Rwanda

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RWANDA CRIMINAL DEFENSE MANUAL

  1. Fundamental Principles
  2. Client Interviews
  3. Strategies for the Hearing
  4. Defense Strategies
  5. Procedural Nullities
  6. Sample Motion for Nullity of Procedure in Rwanda (PDF)

CODES

LEGAL RESOURCES

LEGAL TRAINING RESOURCE CENTER

Background

The Republic of Rwanda, located in East Central Africa, is bordered by the Democratic Republic of Congo, Uganda, Tanzania, and Burundi. Belgium granted independence to Rwanda in 1961 and the current government was founded in 1994. Since then, Rwanda has undertaken major efforts towards legal modernization and institutional reform, including enhanced training and professionalization of judges and court staff. The death penalty was abolished in 2007, the Institute of legal practice and development (ILPD) was established in 2008 to train judges, prosecutors and lawyers, and several amendments were made to the criminal code and the criminal procedure code, in 2004, 2012 and 2013. Among others, reforms gave an accused person the right to legal counsel at all stages of the criminal proceedings. The government’s efforts to improve access to justice through Maisons d’Accès à la Justice (MAJ) focus mainly on legal representation in civil proceedings which as a result proved insufficient in terms of providing legal representation in criminal proceedings for vulnerable and indigent accused persons.

Type of System

The current Constitution of Republic of Rwanda was revised in 2015. The Constitution guarantees an independent judiciary [1] with a Supreme Court that acts as the constitutional court. The Supreme Court is the highest court in the country. Its decisions are not subject to appeal save in cases of presidential pardon, opposition, application for review against a decision due to injustice.[2] determining the organization, functioning and jurisdiction of the supreme court published in Official Gazette nº 28 of 09 July 2012 Judgments and decisions of the Supreme Court are binding on all other lower courts in the country.[3] The High Court has unlimited jurisdiction to try serious offences committed in Rwanda as well as offences committed outside Rwanda as specified by the law. Others include both the Intermediate and primary courts. The government is in the process of establishing the court of Appeal to slash the backlog of cases at the Supreme Court and to fast track structures of timely justice.[4] This court will, in terms of hierarchy, be between the High Court and the Supreme Court, and is set first to clear backlog of pending cases at the Supreme Court, before it goes to the normal sequence of adjudicating cases that will be transferred from subordinate courts. According to the draft law, the court will have 13 judges, comprising of a president and a vice-president, and other judges will be appointed to serve in court of Appeal.

Ever since Rwanda was admitted in the Commonwealth in November 2009, many of its systems started changing from a civil law to common law practices. Despite not yet acquiring all common-law practices, it is now a hybrid of civil and common law.

The Justice Reconciliation Law and Order strategic plan 2013-18 [5] highlighted challenges that have been crippling criminal defense lawyers’ work. These include violations of the right to trial within a reasonable time, and frequent adjournments by prosecution and judges. This has caused massive delays for the accused who are being tried and their right to speedy trial is often violated. Also, it was observed that Mediation Committees (Abunzi) handling criminal cases were also slowing down justice delivery, as these committees lacked required experience and technical knowhow on matters such as admission of evidence and rights of the accused. As a consequence, the Abunzi’s mandate to handle all criminal matters was officially transferred to courts.

Legal Aid Situation

The right to be informed of the nature and cause of charges, as well as the right to a defense and to legal representation are provided for under the Rwandan Constitution.[6] Any person held in custody by the Judicial Police has the right to legal counsel and to communicate with him/her. If a suspect is unable to find a legal counsel, the Judicial Police Officer or the Prosecutor has the duty to inform the Chairperson of the Bar Association so that he/she assigns a legal counsel for the suspect. The suspect has the right to accept or refuse to be represented by such a legal counsel.[7]

