New policy on alternative justice to help reduce backlog in courts

A new policy from the Ministry of Justice that seeks to prioritise alternative dispute resolution will, among other things, make it mandatory for specific cases to be handled by mediators (Abahuza), conciliators (Abunzi) or arbitrators instead of being taken directly to courts of law. Known as the “Alternative Dispute Resolution Policy,” the document was approved by a recent cabinet meeting, and it will provide a framework that will inform various changes in regards to how justice is rendered in the country. Conciliators are individuals who offer advice to conflicting parties concerning how to amicably settle a dispute. These often prescribe a solution for the issue in question and leave it to the parties. On the other hand, mediators primarily work as facilitators of negotiations between conflicting parties and do not advise on the merits unless in a difficult negotiation, or in case the parties ask them to work out a solution for them. As for arbitrators, they are judges who work outside of the public court setting. During arbitration, a dispute is submitted to the arbitrators, they hear it and make a binding decision. These are mainly used to settle commercial disputes. Speaking to The New Times about the new policy, Anastase Nabahire, the Director General for Justice Sector Coordination at the justice ministry, said it is part of the efforts to implement the National Strategy for Transformation (2017-2024). This, he said, requires the justice sector to enhance alternative dispute resolution mechanisms, to promote the culture of problem-solving in families and reinforce amicable settlement of disputes. During the formulation of the policy, justice experts picked some key lessons from how disputes were resolved in pre-colonial Rwanda, but also looked at best practices from other countries. According to Nabahire, the policy will empower alternative justice mechanisms, so that a high number of commercial, civil, administrative and labour cases will be handled through such mechanisms. “When people go to court, there is always a winner and a loser. At the end of the court process, the relationship between the litigants is often broken, and there is shame on the losing party. However, when issues are handled through alternative justice, there is no loser since both parties get a solution. Their relationship is also protected and they can continue to work together,” Nabahire explained. It is anticipated that almost all civil, administrative, labour and commercial cases will be required to be handled through such an approach, except for some few that will be found unfit for it due to particular reasons. The policy aims to equip more people and organisations with mediation and conciliation skills, so that more people will be able to render such services even if they don’t have any background in law studies. “A mediator can be an engineer, a journalist, a doctor or any other profession. What is required for the work is commitment and values like confidentiality and fairness,” Nabahire said. It will also put efforts in building the capacity of the already existing conciliators. Working with relevant institutions, the ministry expects to give training to religious organisations, Non-Governmental Organisations (NGOs), cooperatives, government institutions among others, concerning how to resolve disputes without having to take them to court. Nabahire noted that some organisations, for example those that are faith-based, are currently doing some good work in terms of dispute resolution but there is a need to equip them with more knowledge and skills to do it even better and more widely. The policy is also expected to apply in smaller criminal matters that have mitigating circumstances involved. Here, mediators and conciliators can work together with the conflicting parties as well as prosecutors and investigators to see if a solution can be reached without having to go to the courts of law. In case a solution is found, there will be means to make sure that offenders do not repeat such crimes. Here for example Nabahire said that there is a possibility of making the offender pledge, in written form, that they will not commit the crime again. If they don’t respect the pledge, serious consequences have to follow. He clarified that such a provision will not be employed for crimes like rape, corruption, defilement, terrorism and more of such nature. Reacting to the policy, Innocent Muramira, a private lawyer based in Kigali, said mediation, as a form of alternative dispute resolution, does not only help the judicial system but all the parties. “It is one of the easiest forms of resolving conflicts and disputes between parties. Mediation may as well take little time compared to litigation and so parties will need to embrace it once it is made compulsory,” he added. He noted that there will be a need to have highly skilled and trained mediators and facilitators “in order for mediation to be successful.” Sam Rugege, the head of the advisory committee of professional mediators in an earlier interview, had expressed the need for a legislation that makes it mandatory for particular cases before they are filed to the courts , “so that before a court accepts to enroll your case, you have to show that you tried mediation but it did not succeed.” Rugege told the New Times that mandatory does not mean compulsion to settle the dispute in mediation. “It only means you must attempt mediation and if you don’t like it or you don’t find a satisfactory way to settle, you are free to terminate the mediation and go to court. Even if no settlement is reached, the parties will have most likely discussed the problem extensively and understood better the issues, which would make litigation easier when mediation has not succeeded. “It has been found that on average, in many countries, the settlement rate for those who try mediation is 60%. In some countries it is much higher. Just like in our case, those cases which go to Abunzi already have over 90% settlement rate,” he added.

News

New policy on alternative justice to help reduce backlog in courts