You may know, or might have been among those provisionally detained for 30 days while awaiting substantive hearing before a criminal court. Those 30 days can stretch into two or three years depending on the nature of the case, the court handling it, and other factors.

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Although the principle is that a suspect normally remains free during investigation, in practice the number of people prosecuted while detained is very high. Some even argue that this principle has in fact become the exception, leading to overcrowded prisons and a massive backlog of cases in our courts, among other issues.

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Figures from the 2024–2025 Judicial Annual Report show that courts handled 16,310 cases related to pre-trial detention, involving 21,855 suspects. Among those, 10,358 (63.5%) were ordered to remain in detention, while 6,490 were provisionally released. The remainder were subject to other rulings such as instructions to adhere to certain requirements.

This data reveals that in matters of pre-trial detention, most of the accused remain in custody rather than being provisionally released. Hence, many believe the exception has overtaken the principle.

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Article 66 of the Law relating to the Criminal Procedure provides that a suspect normally remains free during investigation. This principle upholds the right guaranteed under Article 29 of the Rwandan Constitution, which states that everyone has the right to a fair trial, including to be presumed innocent until proven guilty by a competent court.

However, Article 66 also introduces exceptions. It allows pretrial detention when there are serious grounds to suspect a person of an offense punishable by at least two years’ imprisonment.

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Detention is also permitted when investigators or prosecutors fear that the suspect may flee justice; if the suspect’s identity is unknown or doubtful; if detention is the only way to prevent tampering with evidence, witness intimidation, collusion with accomplices; or if detention is the only way to protect the suspect, ensure their availability to justice, stop ongoing crime, or prevent reoffending.

Detention under such circumstances is legally justified.

Yet if, after being detained for a period, a person is acquitted, they receive no compensation for the time spent in custody. This raises the question: shouldn’t more emphasis be placed on prosecuting people without resorting to pretrial detention?

The law allows such flexibility. Article 80 of the same law provides that, at any stage of prosecution, the suspect may not be detained but may be instructed to adhere to certain requirements, even where strong grounds for suspicion exist. These conditions may include: to reside in a territorial jurisdiction of the authority who subjected him or her to certain conditions; prohibition from going to or going beyond a prescribed area without prior authorization, to refrain from going to a given area or not to be in a given place at a given time; to report to a specified authority in a prescribed period of time; to report whenever required to do so; to post bail; to be monitored through technology or to surrender his or her identification papers.

If some defendants wait up to 25 months for trial, and if Rwandan prisons are overcrowded at 136% capacity, why not use these alternative measures instead of defaulting to detention?

In 2022, Transparency International Rwanda reported that Rwandan law provides for up to 12 alternatives to detention, either as punishment or pre-trial measures. The question, then, is, if these alternatives exist, why does provisional detention still seem like the principle rather than the exception?

The criminal justice policy adopted in September 2022 explicitly calls for imprisonment to be used only as a last resort.

It stresses that although prisons will remain in use, they destroy lives and families, so the justice system must increasingly employ alternatives. It directs justice institutions, investigation, prosecution, and courts, to minimize detention, because there is emerging evidence globally that an offender’s propensity to commit crimes in the future is not decreased by the experience of prison.

Pretrial detention also has other harmful effects. Those acquitted cannot claim for damages; families suffer when breadwinners are detained; and the state bears heavy costs maintaining detainees.

While security and justice are priceless, it is hard to justify the state spending millions to detain someone accused of stealing a goat worth Rwf50,000 while awaiting trial. In fact, alternative disputes resolutions can be employed instead.

Clearly, the laws and political will exist. What remains is implementation and a mindset shift among Rwandans, to recognize that detention is not the only way to prosecute suspects. Even for sentencing, imprisonment is not the only punishment available under Rwandan law. There are many other fair and effective sanctions.

The writer is a lawyer, human rights advocate, and a 2024–2025 Humphrey Fellow at Arizona State University.