Rwanda before the genocide consisted mainly of Tutsis, which meant the legal structure was particularly devastated by the slaughter (Brannigan). Political leaders fled the country after the successful invasion of the Rwandan Patriotic Front (RPF) (Des Forges). Any attempt to understand the reconstruction of Rwanda’s criminal justice system must take into account the country’s history and structure.
When the genocide in Rwanda ended, the country was in a unique situation. With much of the population dead, fleeing the country, or suspected of committing terrible crimes against their neighbors, Rwanda had to rebuild from scratch. This allowed the country to choose a new direction for itself. Rwanda embarked on a course toward democracy. Part of this transition required a new criminal justice system that would be trusted by the public, effective for security, and ideally poised to prevent any recurrence of genocide. This process was not quick or easy and in many ways is still on-going two decades later. Examining how Rwanda rebuilt its criminal justice system may assist other nations facing similar issues post-atrocity.
Rwanda began its existence as a Belgian colony. It was under this colonization that the Hutu and Tutsi ethnic groups became more identifiable and caste-like in nature (Des Forges). During Belgian rule, the Tutsi minority were given political power over the majority Hutu population. However, upon receiving independence in 1962, Belgium switched allegiance from the Tutsi to the Hutu and assisted the Hutu in their political revolution. In the end, the Hutu took political power and more than 130,000 Tutsi fled the country (Lemarchand). Ten years later, General Juvenal Habyarimana took control of the government and made Rwanda a one party state under his control (Power). The new military regime consolidated all political power in the president’s party and forbid the involvement of Tutsi in the new state government. By the time of the genocide in 1994, the political power of the Habyarimana regime was threatened by peace talks designed to increase Tutsi representation in the government (Power). These Arusha accords would ultimately result in a power sharing government between the Hutu and the Tutsi.
The origins of the Hutu-Tutsi division dates back many decades. Originally, the word Tutsi simply referred to a person who was rich in cattle (Des Forges; Rusesabagina). Hutu was originally used to refer to the mass public or ordinary people who were not wealthy (Des Forges,; Rusesabagina). It was not until the Belgian colonial rule that these terms became distinct ethnic identities that could not be changed. There may have been some physical distinctions between the Hutu and the Tutsi originally, but intermarriage had erased most of them (Des Forges). Beside these physical distinctions that were faded by 1994, the Hutu and the Tutsi shared a common culture; they spoke the same language, had the same customs and clan names. They attended the same schools and churches and worked with each other in the same offices and bars (Des Forges). While this shared history and cultural identity would seem to argue against ethnic division, there were important differences between the Hutu and Tutsi. The most recognizable division was in the population of the Hutu and Tutsi; the Hutu represented eighty-five percent of the population while the Tutsi comprised merely fourteen percent (Des Forges). In addition to these vast numerical differences, the population also believed that there was a difference between the Hutu and Tutsi that could not be changed. Being Tutsi was still identified as being wealthy and superior even though they were a numerical minority.
The individualization and negative value judgments against the Tutsi were quite severe. The Tutsi were demonized and made the incarnation of evil to the Hutu masses. Much of the Hutu population believed that the Tutsi were not part of the national community. They were viewed as a threat to the security and safety of the Hutu populace (Lemarchand). One high-ranking official in the Rwandan government told the Hutu to ‘know that the person whose throat you do not cut now will be the one who will cut yours’ (Des Forges, p. 86). Judgments of Tutsi women as conspirators and infiltrators of the Hutu ethnicity were common. Also all Tutsi were believed to be dishonest in business dealings, that the military should have no Tutsi members, and that the Hutu should not have any mercy on the Tutsi (Lemarchand). Other terms used to describe the Tutsi were ibyitso—accomplice to the enemy—and inkotanyi—cockroaches (Power). Tutsi were also referred to as snakes that slithered into the Hutu society and disrupted Hutu solidarity. All of these value judgments were supported, if not supplied, by the government and the government-run media outlets.
When the genocide broke out, most of the Hutu participated in the slaughter of the Tutsi. Within hours of the assassination of President Habyarimana, the government and militias had set curfews and built roadblocks throughout the capital (Power). The government ran the genocide through its military and militias recruited among the youth. These militias, known as Interahamwe, manned the roadblocks and killed any Tutsi who attempted to cross (Power). From the beginning, the government-run radio and television media exhorted all Hutu to get involved and murder the enemy. It was said that it was the duty of the Hutu to participate in order to save their families. The radio would read lists of Tutsi and where they could be found in order to facilitate the massacres (Des Forges). When some government officials throughout Rwanda refused to participate in the genocide, they were quickly removed and replaced with more sympathetic officials (Power). While not every Hutu participated in the genocide, and some risked their lives to save Tutsi friends, the great majority of the Hutu population did participate in slaughters through the direction of the government.
The build-up to the genocide occurred over several months. From the beginning of the peace talks there was dissent among the Hutu run government. As it became clear that President Habyarimana had no choice but to acquiesce to the peace talks, he was targeted by his own regime (Power). On 6 April 1994, on a return flight to Rwanda, his plane was shot down and Habyarimana and the president of Burundi were killed (Des Forges). Within hours of the plane crash the government in Rwanda set into motion its plan for collectivizing the Hutu against the Tutsi in a genocidal spree. Sporadic gunfire erupted almost immediately after the plane crash. Forty-eight hours later, the genocide spread from the capital region into the countryside.
