VI. Creating a Modern Professional Judicial System
At about the same time that the government decided to set up some 11,000 gacaca jurisdictions—remarkable by their number and the absence of educational qualification for judges—it also decided to move in the opposite direction of reducing the number of conventional courts and raising the qualifications for their judges. Gacaca looked to the past, supposedly joining elements of customary institutions with some concepts and practices of formal punitive justice. The new conventional courts looked to the future, fusing elements from Anglo-American law with the existing Belgian-created judicial system. Gacaca was to dispose of the enormous number of genocide cases, while the new conventional courts were to resolve all other judicial affairs in a modern professional system, appropriate for a nation aspiring to be a center for commerce and information technology.
A reform commission36 drafted 13 laws, most of which were introduced in 2004 to deal with such problems as executive interference with the judicial system, lack of competence among judges, judicial corruption, and inadequate guarantees for due process in detentions, arrests, and trials. The elements of common law have not always fit smoothly into existing frameworks, leaving some gaps and incongruities that trouble jurists. In addition, according to one jurist who worked on the reforms, parliamentarians inexperienced in drafting legislation occasionally changed the wording of the texts proposed by legal professionals, introducing further problems.37
Most jurists believe the reforms have improved the efficiency and general performance of the courts, but many also told Human Rights Watch researchers that the independence of courts is not yet assured, nor is the protection of the rights of the parties who appear before them.38 Commenting in September 2007 about the changes, one lawyer spread his long arms wide apart and said, “Over here are the laws. They are excellent. Over here is the reality, which is a completely different thing.”39
Fewer Courts
The drive to streamline the system was based on the premise that fewer courts working more efficiently would deliver justice faster and more cheaply than the existing system. The 2004 law on the organization of the judicial system cut both the number of courts and the number of judges. The effort to streamline the system was symbolized by the move from panels of three judges, usual for trials under the old system, to a single judge in all cases except certain appeals.40 The number of judges, some 700 before the reform, stood at 247 in 2006.41
In a measure unrelated to judicial reform, the government unexpectedly changed the national administrative structure in January 2005, reducing the number of provinces from 12 to five and the number of districts from over 100 to 30. This change had an unintended impact on the judicial system because the jurisdiction of most courts was defined in terms of administrative boundaries. Legislators had failed to take that linkage into account and had made no provision for redefining jurisdictions to conform to the new administrative structure. The courts at provincial and district level were obliged to halt operations for three months. A short-term solution was found to enable the courts to operate until March 2006 when a new law brought the jurisdictional limits into conformity with the reformed administrative structure.42
The March 2006 law reduced further the number of courts established under the 2004 law, providing for 60 lower instance courts with jurisdiction over less serious criminal and civil cases,43 and 12 higher instance courts dealing with criminal and civil cases involving heavier penalties or higher monetary value, as well as category one genocide cases. The higher instance courts included chambers specialized in hearing the cases of minors, that is persons under the age of 18 years old, an innovation that seemed to promise faster and more appropriate justice for children.44
A High Court comprised of 26 judges sitting in five chambers (with its seat in Kigali) was given jurisdiction over such crimes as murder or manslaughter, war crimes, treason, genocide and crimes against humanity—except those committed in Rwanda between October 1, 1990 and December 31, 1994, which as of this writing remain in the jurisdiction of gacaca jurisdictions and the higher instance courts. It hears appeals from courts of higher instance.45
Gacaca courts, as described above, and military tribunals constitute separate, specialized jurisdictions of the Rwandan judicial system. The Military Tribunal and Military High Court hear cases involving members of the armed forces and civilians accused in association with them.46 Decisions of the Military High Court may be appealed to the Supreme Court, if the defendant has been condemned to a sentence of more than ten years.47
The Supreme Court, including 14 judges, heads the system with appellate jurisdiction over the High Court and the Military High Court. It is also responsible for overseeing the functioning of the entire court system. An Inspectorate of Courts, a new organ under the Supreme Court, monitors the performance of the courts and investigates alleged misconduct of judicial personnel. 48
Administrative Autonomy
The independence of the judiciary, including the military justice system, from the executive and legislative branches of government was affirmed by the new Constitution adopted in 2003 and several of the laws amended in 2004.49 In concrete terms, the 2004 laws grant the president of the Supreme Court the power to hire, discipline, and remove judges with the approval of the Superior Council of the Judiciary,50 a body composed of judges elected by their peers, the president of the National Commission of Human Rights, two representatives of law faculties, and the ombudsman (a national official charged with settling disputes and monitoring the ethics of officials).51 The president of the Supreme Court also oversees the administration of the courts and determines their budget.
