Abstract
This chapter deals with the challenges that Rwanda faced in the immediate aftermath of the genocide focusing on the role of ordinary justice. The first Organic Law on domestic prosecution of the génocidaires (Organic Law 8/1996) is scrutinized paying due attention to its categorization mechanism. This is of particular relevance because the first gacaca law relied on the same criteria for the categorization of genocide-related crimes . The penalties and procedural measures provided for by Organic Law 8/1996 are also described and assessed. The reform of the code of criminal procedure and Law 9/1996 are also analysed with particular regard to the issue of abuse of pre-trial detention , a dramatic issue in the aftermath of the genocide. Finally, the sentencing rationale and practice of ordinary courts is considered and conclusions regarding their penological aim and logic are drawn.
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Notes
- 1.
Wibabara 2014, p. 108.
- 2.
See on this point the Organic Law 08/1996 of the Republic of Rwanda.
- 3.
Article 143 of Rwanda’s Constitution states: Ordinary and specialised courts are hereby established. Ordinary Courts are the Supreme Court, the High Court of the Republic, the Provincial Courts and the Court of the City of Kigali, the District Courts and the Municipality and Town courts. Specialised courts, are the gacaca courts and Military courts. An organic law may establish other specialised courts.
- 4.
Article 152 Rwanda Constitution: There is hereby established gacaca Courts responsible for the trial and judgment of cases against persons accused of the crime of genocide and crimes against humanity which were committed between 1 October 1990 and 31 December 1994 with the exception of cases in respect of which jurisdiction is vested in other courts. An organic law shall determine the organisation, jurisdiction and functioning of gacaca Courts. A law shall establish a National Service charged with the follow-up, supervision and coordination of activities of the gacaca Courts. This body shall enjoy administrative and financial autonomy. This law shall also determine its duties, organisation and functioning.
- 5.
In fact, an International Commission of Enquiry into Human rights abuses in Rwanda had already been set up in 1993 by the Arusha Accords. It produced a report stressing the governmental responsibility for Tutsi massacres, but there was no follow-up mechanism, and a few months later genocide started. On this point, see Hayner 1994, pp. 597–655.
- 6.
Wibabara 2014, pp. 142–150.
- 7.
The idea to set up gacaca courts tasking them with the charge of dealing with genocide legacy dates 1995 and was discussed within an international forum in Kigali. It was definitely adopted within the Urugwiro meetings at the presidential seat between 1998 and 1999.
- 8.
See Journal Officiel No. 17 du 1er sept. 1996, Organic Law 8/1996, Article 1. In her analysis of the Rwandan case law on genocide Wibabara concluded that one of the key features of Law 8/1996 was the introduction of the principle of dual incrimination, implying that: ‘Judges had to first check whether a specific offence in the Penal Code was committed by the defendant and also verify whether the offence amounted all together to a crime of genocide or a crime against humanity’, op. cit., p. 136.
- 9.
On this point, see Fierens 2005.
- 10.
Ibid.
- 11.
Ibid.
- 12.
Ibid, p. 899.
- 13.
On this point, see Drumbl 2007, p. 72.
- 14.
See on this point Schabas 2005, p. 888.
- 15.
Article 19 Organic Law 8/1996.
- 16.
See Drumbl 2007, p. 73.
- 17.
Ibid.
- 18.
Ibid.
- 19.
Ibid.
- 20.
Ibid. However, some exceptions were foreseen: Category 1 offences were punished by death; for Category 2 offences death penalty was replaced with life imprisonment; from category 4 offences stemmed only civil damages.
- 21.
Ibid.
- 22.
Ibid, p. 244, footnote No. 20, Ministère Public v. Ndererehe and Rwakibibi, October 21, 1999, ch. Sp. 1 ière instance Nyamata, RP 066/97/C.S./Nmata/GDe, RPM 101825/S1?BAZ/Nmta/K.A. See also Ministère Public v. Buregeya and Uwitonza (March 22, 1998, 1 ière instance, Kibuye), RMP 56.886/S4/BA/KRE/KBY/2000, where the accused was convicted for property offence placed in category 4, namely eating pillaged meat, to five years’ imprisonment, suspended for four years.