The Government has the responsibility to provide legal and judicial aid to the indigents and needy people. In addition, the Advocates who are members of the Rwanda Bar Association have a corporate social responsibility to provide pro-bono services for one case to a person who is disadvantaged either in civil and criminal proceedings.[8] Unfortunately, these measures are still inadequate to fill in the gap of criminal legal aid in Rwanda since efforts address legal representation in civil proceedings rather than criminal proceedings. Efforts in terms of the little legal aid provided by (of which the large percentage is for the legal representation in civil proceedings) the Rwanda Bar Association, has been crippled by the presence of only 752 senior advocates and 400 intern lawyers[9] in the entire country of 11.971,821 million [10]

Source of Defendant's Rights

The Constitution

The Constitution of the Republic of Rwanda enshrines a number of principles that are of paramount importance in regulating the criminal process. A person detained by the judicial police department has a right to be informed of his charges[11] as well as his or her rights including the right to inform his or her advocate or any other person he or she wishes to be informed. Such a notification is recorded in the statement of judicial police.

Others include the right: - To be informed of the nature and cause of charges and the right to defence and legal representation; this is done at the time of arrest such that he /she can inform his lawyer to enable him or her prepare defense; - To be presumed innocent until proved guilty by a Court with jurisdiction; - To appear before a Court with jurisdiction and not be tried elsewhere apart from courts established by the law. Article 13 of the Constitution ensures the right to dignity (inviolability of a human being): “A human being is sacred and inviolable. The State has an obligation to respect, protect and defend the human being. “The right to be free from torture, physical abuse or cruel, inhuman or degrading treatment is provided by article 14(2) of the Constitution: “No one shall be subjected to torture or physical abuse, or cruel, inhuman or degrading treatment”. This provision is given effect by articles 6 and 8 of Law no 15/2004 which provides that it is prohibited to resort to torture or brain washing to extort confessions and admissions from the parties or testimonies from witnesses[12], and that the presentation of the evidence so obtained, its admission or reception are void in determining the issues of a case.[13] Finally, Articles 15, 16, 23, and 24 respectively provide for equality before the law, protection from discrimination, right to privacy, and liberty and security of the person.

The Criminal Code of Procedure

The Code of Criminal Procedure currently in force has been enacted in 2013 with Law nº 30/2013 of 24/5/2013 relating to the Code of Criminal Procedure.[14] It governs the procedures by which authorities investigate, prosecute, and adjudicate crimes. This process subdivided into three phases: the pre-trial phase, the trial phase and the post-trial phase. It further provides for rights of the accused, including the right to a public trial,[15] the right to a fair and impartial trial,[16] the right to a defence,[17] and the right to legal counsel.[18]

International treaties ratified by Rwanda

International treaties ratified by Rwanda are binding and can be directly invoked before Rwandan courts.[19] The International Covenant on Civil and Political Rights (ICCPR) for instance, provides a number of fair trial guarantees to accused persons. These guarantees can be invoked before courts, without necessarily having equivalents in the Constitution or the code of criminal procedure. As examples, one may mention the rights “to be tried without undue delay”[20] and “not to be compelled to testify against himself”[21]. These rights cannot be found in any other law in Rwanda. However, since Rwanda is party to the International convention on civil and political rights (ICCPR), these rights can be directly invoked before Rwandan courts.

Other international treaties ratified by Rwanda include the following: - Convention against torture and cruel, inhuman or degrading treatment or punishment ratified in 2008 - Second optional protocol to the international covenant on Civil and political Rights, aiming at the abolition of death penalty ratified in 2008 - International convention on the protection of the rights of all migrant workers and members of their families ratified in 2008 - Optional political to the convention on the elimination of all forms of discrimination against women also ratified in 2008 - Convention on the rights of persons with disabilities ratified in 2008 - Optional protocol to the convention on the rights of persons with disabilities ratified in 2008 - Optional protocol to the convention on the rights of the child, on the sale of children, child prostitution and child pornography ratified in 2002 - Optional protocol to the convention on the rights of the child on the involvement of children in armed conflict ratified by Rwanda in 2002.

