6 January 2014

Rwanda: Interview - Empower African Court As Alternative to ICC - Rugege


African governments have not done enough to empower the African Court of Human and Peoples' Rights to handle cases of crimes against humanity, according to Chief Justice Prof. Sam Rugege. This has left the ICC to run the show, albeit in highly questionable ways. In an exclusive interview with The New Times' Felly Kimenyi, the Chief Justice also spoke about corruption in Rwanda's Judiciary, the independence of the Judiciary, and reluctance by some countries to extradite or try Genocide fugitives, among other issues. Below are the excerpts;

It's close to a decade since Rwanda's judiciary started undergoing reforms. What have they yielded?

The reforms have been on for the last nine years and it has been an incredible journey. Of course, to understand where we are, it is important to look at where we have come from, especially that after the 1994 Genocide against the Tutsi, the judiciary was virtually destroyed.

We had an immense deficit in terms of personnel and had to adjust the institutional framework to ensure that it is properly functioning. We started by recruiting and building the capacity of judges, court registrars and clerks so that they can deliver justice in an acceptable way. Before the reforms, around 2004, we had only 70 qualified judges out of the over 700. Today all our judges and clerks are qualified.

Another priority was to try and accelerate the timeframe within which cases were being adjudicated because we had accumulated a huge backlog of cases. In 2004, there were over 60,000 cases pending in different courts, we had to recruit contract judges at the lower levels to clear this backlog. By 2009, almost all pending cases had been cleared.

The productivity per judge has, therefore, tremendously increased over the years, from those days when a judge could dispose of just five cases a month, for instance, in the primary courts and the intermediate courts; these numbers have since increased to 25 cases a month.

Of course, at the higher level, the number reduces modestly but at least a high court judge is able to adjudicate more than 15 cases a month, which is quite high, even when compared with regional standards.

We have also embarked on ensuring that our judges and personnel live up to the expectations of the population by enforcing ethical standards at all levels.

Doesn't the pressure on judges to adjudicate as many cases as possible compromise the quality of justice?

We are not only concerned about productivity of judges. We also look at the quality. We have a department of inspectorate of courts comprising five inspectors who traverse the country talking to judges, and examining their judgments to ensure that they follow the agreed format.

We also train our judges on certain aspects that must be followed while dispensing justice. For instance a judge should not just hear the facts and render a decision, they must justify the judgment based on the law. This should be done in such a way that anybody who reads the ruling will understand why so and so won and why so and so lost the case.

Can you expound more on the contract judges you referred to earlier. How are they recruited and are they still serving?

Contract judges are used in primary courts. We get a lawyer, who has not been in the system and give them a contract for a year or two to reinforce the primary court. We then take a judge at the primary court to reinforce the intermediate court, while those at the intermediate court are moved to the high court to help clear the backlog there. All these are deployed for a short a period and once the cases are cleared, they go back to their respective postings. Of course, things have since remarkably changed. The only short term placements we have now are at the high court. We do not use contract judges at the Supreme Court.

The rulings might be passed expeditiously based on the figures you provided but the execution of these rulings remains rather sluggish, do you share the same view?

I agree with that; the pace of executing judgments is not at the same level as the pace at which rulings are delivered, but, to start with, that is not within our jurisdiction and I cannot give you a concrete answer.

However, what I can say is that we sometimes have problems with court bailiffs who are supposed to enforce the judgments, especially in civil cases.

Those who have lost a case always try to delay the execution of the judgment. They will appeal at every level, and even after they have exhausted the appeal process, they will still try to have the case reviewed.

Addressing this requires improvement on the efficiency of the bailiffs. I understand a professional body of the bailiffs is in the pipeline, which will help address such issues. We shall also devise means of closing loopholes that people use to stay in courts indefinitely.

The judiciary continues to be cited among the institutions with high corruption incidences, including in reports by the Ombudsman's Office among other corruption watchdogs. What are you doing to reverse the trend?