Legal practitioners with experience in the system before 2004 praised the new structure for freeing the courts from the budgetary and administrative control of the ministry of justice.52 The office of the public prosecutor was also guaranteed financial and administrative autonomy from the ministry.53
As part of the reform, judges’ salaries were increased between two and five-fold, a measure that was meant to make them less vulnerable to corruption. Judges were also made subject to a judicial code of ethics, which required them to submit regular financial statements to the office of the ombudsman.54
More Highly Trained Personnel
Another important change in 2004 was setting new educational criteria and a merit system for being nominated to judgeships. Among the judges serving before the reforms, only about 10 per cent held university degrees in law and some of the lower court judges had finished only primary school.55 The new law required all judges to have university degrees in law. In addition High Court judges were to have six years and Supreme Court judges eight years of legal experience.56 In July 2004 the government removed some 500 judges and appointed 223 judges, chosen from among those who had scored well in a competitive examination. Officials showed some flexibility in applying the law for the first group of candidates. About 40 percent of the new appointees at the courts of lower instance were still studying for their law degrees in 2004, a situation somewhat improved by 2006 when all but 16 of 118 lower court judges had received their diplomas.57 Prosecutors are also supposed to have law degrees, but in 2007 only 80 percent had degrees with another 12 percent in the process of studying law.58
In addition, officials defined “legal experience” broadly. The majority of judges named to the Supreme Court had never been judges previously.59 In 2006, a former high-ranking official in the ministry of justice who had no previous experience as a judge was named president of the High Court.60
Although in general more highly educated than their predecessors, many incoming judges had only just finished university. Some jurists saw the lack of courtroom experience as reducing significantly the effectiveness of the new recruits.61 A one month training program was provided to new appointees but since it focused on mastering recently adopted laws rather than on how to judge, it provided little guidance on how to fulfill their responsibilities. According to the national inspector of courts, more experienced judges assist colleagues through monthly meetings in at least some jurisdictions and all are supposed to have the benefit of further training at an institute of judicial practice opened in May 2008.62
Increased Efficiency
The 2004 reforms sought to hasten the slow pace of justice and to reduce the chronic and ever-mounting backlog of cases before the courts. Prior to the reforms, judges often failed to issue necessary implementing orders for their decisions, including those releasing detainees, while court clerks were years behind in providing documents necessary for filing appeals.63
The 2004 law on the organization of the courts requires judges to deliver an official judgment, including reasons for the decision, within 30 days of the closure of trial proceedings. Those who failed to do so could be subject to unspecified disciplinary action.64 A year after the reforms many judges were still failing to deliver judgments on time.65 By 2007, judicial authorities had imposed a system of quotas on judges, with judges at the level of lower instance courts to complete 30 cases in a month and those in higher instance courts and the High Court to complete 60, or more than two for each working day in the month. No specific sanctions were provided for judges who failed to meet the goal, but they could be asked to explain to peers and superiors the reasons for their slowness. 66
Greater Speed for Justice—but not for Genocide Cases
Some Rwandans are clearly benefiting from speedier decisions in their cases, although the interruptions in judicial activity caused by reforms in laws and structures initially increased delays. These interruptions in operation meant that at the end of 2006 there was a backlog of nearly 48,000 cases in the judicial system.67 According to 2007 statistics, the High Court had a backlog of 5,000 cases, with 100 cases filed every month and with only 50 being decided.68 A project funded by the European Union has begun to address the backlog by supporting special teams of judges who deal only with long-delayed cases.69
When the courts began to function at full speed in 2005 after the reforms, judicial authorities decided to address recently filed cases first, to keep them from adding to the mountain of undone work. A reasonable strategy in itself, this policy has meant that those jailed a long time ago have had to wait even longer for justice.