Case law

Case law is comprised of decisions rendered by courts and tribunals. Generally speaking, court decisions are not binding in the Rwandan justice system. But they offer a persuasive inspiration or reference to the judges. On the other hand, decisions of the Supreme Court of Rwanda are binding on lower courts.[22] Also, when a statute is declared unconstitutional by the Supreme Court, the decision has precedence and, accordingly is binding not only to lower courts but also to the Supreme Court itself.

Custom

Custom is made of non-written laws that have passed the test of time. Custom constitutes a subsidiary source of criminal procedure. It is important to note that a rule of customary law may apply only in the absence of any other written rule and as long as it does not “violate human rights nor prejudices public security or good morals”.[23]

Doctrine

Doctrine is found in books and studies of jurists. It is the law interpreted, explained, clarified, criticized, analysed and summarized. Although not a binding source of criminal procedure it usually plays a significant role as the opinion submitted by eminent lawyers on a subject of law can be usefully used in solving legal problems in practice. Therefore, it is often invoked and followed in courts, due to its role in the comprehension of legal texts.

Pre Trial Procedures

A number of provisions in the criminal procedure code guarantee respect for the rights of the accused. Key Articles include the following provisions: - Functions of the Judicial Police are carried out by Judicial Police Officers working under the authority and supervision of the National Public Prosecution Authority with respect to the offenses being investigated.[24] - Responsibilities of the Judicial Police include the following: the Judicial police are responsible for investigating crimes, receiving complaints and documents relating to the offences, gathering evidence for the prosecution and the defense, and searching for perpetrators of the crimes, their accomplices and accessories so that they can be prosecuted.[25] - Arrest and detention rules are defined by Article 37 of the code of criminal procedure, - Article 40 of the Code of criminal procedure relating to custody facilities protects individuals from extra-judicial detention by stating that “A person held in detention by the Judicial Police shall in no way be held in prison or in any place other than the relevant custody facility located within the jurisdiction of the Judicial Police Officer [...]” - Article 165 of the Code of Criminal procedure states that any doubt concerning the culpability of the accused shall result in his/her acquittal. “The benefit of doubt shall be given in favor of the accused. If the proceedings conducted as completely as possible do not enable judges to find reliable evidence proving beyond reasonable doubt that the accused committed the offence, the judges shall order his/her acquittal”. This is a result of the constitutional principle of the presumption of innocence.

In addition, article 176 of the Penal Code provides for prohibition of torture and Article 177 provides for penalties for torture in their different categories.[26]

Trial Procedures

The trial court commences when the court with jurisdiction is “seized” with the matter and it ends when the court renders the judgment on the merits of the case. This section provides a summary of the most relevant provisions relating to the rights of the accused. Article 151(1) Code of criminal procedure states that when a date for hearing is set, parties are summoned to court for trial. According to article 127(3) Code of criminal procedure copies of the summons are sent to the Prosecutor, the accused, the person liable to pay damages and the civil party, if any.

Article 167(2) Code of criminal procedure provides for when the accused person is held in pre-trial detention. If the accused is held in provisional detention and the Public Prosecution fails to appear without valid reasons, the court must order provisional release of the accused and try the case in the absence of the Public Prosecution, unless the alleged offence is a felony. In case of a felony, the accused remains in custody and the trial is adjourned. Article 167(2) states that if the Public Prosecution fails to appear for three (3) consecutive times, the accused is released and the trial continues despite the absence of the Public Prosecution. According to article 153(3)Code of Criminal Procedure there are two types of pleas: plea of guilty or plea of not guilty.