These studies have been conducted by people who are independent and we cannot say much about them but what I can say is that, we are trying our best to fight corruption. Sometimes, of course, it is a question of perception and the judiciary is very vulnerable in this case because few people who lose court cases accept that they were fairly judged. Some of the people come up with allegations that the judge was bribed when it is not the case.

But that is not to say that corruption is non-existent in the judiciary; however, the incidence is really quite minimal, especially when you compare what the situation was before the reforms.

We have played our role in ensuring that discipline is upheld among our judges and we are also always open to complaints from the litigants or members of the public.

We normally follow up on all those complaints, and if investigations find a prima facie case, the matter is brought before the High Council which conducts a hearing in which the concerned party is questioned and an appropriate decision taken. Based on this process, over 40 judges and registrars have since 2005 been dismissed or reprimanded over corruption-related tendencies.

Is it true that judges, especially at the lower level, are poorly paid which makes them susceptible to corruption?

That is wrong. Low pay cannot, under any circumstances, justify corruption. It is not those that are poorly remunerated that are the most corrupt. Otherwise how do you justify the bank managers or all those people with really good salaries who get involved in corruption? What is important, and what we are trying to do is to tell them that we all get from a small basket and the demands of the Judiciary should not compromise other sectors like health, and education among others.

Nevertheless, we have tried to improve the conditions of judges and the salaries have drastically increased, with the lowest paid getting over Rwf200, 000 up from 40,000 in the immediate aftermath of the 1994 Genocide.

There is a perception that the Judiciary in this country is not independent, what do you have to say about that?

These are allegations from some international organisations; such as Human Rights Watch, Amnesty International and the like.And given their general attitude towards Rwanda, I am not surprised that they look at our Judiciary in that light. I am satisfied that our Judiciary is independent and and we have not had any threat with regard to that independence.This is also reaffirmed by other courts, some of them international in nature, which are now sending Genocide fugitives to stand trial in Rwanda.

You know that the International Criminal Tribunal for Rwanda (ICTR) had for long refused to send suspects for trial in Rwanda but, since 2011, they decided that our Judiciary is independent and can handle these cases.

The European Court of Human and People's Rights has also ruled that Rwandan courts are independent and can offer a fair trial. Other courts in The Netherlands, Canada and elsewhere have also adjudged the judiciary here to offer fair trial.

Another example is the Global Competitiveness Report, by a well-respected international rating agency; that rates Rwanda very highly in terms of independence of the Judiciary. Last year Rwanda was ranked number 25 globally well ahead of countries with more mature legal systems.

So we cannot dwell on the attacks of Amnesty International or Human Rights Watch because they are not founded on any evidence.

There are several Genocide suspects detained in different countries around the world. Some of these countries have refused to extradite suspects for trial in Rwanda, preferring to try them, what is your take on that?

I do not have any problem with suspects being tried in host countries. My personal view is that these fugitives should face justice, where they are tried does not really matter. I would, of course, prefer that they are tried here where they committed the crimes because then justice will not only be done but also seen to be done.

The relatives of those who were killed would be able to follow the proceedings. I think part of the criticism about international prosecution of these suspects is that it is done remotedly from people who really have a stake in the process, which to me leaves justice half-served.

For example, for those suspects who are in the UK, I cannot see why they do not try them if they cannot send them to Rwanda. We have confidence in their legal system but they are reluctant to prosecute these suspects. There is an international obligation on cases concerning genocide where, in the event that a country cannot try the suspect, it can transfer the suspect to a jurisdiction that can try them.

It is more than a year since Gacaca courts closed, have there been any special challenges that the Judiciary faced as a result of the closure of Gacaca?

The law that closed the Gacaca courts says that any request for review of cases (that were tried by Gacaca) can be done in ordinary courts which has increased the burden for courts. We have not felt the burden that much but that is only because there is still a process of transferring files from Gacaca Jurisdiction to the ordinary courts but quite a number of people have filed for review of their cases that were decided by the Gacaca courts.

