During the launch of the Judicial Year 2017/18 last week, Chief Justice Sam Rugege said that much as there has been a significant reduction in case backlog, thousands of pending cases remain, especially at the level of the Supreme Court.
In an interview with The New Times’ Athan Tashobya, Prof. Rugege expounded on this and other issues within the judicial sector. Excerpts;-
How would you describe the just-ended 2016/17 judicial year in general?
I think 2016/17 was a good year. The judiciary has improved in many aspects. The main objective is to deliver justice to the citizens and non-citizens as fast as we can and give them quality justice.
We don’t want to just complete many cases but we want to satisfy at least most of the people who come to get justice in the courts.
As I said during the launch of 2017/18 judicial year, many aspects have improved; for instance, the number of cases that were decided. We are 12 per cent above the previous year (of the cases decided).
We also had a higher number of cases decided by each judge, on average, than any other year. We see the cases each judge decides increasing every year; in 2014/15, each judge decided 21 cases per month (on average); the following year 2015/16 it was 23 cases and in the year 2016/17 each judge decided 25 cases per month. That is how we were able to decide almost 68,000 cases in one year.
You talked about court backlog as one of the challenges you have in the judiciary. What is the cause to this and how do you intend to address it?
In 2011/12, we had a big backlog of cases—those that were over six months old in the court. There were over 42,670 cases pending trial, of which nearly half were backlog, but that number has since reduced by about 70 per cent.
Now we have only 4,000 cases that are more than six months old. In the past, there were cases that had been in the courts for about 20 years but we have been fighting that all these years and the problem has considerably reduced.
It is important to note that the number of adjourned cases has also considerably reduced. Adjournments not only delay completion of cases but it also means taking more time for the court and litigants and it can as well be used as tactic to discourage the other party involved in the case. Previous year, we had about 31 per cent of all cases postponed or adjourned but this year it has come down to 23 per cent. That is a considerable improvement.
At least 70 per cent of litigants are satisfied with what the courts are doing, going by Rwanda Governance Board scorecard and Transparency International (Rwanda).
The issue of backlog is just remaining in the Supreme Court and in some primary courts mainly in the city area. For the Supreme Court, it is historical, because we inherited a huge backlog of cases dating back to the 1980s.
That has gone down but not enough because we continue to receive cases coming in more than we could decide.
But we have taken new strategies, including giving power to the registrars to refuse receiving cases if the requirements are not met or encouraging people to settle their cases in another ways.
In other courts, we hired temporary judges at the primary court level and at the intermediate court level and at the high court level we could hire contract judges to work on the backlogs and that worked very well.
But that couldn’t apply at the Supreme Court level because we are not allowed to have contract judges.
Secondly, in the Supreme Court, we work as benches of at least three or sometimes five or nine when trying constitutional cases but not as single judges. There you cannot accelerate cases as one would want and that is the reason for backlogs in the Supreme Court.
As for the increased backlog in the primary courts, a decision was taken last year to put more focus on fighting drug abuse and gender-based violence. While some criminal cases were taken from mediators (Abunzi) to courts because of the problems they were causing. This has all increased the number of cases in the lower courts.
This doesn’t mean that the number of criminals has increased but because some cases are being taken much more seriously by the Police and other authorities than previously.
To address challenge of backlogs at the Supreme Court, we have already taken a major step but which we have not operationalised yet: setting up the Court of Appeal.
You tend to discourage the public from seeking redress in courts but rather stick to traditional ways of solving disputes. How effective is this approach?
The traditional ways of resolving disputes are efficient in their own way. If you are going to hear a case in one session without lawyers asking for postponements and making different interventions, the case will go much faster and one will get what they hope for and get a remedy.
This is all people wish for. This will also create sustainable peace and good neighbourliness without lawyers’ interventions—discrediting the other party’s evidence and all.
The traditional way of settling disputes, where people call neighbours to discuss disputes and come to a settlement, I think it is always the best, especially in African context and Rwandan tradition to be specific.
By the way, when we refer to traditional ways of solving disputes, we are not referring to Abunzi (mediators) alone. All kinds of organised forums, such as family councils and neighbourhood gatherings, can be used as access to settlement of disputes.
In fact, recently, we had a conference on alternative dispute resolution in the interest of increasing access to justice, so the more fora of solving disputes you have the better both in terms of delivering quick ways for settling disputes but also in terms of results.
In conventional Western systems, people tend to come out of courts unhappy, they may remain unhappy for the rest of their lives.
Residues of Gacaca jurisdiction continue to be a challenge to the judiciary. Do you think the Gacaca courts prematurely folded?
I do not think Gacaca closure was premature because it had done its work. In fact their entire case load had been completed. Almost two million cases had been completed.