Article 153 Code of Criminal Procedure provides for the hearing is conducted in the following order: ¬ the court registrar calls the role of parties to the proceedings; ¬ the court registrar reads out particulars of the accused and the offence alleged against him/her; ¬ the court asks the accused whether he/ she pleads guilty or not guilty; ¬ the Public Prosecution presents evidence proving the guilt of the accused; ¬ the accused presents his/her defence and explains the circumstances in which he/she committed the offence if he/she pleads guilty; ¬ parties to the proceedings, prosecution or defence witnesses are examined by the judge, or parties directly cross-examine each other or witnesses, and disputed points of testimonies given are debated and the court decides thereon; ¬ experts are heard, if necessary; ¬ if necessary, evidence that may be conducive to ascertaining the truth is examined; ¬ the civil party explains his/her claim, the person liable for damages is also heard; ¬ the Public Prosecution presents a summary of charges against the accused and the punishment requested against him/her; ¬ the accused person is given the last opportunity to be heard; ¬ if necessary, the court registrar reads in public the record of hearing before it is signed; ¬ the hearing is declared closed and the presiding judge informs the parties present the date and time when the judgment will be given. According to Article 155(1) Code of criminal procedure hearings are conducted in public. However, under article 155(2), a court can give an order for a hearing to be conducted by camera when it finds that public hearing can be detrimental to public order or good morals. Article 155(4) Code of criminal procedure provides that judgments on the merits of cases are always delivered in public. There is no exception to this rule. According Article 182(1) Code of criminal procedure, an accused held in provisional detention who is acquitted or whose penalty has been suspended or sentenced to pay a fine only, shall be immediately released notwithstanding appeal by the prosecutor. Article 182(2) Code of criminal procedure states that the same shall apply to an accused held in provisional detention sentenced to a term of imprisonment which is less than or equal to the time he/she spent in provisional detention.

Post-Trial procedures

After the trial and judgment, the accused person or the Public Prosecution Service may feel aggrieved by the decision of the court. In criminal matters, the following legal remedies are available: (1) Application for Opposition: An application for opposition is a request made by a party who was absent at trial where judgement was rendered by default. Article 169(1) Code of criminal procedure provides for opposition can be done within ten (10) days of notification upon him/her of the judgment. Also article 169(3) Code of criminal procedure states that if there is no evidence that the judgment was notified on the person tried by default personally, he/she may file an opposition until the expiry of the limitation period for the enforcement of the penalty and until the execution of the judgement in case of civil claims. Article 171(1) Code of criminal procedure provides that an opposition may be admissible only if the person who failed to appear gives an exceptional and serious reason that prevented him/her from appearing.

(2) Appeal: To appeal is to request a higher court of law to consider again a decision rendered by a lower court. It can be lodged when the court has taken an unfair decision or if the party is not pleased with the decision of the first court. According to Article 14§5 of the International Convention on Civil and Political Rights, provides that every person convicted of a crime shall have the right to have his/her conviction and sentence reviewed by a higher and competent court as provided by the law.[27] Article 184(1) provides that an accused person who was detained at the time of judgment and is sentenced to imprisonment remains in custody notwithstanding appeal by him/her. However, under article 184(2) he or she can petition to an appellate court for provisional release. According to article 186(3) Code of Criminal procedure the appellate court cannot, on his own appeal, aggravate the situation of the appellant. This is called the “prohibition of reformation in pejus”. The prohibition of reformation in pejus means that, in case of conviction, the court can only confirm or reduce the sentence but cannot aggravate it. In other words, the accused’s own appeal should not serve to worsen his situation. This is clearly intended to avoid discouraging the accused person from exercising his right to appeal. However, in case of “incidental appeal” by the prosecutor, the situation of the accused may be aggravated if the court rules in favor of the prosecutor’s appeal. Incidental appeal refers to the appeal lodged by a party after another party has lodged her own appeal, which in this regard is the main appeal (appeal principal).

