The government has lost billions of francs on litigation due to poor contractual drafting, and making decisions that are not backed by a sound legal opinion. In an interview with The New Times’ Felly Kimenyi, the Minister for Justice Johnston Busingye said several measures in place will ensure that at least 90 per cent of the litigation is avoided. The interview also touched issues of post-Gacaca justice, performance of the ICTR, and reparation of Genocide survivors, among others. Excerpts;-
There are judicial reforms that have been going on for the past 10 years or so, where do we stand now?
Let me state that the objective of the reforms which were conceptualised in early 2000s was to rationalise the services within the justice sector, to professionalise the sector’s institutions, to bring back a sense of integrity within the institutions and to revise outdated laws that were no longer serving the needs of the Rwandan people among others.
Within those broad objectives, many things were done, including reforms in laws, reforms in the structures of all these institutions mainly the court systems. The Supreme Court had five branches, many primary courts, at the time called courts of canton, so all these were achieved.
Laws to do with competence and organisation of the courts, laws to do with rules of procedures of courts, prosecutions, and those governing superior councils of prosecution and courts were all reformed or introduced.
These reforms brought a complete new life into the judiciary. It is now close to 10 years since the reforms took place in 2004 and I can tell you confidently that we have achieved literally all the objectives we set out to achieve. For example, in terms of professionalising the judiciary, we have achieved 100 per cent because everybody who works in the judiciary is a professional.
Another milestone is the commercial courts that have served the business community so well; pending cases is no longer an issue. In a nutshell, the reforms have achieved the intended purpose but we are certainly moving forward and the way forward is about continued professionalism, creating linkages with our colleagues across the borders and continuing to build the image we have already created concerning the ethics and integrity of Rwanda’s justice actors.
It has been one year since Gacaca courts were closed, have there been any residual problems that could have arisen over the time?
Gacaca was a massive undertaking and we did not have a similar experience from any other country where we could borrow a leaf.
Nonetheless, it performed wonderfully, dealing with about 1.5 million cases and after such an undertaking, it is only natural that there would be some residual issues; some unfinished cases, archiving issues or staffing of the post-Gacaca mechanism that was needed to ensure the courts conclude in a proper manner. However, I would not want to call them problems because we knew they were bound to happen.
Some of these issues need resources; some need specialised kinds of skills to be done. We also are now seeing a phenomenon which we are closely monitoring, of people coming to courts and file cases for review of the Gacaca decisions but it is not something happening on a magnitude to worry us.
Basically, post-Gacaca has been very peaceful and smooth operation, and whatever cases that remained, they will be adjudicated by the courts and others have actually been dealt with.
Regarding records, issues to do with whether or not we should store the archives electronically or manually are issues that are still on the table and we hope that with time we will have a conclusive decision.
Issues about reparations to Genocide survivors have been doing their rounds in different judicial institutions, be it in the Gacaca or conventional courts, what is the progress?
There are many facets to this matter; genocide is a crime against humanity, it is a crime beyond comprehension. Even the way nations have handled themselves in post-genocide has been challenging, as much as it has been new. Sometimes it is completely uncharted territory.
So after the Genocide against the Tutsi, government decided to commit 5 per cent of the national cake to meet the needs of vulnerable survivors of the Genocide.
I think this is what was logically and materially possible for the government and what was important on the side of government was to ensure that those survivors who could not afford basics like shelter, medication, education, food and other needs, were not left by the wayside because of the situation they were thrown in by the Genocide.
And this is viable because it implies that the more revenues the government generates, the more commitment is made towards the cause of helping the needy survivors. So one would say, this translates into reparation while the other may think otherwise, but what we are sure of, this translates into making a Genocide survivor’s life better.
There have been debate about reparations, where it was said that Genocide convicts’ property be attached to pay survivors and a lot was done during Gacaca where people, especially those who were convicted of looting or destroying property, and many have paid up in different forms. Some returned what was destroyed, while others who could not afford paid in labour form. But this was mainly done to foster reconciliation than reparation for a crime of genocide because you can never quantify this.
An idea was mooted a few years back to have a kind of basket fund where all funds from proceeds on sale of convicts’ property to the government contribution and donations could be pooled to cater for reparations.
I do not think this is something that was finalised into a workable idea. The talking about it is easier than actually doing it. For example, where you talk about property of convicts, you need court orders to attach the property, auction it and channel the money toward that kind of basket. We did not have such orders, even from the ICTR where the most senior perpetrators, who even have such property, were tried anyway.
Another thing, I do not recall in all cases that were adjudicated, of there ever being any kind of quantification, in terms of reparations. Genocide is a unique crime and when this debate was still on, people were like, how are we going to start attaching monetary value to the people who were killed in a genocide? It is tantamount to belittling this tragedy, where you killed, and give so-and-so a certain amount, and then you are done!
There are procedures involved when awarding reparations for a dead person and these involve a lot of calculations but a genocide is far worse than murder so many were, as a matter of principle, opposed to taking this route.
So it was agreed to support the fund, to tackle socio-economic problems of the survivors in a bigger picture rather than attaching monetary worth to the victims of the Genocide.
The issue of reparations in form of an international basket fund and other options are very much work that requires some serious thinking before one can say this is the country’s position. We will continue to engage stakeholders to build a consensus.
The ICTR has wound up its activities, but as the Attorney General, what is your verdict on the work done by the tribunal?
It depends on how you look at it. If you count the number of cases that were tried at the ICTR vis a vis the resources at their disposal, any Rwandan would tell you that they would have expected more. On the other hand, if you look at the jurisprudence that the ICTR has built concerning the question of genocide, rape, irresponsible media, among others, the tribunal has done a great job.
For those few who were arrested, tried and convicted, it has told the world that you can always be held accountable for heinous crimes.