But it was inevitable, just like any other legal system, that some cases would come up—where they allege that there was miscarriage of justice. That is bound to arise.
For a system of justice that had been set up for a particular task of justice to continue when it had finished its mandate wouldn’t have made much sense and would have been expensive to maintain.
Those ‘residues’ can always be handled in the conventional courts after all the major reason Gacaca was established was to deal with this specific problem of huge number of Genocide cases that were pending, that we didn’t have the capacity to handle in the conventional courts.
But now that the task was done, there was no reason to keep that kind of system. A few cases that arise in terms of review are being reviewed and are not causing any congestion in courts.
As a matter of fact, we currently have only 33 cases in the courts arising out Gacaca compared to nearly two million that were handled. And a lot of them are dismissed without being heard by courts because they have no legal basis.
We have had instances where the Supreme Court rulings have been petitioned through the Ombudsman. Are you okay with that arrangement?
Yes! I am fine with it. It is true that it is an unusual process but I think that at this stage of our development, we are doing our best to deliver justice but we are also a fairly new judiciary. We had a very poor system of justice before 1994 –and like other sectors in this country, we have been either rebuilding what was destroyed or building what was not there.
There was no independent and competent justice system in this country by 1994. The majority of judges were not legally qualified; they could hire an agriculturalist or any public administrator to be a judge.
So, we have been building competence and independence in our judicial system and it is not surprising that sometimes mistakes are made at any level.
We are not unhappy that there is a role for the Ombudsman in ensuring that justice is done. The Ombudsman does not overturn court decisions or order the Supreme Court to review cases. The law allows citizens to petition the Ombudsman and to show that there was some injustice in handling of their cases.
What the Ombudsman does is to investigate and if they find a fairly good case that there could have been injustice, they write to the Chief Justice explaining the problem with the ruling. The Chief Justice will then send the file to the Inspectorate of Courts. The inspectors will study the file, make their own investigations and then advise the Chief Justice on whether the case should be reviewed by the Supreme Court or not.
It’s only after this review of the file and finding that there are indeed good grounds for revisiting the case that it is sent to the registrar to enroll it again and have it retried in the Supreme Court. Mind you, these are cases from all over the judiciary. It could be a case that was decided once and for all by the primary court or a case that stopped at the intermediate court or the high court.
How many of such cases have been retried in the Supreme Court and were overturned at the level of Ombudsman?
Very few cases from the Supreme Court have been taken to the Ombudsman. Since 2012, when this process started, up to the end of this judicial year only 279 cases have been sent by the Ombudsman for review in the Supreme Court out of 366,560 cases that have been decided by the courts. That translates to less than 1 per cent.
Some 200 cases have been reviewed by the inspectorate; 142 have been cleared by the inspectorate as deserving of review and out of those 57 have been reheard with 44 being found to have been unjustly decided. The Ombudsman receives thousands of petitions but thousands are rejected.
The intervention of the Ombudsman in the judicial system is almost negligible in terms of numbers but very important still, especially in a situation where there is injustice, those cases do not escape us.
If the law says that you cannot appeal any further even where there may be injustice, then nothing can be done. But with the process of involving the Ombudsman, now there is a chance for a case to be reheard and to be reheard by the highest court and the injustice rectified.
There are concerns from some countries that the Rwandan judicial system is not yet up to standard, which is the reason why some countries like the UK are reluctant to extradite Genocide fugitives. Your take?
I think that is a good question. If you consider extradition requests and look at the countries that have extradited Genocide fugitives and those that have not, you will find that those who haven’t are the minority. As far as I know, just two countries have refused to send fugitives to be tried in Rwanda—and that is UK and France.
France did not say that the judiciary of Rwanda is not independent or that it is not competent. They say that they cannot send fugitives here on the ground that our laws on Genocide were passed after the Genocide; that it would be contrary to the principle of non-retrospectivity of criminal laws—that you shouldn’t be punished for the conduct that you committed when it was not a crime at the time.
I don’t know how they are reconciling that with their own laws because they have prosecuted and convicted three Rwandans of Genocide crimes.
It is only the UK that has questioned the Rwandan judicial system. Their High Court said that, if they are to surrender fugitives to be prosecuted in Rwanda then we must have foreign judges on our bench hearing those cases and foreign defence lawyers because they don’t believe our lawyers are competent.
But on the other side, you have Sweden, Denmark, Norway, The Netherlands, Germany and Canada who have sent fugitives to Rwanda for trial; they are considered self-respecting Western countries and they consider our judicial system to be independent and competent to handle these cases.
Also, Sweden was taken to the European Court of Human Rights, some time back, over the decision to extradite Sylvere Ahorugeze. And the European Court ruled that, from what was before them, the judicial system of Rwanda was independent and competent and there was no risk of unfair trial if Ahorugeze was extradited.