Persons awaiting justice in relation to the genocide, whether as victims or as accused perpetrators, have suffered most from this policy. They have also suffered from a clear unwillingness of judges to hear their cases. According to statistics from the inspectorate of courts, the higher courts—the only ones mandated to hear genocide cases—judged a total of nearly 23,000 cases between January 2005 and March 2008, but only 222 were genocide cases. From September 2007 through March 2008, an additional 17 genocide cases were judged.70
The number of genocide cases judged in the year 2006 was only 42, a number so small that the 2006 annual report on the operation of the judicial system found it necessary to add an explanatory note, saying that the complexity of genocide cases and the numbers of people involved accounted for the relatively small number of cases.71 The number of 222 cases judged between January 2005 and March 2008 is particularly striking when it is compared to the figures for the old—supposedly slower, less efficient system— which managed to try 7,181 persons over a period of five and a half years.72
When asked about the apparent reluctance to try genocide cases, officials in the judicial sector, including judges and a prosecutor, said that judges and prosecutors see genocide cases as too complex and time-consuming. According to the Inspector General of Courts, judging one genocide case requires about four months, meaning that a judge hearing even one such case would fail to meet his monthly quota of cases decided.73 Evidence in genocide cases is often scanty or of poor quality, making it necessary for judges to do further investigations.74 In addition, some judges prefer not to hear genocide cases because the events themselves are painful to examine.75 The failure to try genocide violates the rights of detainees, some of whom have been in prison for more than a decade without trial, and the rights of victims who seek resolution of their claims.
In arguing for the return of accused persons from the ICTR or foreign judicial systems, Rwandan officials have repeatedly asserted that trying leaders of the genocide in Rwandan courts would have significant educational and deterrent effect on Rwandans.76 Yet Rwandan prosecutors have been slow to try some of the most highly visible persons already in their custody, those whose cases might have had such educational and deterrent effect.77 Former Minister of Justice, Agnès Ntamabyaliro, the only minister from the previous government in Rwandan custody, was held for nine years before being brought to trial in 2006.78 Journalists Dominique Makeli, arrested in 1994, and Tatiana Mukakibibi, arrested in 1996, have not yet been brought to trial.79
As of the end of June 2007, some 39,845 civil and criminal cases had been begun and were pending in the conventional courts.80 Of these 1,142 were cases of genocide. According to information gathered by a visiting group of jurists in September 2007, 17,000 persons were waiting for their trials for genocide in conventional courts.81
Improved Protection for Human Rights
Since 2004, the most important reform regarding human rights was the abolition of the death penalty. In addition, changes in the code of criminal procedure assured the right to counsel and provided against arbitrary detention.
