Ubukiranutsi bw'uRwanda

Muraho! Muraho! This month's blog post is about justice in Rwanda. The idea for this topic came to me because, as many of you know, I teach judges (abacamanza) and other court staff English once per month. There are around 36 Peace Corps Volunteers who are involved in the program, teaching English at four different levels to people in the Rwandan justice system in four different locales. I teach level two (mostly applying learned grammar to basic situations like writing a resume or debate) in Nyanza, the capital of the Southern Province, alternating with two other Volunteers. The program was started last year with a pilot program, and two of the Volunteers involved in that stayed for a third year to run the program in addition to helping out with the English department at the Institute for Legal Practice and Development in Nyanza. The interesting thing about the justice system in Rwanda is that it is a mix of civil law, common law, and traditional courts to meet the various needs of the country. I will try to explain how each of these three parts work and their uses here in Rwanda.

Civil law is a system of law based on a codified set of core principles (think the Code of Hammurabi). This set of principles serves as the primary source of law, and judges have limited authority to interpret these codes. This means, too, that statutory law (the codes) are more important than case law (precedent). The other interesting thing is that there are no juries, though there may sometimes be a panel of judges.

So where is civil law found? It's primarily used in continental Europe, hence its use in Rwanda and many countries in Central Africa because of their colonial past. You will also find this system of law in China (with the exception of Hong Kong), Mexico, Russia, Switzerland, and the state of Louisiana in the U.S., just to name a few places.

I have been to see one case in a Rwandan courtroom (the acquaintance of a friend was a lawyer in the case), so I can tell a little bit about how it works in practice. From what I saw, the lawyers give a big summary of the case and all the evidence to support their side to the judge and other lawyer. They then have a chance to defend their case to the judge and the judge makes a decision. In the case I saw, their were a few witnesses, but there were no big fiery debates or impassioned arguments (though that may happen in some cases; I don't know). Civil law is the primary system used in Rwanda, and it is used for most cases. 

Common law is a system with which most of my readers will be more familiar. Instead of relying on a codified set of principles as the primary source of law, judge-made decisional law provides the intellectual framework. That is, cases are decided taking into account not only the laws “on the books” but also referring to prior court decisions, an action know as following precedent. In this type of system, judges have more leeway in their interpretation of laws (remember, as your high school government teacher always said, “The Constitution is a living, breathing document.”). Finally, this system provides both a judge and a jury in trials.

So where does one find common law? As the system was first used in England, starting Medieval Times, it can be found in England and most of its former colonies, as well as in countries in the British Commonwealth. There are some exceptions, of course, as most of Canada uses common law, but Québec, always looking to be different, uses a mix of common and civil law. Also, as noted above, Louisiana uses civil law, but the rest of the U.S. uses common law.

I cannot claim to be an expert on the either system of law; most of my experience with the common law system comes from watching the honorable Judge Judy. Basically, lawyers present their case to the judge and the jury through opening and closing statements, witnesses, and other evidence. The judge gives final instructions to the jury, they deliberate to reach a decision, and the decision is read out by the judge, who then sentences the defendant if he/she is found guilty. Of course, the process is much more complicated than that, and I encourage you to read more about it online or at your local library if you want to know more. In Rwanda, the system of common law was adopted upon becoming a member of both the East African Community (EAC), whose other four members are mostly old British colonies, and the British Commonwealth. In addition, as common law is the predominate system in commerce, and Rwanda wants to increase its foreign trade, it was important for them to adopt common law for trade purposes.

The final part of the Rwandan justice puzzle is the traditional justice system, known as gacaca ('soft grass,' the place where people come together, in Kinyarwanda). It is a system that was originally used to resolve small problems in the community or family, and it used an assembly of villagers presided over by elders where everyone had the right to speak. It came back into use after the 1994 Genocide when it was found that approximately 200 years of courtroom justice would be needed to try all of the accused. So, out came a law in 1996 on the organization and trial of crimes of genocide, which created four criminal categories. The first category was for planners, organizers, and leaders: those who acted in a position of authority, murderers of renown, and those suspected of sexual torture or rape. The second category was reserved for perpetrators, co-perpetrators, or accomplices of voluntary homicide or attacks against people leading to death and those who had the intention to kill and inflict wounds or who committed other grace acts of violence not leading to death. The third category included those who committed serious attacks without intention to kill. Finally, the fourth category was reserved for those who committed infractions against property. Perpetrators in the first category were tried in regular tribunals or the International Tribunal Court for Rwanda (ITCR), whereas gacaca was used for those falling into the other three categories (2-4). Those in the fourth category (infractions against property could only be punished by repayment, and the maximum sentence for others tried in gacaca was 30 years in prison. Perpetrators who were minors between the ages of 14 and 18 at the time of their crime were given punishment equal to one-half the time of an adult, and those who were under 14 years old at the time of their crime were not punished.

So, how did this new gacaca work in the trial of génocidaires? The trials were conducted in public, once per week in villages around the country. As in the traditional gacaca, all villagers could participate and interject, and there were no lawyers. The trials were ideally led by people who had followed a judicial formation and had a good reputation locally. Finally, suspects were encouraged to share all: full collaboration with the court could result in a half-sentence and/or work in a prison camp (Travaux d'Intérêt Général, or TIG) instead of prison. (There is a TIG camp in my village, and they work to repair and improve roads in the area.)

Of course, with reversion to a traditional justice system to try those accused of crimes of genocide, there has been some criticism, especially from the outside world. The first, and main, criticism is that the accused are denied representation in the form of a lawyer, so its fairness is called into question. There are also issues of false accusations, intimidation of witnesses, and acts of revenge related to the trials. In addition, because some of the trials happened many years after the crimes were committed, and they were based on witnesses' testimonies, the memory of witnesses has been called into question.

To conclude, Rwanda's legal system could best be characterized as adaptation to circumstances. First, they adopted civil law, abandoning a gacaca after colonization. Then, with the 1994 Genocide came the challenge of trying a large number of perpetrators and the reintroduction of gacaca. Finally, membership in the EAC and British Commonwealth, along with a desire for more access to global markets led to the adoption of common law, notably for commerce. Due to its past, present, and future, Rwanda has a mixed justice system, one that is moving forward just like the rest of the country.

Happy birthday this month: Hana
Next month's blog topic: Family dynamics (suggested by Nannie)