So I would not look at it from one angle and give it a clean or dirty bill. It has done its job and, as Rwandans, let us brace ourselves for a post-ICTR era and this is what we are doing.
Is government still optimistic of taking custody of ICTR archives?
This is a debate that has been going on and, unfortunately, Rwanda is not the determinant in this debate. Certain things happen and you have no control over them. We believe that we are the logical, legitimate, natural destination of the ICTR archives and this is the belief we have held for a long time. But the world we live in, sometimes, brings on the table different actors with different ideas and you have to contend with them. What we wish sometimes, other actors may have a different view.
However, we are still hopeful that logic will prevail and these archives will be sent to us, we are still making our case whenever the opportunity arises but that is pretty much what we can do about the issue.
Is there anything being done to ensure these suspects are brought home to stand trial?
Extradition of Genocide fugitives has mainly been hampered by the lack of extradition treaties with various countries.
But we are working on a range of mechanisms and at the central is the special unit in the prosecution service that is charged with tracking these fugitives, and politically, we are engaging different partners, different countries where we think the suspects are. More than 100 indictments have been issued to fugitives in dozens of countries. First of all, these countries where we are sending these indictments are member states of the UN and we would expect them to respond in some way.
Secondly, we have talks in progress with several countries to conclude extradition treaties and I can cite South Africa, Zambia and Uganda, among others.
We have also seen other countries which say, look, since we are members of the UN and we are signatories to the Genocide Convention, we can develop a mechanism which does not necessarily amount to an extradition treaty, by which we can transfer a Genocide suspect.
We have also spoken to different countries, which are party to the UN Charter, urging them to try the suspects if they cannot transfer them to face justice here, instead of letting people who committed atrocities live freely.
What we have done is to build robust capacity to ensure anybody transferred here is tried on international standards. Having said that, it is shameful that, 20 years after the Genocide, we still have fugitives roaming all over the world, and very painfully, in Africa. Painful because I believe Africa is where people should understand that what happened here can happen anywhere else and this is where we need concerted effort to ensure impunity for genocide does not prevail.
So, the issue should not be whether or not we have extradition treaty, the major point is the will of those countries to commit these people to a judicial process and the rest can easily fall into place.
Drawing on your experience at the East African Court of Justice, what is your take on the idea fronted to give competence to this court to try cases of criminal nature?
I belong to the school of thought that says that this court is perfectly capable of handling criminal jurisdiction on top of the civil jurisdiction that it currently handles. What is important is providing it with the logistics, the space and the staff it would require to handle these cases.
Otherwise, I have no doubt that this court can diligently handle criminal cases of international nature. There has been debate on questions like; is the court capable? Does it have the necessary manpower or capacity? My take is that capacity is built and once the (EAC) partner states decide to give the court the competence, the additional capacity can be built.
In any case, whichever court you decide to give this competence to, it will need extra capacity to be able to dispense these duties. You can talk about the ICTR which is winding up, the ICTY or the International Criminal Court. All these, when they started, they had zero capacity. So capacity issues should not arise in this debate. And about human resource, East Africa has some of the best brains capable of handling criminal cases of international calibre.
Over the past few weeks, you have met government officials with an aim of curbing the losses government continues to incur on litigations, how do you intend to tackle the issue?
Basically, as government, we need to change the way we do business, before we think of those who sue the government. These meetings we have had with heads of government institutions, state attorneys and legal advisors are aimed at collectively looking at how we can change the way we do business.
The government has the money, demand for goods and services, then it goes into a procurement process, and at the end of the day, after the procurement, then it is sued! We need to change this; we need to make sure that when we decide to go into procurement, when we decide to get into a contract, when we decide to hire an employee, we have taken all measures possible to prevent litigation.
We want all public institutions to seek legal advice before, and not after entering into a contract, any transaction that may have any kind of legal implication, we need written legal advice on the record, using the in-house lawyers they have.
We have also instructed government institutions against hiring private lawyers unless we are involved in the process and we can only agree to do that when we cannot do the job because we want to do as much of this job as possible.
We have also circulated a template of some kind of checklist containing all the necessary requirements that will be fulfilled when any kind of legal advice is sought from us and the purpose of this is to ensure ownership by heads of these parastatals that have been sued.
Two, we are no longer going to accept a file that does not contain all the documents related to the case for which an institution has been sued and this is different from what has been happening; people have been sending summons with no related document and our lawyers would labour to go to these institutions themselves to look for support documents and by the time they have a complete file, there is not enough time to prepare the case.
We do believe right now, that if we change the way we have been doing business, 90 per cent of the litigation will go away and this is derived from the consultations with our lawyers who believe that seeking legal advice before any transaction will go a long way in cushioning us against these litigations.
Of course, 90 per cent is not cast in stone, we may get disappointed here and there but this is our target, we just have to change the way we work.
Heads of public institutions were accused of sidelining their in-house lawyers in any kinds of contracts they enter into; only to consult them when a problem arises. I don’t think this is something that was being done deliberately. I think it was just the way they just got used to going about things and I believe that after the meetings we have had, this practice will cease.
Your comments that lawyers in this country do not pay taxes were viewed as unfair by the Bar Association, what do you have to say about this?
I think my comments were blown out of proportion. Personally, I belong to the legal profession and have a lot of respect for this profession and I have worked for the betterment of the legal fraternity, for the better part of my professional life, so there is no way I can deride or disrespect the lawyers.
I remember this issue came up when we were discussing in a parliamentary committee about the law governing the Bar Association. I suggested that tax compliance be made one of the requirements for one to be made a member of the Bar.
How this debate continued, it was on the floor of the Parliament and this is a suggestion I would have made had it been a law governing any other profession under discussion. I believe that tax compliance is a major issue and it should not be seen as if I only picked on the lawyers.