The genocide was accomplished using many tools, among them: machetes, massues (clubs studded with nails), small axes, grenades, guns, fragmentation grenades, beatings to death, amputations with exsanguination, burying alive, drowning, or raping and killing later (Lemarchand, p. 403). With such carnage throughout the country, bodies were soon being dumped in the river. So many bodies were dumped that the river became clogged and could not flow as usual. In many cases, Tutsi were lured to what was promised to be safe havens, only to be slaughtered en masse at churches, schools, and hospitals (Power). When the genocide in Rwanda finally ended between 800,000 and one million Tutsi were dead and the country had to rebuild nearly from scratch (Des Forges; Power).
A New Constitution
Following the end of the genocide in July 1994, the primary aim of the new government was to repair the social destruction and attempt to hold those accountable for the genocide responsible. Early reports on the success of the new government were equivocal. There were thousands of detainees being held in squalid prison conditions awaiting trial (Thompson). But more recently the success of Rwanda’s rebuilding efforts have become visible as Rwanda is ‘one of the safest, cleanest and least corrupt nations on the continent’ (Gettleman, p. A7).
One important part of this progress from genocide to stability was a new state constitution that went into effect on 4 June 2003. Reading the preamble of the new constitution it becomes clear how the genocide has shaped the new government. Direct reference is made to ‘the genocide against the Tutsi’ whereby the country ‘resolve[s] to fight the ideology of genocide’ as well as ‘fight dictatorship by putting in place democratic institutions’ (Rwanda Constitution, Preamble). In an attempt to prevent genocide in the future, the constitution has a goal of ‘eradicat[ing] ethnic, regional and any other form of division’ (Rwanda Constitution, Preamble). This has been interpreted to mean that there are no more Hutus and Tutsis, but simply Rwandans.
Rwanda is a civil law country with a strong president and Parliament and three branches of government—executive, legislative, and judicial (Rwanda Constitution, Article 60). Executive power is vested in the president and the cabinet (Rwanda Constitution, Article 97). Legislative power resides in the Parliament consisting of the lower house—the Chamber of Deputies—and the upper house—the Senate (Rwanda Constitution, Article 62). Judicial power rests in the Supreme Court and other courts established by the Constitution or law (Rwanda Constitution, Article 140). As a bulwark to future genocides or state crime the Constitution officially recognizes a multi-party system of government (Article 52) and power sharing such that the President and the Speaker of the Chamber of Deputies cannot belong to the same political party (Article 58).
In addition to establishing a new government and political system, the Constitution creates a new criminal justice system patterned after civil law countries. Many basic criminal law protections have been established. To conform to the principle of nullum crimen sine lege, Article 18 states that no one ‘shall be subject to prosecution, arrest, detention or punishment unless provided for by laws into force at the time the offence was committed.’ Article 20 refers to ex post facto legislation when it states that no one is subject to punishment for behavior that did not constitute a crime at the time it was committed. Article 19 protects a defendant’s presumption of innocence and right to a defense.
Similar to the Fourth Amendment’s search and seizure protections found in the United States Constitution, the Rwandan Constitution provides that ‘the private life, family, home or correspondence of a person shall not be subjected to arbitrary interference’ (Article 22). Article 22 continues that ‘A person’s home is inviolable. No search of or entry into a home may be carried out without the consent of the owner, except in circumstances and in accordance with procedures determined by law.’ While not as expansive of protection as the search warrant requirement in the U.S. Constitution, Article 22 does offer some legal protection to a person’s private life and property.
Many rights that could be found in the United States’ Bill of Rights are also protected in Rwanda. There is the right to freedom of thought and opinion, as well as religion (Article 33). The right to freedom of speech and freedom of the press are protected against infringement (Article 34). Freedom of association (Article 35) and freedom of assembly (Article 36) are guaranteed as well. However, these protections are not as sweeping as they might be in other countries. Article 33 protects freedom of thought and opinion but also states that ‘propagation of ethnic, regional, racial or discrimination of any other form of division shall be punishable by law.’ Article 34 states that freedom of speech and of the press is guaranteed so long as it does not ‘prejudice public order and good morals.’
An often cited example of the limitations to free speech and free thought and opinion in Rwanda is the law on genocide denial and ideology. In 2013, the Rwandan Parliament passed a law criminalizing genocide denial and ideology in the country. There are several ways to violate the genocide ideology law including spoken, written, or video communication that advocates the commission of genocide or supports genocide (Law N° 84, Article 3). Further, negation of genocide is also forbidden including misconstruing facts about genocide, ‘supporting a double genocide theory for Rwanda; stating or explaining that genocide committed against the Tutsi was not planned’ (Law N° 84, Article 5). Minimizing genocide (Article 6) and justifying genocide (Article 7) are also outlawed. A violation of the genocide ideology law can result in punishment from five to nine years in prison (Organic Law N° 01, Article 135).