- 23.
Ibid., pp. 73–74. Drumbl lists examples of punishments issued by the Rwandan Penal Code for crimes that could be included in Category 3 according the Organic Law 8/1996: Penal Code Article 318, violent attacks, (one month to one year imprisonment); Penal Code Article 319, violent attacks causing an illness or inability to work, (two months to two years; six months to three years if committed with premeditation); Penal Code Article 320, violent attacks causing serious mutilation or incurable illness, (two to five years; five to ten years in case of premeditation).
- 24.
See Article 14 of Organic Law 8/1996.
- 25.
See Article 5(1) and (2) Organic Law 8/1996: ‘All persons who have committed offences set out in Article I have the right to participate in the Confession and Guilty Plea Procedure. The right to participate, which cannot be denied, may be exercised at any time before the criminal file is brought to the attention of the President of the competent tribunal. This right can only be exercised once, and the confession can be withdrawn at any time before it is pronounced again by the interested person before the court. reductions in penalties set out in Articles 15 and 16’.
- 26.
Gacaca jurisdiction of sector of Gahogo, Muhanga District, South Province, 01/09/2009, trial of Umpfuyisoni Goretti, on file with the author.
- 27.
See Article 5(3) of the law: ‘“Notwithstanding the provisions of para (1), persons who fall within Category 1, as defined in Article 2, shall not be eligible to the reductions in penalties set out in Articles 15 and 16’”. It is worth however to consider the provision embodied in Article 9 establishing that “Notwithstanding the provisions of Article 5, para 3, a person who confesses and pleads guilty, and whose name was not published on the list of Category 1, shall not be placed in Category 1 if the confession is complete and accurate. If his confession should place him in Category 1, he shall be placed in Category 2”.
- 28.
See Article 6 of Organic Law 8/1996.
- 29.
See Avocats Sans Frontières 1999.
- 30.
See Article 16 of Organic Law 8/16.
- 31.
Article 17 of the Organic Law 8/1996 states that: Persons found guilty under this organic law shall be liable to the withdrawal of their civic rights in the following manner: (a) for persons whose acts place them within Category 1, the withdrawal for life of all civic rights; (b) for persons whose acts place them within Category 2, the withdrawal for life of civic rights as provided in Article 66 of the Penal Code, sub-paragraphs 2, 3 and 5. Persons whose acts place them within Category 3 shall incur the civic consequences provided by law.
- 32.
Ibuka et al. 2012, p. 6.
- 33.
Ibid.
- 34.
See Article 91 Organic Law 40/2000: ‘Any civil action lodged against the State before the ordinary jurisdictions or before “gacaca jurisdictions” shall be declared inadmissible on account of its having acknowledged its role in the genocide and that in compensation it pays each year a percentage of its annual budget to the Compensation Fund. This percentage is set by the financial law’.
- 35.
Ibuka et al. 2012, p. 2.
- 36.
See Drumbl 2007, pp. 71–83.
- 37.
Ibid.
- 38.
Article 96 Organic Law 40/2000 of 26/01/2001 setting up gacaca jurisdictions and organising prosecutions for offences constituting the crime of genocide or crimes against humanity committed between October 1, 1990 and December 31, 1994.
- 39.
On this point, see Amnesty International 2002.
- 40.
See Uvin 2003, p. 116.
- 41.
On this point, see Human Rights Watch 1994.
- 42.
On this point, see Schabas 1996, p. 532.
- 43.
See Tully 2003, p. 390: ‘This suggests that even if the judicial system had not been decimated during the genocide it would not have been capable of administering impartial justice, especially in the wake of the violence and conflict that had subsumed the country. Mired in a history of impunity, and with few resources, the new government of Rwanda found itself largely unable to carry out this type of large-scale judicial process, yet bound rhetorically to do so despite the crippling constraints’.
- 44.
See law of 23 February 1963 on the code of criminal procedure, as modified and complemented to date.
- 45.
