Law reforms: Putting the record straight

Reference is made to the article which appeared in the Sunday Times newspaper of 26th July 2009 entitled “Senate endorses Law Reform Commission”.

Reference is made to the article which appeared in the Sunday Times newspaper of 26th July 2009 entitled “Senate endorses Law Reform Commission”.

In the article the Minister of Justice and Attorney General was quoted as having told the Senate that the justification for establishing the Commission “was due to the fact that it was established in 2001 but was interrupted later on in 2003” he also said that “after nullification of the commission, there emerged the amendment of several other laws related to trade.

Another Commission was  set up to review the laws that were being amended but it emerged that  the laws that came up  at a later stage  were not well drafted since it would duplicate laws of other countries which would not match the Rwandan context” .

The 2001 Commission was chaired by the Attorney General himself while the other commission which he accuses of having duplicated foreign laws inconsistent with the Rwandan context is the Business Law Reform Cell which I chaired from September 1, 2005 to December 15, 2007.

For the purposes of this article, I will refer to the first commission as the “Commission” and the Business Law Reform Cell as the “Cell”. As someone who chaired the Cell, I feel duty bound to respond to the comments of the Minister so as to put the record straight.

First of all, it is important from the onset to point out that the establishment of a permanent Law Reform Commission is a very important development and is long overdue.  Its impact on the development of the rule of law can not be overemphasized.

Similar institutions exist in other countries, including all the East African countries and their role is to continuously review laws to ensure that they address modern challenges faced by their countries. They have not been established to rectify mistakes of commissions before them.

The Attorney General chose to refer to the Commission and the Cell as justifications for the Permanent Law Reform Commission simply to insinuate that the Commission was doing an excellent job and then it was interrupted to pave the way for the Cell which did not do a good job.

This assertion is not objective but simply egocentric and also views law reform as an event rather than a process.

Indeed the Cell’s work was informed by foreign laws in order to draw international best practices precisely because in matters of Trade and Investment the Rwandan context called for the adoption of such best practices in order to improve her investment climate.

There are several reasons for this including the fact that Rwanda aims at becoming a regional financial hub and that it is not insulated from the international developments which have produced a global village in terms of trade and investment. Therefore, inspiration was drawn from good models.

It cited the World Bank Doing Business Reports and other literature so as to produce legislation that would improve Rwanda’s business climate.

Many of the achievements of the Cell resulted from adopting practices of foreign jurisdictions and in fact the following examples have had the effect of rectifying the anomalies created by the recommendations of the Commission. They include the following:

The Cell recommended the establishment of a two tier Commercial Court system to do away with the structure of the specialized commercial chambers which had been established by law in 2004 on the recommendation of the Commission.

At the time the Cell commenced its assignment, the Chambers had failed to take off leading to a case backlog of 3,200. Within one year of operation, the backlog of commercial disputes has been reduced by over 80% and projections are that they will have been cleared by the end of 2009.

The courts were modelled on the experiences of Uganda, Tanzania, Ghana, Ireland and the United Kingdom.

The  Cell recommended the enactment of the  Arbitration and Conciliation Act to replace  what had been provided for in the Chapter on Arbitration in the Code of Civil, Commercial, Labour and Administrative Procedure enacted in 2004  on the recommendation of the  Commission.

The provisions of the Chapter totally undermined the attributes of Arbitration as an Alternative Dispute Settlement Mechanism.  The new Act was modelled on the model law produced by the United Nations International Commission of Trade Law (UNINCTRAL)

The Cell also recommended the establishment of the Rwanda Commercial Registration Services Agency to oversee the implementation of a number of laws including the Companies law, Intellectual Property, Secured Transactions and Insolvency.  This institution is already doing well and the business community is satisfied with its services.

The above examples go to show that laws proposed by the Cell have contributed to the improvement of Commercial Justice in Rwanda.

There is a firm foundation on which the Permanent Law Reform Commission will build and consolidate the successes so far registered. They also go to show that embracing international best practices can yield good results.
It is against this background that I challenge the comments of the Minister made before the Senate.

They were influenced by ulterior motives of tarnishing the professional integrity of the Cell members and the readers deserve to know the truth.

Richard Mugisha is a Private Legal Practitioner and former Chairman of the Business Law Reform Cell.

Ends

 

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