The law on genocide ideology proves how difficult it can be to restore a criminal justice system following mass atrocity crimes. While Rwanda desires to enter the international community of nations as a strong supporter of human rights following the genocide, the new government has curbed free expression in some ways. Certainly the government views the genocide ideology law as a way to prevent future massacres but at the same time free speech and thought are stymied. However, Rwanda is not the only country with genocide denial legislation. Several European countries have laws banning the denial of the Holocaust including Germany, Israel, Poland, and others (Lechtholz-Zey). Other countries have banned genocide denial more generally including Liechtenstein, Portugal, and Switzerland (Lechtholz-Zey). While Rwanda’s genocide ideology law is not unique, the use of the law by the government has been more extensive than other countries.
In total however, the new Rwandan constitution was written to eliminate the labels of Hutu and Tutsi imposed by Belgian colonizers and restore the country to its pre-genocide days. To ask a country to ignore its past when recreating its future would be nearly impossible. Recreating the criminal justice system requires a devotion to justice and due process. Several articles of the constitution are composed to do just that including the right to a defense, ex post facto protection, and the right to be informed of the charges against you (Article 18). As a civil law country Rwanda has passed many detailed laws to support the constitution and implement the new criminal justice system.
The Parliament of Rwanda is composed of the Chamber of Deputies and the Senate. The Chamber of Deputies, or lower house, is composed of eighty deputies (Rwanda Constitution, Article 76). Of these eighty deputies, fifty-three are elected by the people, twenty-four are women elected by councils, two are elected by the National Youth Council, and one is elected by the National Council of Persons with Disabilities (Rwanda Constitution, Article 76). By constitutional mandate, at least thirty percent of the deputies are to be women. However, this is a minimum not a maximum, women deputies may still be elected as part of the fifty-three seats open to public election. As of 2015, Rwanda had the highest proportion of female representatives in the lower house of government with fifty-one female deputies or 63.8% (Women in national parliaments.
The Senate consists of twenty-six members serving a term of eight years (Rwanda Constitution, Article 82). In the Senate as well at least thirty percent must be women. Twelve senators are elected by the public, eight are appointed by the president, four are chosen by the National Consultative Forum of Political Organisations, and two members are chosen from a public university (Rwanda Constitution, Article 82). As of 2015, the Rwandan Senate had ten female senators or 38.5% (Women in national parliaments).
Once Parliament was invested with the new legislative power, they set to work reconstructing the criminal justice system of Rwanda. Following the genocide, roughly seventy-five percent of Rwanda’s legal personnel had been lost (Brannigan). In order to establish the country’s new criminal justice system, the Prime Minister promulgated an order setting out the new Ministry of Justice. The new mission of the Justice Ministry is to ‘organise and to oversee the promotion of the rule of law and justice for all’ (Prime Minister Order N° 91/03, Article 2). The Ministry is empowered to fight genocide ideology, ensure all Rwandans have access to justice, fight corruption, and promote human rights (Prime Minister Order N° 91/03, Article 2, §2). The Minister of Justice is a political appointment by the president and also serves as the country’s Attorney General (Prime Minister Order N° 91/03, Annex II). The Prime Minister’s Order created one hundred new positions within the Ministry of Justice.
As Attorney General, the Minister has control over the prosecution services in Rwanda. Under Article 160 of the Rwanda constitution, the National Public Prosecution Authority (NPPA) is charged with prosecuting crime throughout the country. The president submits two names for the positions of the Prosecutor General and the Deputy Prosecutor General to the Senate which then votes (Organic Law N° 03, Article 8). The law also lists several requirements for the Prosecutor General and Deputy Prosecutor General including having at least a bachelor’s degree in law, eight years in the legal field, not characterized by sectarianism or discrimination, and being impartial (Article 11).
Prosecutors are divided between the Higher Instance level and the Lower Instance level. Similar to most countries, Rwanda divides its crimes into three categories and prosecutes based on the seriousness of the offense. Higher Instance level crimes include felonies where the punishment is imprisonment for more than five years (United States Embassy). Qualifying felonies in Rwanda are murder, rape, armed robbery, political incitement, treason, and drugs (Unites States Embassy). Lower Instance level offenses tend to be misdemeanors where punishment is imprisonment greater than six months but less than five years (Unites States Embassy). Petty offenses are punishable by imprisonment for no more than six months or a fine (Unites States Embassy).
At the Higher Instance level there is a lead prosecutor and at least five additional prosecutors (Organic Law N° 03, Article 13). Lower Instance prosecutors are appointed by the Prime Minister at the request of the Supreme Council of the Prosecution (Organic Law N° 03, Article 14). The Supreme Council of the Prosecution is responsible for evaluating the activities of the NPPA. The Supreme Council has the power to investigate and provide an opinion on the performance of the NPPA including any disciplinary action that is warranted (Organic Law N° 03, Article 24). The Supreme Council has the responsibility to act as a check on abuse of power and professional conduct. Ensuring an independent and impartial prosecution office was of primary importance to Rwanda following the genocide. Prior to the genocide the legal profession was predominantly Tutsi, which would have been seen as another way the minority were exploiting the majority Hutu. By providing for oversight on the NPPA the country hopes to avoid further ethnic division and promote unity across the nation.