Even ICTR (the UN-backed International Criminal Tribunal for Rwanda)—which in 2006 to 2008 was refusing to send suspects to be prosecuted here – decided in 2011 that they could send Pastor Jean Uwinkindi and others to Rwanda for trail because they were satisfied that the accused would have a fair trial.
The sad thing about the British is that they don’t want to extradite but they also will not prosecute Genocide fugitives even as the international law says that States have a responsibility in this kind of cases either to extradite or to try the suspects themselves.
What is your view on Africa setting up its own criminal tribunal?
A regional court is a good idea. An African court that can handle the issues that are being handled by ICC. The only question is whether member countries would actually submit to its jurisdiction.
Do you believe in the International Criminal Court (ICC)?
I can attempt to answer this question as an African, and not the Chief Justice (laughs and he continues to say that it wasn’t the first time a journalist asked him such a question.)
I think ICC in its inception was a good idea because there were a lot of atrocities being committed around the world and nobody should support impunity. Human rights should be protected and any abuses should be punished. The idea of having a court that investigates, tries and punishes people who commit atrocities should be supported.
However, like many others have said, it seems to be biased against African countries since virtually all investigations and prosecutions have been against African citizens.
Nobody can convince me that people in other regions do not commit serious crimes. We know that there are leaders across the world who persecute others or their own citizens.
Plus, the fact that some of those taken to or sought by ICC are referred by the Security Council. Yet the most powerful members of the Security Council are not signatories to the Rome Statutes—which established ICC. So how do you take decision to send people to ICC when you are not signatories to the treaty and not themselves bound by it? They have no moral authority.
You can’t call it an international justice system if it is only for certain people who are the weaker members of the international community. We need more credible international courts.
Back to Rwanda, you said that some of the tools used by the judiciary are outdated, while other courts do not have modern facilities. Help us understand how this has affected the efficiency of the judicial system.
I was mainly referring to things like computers, scanners, printers, photocopiers, Uninterruptible Power Supply, furniture; which are used by the judges and registrars to do the work of the court.
Plus, some buildings which are really old and need renovations.
Some have old computers that cannot handle the capacity of the work we have such as the recently introduced Integrated Electronic Case Management System (IECMS).
Internet coverage is still not reaching all courts and all that. Some primary court buildings need repair and this obviously affects the work of the court.
During the launch of the 2017/18, you asked the President to revise salaries for judicial officers. Do you think the increase on the remuneration of judicial officers will reduce corruption within this sector?
I think I am being misquoted. I didn’t ask for salary increase per se. What I said is that, ‘I hope as the financial situation of the country improves, the benefits of judicial officers will also improve, including salaries’ (and the President agreed).
What I asked for is assistance in boosting the savings fund for judicial officers. A savings fund for judges and registrars was set up and we contribute 4 per cent our salaries every month but still it’s not substantial enough to be able to give loans to members to build their own houses or do something else with them.
Our profession is one where we are prohibited to do private business, whereas other public servants can do business. When we put this to the President, that we need that to be taken into account when considering salaries he proposed we set up that fund. We need some kind of support to make it viable and for people to start borrowing at a low interest rate.
On the second part of the question, even if they were to increase salaries substantially, I don’t think it will necessarily improve the conduct of some judicial officers who are not persons of integrity.
I think the fight against corruption is a fight for the hearts, the minds and the consciences of our people not just the judges … but everybody needs to be committed to justice so that you are able to get public services without paying for what you are entitled to.
Those who take bribes and engage in all forms of corruption are greedy. It’s because they don’t have that love of their country and the commitment to justice that should be part of them.
Six judges were found guilty of corruption and dismissed in the previous judicial year. How is the situation generally?
I can’t say it is high. But it is there; it has not been extinguished. But the problem is that it is hard to catch someone red-handed. You are dealing with sophisticated people but sometimes we catch them through telephone conversations and getting tipped.
But, out of almost 600 judicial officers, to get only three dismissed and three getting other different punishments—because of different types of misconduct—is fairly low. But it is not something to relax about.
We can’t relax about fighting corruption and similar types of misconduct.
There have been talks of plans to establish an appeals court. How far with this?
The Court of Appeal is almost here. Both chambers of parliament have passed the law establishing it and it awaits promulgation.
Within the next month or so, everything should be gazetted and then we can start.
The appeals court will have judges at the same level as those of the Supreme Court but they will be sitting as single judges not as a bench unless the president of the court decides that a particular case is complex or for some other reasons it needs more than one judge, and then they can have a bench of three.
But in the majority of cases there will be single judges and that will clear a big part of the backlog of cases.