On this point, see Schabas and Imbleau 1997, pp. 60–61.
- 46.
See also Article 12 of Rwandan 1991 Constitution (Human Dignity, Personal Freedom): (1) The human being shall be sacred. (2) The liberty of the human being shall be inviolable; no one may be prosecuted, arrested, imprisoned, or convicted other than in the cases prescribed by the law in effect at the time of the perpetrated act and within the forms prescribed by that law. (3) No infraction may be punished by penalties which were not prescribed by law before it was committed. (4) Any person shall be presumed innocent of the charges as long as a definite conviction has not taken place.
- 47.
Article 11 of UDHR affirms: “(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed”.
- 48.
See Article 7 of the African Charter on Human and Peoples’ Rights: “Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; (b) the right to be presumed innocent until proved guilty by a competent court or tribunal”.
- 49.
See Schabas 2002, p. 508, stressing that the preamble of Organic Law 9/1996 expressly refers to Article 4 ICCPR: ‘Given that as of 6th April 1994 the Republic of Rwanda faced an exceptional public danger threatening the very existence of the nation, as described in Article 4, para 1 of the International Covenant on Civil and Political Rights and as described in Article 12 of the Constitution, as amended and completed’.
- 50.
See Vandeginste 1999, p. 10.
- 51.
Ibid.
- 52.
See Report on the situation of human rights in Rwanda submitted by Mr. René Degni-Ségui, Special Rapporteur of the Commission on Human Rights, under para 20 of resolution S-3/1 of 25 May 1994. In particular René Degni-Ségui points out at para 104 that ‘Despite a period of relative calm, violations of the right to personal security continue to be disturbing, given the Government’s determination to enact emergency measures at all costs. After the failure of the attempt to suspend the right to personal security through the Act of 9 June 1995, which was censured by the Constitutional Council on 26 July 1995, on 8 September 1996 the Rwandan Parliament adopted Act No. 9/96, containing provisional amendments to the Code of Criminal Procedure. The Act suspends the fundamental guarantees granted to convicted prisoners, thereby confirming the practice of arbitrary arrests and detentions’.
- 53.
UN Commission on Human Rights, Resolution 1997/66 on The Situation of Human Rights in Rwanda, paras 7–8 available at https://reliefweb.int/report/rwanda/commission-human-rights-resolution-199766-situation-human-rights-rwanda. Last accessed 2 March 2018.
- 54.
Ibid., para 11.
- 55.
Indeed, Article 8, the closing provision of the law expressively establishes that ‘This law comes into force on the date of its publication in the Official Journal of the Republic of Rwanda and is effective as of 6th April 1994’.
- 56.
On this point, see Article 6 of Organic Law 9/1996: ‘The rights of appeal provided for in Articles 46–52 and Article 56 shall, in all cases, until 16th July 1999 inclusive, not apply to persons prosecuted for acts constituting the crime of genocide and crimes against humanity’.
- 57.
See Report on the situation of human rights in Rwanda submitted by Mr. René Degni-Ségui, Special Rapporteur of the Commission on Human Rights, under para 20 of resolution S-3/1 of 25 May 1994, para 109: ‘The Code of Criminal Procedure in application before the amendments came into force provided that a report was to be issued whenever a person was arrested. The report was valid for 48 h (Article 4). Under Articles 37 and 38, it was for the official of the Public Prosecutor’s Office to issue an arrest warrant on arrest or on transfer of the file by the judicial police inspector. Within five days after the Public Prosecutor’s Office had drawn up and issued the arrest warrant, the judge had to issue a pre-trail detention or release order (Article 38). In the event of detention, the order was valid for a period of 30 days (Article 41). A person arrested after having been released had the right to appeal the decision (Article 44). He or she also had the right to appeal a detention order (Article 46) and to appeal the pre-trial detention decision handed down by the court in a formal hearing (Articles 55 and 56)’.
- 58.
Ibid, para 110.
- 59.
Article 2, para 3(b) ICCPR requires that ‘Each State party to the present Covenant undertakes: To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy’.
- 60.