Many of them may not have the merit but they will still increase the burden on the judicial system by bringing more cases. We can only hope that they will not be too many to paralyse the work of the primary courts.

The Government has over the years been encouraging usage of ICT in all institutions for efficiency of service delivery. How is the Judiciary faring in this area?

ICT infrastructure has been laid out in all courts. When we started out, there were very few computers in the courts but as I speak, every court has its own computers and everything is done online.

When the reforms started, most courts were using typewriters; judges used what I can call stenographers to do their typing, but now every judge writes their own judgment. That way, you are fully responsible for your actions and any mistakes are your mistakes. This has completely revolutionalised the working of the Judiciary.

The reporting system has also been made easy whereby every court from any part of the country is required to send in a report, on a monthly basis, to the inspectorate detailing the cases that were completed, those that were not completed and why. There is also a video link that helps us, whenever necessary, to conduct a trial or interview witnesses online.

The Supreme Court seems to have a lot on its table. In several countries you have the Constitutional Court and the Supreme Court; here the latter does both the interpretation of the Constitution and conduct of ordinary trials. Isn't it cumbersome

In the long term, the solution is to ensure that very few cases reach the Supreme Court. Currently, we have a backlog of over 2,000 cases. It is going to be extremely difficult to get rid of this backlog.

We have tried to limit the number of cases coming in by raising the minimum (in civil cases) value of the litigation to Rwf50 million, but that's not helping much because every litigant tries their best to get the evaluation of the property in litigation to over 50 million to ensure their case comes to the Supreme Court.

In criminal cases, again the cases which have over 10 years of imprisonment must be decided in the Supreme Court. We have introduced a process where cases shouldn't come here because of procedural issues like, if it is filed out of time or it doesn't fall within the criteria of the cases which should come to the Supreme Court, it should be eliminated by the Chief Registrar, and that is helping in reducing the number of cases.

But, ultimately, the solution would be for the Supreme Court itself to be able to sieve through the cases filed and judge on the admissibility before they go on trial, like it is done in many countries around the world. If a case is seen to have been well handled, it should not reach the Supreme Court.

However, both the ordinary Rwandan citizens and the parliamentarians have always resisted that system. They seem to think that everybody should have their say in the highest court.

So we are still stuck with that problem. We had an increase in the number of judges recently, but you cannot just keep increasing the number of judges, that would also bring budget problems. We, therefore, we need to find other solutions.

There have been disagreements between African states and the ICC with the former arguing the court is targeting Africa, what do you think should be the way forward.

There is nothing wrong with the international court handling international crimes. Problems in one country can affect other countries. So, in order to fight impunity everywhere, an international court is a good idea. The problem lies in the way the current international court is operating. It is mainly targeting Africa as if there are no problems elsewhere in the world, as if no crimes against humanity are committed in countries outside Africa. So, it gives one the impression that the ICC only deals with weak states and weak situations. It ceases to be international if it deals with only one part of the world.

The Statute that established the ICC says the ICC only intervenes where the country is unable or not willing to prosecute humanitarian crimes, but there are countries which will not subject themselves to the process. So there is no opportunity for them to decide whether the country is able or willing to prosecute if it is not a member of the organisation.

If powerful countries like the United States, Russia and China are not subject to the ICC, then how can we call it international? And the worse thing is that those are the ones that sit on the Security Council and decide which person to be prosecuted by the same court. The ICC should really be straightforward, countries are not subject to the ICC and those that are not members should not decide who should be prosecuted by the court.

About alternatives, we already have our own court; the African Court of Human and Peoples' Rights which can handle the cases that ICC is handling, but it is not getting the support it deserves.If the African nations can be serious about the African Court of Human Rights, there is no reason why any African should be sent to the ICC.

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