As in many countries, prosecutors in Rwanda wield extensive discretionary power (see Tonry). If the prosecutor decides to charge an individual they have the power to investigate the case (Organic Law N° 03, Article 37). If, however, the prosecutor decides not to charge the individual, they must inform the victim of their decision because the victim has the right to initiate a civil lawsuit (Organic Law N° 03, Article 44). Once charges have been filed, only the Prosecutor General has the power to withdraw them. While discretion rests mainly with the individual prosecutors, the Minister of Justice is given certain rights in the area of investigating a crime. The Minister of Justice may order the Prosecutor General to begin or refrain from an investigation in the public interest (Organic Law N° 03, Article 46). Unfortunately the law does not provide an example of what might be in the public interest to prevent an investigation. This provision could act as a back door to misuse of the power to stop investigations and may need to be amended to further clarify when it would be appropriate for the Minister of Justice to intercede.
In rebuilding the country’s policing capabilities, the starting place was the new constitution. Under Article 170, the Rwanda National Police are given jurisdiction to ‘exercise its authority over the entire national territory.’ Following the genocide where much of the population turned on their neighbors and friends, the new government was keen on incorporating the public into the new policing model (Baker). Using a popular justice model, the idea is to encourage the public to assist the police and thereby aid in the healing of aversion to the state police under the previous regime (Baker).
However, the Rwanda National Police remain the main law enforcement agency in the country (Law N° 09, Article 1). As a national police force, their jurisdiction covers the entire country but is most concentrated in larger cities rather than rural areas. This gap is where cooperation with the local community plays a large role. By law police are given very broad powers to enforce law and order in Rwanda (Law N° 09, Article 14). Police powers include the ability to apprehend any person without identification (Law N° 09, Article 17). Police power to conduct a search is both limited and riddled with exceptions. Article 24 requires police to apply to the prosecutor for a search warrant before searching for anything during an investigation. However, police can search a vehicle without a warrant if they have ‘reasonable grounds’ to believe the vehicle ‘has been, is being, or could be used’ to commit a crime, harbor wanted suspects, or transport dangerous objects (Law N° 09, Article 26, italics added). Assumedly any vehicle could possibly be used for one of these exceptions. It is unclear how this broad discretionary power has played out in real life though. More disturbing might be the power of police to search an individual if they have reasonable grounds to believe the search is necessary for investigating an offense (Law N° 09/, Article 35). This search may not exceed six hours (Law N° 09, Article 35). Again, the length of search of an individual seems excessive and if the police have reasonable grounds there does not appear to be an exigency to bypass the warrant requirement.
Policing begins at the community level in Rwanda. The position of umukuru, in consultation with a committee of four, is responsible for overseeing anywhere from 50 to 200 households in a town (Baker). The résponsable, together with a committee of seven and a local militia, is responsible for anywhere between 500 and 1000 households (Baker). These leaders watch for criminal behavior and pass any information to the police. The community thus is truly policing itself. The national police rely on the résponsable who relies on the umukuru to catch much of the low level crime that occurs. While these offenses may be considered minor, they tend to be the main pattern of crime within Rwanda. There is much petty theft and issues involving drunkenness, assault, and domestic violence in the country (Baker). Many of these acts are easier to observe as a member of the community than as a police officer.
The résponsable is also charged with finding local people to join the local defence force (LDF). The LDF officers receive a two-month police training course (Baker). The LDF often carry out night patrols looking for minor crimes and offenders (Baker). These officers are also usually the first to arrive on a scene because of their close proximity to the community they police (Baker). But similar to the umukuru and the résponsable, their primary duty is information gathering (Baker). The LDF receive little training and are not compensated for their work. The possibility of abuse is strong and the public tends to see them as undisciplined and bribe takers (Baker).
While the LDF is seen as without much constraint in their actions, the National Police are subject to a comprehensive code of conduct. The official code of conduct sets forth the reasons for which an officer might face disciplinary sanction (Ministerial Instructions N°003/12). Article 8 lists thirty-nine acts that could subject an officer to discipline. Sanctions may include warning, blaming, disciplinary detention, or dismissal (Ministerial Instructions N°003/12, Article 24). The Code of Conduct specifically lists actions for which an officer may receive a warning (Article 27), a blaming in writing (Article 28), disciplinary detention (Article 29), or dismissal (Article 30).
Following the devastation of the genocide, Rwanda’s court system needed to be rebuilt and refashioned. The rebuilding began with a judiciary composed of a Supreme Court and other courts established by law (Rwanda Constitution, Article 140). While this language mirrors the United States Constitution in establishing the judicial branch, the Rwanda Constitution continues by establishing ordinary and special courts for the country. Specialized courts with limited jurisdiction include the Gacaca courts (genocide trials), military courts, and commercial courts (Rwanda Constitution, Article 143). The ordinary courts of the country include the Supreme Court, the High Court, Intermediate courts, and Primary courts (Rwanda Constitution, Article 143).
The Rwanda Supreme Court is the highest court in the land and its decisions are not subject to review (Organic Law N° 01, Article 2). Membership of the court consists of a president, a vice-president, and twelve other judges (Organic Law N° 01, Article 3). Both the president and the vice-president serve a single, non-renewable eight year term (Organic Law N° 01, Article 5, 6). Appointment to the court is essentially by election in the Senate. The president of Rwanda, after consulting with the Cabinet and the Superior Council of the Judiciary, puts forward two names for each position and the Senate votes (Organic Law N° 01, Article 5). The candidate who receives an absolute majority is then appointed to the position by presidential decree (Organic Law N° 01, Article 5).