See Report on the situation of human rights in Rwanda submitted by Mr. René Degni-Ségui, Special Rapporteur of the Commission on Human Rights, under para 20 of resolution S-3/1 of 25 May 1994, para 112.
- 61.
Ibid.
- 62.
By way of examples, Degni-Ségui quotes the Judgement of the European Court of Human Rights in the Greek Case of 1967.
- 63.
See Ergec 1987, pp. 391 and 393: ‘The right of derogation authorizes only certain clauses of the Convention to be suspended and leaves intact the fundamental principles of rule of law: the suspension of certain liberties does not mean that the rule of law is put on stand-by. The spirit, if not the letter, of Article 15 excludes the total suspension of certain rights, such as individual freedom or the right to a fair trial, whatever the pressure of circumstances. The importance of the obligation to respect the other obligations under international law cannot be underestimated in this regard’.
- 64.
See Report on the situation of human rights in Rwanda submitted by Mr. René Degni-Ségui, Special Rapporteur of the Commission on Human Rights, under para 20 of resolution S-3/1 of 25 May 1994, para 117.
- 65.
See Schabas 2002, p. 507.
- 66.
Ibid., p. 509: ‘Degni-Ségui relied on Article 2(3) of the Covenant, which establishes the right to a remedy. But the right to an appeal in criminal prosecution is governed by Article 14, and only exists in the case of conviction. Prisoners had a remedy, but they did not have an appeal when the remedy did not work’.
- 67.
For instance, in W. v. Switzerland, (Series A N. 254, 17, ECHR. 60 1994) the European Court of Human Rights held that a pre-trial detention of more than four years in the case of economic crime was compatible with the European Convention on Human Rights.
- 68.
On this point, see Prosecutor v. Simic et al., (Case N. IT-95-9-PT0).
- 69.
See Prosecutor v. Simic et al., (Case N. IT-99-36-PT), Decision on Motion by Radoslav Brdjanin on Provisional Release, 18 September 2000.
- 70.
See UN High Commissioner for Human Rights 1998, para 33: ‘Their work led in some cases to the provisional release of persons against whom there was insufficient evidence or who fell into certain “vulnerable” categories (e.g. elderly persons and minors), and to the transfer to the central prison of others whose case files were completed’.
- 71.
See Moussali 1999, para 77.
- 72.
See Schabas 2002.
- 73.
Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977. Although not legally binding, the Standards provide guidelines for international and domestic law as regards persons held in prisons and other forms of custody. They set out what is generally accepted as being good principle and practice in the treatment of prisoners and the management of penal institutions.
- 74.
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the UN General Assembly on 9 December 1988.
- 75.
Basic Principles for the Treatment of Prisoners, adopted by The UN General Assembly during 68th plenary meeting on 14th December 1990.
- 76.
The comment of Schabas on this point is lapidary: “Perhaps this is true under normal circumstances, but it seems manifestly unrealistic in a post-conflict situation like that of post-genocide Rwanda” Schabas 2002, p. 519.
- 77.
See United Nations 1998.
- 78.
See UN High Commissioner 1996, para 6.
- 79.
See Amnesty International 2002.
- 80.
See Question of The Violation of Human Rights and Fundamental Freedoms in Any Part of The World, With Particular Reference to Colonial and Other Dependent Countries and Territories, Degni-Segui 1996, para 72: ‘In most prisons the detainees are housed in cramped conditions, most of them barely able to sit down, much less lie down on a floor which is often roughcast. The few beds are sold to the highest bidder or occupied by the strongest. It is extremely difficult for visitors to make their way through this mass of humanity exposed to the sun and the elements. It was impossible for the Special Rapporteur during his visit on 31 March 1995 to move around within Gitarama Prison. Immobilized and at the mercy of bad weather, the detainees eat, drink and defecate on the spot. This “tragic” situation spares neither old people, nor women and even children’, available at http://hrlibrary.umn.edu/commission/country52/7-rwa.htm. Last accessed 2 March 2018.
- 81.
