The execution of court rulings to ensure litigants get what is awarded to them by the courts has remained an uphill task as most losers in litigations do not want to surrender their property to settle the case. In an interview with The New Times’ Felly Kimenyi, the chairperson of the national professional bailiffs’ association, Vedaste Habimana, said the law governing their profession was a major stumbling block until it was amended last year. Below are the excerpts;-
Basically, we offer professional bailiff services and conduct our work through the association of professional bailiffs in the country.
What is actually not known by many is that the law establishing this association was passed by Parliament more than 12 years ago, in 2001, but we did not start until 2003 and we originally had eight professional bailiffs.
However, the number of practitioners remained very minimal compared to other professions within the judicial sector and this can be attributed to the loopholes in this legislation which hindered our work and was only amended last year.
Currently, we have 50 practitioners and I am positive that this number will considerably grow this year because of the new legal instrument that addresses the challenges we faced and made the profession less attractive.
The new law draws a clear distinction between the professional bailiffs and other people who are mandated by the law to enforce court orders by virtue of the office they hold, like local leaders.
To qualify for a professional bailiff, it requires one to have at least a bachelor’s degree in law; this is important because the work we do, which is mainly to execute court rulings, requires knowledge of the law.
But besides this, the other work we do includes helping to get court summons to litigants and making sure they appear before court when the trial is due.
Another service that a professional bailiff does is to help courts in activities like evaluating property that is the subject of contention in a dispute before court.
The bailiff can also be used in delivering to litigants court judgments in case the ruling is made in their absence, organising and conducting public auctions, among other activities.
You claim that the increase of the professionals was hampered by the law that was not favourable; what was wrong with the old law?
The main problem with the old legislation was that it had a lot of limitations for bailiffs, in terms of jurisdiction, with a bailiff limited to the jurisdiction of an intermediate court.
This was a very big challenge, going by the nature of the work we do. For instance, a case can be adjudicated in one court, when property that needs to be attached to execute the judgment is in a different jurisdiction. and this made our work very difficult.
Another loophole in the old law was that there were limitations on the nature of immovable property that a bailiff was allowed to auction off to execute a court ruling.
We were only being allowed to attach the property but the auctioning would be conducted by other people and this led to duplication of work and, in the process, derailing justice delivery.
The old law also had no systematic way of reprimanding bailiffs who may abuse the powers given to them, whereby some would conduct public auctioning without following the standard procedure, all these made our work less attractive and we are happy these issues have since been ironed out in the new law.
In the new law, there is no limitation on the property a bailiff can auction and we now have countrywide jurisdiction.
On enforcing discipline among the practitioners, the law sets clears legal parameters within which we have to operate and punitive measures to be taken against errant bailiffs depending on the nature of the professional misconduct.
What are the most common cases of misconduct do you normally receive?
Most of the complaints we receive border on public auctions. This is a contentious issue and requires following the law to the letter, to create a win-win situation between the two parties.
For example, ample communication of an impending auction has to be made to ensure many members of the public are notified, which leads to the property fetching a reasonable amount of money.
How does the work you do defer from the work by the non-professional bailiffs? And don't you collide with them in the work you do?
First of all, the non-professionals are executive secretaries of districts, sectors and cells and officials at the Access to Justice Bureaus (MAJ) at districts, and others that may be mandated by the law to execute court rulings.
The law is also clear in determining the jurisdiction of the non-professionals and the nature of cases they can execute.
For example, the executive secretary at the cell level can only execute cases adjudicated by mediators (abunzi) and by Gacaca courts while the executive secretaries for a district or sector can execute rulings by intermediate courts and primary courts within their jurisdictions.
The MAJ officials can execute any case by any court within the districts where they are posted, but they are only to be used in case the litigant is indigent.
There has been no such incident of collision with the non-professional bailiffs and I actually do not see it happening because a professional bailiff is sought by a client to help him or her get the rewards given to them by the court of law.
On the contrary, the professional bailiffs usually enlist the assistance of the local leaders in executing a judgment in their jurisdiction because normally these leaders are always happy to see justice delivered to the people in their respective communities.
Yes all this work is supposed to be done by professional bailiffs but we are still few, we are not yet at the level where we have presence in all parts of the country. But this is not to mean that these are not needed because not all litigants can afford to pay the bailiffs.
Speaking about remuneration, how is a bailiff paid for the work done and who of the litigants picks the tab?
Legally, the charges of bailiffs are supposed to be set by a ministerial order from the Ministry of Justice, which sets the minimum-maximum charge that can provide basis for negotiation between a bailiff and their client.
However, this order has not been passed and we the bailiffs sat in a general assembly and set these charges pending the ministerial order and the same list adopted by the assembly sets the different prices for the activities done by the bailiffs.
Who pays the bailiff?
According to the law, a bailiff is paid by the very person who enlists the service but the same law makes it clear that in the case a ruling is to be executed through auctioning of the property of the loser, the bailiff's pay is overcharged on the value of the property to ensure that the cost is incurred by the loser in the case, while the winning litigant takes his full amount.
Let’s assume my pay for executing a ruling is one million francs, and the winner in a litigation was awarded Rwf10 million by court, I will have to make sure that from the property auctioned I get 11 million, to settle both the litigation and cover my remuneration.
There is this general view that execution of rulings which is in your docket is rather sluggish and not at per with the rate at which judges complete the cases... what could be the cause?
It is very obvious that the justice sector in our country has made tremendous strides over the past decade and this can be attributed to a number of factors, be it in the number of judges that has increased over time, the building of their capacity and the infrastructure has improved significantly and it is the combination of these factors that has boosted the sector's efficiency.
Concerning the execution of judgements, which work we are mandated to do, I cannot say that we are at the same level in terms of performance as we were 10 years ago. The important stride that was made in this regard is for government to decide to entrust these responsibilities with professional private practitioners.
The main problem we encounter in our duties, however, is that, naturally, it is not easy for a person to cede their property, even if they have lost the case. That is why someone will appeal in a case that started at the lower courts, all the way up to the Supreme Court.
Actually, we have several cases of bailiffs who have been dragged to court by such people who do not want to let go of their property, and this is mainly because they are buying time.
It is a risky job and this is why the law compels all practitioners to have a degree in law; they have to carefully read the ruling as passed by the judge because you cannot afford to go wrong.
All that said, we have partly lagged behind because of the delays in amending the law establishing the association and the old law was not in tandem with the reforms in other sectors of the judiciary that started over a decade ago.
As a result of the amendment and updating the law last year, now as we speak, we have over 100 people who applied to become bailiffs who are doing an entry examination.
In conclusion, what could be the specific problems faced by bailiffs in the execution of their work?
The specific problem we face is that in our everyday work, we deal with emotionally delicate people.
On the one hand, you have someone who has probably for years battled it out in several courtrooms in quest for justice and this person is looking at you to ensure that they get the justice they have sought for years.
So, this person in most cases will want to have what they are awarded by the courts in the shortest time possible, irrespective of the procedures that have to be followed.
On the other hand, you have a person who is on the verge of parting with their property and, at more than 90 per cent, we are required to use force to attach the property.
We have had cases of bailiffs being locked inside litigants' houses, and that is why we normally work closely with the police because some of them can become violent.
Both parties are usually difficult to deal with meaning the bailiff has to have a high degree of moral standing.