Supreme Court judges must retire at the age of 65 except for the president and vice-president (Organic Law N° 01, Article 14). The retirement age may be extended by the Superior Council of the Judiciary for five years ‘if it is evident that the judge concerned is still capable of carrying out his or her duties and his or her services are still required’ (Organic Law N° 01, Article 14). Any judge of the Supreme Court, including the president and the vice-president, may be removed from the court for serious misconduct, incompetence, or serious professional misconduct (Rwanda Constitution, Article 147). Removal must be requested by three-fifths of either the Chamber of Deputies or the Senate and confirmed by a two-thirds majority vote of each Chamber (Rwanda Constitution, Article 147).
While there are a total of thirteen judges on the Supreme Court, the bench does not require all thirteen judges to sit to hear a case. The Supreme Court bench need only be composed of three judges assisted by a registrar (Organic Law N° 01, Article 32). The panel can be increased to five, seven, nine, eleven, or all thirteen judges depending on the complexity of the case (Organic Law N° 01, Article 32). Ensuring an odd number of judges on the panel prevents a tie vote which is not accounted for in either the Constitution or the organic law.
The Supreme Court exercises primarily appellate jurisdiction (Organic Law N° 01, Article 43). Though the Court does have original and exclusive jurisdiction in certain cases. These cases include offenses committed by the president of the country, the president of the Senate or Chamber of Deputies, the president of the Supreme Court, or the Prime Minister if the offenses are committed during their tenure in office (Organic Law N° 01, Article 44). Following a trial or appeal, the judges deliberate in secret to reach a decision. By law the decision must be issued in writing within thirty days after the hearing and must indicate the grounds on which the decision is based (Organic Law N° 01, Article 83). Unlike common law countries, civil law countries like Rwanda discourage law-making via judicial decision. This may explain the short time period given to issue a decision because the judges should need only refer to the detailed law to find how to rule.
Below the Supreme Court sits the High Court. The High Court is an appellate court with nationwide jurisdiction. The High Court exercises original jurisdiction for international or transnational crimes, cases involving political organizations, and election petitions (Rwanda Constitution, Article 149). In all other cases the High Court is the final appellate court by law (Rwanda Constitution, Article 149). There are four chambers of the High Court sitting throughout the country (Organic Law N° 51, Article 16).
Similar to the Supreme Court, the High Court has one president and one vice-president. These individuals are supported by twenty-four judges (Organic Law N° 51, Article 18). The president and vice-president are selected in the same manner as the president and vice-president of the Supreme Court (Organic Law N° 51, Article 19). The judges of the High Court are chosen in a slightly different manner. The judges are appointed by the president of the Supreme Court upon approval by the High Council of the Judiciary (Organic Law N° 51, Article 19).
In what could be seen as a response to the country’s genocidal history, the High Court has the power to hear cases in the first instance if they involve treason, threat to national security, terrorism, war crimes, crimes against humanity, or genocide (Organic Law N° 51, Article 89). The Court’s original jurisdiction also covers non-national, non-governmental associations, and national and foreign organizations if they are involved in international or transnational crimes. Many of these offenses include crimes against humanity such as hostage taking, drug trafficking, money laundering, and human trafficking (Organic Law N° 51, Article 90). Cases heard by the High Court in the first instance may be appealed to the same High Court or the Supreme Court (Organic Law N° 51, Article 103).
The High Court exercises appellate jurisdiction on cases tried in the first or second instance by the Intermediate Courts (Organic Law N° 51, Article 105). Again, when the High Court is acting as an appellate court, the decision is subject to appeal to the High Court or the Supreme Court (Organic Law N° 51, Article 108). The only exception are those cases that began in the Primary Courts where the Supreme Court does not have jurisdiction (Organic Law N° 51, Article 108).
Intermediate courts sit below the High Court with the power to hear both civil and criminal cases (Organic Law N° 51, Article 9). Intermediate courts are composed of a president, vice-president, and five other judges. The president and vice-president are appointed by the president of the Supreme Court and approval by the High Council of the Judiciary (Organic Law N° 51, Article 11). The intermediate courts have both original and appellate jurisdiction. Intermediate courts have original jurisdiction to try offenses where the possible sentence is imprisonment for more than five years (Organic Law N° 51, Article 73). Appellate jurisdiction exists to hear cases from the Primary courts (Organic Law N° 51, Article 74). Juvenile offenses are to be heard by a special chamber of the Intermediate courts. The juvenile chamber is designed to sentence juvenile offenders and also provide supervision and education (Organic Law N° 51, Article 76).
The lowest level of courts in Rwanda are the Primary courts. These courts are composed of at least two judges, one of whom serves as president (Organic Law N° 51, Article 4). Judges of the Primary courts are appointed in the same manner as Intermediate court president and vice-president (Organic Law N° 51, Article 6). Primary courts are allowed to try cases where the possible sentence is less than five years imprisonment (Organic Law N° 51, Article 66). Primary courts have much broader jurisdiction in civil cases. For civil cases involving less than fifty thousand Rwandan Francs, the Primary courts have exclusive jurisdiction and these cases cannot be appealed to any higher court (Organic Law N° 51, Article 68). Cases that fall outside of this range can be appealed to the Intermediate courts (Organic Law N° 51, Article 72).
