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Rwanda

Law and reality: Progress in judicial reform in Rwanda

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I. Summary

"We have beautiful laws, among the best in the world. But they are not obeyed."

- A Rwandan judge

The Rwandan authorities have improved the delivery of justice in the last five years, a noteworthy achievement given the problems they faced. But the technical and formal improvements in laws and administrative structure have not been matched by gains in independence in the judiciary and assurance of rights to fair trial. The laws have changed considerably, the underlying political dynamics far less. So far, the political context has hindered the full realization of the potential of the reforms.

When the government dominated by the Rwandan Patriotic Front (RPF) took power in Rwanda at the end of the 1994 genocide, it was confronted by the need to deliver justice for the horrible killings that had cost the lives of an estimated three-quarters of the Tutsi population. At the same time it saw the need to reform a judicial system, decrepit even before the onset of war and seriously damaged by the years of violence.

From 1996 to 2002, the government brought some 7,000 persons to trial on charges of genocide and made some progress both in recruiting new staff and rebuilding the infrastructure of the judicial system. But as of 2001 more than a hundred thousand persons were still detained and the courts continued to operate much as they had in the past, slowly and inefficiently.

The government sought to make faster progress in the judicial domain by undertaking two dramatic initiatives.

It launched gacaca jurisdictions, a form of popular justice modeled on past customary conflict-resolution practices, to judge most cases of genocide. Hundreds of thousands of elected judges, chosen for their integrity rather than for their formal education, were authorized to deliver justice in the name of the local community.

At the same time the government initiated a thorough reform of conventional justice, seeking to create a "modern" professional judiciary that would support the commercial and financial development envisioned for Rwanda. With a series of new laws, aspects of Anglo-American jurisprudence were incorporated into a system previously modeled on European-based law. The judicial system was provided with greater autonomy, the number of courts and judges was reduced, and educational criteria were set for judicial posts. Some rights of the accused were strengthened and in 2007 the death penalty was abolished, a notable step. Unfortunately at the same time the maximum penalty for serious crimes was set at life imprisonment in solitary confinement.

Gacaca jurisdictions and conventional courts differ from each other in law, procedure, and personnel, but the two nonetheless comprise a single judicial system with considerable interchange between them. This report focuses on the conventional sector and those aspects of gacaca jurisdictions that impinge most directly upon it. The result of research conducted between 2005 and 2008, the report assesses recent changes across a broad spectrum rather than focusing specifically on the question being debated at the time of publication, whether Rwandan genocide suspects should be sent back to Rwanda for trial. Human Rights Watch takes the position that at this time the independence of the courts and the assurance of fair trial rights are too limited to permit such extradition or transfer. The information presented in this report will make clear why we take this position.

Judicial authorities operate in a political context where the executive continues to dominate the judiciary and where there is an official antipathy to views diverging from those of the government and the dominant party, the Rwandan Patriotic Front (RPF). A campaign against "divisionism" and "genocidal ideology" imposes the risk of serious consequences on persons who question official interpretations of the past and who would prefer other than the official vision for the future.

A significant number of genocide prosecutions have been marred by interference in the judicial process by powerful persons, some official and some not, and by other violations of due process rights. Long after the end of prosecutions for genocide, the precedent of such inappropriate practices may well continue to burden the Rwandan judicial system as it attempts to bring its courts into conformity with international standards of due process.

The gacaca jurisdictions, based on popular meetings at local level, were supposed to protect the rights of all participants by the transparency of the proceedings and the full participation of all members of the community. But changes in procedures for gathering accusations and for designating the gravity of crimes made it easier for officials and others working with them to influence the course of justice for personal and political ends. As gacaca jurisdictions prepare to end operations in 2008-after two short years of full trial activity-they leave behind significant numbers of dissatisfied people, both among survivors of the genocide and among those who believe themselves unfairly convicted of genocide.

The conventional courts are now staffed by judges who have more formal education and who deliver judgments more rapidly than in the past. Judicial authorities enjoy greater control over their budget and operations than previously. Judges remain subject, however, to pressure from members of the executive branch and other powerful persons. Basic fair trial rights are not fully assured, including the presumption of innocence, the right of equal access to justice, the right to present witnesses in one's own defense, the right to humane conditions of detention, the right to freedom from torture, and the right to protection from double jeopardy.

Delivering justice for the genocide is essential for the establishment of the rule of law in Rwanda and in the international community more generally. Since 1994 Human Rights Watch has advocated for those credibly accused of genocide to be brought to justice, and has contributed to that effort by providing documents and expert testimony to the International Criminal Tribunal for Rwanda (ICTR) and to national jurisdictions in Rwanda, Belgium, Switzerland, Canada, and the United States.

According to investigations by various United Nations (UN) agencies as well as nongovernmental organizations (NGOs), soldiers of the Rwandan Patriotic Army (RPA), the military branch of the RPF, committed war crimes and crimes against humanity during 1994 and after. These crimes are not equivalent to genocide but the rights of the victims of such crimes are equivalent: under international and Rwandan law, all have the right to justice, regardless of the nature of the crime and regardless of their ethnic and political affiliation and the affiliation of the alleged perpetrator.

Within Rwanda political considerations have made it virtually impossible for victims of crimes by RPA soldiers to receive justice. According to government statistics, only 32 soldiers have been brought to trial for crimes committed against civilians in 1994, with 14 found guilty and given light sentences. In jurisdictions beyond its borders, Rwanda has vigorously pursued its goal of averting prosecution of its soldiers. When the ICTR prosecutor announced investigations of crimes by RPA soldiers, Rwandan officials in 2002 impeded the travel of witnesses for genocide trials at the ICTR, forcing the suspension of several trials for months. After a French judge issued warrants for nine RPA officers, Rwanda broke diplomatic relations with France; after a Spanish judge issued warrants for 40 RPA soldiers, President Kagame and government ministers denounced his action and called for other national jurisdictions to ignore the warrants. In June 2008 the ICTR prosecutor told the UN Security Council that Rwanda would soon prosecute four military officers accused of having killed 15 civilians, 13 of them clergy, in 1994. It is not yet clear if this case represents a new effort to render justice on a meaningful scale or whether it is merely a token gesture made in the face of international pressure.

Human Rights Watch calls upon the Rwandan government to adopt and implement laws that will give judges the means to enforce their orders over other agents of the state, including the police. We urge the legislature to amend the law abolishing the death penalty to eliminate the sentence of life imprisonment in permanent solitary confinement, and to delete similar provisions from recent legislation amending gacaca jurisdictions and the proposed revision of the penal code. We urge the government to order police and other state agents to respect the lives and physical integrity of citizens, including detainees, and to hold accountable those police and state agents who fail to do so.

We urge the Rwandan government to make it possible for all Rwandans to have equal access to justice, including those who suffered from crimes committed by RPA soldiers in 1994.

Donors have generously aided the Rwandan judicial system with financial and political support. They have intervened effectively in individual cases where they perceive there to have been miscarriages of justice. In addition they criticized the killings of detainees by police officers in early 2007, apparently helping to end of that abuse. Given their substantial support for the judicial sector, donors are in a position to do more, specifically to press more vigorously for passage of legislation reinforcing judicial authority and eliminating the provision of life imprisonment in solitary confinement as well as to firmly support prosecutions in connection with RPA crimes.

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