In a March 2007 law meant to facilitate the transfer of cases to Rwanda from the ICTR, under whose jurisdiction the death penalty is prohibited, Rwanda agreed not to impose the death penalty on any suspect transferred from the ICTR to Rwandan courts. A law adopted several months later, in July 2007, abolished the death penalty for all cases, commuting the sentences of 1,365 persons to life imprisonment.82 In a little noticed provision of the law, however, an article provided that certain crimes for which the death penalty might have been imposed, could be punished instead by life imprisonment with solitary confinement.83 According to a press report, Minister of Justice Tharcisse Karugarama commented about the conditions of life imprisonment with solitary confinement, saying, “They will be tough in that they (criminals) will regret not having been hanged.”84 In an interview with a Human Rights Watch researcher, Minister Karugarama said his words had been quoted out of context and that what he meant was that he would prefer being hung to being imprisoned under such conditions.85
It is the opinion of Human Rights Watch that prolonged solitary confinement constitutes inhuman treatment and violates the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and Article 7 of the ICCPR which provides that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The Human Rights Committee has interpreted Article 7 of the ICCPR in the following way: “The Committee notes that prolonged solitary confinement of the detained or imprisoned person may amount to acts prohibited by Article 7.”86
Rwandan judicial authorities seemed to accept this interpretation, stating in a March 2008 submission to the ICTR that permanent solitary confinement may violate the Convention against torture.87 Despite this position of judicial authorities, the Rwandan legislature in May passed a law amending gacaca jurisdictions that provides life imprisonment in solitary confinement as punishment for certain crimes. As of this writing, the legislature is debating a second law amending the code of criminal procedure that also penalizes certain crimes by life imprisonment in solitary confinement.
Two changes in the code of criminal procedure in 2004 marked important advances for the rights of accused persons. The first grants all persons the right to have counsel present at all stages of proceedings, including initial interrogations, an important innovation in Rwandan practice.88 The second grants judges habeas corpus powers to compel police and prosecutors to present before them detained persons who might have been illegally held and authorizes them to punish those state agents who have detained persons illegally. The sanctions that would permit judges to effectively use this power, however, were to be specified in a revised penal code still under discussion as of this writing.89
The amended code of penal procedure also specified that detainees must be held at police brigades, making it easier for family members and others to know where to find persons in official custody.90
36 Prime Minister of Rwanda, Decree No.53/03 of 27/07/2001 on the Establishment, Organization and Functioning of the Law Reform Commission. The commission included members from the supreme court, the prosecutor’s office, the law faculty of the National University of Rwanda, the bar association and the ministry of justice.
37 Human Rights Watch interviews, lawyer, Kigali, May 27, 2005. The proposed law on genocidal ideology (see below) illustrates poor legal drafting.
38 Human Rights Watch interviews, judges, May 26 and 27, 2005, November 2, 3, 7, 8, 9, 2006, May 13, August 17, 2007; prosecutors, November 2, 9, 2006, May 2, 2007; lawyers, May 30, 2005, November 1 and 6, 2006, September 10 and 11, October 8 and 9, 2007.
39 Human Rights Watch interview, lawyer, Kigali, September 11, 2007.
40Organic Law No.07/2004 of 25/04/2004 Determining and Organization, Functioning and Jurisdiction of Courts and Republic of Rwanda, Official Gazette No. 3 of 01/02/2004, Organic Law No.01/2004 of 29/01/2004 Establishing the Organization, Functioning and Jurisdiction of the Supreme Court.
41 Republika y’u Rwanda, Raporo y’urwego rw’ubucamanza 2006, (Republic of Rwanda, Report on the Judicial System 2006) p. 10.
42 Organic Law no. 14/2006 of 22/3/2006.
43 Organic Law no. 14/2006 of 22/3/2006, articles 35 and 36. Before resorting to lower instance courts, parties must attempt to settle most disputes, including some involving alleged crimes, with the help of a local mediation committee
44 Ibid., articles 44-48.
45 Ibid., articles 61-62 and 63-67.
46 Organic Law No.07/2004 of 25/04/2004 Determining the Organization, Functioning and Jurisdiction of Courts, article 138-9.
47 Ibid, article 141.
48 Organic Law No.01/2004 of 29/01/2004 Establishing the Organization, Functioning and Jurisdiction of the Supreme Court, articles 37 and 43 to 45.
49 The Rwandan Constitution of 2003, article 140; Organic Law No.07/2004 of 25/04/2004 Determining the Organization, Functioning and Jurisdiction of Courts, articles 64 and 143. Judicial independence is further guaranteed in Law No.06 bis/2004 of 14/04/2004 on the Statutes for Judges and other Judicial Personnel, article 22, and in Law No.09/2004 of 29/04/2004 Relating to the Code of Ethics for the Judiciary, articles 4 and 5.