See Third Report on the Situation of Human Rights in Rwanda submitted by Mr. Rene Degni-Segui, Special Rapporteur of the Commission of Human Rights, under para 20 of resolution S-3/1 of 25 May 1994, UN Doc. A/49/508/Add.1, UN Doc. S/1994/1157/Add.1, annex, para 32.
- 82.
Ibid, para 121.
- 83.
See Schabas 2002, p. 514.
- 84.
Ibid.
- 85.
Ibid.
- 86.
See Moussali 1998, para 22.
- 87.
See Moussali 1999, para 30.
- 88.
See Schabas 2002, p. 518.
- 89.
See Amnesty International 2002.
- 90.
Ibid.
- 91.
Palmer 2015, p. 93 and ff.
- 92.
See Organic Law No. 6 bis/ 2004 of April 14, 2004 on the Statutes for Judges and Other Judicial Personnel and Organic Law No. 22/ 2004 of August 13, 2004 on the Statute of Public Prosecutors and Personnel of the Public Prosecutions.
- 93.
See Organic Law No. 83/ 2013 of September 11, 2013 on Establishing the Bar Association in Rwanda and Determining Its Organization and Functioning.
- 94.
See Vandeginste 1999, p. 10.
- 95.
See Haile 2008, p. 15.
- 96.
See Sibomana 1999, p. 28. The author highlights that ‘“A Belgian human rights organization, Citizen’s Network trained more than 200 judicial inspectors in a few months. …their task was to carry out field investigations into crimes committed during the genocide…According to the information I have received, a third of them have been killed or imprisoned. …Their crime was to have done their work properly and to have refused to tolerate the rule of revenge and arbitrary decision’.” Moreover he adds that ‘“a screening committee composed of representatives of various ministries was set up to examine the cases of detainees. As soon as they were set up, it was apparent that dozens of detainees should be released. Hardly, had they been released than all of them were rearrested. When I say ‘all’, that is not strictly correct: a few had been killed in the meantime’”.
- 97.
Article 6 of the Rwandan Bar Law 1997 states: ‘A lawyer who is a member of a bar of a state other than the Republic of Rwanda that has provided in its national legislation for reciprocity may provide legal service in Rwanda on an occasional basis in accordance with the Rwandese rules respecting the regulation of other profession’.
- 98.
See Schabas 2002: ‘Perhaps the duty to investigate and prosecute, which is so clearly more a “positive” rather than a “negative” obligation, should be viewed as falling more fittingly within the category of economic and social rights’, he asked what should be the consequences of the decision by a state to reject international assistance in the form of judicial cooperation if such a refusal triggers more obstacles in respecting its duties to investigate and prosecute human rights violations’.
- 99.
The figures provided by Avocats Sans Frontières stress an improvement between 1998 and 1999: by May 1999 at the Specialized Chambers 104 judges have been appointed, while in 1996 only 76. See Avocats Sans Frontières 1999, p. 5. Vandeginste further notices that “Unfortunately, the absenteeism of the judges remains important, and is a major cause of delayed judgments”, Vandeginste 1999, p. 11.
- 100.
Drumbl 2007, pp. 71–83
- 101.
Ibid.
- 102.
Ibid.
- 103.
International Centre for the Study and Promotion of Human Rights, The Genocide and the Crimes Against Humanity in Rwandan Law, Commentary 42 (1997). On this point, see also Drumbl 2007, pp. 71–83.
- 104.
Ibid.
- 105.
Ibid.
- 106.
Ibid.
- 107.
Ibid.
- 108.
Ibid.
- 109.
See Waldorf 2009, pp. 515–539.
- 110.
See Human Rights Watch 2008, Annex 1: Number of Genocide Cases Judged, p. 101.
- 111.
Ibid., Annex 2: Analysis of RPA prosecutions by the Rwandan government for crimes committed in the year 1994, p. 103.
- 112.
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Sullo, P. (2018). Post-Genocide Justice in Rwanda: Ordinary Courts. In: Beyond Genocide: Transitional Justice and Gacaca Courts in Rwanda. International Criminal Justice Series, vol 20. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-240-8_4
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