First, the law has expressly recognised standing for ‘Friend of the Court’ or Amicus Curiae in Latin.
Second, for the first time in Rwanda, the Supreme Court has the jurisdiction to entertain petitions in connection with the rights relating to the general interest.
On this particular issue, the law does not only recognise public interest cases but also allows moral persons to petition the Court.
For those who might be hearing the words ‘Amicus Curiae’ or Friend of the Court for the first time, it should simply be understood as a procedure before the court of law whereby individuals or organisations are allowed by the court to take part in proceedings even if they were not party to the case.
This is done mainly with the view of bringing to court relevant help for a matter that has not yet been dealt with by the parties in a manner that can help the court in taking decisions.
Allowing Amicus curiae in the law
Although this is the first time the Rwandan law provides for the Amicus Curiae procedure, the concept is not entirely new in practice. The Supreme Court has decided three cases where different organizations applied to be Amici Curiae.
The concept was first heard in the Prosecution Vs UWIMANA NKUSI Agnès and MUKAKIBIBI Saidati in 2012.
In this case Avocats sans Frontières and Article 19 applied to be Friends of the Court. In the DEMOCRATIC GREEN PARTY OF RWANDA Vs GOVERNMENT OF RWANDA, the Center for Human Rights Rwanda applied. Recently in NTIBAJYINAMA Esther Vs the Prosecution, Women’s Link Worldwide was accepted as Friend of the Court.
While deciding on whether those who applied should be allowed, particularly in UWIMANA case, the Supreme Court explained that Rwandan law did not provide for Amicus Curiae.
However, drawing inspiration from other jurisdictions and Rwandan experience before the ICTR where the Government of Rwanda participated in some cases as Amicus Curiae, the Supreme Court found that the Amicus Curiae procedure was of great importance.
In the above case, the Supreme Court ruled that, for Amicus Curiae to be allowed, certain criteria should be respected: to demonstrate possession of sufficient knowledge for the one applying to be Amicus Curiae; the information to be submitted to the court must not be a matter dealt with or already analyzed in the parties’ submissions or other writings; to be allowed as Amicus Curiae is not a right for applicant but rather the discretion of the court.
The law affirms that Amicus Curiae may be allowed by the court, upon request or on its own discretion authorise or call on experts or Amicus Curiae in the hearing.
It is important to mention that, although the procedure was allowed, none of the amicus curiae briefs in the first two cases were accepted as according to the Court, the amicus briefs did not meet the conditions to be accepted. In the third case, amicus brief was accepted.
Based on the above experience, one may argue that the adoption of the law expressly providing for Amicus Curiae is an important step as the move settles the issue for the better.
It is however, worthy to mention that under the law, Amicus Curiae is only recognised in three instances. In the case of a petition to change direction in the interest of the law, a petition and decision of the court relating to disputes based on the interpretation of laws or traditional custom and petition and decision of the court in connection with the rights relating to the general interest.
Recognising public interest cases
Unlike the amicus curiae procedure that was not provided for by the law but allowed by the court through litigation; public interest cases were allowed neither in the law nor in practice.
Public interest case is generally defined as legal action in a court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some other interest by which their legal rights or liabilities are affected.
In many jurisdictions where public interest cases are recognised, any public-spirited person or moral person can file a public interest case provided that he or she is not pursuing personal interest but the interest of the public at large.
The recent move by the Government of Rwanda to enact the law that recognises cases of this nature is commendable. The provisions of the law are comprehensive and have fairly widened the standing in court.
The law allows a natural person or a government institution, a political organization, a company, a nongovernmental organization or association with legal personality to bring action.
Notwithstanding the provisions of the subsequent provisions of the same article, particularly the second paragraph that seems to be complex and in the author’s views to be posing stringent requirements for the admission of the action; the law is better suited to advance and ease public interest litigation in Rwanda. A bench of at least five (5) will hear this type of petitions.
Now that the law is there what next?
No legislation is relevant until additional efforts are made to bring it into existence. Since Parliament passed the law and Government promulgated it, the ball is now in the hands of legal practitioners.
It is up to them to make this law – particularly the relevant provisions – either living or dead letters.
More work is needed in courts. Strong jurisprudence on public interest is long awaited and the role of litigants and judges is paramount and irreplaceable.
The writer is a Senior State Attorney at the Ministry of Justice, Department of International Justice and Judicial Cooperation.
The views expressed in this article are of the author.