50 Organic Law No.07/2004 of 25/04/2004 Determining the Organization, Functioning and Jurisdiction of Courts, article 6.
51 Organic Law No.02/2004 of 20/03/2004 Determining the Organization, Powers and Functioning of the Superior Council of the Judiciary, article 1.
52 Human Rights Watch interviews with lawyers, judges and international legal professionals familiar with the system, Kigali, May 26 and 27, 2005.
53 Organic Law No.03/2004 of 20/03/2004 Determining and Organization, Powers and Functioning of the Prosecution Service, article 2.
54 Republic of Rwanda, Official Journal, no. 11 of 01/06/2004, Law No.09/2004 of 29/04/2004 Relating to the Code of Ethics for the Judiciary, article 17; Human Rights Watch interview, judge, November 2, 2006.
55 Human Rights Watch interview, with Judge Tharcisse Karugarama, then President of the Law Reform Commission, Kigali, May 27, 2005.
56 Law No.06 bis/2004 of 14/04/2004 on the Statutes for Judges and other Judicial Personnel, article 8.
57 Raporo y’Urwego rw’ubucamanza 2006, p. 10.
58 International Legal Assistance Consortium, “Justice in Rwanda: An Assessment,” Section 6.3.7, November 2007.
59 Human Rights Watch interview, judge, November 8, 2006.
60“High Court president swears in today,” The New Times, November 3, 2006.
61 Human Rights Watch interviews, with judges, September 16, 2006 and Kigali, May 13, 2007; with Minister of Justice Tharcisse Karugarama, September 7, 2007; with former minister of justice, by telephone, October 25, 2007.
62 Human Rights Watch interview with Inspector of Courts Odette Marara, November 2, 2006; with judge, Kigali, May 13, 2007 and with Minister of Justice Tharcisse Karugarama, September 7, 2007; with former minister of justice, by telephone, October 25, 2007; Human Rights Watch interview, Roelof Haveman, vice-rector of the International Legal Practice & Development Program, May 7, 2008.
63 Human Rights Watch interviews, Kigali, May 26 and 27, 2005. In 2004 a court administrator told Human Rights Watch researchers that hundreds of copies of decisions had not been delivered in jurisdictions where he had worked, some dating back to 1998. Human Rights Watch interview with court administrator, Kigali, September 20, 2004.
64 Organic Law No.07/2004 of 25/04/2004 Determining the Organization, Functioning and Jurisdiction of Courts, article 168; Human Rights Watch interview, lawyer, Kigali, November 1, and Inspector of Courts, November 2, 2006.
65 Human Rights Watch interviews, judge and court clerk, Kigali, May 26 and lawyer, May 30, 2005.
66 Human Rights Watch interviews with judge, May 13, 2007, and with Minister of Justice Tharcisse Karugarama and Inspector of Courts Odette Marara, September 10, 2007. In late 2005, Inspector of Courts Odette Marara spoke of 24 cases a month being the desirable quota for judges to meet. Human Rights Watch interview, Inspector of Courts Odette Marara, December 27, 2005.
67 Human Rights Watch interviews, staff members of two international NGOs working in the justice sector, Kigali, November 2, 2006.
68 International Legal Assistance Consortium, “Justice in Rwanda: An Assessment,” Section 6.2.1, November 2007.
69 Human Rights Watch interviews, Kigali, representatives of international NGOs working in the justice sector, Kigali, November 2, 2006.
70 Raporo y’urwego rw’ubucamanza 2006 and other statistics provided by the Inspectorate of Courts. See annex 1.
71 Raporo y’Urwego rw’ubucamanza 2006, p. 33.
72 President of the High Court Johnston Busingye in a paper delivered at the Centre for International Legal Cooperation, Seminar on Legal and Judicial Reform in Post Conflict Situations and the Role of the International Community, Dec 7, 2006 and published as “Reality and challenges of legal and judicial reconstruction in Rwanda,” The New Times, December 31, 2006.