The constitution also established specialized courts for military members and commercial matters. Article 154 established military tribunals to try in the first instance any offense committed by military personnel. In addition, a military high court was established to try, in the first instance, offenses that involve a threat to national security and act as an appellate court for decisions from the military tribunals (Rwanda Constitution, Article 155). The military tribunal has jurisdiction nationwide and is composed of ten judges (Organic Law N° 51, Article 26, 27). The military high court also has nationwide jurisdiction and is composed of nine judges (Organic Law N° 51, Article 31, 32). Commercial courts were established to try cases involving commercial, financial, and tax matters (Rwanda Constitution, Article 155bis). A commercial high court was also created to hear appeals from the commercial courts (Organic Law N° 51, Article 36).
Court structure in Rwanda now mirrors what can be seen in many countries. Primary courts serve as a court of limited jurisdiction with appeals proceeding to the next level. Intermediate courts serve as courts of general jurisdiction hearing the majority of cases. The High Court serves as an appellate court with nationwide jurisdiction separated into four chambers sitting throughout the country. Each chamber is responsible for specific counties within the country. Finally, the Supreme Court serves as the court of last resort with power to issue final, binding decisions on issues of law.
The new court system in Rwanda is designed to be more efficient than the one in place prior to the genocide. Fewer courts are in play in the new system and trials have gone from having a panel of three judges to a single judge (Human Rights Watch). Attention was also paid to the need for judicial independence in the new system. Salaries for judges increased as a way to prevent corruption (Human Rights Watch; Rugege). Judges were also better trained than before receiving university degrees in law and participating in competitive examinations (Human Rights Watch). Article 140 of the constitution also provides for judicial independence from the legislature and executive. Since the High Council of the Judiciary makes most appointments of judges, the executive and legislature are secondary. This may help insulate the judges from influence by other branches of government (Rugege). Overall the impression of Rwandan judges has been guarded but favorable (Human Rights Watch).
Perhaps the most well-known aspect of the criminal justice system post-genocide in Rwanda is the prison system. This notoriety though has not been for the better. The prison system has been criticized by many for its conditions and overcrowding. With so many genocide suspects arrested and incarcerated it was inevitable that conditions would be precarious. In an attempt to refashion the prison system, the National Prisons Service was established.
The National Prisons Service was charged with respecting the rights of detainees as well as ensuring security, respecting the life, physical, and moral integrity of detainees (Law N° 38, Article 5). An elaborate organizational structure was adopted for the prisons. Overseen by the Prime Minister and Minister of Justice, each prison has a director and deputy director (Law N° 38, Articles 13, 14, 15). The Prosecution Service is also responsible for inspecting all detention facilities in their jurisdiction once a week (Organic Law N° 03, Article 51).
The official prison count in Rwanda’s fourteen prisons as of December 2013 was 54,357 (Rwarakabije). This number however does not include the several thousand genocide suspects held in detention. Soon after the genocide, the Red Cross estimated that there were 110,000 suspects held in prisons and makeshift cells (Tunbridge). It was immediately following the genocide that prison conditions in Rwanda were at their worst. The Red Cross objected because many prisons lacked drinking water, washing facilities, and medical care (Tunbridge). Overcrowding also led to death during prison panics at this time (Thompson). Overcrowding has been eased due to the use of gacaca trials and TIG work camps where many genocide suspects serve their sentence.
While still exceeding their maximum capacity, prison conditions have improved. More prison construction was occurring as well as rehabilitation projects for other prisons (Rwarakabije). Corrections officers were also receiving training to develop their professional skills (Rwarakabije). Conditional release of inmates also helped ease the overcrowding situation (Rwanda Correctional Service). Use of double- and triple-deck bunk beds increased population capacity in the prisons (Rwanda Correctional Service). The US State Department, in its human rights report from 2013, discussed prison conditions in Rwanda. The report noted that Rwanda holds defendants from the special courts in Sierra Leone, which means that the United Nations has found that their prisons meet international standards for incarcerating international defendants.
The conditions in the prisons seemed to improve as the overcrowding issue was eased. Ventilation and temperature improved as overcrowding lessened (US Department of State). Each prison had the minimal equipment needed including dormitories, toilets, sports facilities, a health center, a guest hall, a kitchen, water, and electricity (US Department of State). Conditions in detention centers for those arrested or awaiting trial were not as consistent. Some detention centers still lacked toilets and adequate sanitation (US Department of State). Overall the report was generally positive on the improvements made to Rwandan prisons and the responsibility that the country took to establish proper prison conditions.
The crime trend in Rwanda depends heavily on the type of offense. Cases of murder have been increasing over the past few years from 144 in 2008, to 177 in 2011, to 436 in 2012 and 359 in 2013 (National Institute of Statistics of Rwanda). However, cases of forcible rape have dropped dramatically from a high of 2,425 in 2008 to 265 reported in 2013 (National Institute of Statistics of Rwanda). Robbery has also dropped significantly from a high of 2,055 in 2009 to 38 in 2013. According to the Statistical Yearbook, aggravated assault is the most prevalent type of crime in Rwanda representing 43% of major crimes reported. Still property crimes exceed violent crime with burglary and larceny combined at 48% of major crimes (National Institute of Statistics of Rwanda).