(3) Application for Review: this procedure aims to annul a judgment that has become final and re- try the case on grounds defined in Articles 192 and 194 Code of Criminal procedure. Contrary to the provisions of the previous Code of Criminal procedure (of 2004) which clearly indicated that review is only possible in favor of the convicted person, the current Code of Criminal procedure does not contain any express mention to that effect. In fact, some provisions may be interpreted in a manner that allows review against a person who was previously acquitted of a crime. For example, the provision relating to corruption may be relied on by the Public Prosecution to apply for review against a person acquitted of a crime, if he proves that such acquittal was secured after bribing judges. However, if one considers the provision of Article 4 Code of Criminal Procedure which provides that the criminal action is extinguished when a case is finally decided, an interpretation that review is possible only in favor of the accused seems the more apposite. Art 196 Code of criminal procedure provides for the application for review must be filed within two (2) months from the date the event giving rise to the application for review occurred.

(4) “Special Review” of a final decision due to injustice[28]: Provides that when, after a final decision is made and there is evidence of injustice, parties to the case may apply to the Office of the Ombudsman for a case review by the Supreme Court on grounds defined by the pre-cited law.

References

  1. Article 150 of the constitution of the republic of Rwanda of 2003 revised in 2015 Official Gazette n° Special of 24/12/2015
  2. Article 1 Organic Law n° 03/2012/OL of 13/06/2012
  3. Article 47 ibid
  4. http://www.newtimes.co.rw/section/article/2016-10-14/204449/ last accessed on 14/11/16
  5. http://www.minecofin.gov.rw/fileadmin/templates/documents/sector_strategic_plan/JRLOS_Strategic_Plan_February_2013.pdf last accessed on 14/11/16
  6. Article 29(1) of the Constitution of the Republic of Rwanda of 2003 revised in 2015 published in Official Gazette n° Special of 24/12/2015
  7. Law Nº 30/2013 of 24/5/2013 relating to the code of criminal procedure published in Official gazette nº 27 of 08/07/2013
  8. Article 58 of law n°83/2013 of 11/09/2013 establishing the Bar Association in Rwanda and determining its organization and functioning published in official gazette nº 44 of 04/11/2013
  9. Rwandabar.org.rw/roll-of –advocates last accessed 25/10/16
  10. people.www.worldometers.infopopulation/rwanda-population last accessed on 25/10/16
  11. Article 29(1), the Constitution of the Republic of Rwanda of 2003 revised in 2015 published in Official Gazette n° Special of 24/12/2015 Article 38of Law Nº 30/2013 of 24/5/2013 relating to the code of criminal procedure published in Official Gazette nº 27 of 08/07/2013
  12. Art. 6, Law no 15/2004
  13. Art. 8, Law no 15/2004
  14. Organic Lawnº 27 of 08/07/2013
  15. Art 150(1)
  16. Art 150(2) Law Nº 30/2013 of 24/5/2013 relating to the Code of Criminal Procedure published in Official Gazette nº 27 of 08/07/2013
  17. Ibid article 150(3)
  18. ibid
  19. Art 95 of the Constitution of the Republic of Rwanda of 2003 revised in 2015 published in Official Gazette n° Special of 24/12/2015
  20. Art 14(3)(c) International Convention on Civil and Political Rights
  21. ibid
  22. Art 47(6) Organic Law N° 03/2012/OL of 13/06/2012, Official Gazette nº 28 of 09 July 2012: “Judgments and decisions of the Supreme Court shall be binding on all other courts of the country.”
  23. Art 176(3) of the amended Constitution of the republic of Rwanda 2015
  24. Article 18 of Law Nº 30/2013 of 24/5/2013 relating to the code of Criminal Procedure published in Official Gazette nº 27 of 08/07/2013
  25. Ibid Article 20
  26. Article 176,177of Law N° 01/2012/OL of 02/05/2012 instituting the penal code organic law instituting the penal code published in Official Gazette nº Special of 14 June 2012
  27. Covenant on Civil and Political Rights (1966), G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (Nº.16) at 52, U.N Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976
  28. Article 79(2), Law n° 03/2012/OL of 13/06/2012 Organic Law determining the organization, functioning and jurisdiction of the Supreme Court

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