73 Human Rights Watch interview, Inspector of Courts Odette Marara, September 10, 2007.
74 Ibid.
75 Human Rights Watch interviews, judges, Kigali and elsewhere, November 1 and 2, 2006; with former prosecutor, May 30, 2005.
76 Felly Kimenyi, “Arrest fugitives, West told again,” New Times, November 8, 2006
77 Human Rights Watch interviews, detainees and judicial officials, Gitarama, October 18 and 25, 2007; Butare October 18, 2007; Cyangugu October 18 and 25, 2007; electronic communication, August 28, 2007.
78 Ntamabyaliro was abducted from a refugee camp in Zambia in 1997 and incarcerated in Kigali Central Prison. The Rwandan authorities first scheduled her trial after having been notified that she was requested as a defense witness at the ICTR. Citing the need to have her available for her own trial, the Rwandan authorities delayed her arrival at the ICTR until August 2006. Her trial in Rwanda, frequently suspended, continued as of April 2008. Human Rights Watch, interviews, lawyer, Kigali, September 11 and October 8, 2007; electronic communications, August 7 and 8, 2006 and October 25, 2007; Théoneste Muberantwali, “L’Ancienne Ministre de la Justice Serait Accusée d’actes de genocide perpetré au stade Gatwaro,” Le Verdict, No. 9, December 1999, p. 7; Florence Mutesi, “Former Minister “’had a hand in the slaughter of 66 family members,’” The New Times, http://www.newtimes.co.rw/index.php?issue=1320&article=1661 (accessed October 16, 2007).
79 Journalistes en Danger(JED), 
”Journalists Dominique Makeli and Tatiana Mukakibibi imprisoned for over 10 years without trial,” (accessed April 6, 2008) http://www.ifex.org/es/content/view/full/81096; Reporters sans Frontières, “Dominique Makeli,” (accessed April 6, 2008) www.rsf.org/article.php3?id_article=2070
80 Inspectorate of Courts, table of monthly judicial activity, June, 2007.
81 International Legal Assistance Consortium, “Justice in Rwanda: An Assessment,”section 6.2.1, November 2007.
82 Florence Mutesi, “Death row: over 1300 survive gallows,” The New Times, (accessed August 27, 2007) http://www.newtimes.co.rw/index.php?issue=1269&article=473.
83 Organic Law Nº 31/2007 Regarding the Abolition of the Death Penalty of 25 July 2007, articles 4 and 5.
84 Felly Kimenyi, “Death Penalty-Recidivists to Have Special Imprisonment,” The New Times, 25 January 2007.
85 Human Rights Watch interview, Minister of Justice Tharcisse Karugarama, May 21, 2008.
86Human Rights Committee, General Comment 20, Article 7, point 6 (Forty-fourth session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.1 at 30 (1994).
87 Republic of Rwanda, Prosecution Services, Republic of Rwanda’s Submission in response to Amicus Curiae Brief filed by Human Rights Watch in opposition to Rule 11 bis transfer of Fulgence Kayishema, undated but received by ICTR registrar March 5, 2008, parag. 35.2.
88 Republic of Rwanda, Official Journal of July 30, 2004, Law no. 13/2004 of 17/5/2004 concerning the Code of Criminal Procedure, articles 64 and 96.
89 Republic of Rwanda, Official Journal of July 30, 2004, Law no. 13/2004 of 17/5/2004 concerning the Code of Criminal Procedure, article 89 and Law no. 20/2006 of 22/4/2006 modifiant et completant la loi no. 13/2004 du 17/5/2004 portant code de procedure penale, article 19.
90 Republic of Rwanda, Official Journal of July 30, 2004, Law no. 13/2004 of 17/5/2004 concerning the Code of Criminal Procedure, article 40 and Law no. 20/2006 of 22/4/2006 modifiant et completant la loi no. 13/2004 du 17/5/2004 portant code de procedure penale, articles 9, 10, 12, 13.