After an offense has been committed, the police are tasked with investigating the crime. This includes collecting evidence, interviewing witnesses, and conducting searches where appropriate. Police are permitted to arrest and detain a suspect if the offense is punishable by imprisonment for at least two years (Law N° 13, Article 37). Detention is also approved if there are reasonable grounds to believe that the suspect is likely to escape or if his identity is unknown (Law N° 13, Article 37). This detention can last no longer than seventy-two hours (Law N° 13, Article 37). At the end of the seventy-two hours, the case is transferred to the prosecutor’s office who has seven days to present the case to a judge (US Embassy).
As an inquisitorial system, the suspect may be detained while the prosecutor and court engage in a full investigation. When the suspect is presented to the court, the judge may order his release subject to certain conditions or remand him for thirty days (US Embassy). After the initial thirty days, the remand order may be extended for another thirty days if the investigation is on-going (US Embassy). As with many inquisitorial nations, this detention during investigation can be lengthy. In 2013, 6.8% of detainees were on remand awaiting trial (Rwarakabije). In comparison to other inquisitorial nations, this number is low. France’s remand population is 26.1% of its prison population and Germany stands at 18% (Walmsley). However, the numbers in Rwanda are skewed by the genocide trials and suspects. The vast majority of remand prisoners are not awaiting genocide trials. When excluding genocide cases, Rwanda’s remand prison population jumps to 19.5%, much more similar to other inquisitorial nations.
While the prosecutor is given broad power to investigate a criminal case, it is clear that the court and judge are also involved. By law, ‘the court is under an obligation to search for evidence that has escaped the attention of the prosecution, the complainant and the accused person or their counsel’ (Law N° 13, Article 46). A suspect does have the option of being released on bail during the investigation. Bail is an option for both misdemeanors and felonies (Law N° 13, Article 90). Bail conditions are usually chosen by the prosecutor and can include restriction on travel, reporting to the prosecutor’s office, and offering ‘persons of integrity’ to stand as surety (Law N° 13, Article 102). These conditions can be modified at any time during the investigation.
In an attempt to break away from the past government and dictatorial regime, Rwanda now offers defendants certain protections. The first is that an accused is presumed innocent until proven guilty (Law N° 13, Article 44). By law, any doubt as to guilt should be resolved in the defendant’s favor. Article 153 states that if ‘no evidence has been found to remove the doubt in the minds of the Judge(s) or Magistrate(s) on whether the accused really committed the offence, he or she should be acquitted.’ A suspect also enjoys the right to consult with an attorney (Law N° 13, Article 39). Trials are to be held in public and judgments must be delivered in public (Law N° 13, Article 145). Jury trials are not an option and the judge is final arbiter of fact and law.
The right to appeal is also protected. The defendant and the prosecution both have the right to appeal (Law N° 13, Article 164). Appeals must be filed within thirty days of delivery of the judgment (Law N° 13, Article 165). The appeals court is limited to matters raised by the appeal and cannot enhance the punishment received in the first instance (Law N° 13, Article 174, 177). However, if the appellate court changes the decision, it can try the case on the merits (Law N° 13, Article 178).
Until 2007 Rwanda exercised the death penalty. At that time, Rwanda utilized a firing squad to execute defendants (Law N° 13, Article 212). The legislature abolished the death penalty in 2007 bringing the country in line with the position taken by the United Nations and the European Union and at least one hundred other nations that have abolished the death penalty. Life imprisonment with special provisions replaced the death penalty. Life with special provisions means that the defendant is not entitled to conditional release unless he has served at least twenty years in prison or he may be kept in isolation (Organic Law N° 31, Article 4). Death sentences imposed before the death penalty was abolished were converted into life imprisonment or life imprisonment with special provisions (Organic Law N° 31, Article 6). Rwanda also decided not to extradite suspects unless the requesting state guarantees that the death penalty will not be used (Organic Law N° 31, Article 8).
Criminal Justice in Practice
Ideally Rwanda’s revamped criminal justice system would function as a check upon the government and act as an impetus toward respecting individual rights. The written law has suggested that this is a concern for the new government. The law in practice will inform whether the government has been able to enforce the spirit of the legal changes. As in many cases, the practice is not as rosy as the established code would assume. As has been said elsewhere, ‘Rwanda is a country of double realities’ (Human Rights Watch).
One aspect of policing in Rwanda that has raised controversy is the power to ‘ensure control of beggar, prostitutes, vagabonds, and disorderly persons’ (Law N° 09, Article 15). In 2010 it was reported that nearly 900 beggars, homeless individuals, and petty thieves were sent to Iwawa Island in Lake Kivu without trial or a court appearance (Gettleman, A1). Once on the island these ‘offenders’ were to be rehabilitated by learning new skills such as bricklaying, hairdressing, and motorcycle maintenance (Gettleman, A1). While assuring clean and safe streets is a government obligation, the wholesale roundup of individuals without trial runs counter to the new constitution and acceptable role of police in society.
In addition to Iwawa Island, reports have criticized the government for operating Gikondo Transit Center as an unofficial prison (Van Woudenberg). Gikondo is run by the police and used mostly for housing street vendors, prostitutes, beggars, and the homeless (Van Woudenberg). The Gikondo Center is supposed to operate as a rehabilitation center but reports have come out about police abuse of detainees. Some detainees, known as counsellors, are given power by the police to enforce rules within the center and use force or violence to accomplish their goal (Van Woudenberg). The government maintains that the center is used for rehabilitation and providing emergency assistance (Van Woudenberg). In 2014, the government responded to criticism by declaring that children would no longer be sent to Gikondo (Human Rights Watch).
Amnesty International, in 2012, released a report raising concerns about the police and especially the military police in Rwanda. Amnesty noted that ‘the role of the military and the police in arresting individuals suspected of threatening national security became increasingly blurred’ (Amnesty International, p. 15). It was later confirmed that the military police do support the Rwanda National Police in joint patrols (Amnesty International, p. 15). This intervention of military police in national policing matters would potentially violate the constitution. Though the use of outside resources does fit in with the mentality of policing in Rwanda that everyone has a role to play.
Further work by Human Rights Watch has raised the specter of unlawful detention within Rwanda. Between 2010 and 2014, several dozen cases of people being held unlawfully by the police were reported (Human Rights Watch). Many of those detained were not permitted to contact family, friends, or lawyers in violation of Rwandan law (Human Rights Watch). Detainees treatment has also been criticized as inadequate. In addition to allegations of torture, basic needs like food, water, and sanitation have been assessed as lacking (Human Rights Watch; Van Woudenberg).
Questions have also arisen about the court system in Rwanda. In a self-report study, the government was chastised for not addressing the issue of de facto separation of powers concerns (Jordaan). While the constitution ensures de jure independence for the judiciary, the de facto situation is less clear. The president has power to appoint several members to judicial boards, which may be why most criticism centers on politically sensitive cases (Jordaan). In these political cases, judges and prosecutors are seen as being influenced by government pressure from the executive (Human Rights Watch). Judges and the court system in general face financial difficulties as well. This has not permitted the judiciary to be financially independent, which may influence judges to remain loyal to the ruling party (Rugege).
Many of the practical issues with the new criminal justice system may stem from the fact that after the 1994 genocide, Rwanda returned to a de facto one party state (Human Rights Watch; Reyntjens). The power concentration in the executive and president has effected the ability of the country to follow through on its legal obligations to sustain an effective criminal justice system. This does not speak to the laws and revamped system that was created, but instead to the political will to accomplish goals. Many of the unlawful arrests and ill-treatment of detainees are linked to political opponents and not ‘traditional’ criminals (Human Rights Watch).
However, there may be a turning tide for Rwanda and its ability to ignore its failings in proper enforcement of the laws. For many years following the genocide, the government was able to keep criticism at bay because of the international community’s failure to respond when the country was in dire need of assistance (Reyntjens). The government could paint itself as the victim and its harsh repression of behavior as necessary to avoid another genocide. But now Rwanda wants to be accepted by the international community as a strong power player (Human Rights Watch). International legitimacy is so important to the country that outside pressure may influence internal operations.
Recently, the Parliament amended the constitution to allow the current president the ability to run for a third term even though there was a two term limit originally. The amended constitution allows the president to run for a third term of seven years and then two terms of five years each; the current president could theoretically stay in power for another seventeen years. Negative responses to the changes were nearly universal from the United States to Kenya. While the president says that international condemnation will not stop him from running for a third term, the need to be accepted internationally is a strong deterrent for political wrongs.
Until Rwanda has a government willing to enforce all of the laws, the criminal justice system will suffer. The progress has been real and the criminal justice system today is better than it was twenty years ago, but it is not perfect. Maintaining political pressure on the government is one way to encourage full enforcement of the judicial system as it appears on paper, which is strong, independent, and fair. In practice, due to political pressures, the system’s fairness and impartiality have been questioned. True political change would assist in finishing the reforms started by the new constitution.
Following the genocide of 1994 Rwanda has attempted to rebuild a more democratic country. For the most part, there seems to be success in what they have done. The United States opened a new embassy in Rwanda in 2008 and credited the country in the global war on terror (Dagne). Women have increasingly held positions of importance in the criminal justice system including representing half of the supreme court judges, 19% of the police force, and 15% of the army (Dudman). Transparency International found Rwanda’s court system to be the least corrupt in East Africa (News of Rwanda).
Many Rwandans also wish to allow President Kagame to run for a third term because of his success in economic development (Iaccino). Putting aside the probity of doing so, upwards of 3.7 million Rwandans desire the constitution to be changed only for Kagame (Iaccino). While some have questioned the validity of this support, it is clear that Kagame has restored Rwanda to a status that was not present pre-genocide. As a reward for this, he has gained a strong core group of supporters willing to modify current constitutional principles for him alone, perhaps similar to US President Roosevelt’s unprecedented four terms as president during the Great Depression.
A competent criminal justice system is necessary for security and prosperity. Following the genocide in 1994, Rwanda was forced to rebuild its criminal justice system. From devastation grew a system based on democratic principles of government and protection. While no criminal justice system is perfect and without flaws, Rwanda has seemingly created a functioning system from dust. Healthy debate should permit others to question the success of the Rwanda criminal justice system, but at the same time recognize that it was created from ash and blood.