The Penal Code, in its current form, provides for lenient punishment to offenders of gender-based violence (GBV), and this could be the reason the vice has remained a challenge, according to the Prosecutor-General, Jean-Bosco Mutangana.
Mutangana may have just taken over as the Prosecutor General but his experience in the law field over the years has prepared him for the challenging tasks that come with his new job.
In an exclusive interview with The New Times, Mutangana told our Senior Reporter Nasra Bishumba why preventive measures are sometimes better than prosecution and why the law on gender based violence must change.
“As a prosecutor, I feel that this article needs to be revised given the gravity of domestic violence,” he said. “Anything that attacks the fabric of the family affects the socio-economic development and security of the country.”
Below are the excerpts.
Rooting out corruption continues to be a challenge. Why?
One of the key challenges that we continue to face in investigating corruption related cases is the evidence related to those cases. Corruption is an organised crime and this makes it more complicated because sometimes it involves a network.
For instance, you could find an individual, who holds a very senior position, having a network of junior personnel and mid-level managers involved in collecting bribes and doing other things that will allow the perpetrator to evade justice.
The covert means under which this crime is committed makes it much more difficult for us to unearth the methods criminals use to reach their objective.
What strategy are you coming in with to deal with it?
We have been trying to unearth the means and methods that the perpetrators use. We intend to do a number of things. We are going to invest in unearthing the convert means that are being used to make sure that even those who are holding senior positions in government are investigated and brought to justice.
There have been allegations that it’s only the lower level managers and employees that are prosecuted but that’s not true because some senior people have been investigated before and perhaps there has been not many cases because of the methods that they use to commit the crime.
We are going to use more advanced technology and we will follow them wherever they are using institutions like Interpol.
We have a Financial and Economic Crimes Unit that is working primarily basing on the Auditor General’s reports and investigating the institutions implicated in misuse of public funds. They will then recommend what needs to be done. Some of the cases have been taken to court, prosecutions have been successful and convictions have been secured. Others are pending.
Also, we cannot fight a crime of this nature without instituting preventive measures and mobilisation. It’s not our key responsibility because we have other institutions that conduct preventive measures, but we are going to use the anti-corruption week to really sensitise our prosecutors, down to the lowest level, in conjunction with local leaders, police and other authorities to sensitise people about the vice.
You will see a difference and it will be very expensive to achieve it because it’s going to involve several means. It’s going to be a challenge but it’s one we are ready to take on.
One of the matters that most people find of concern is that when the corrupt are apprehended and they serve their time, they sometimes come back to enjoy the millions of francs that they swindled. Have you thought about the recovery of that money?
Prosecution takes the suspect to court to secure conviction, meaning that the court has to examine their criminal responsibility so that they are held accountable for the crimes that they committed. The element of recovery of money is not forgotten because, for example, it’s a loss for the government if someone is sentenced to five years when they have stolen five billion francs only for them to serve their sentence and later they get access to this money.
The Attorney General’s chambers follow these matters. Between 2011 and 2012, 134 institutions that were audited, 97 investigated, 101 concluded, we recovered Rfw37.6m and a fine amounting to Rfw28.5m was paid by those involved.
From 2012-2013, 127 institutions were audited, 88 of them investigated, and as a result, 102 files were concluded (the files can be many because it’s individuals that are being investigated), we recovered Rfw47.5m plus $4800 and a fine of Rfw1m was paid. From 2013-2014, 127 institutions were audited and 84 were investigated, which resulted into 90 files.
We recovered Rfw84.5m, €3726, $4300 and realised a fine Rfw8.5m. From 2014-2015, out of 157 institutions audited, 84 of them are currently under investigation and we so far, Rfw5.8m has been recovered and Rfw1.5 in fines.
The recovery of funds is part of the package that goes into the judicial pursuit but though recovery is done, it’s difficult to get the entire amount back. We also seize property if the suspect is found guilty and it is then sold to recover government funds.
Let’s talk about the pursuit of Genocide suspects. Hundreds of them continue to roam the world more than two decades later. Why is the process to apprehend and extradite the suspects this slow?
Even though we have been able to secure extraditions, challenges have remained. They include but are not limited to cooperation in criminal matters, political will of some countries and some challenges from the conduct of the fugitives, to the cumbersome legal procedures and investigative challenges whereby you find a country that doesn’t have resources, an issue that is especially common with African countries.
There is an issue of lack of extradition treaties between some countries and Rwanda and, to me, I don’t find it such a pertinent issue because this should be about bilateral relationships and mutual legal assistance and cooperation in criminal matters and I believe that countries can still do the extradition or even conduct the trials domestically because if you have ratified the Genocide Convention of 1948, you have two options; you either extradite the suspect to the country where the crime was committed or you try the case.
Since the Genocide Fugitives Unit was established by the Cabinet in 2007, we started conducting investigations and for the last ten years, we established a close working mechanism with many countries that are hosting these suspects and we have since sent 647 indictments to 32 African countries, North America, Europe and New Zealand.
Of course some countries responded positively and about 21 fugitives were tried in their domestic jurisdictions and these include Belgium, which has tried nine, France has handled three cases, the Netherlands has tried two cases, Canada and Sweden; two cases each, Finland, Germany and Norway; one each.
Some have also extradited suspects to Rwanda and they include Norway, Denmark and Canada. United States has deported four. We have some three referrals from the International Criminal Tribunal for Rwanda (ICTR, now Mechanism for International Criminal Tribunals, MICT) which happens if the country is willing and able to prosecute the suspect domestically.
The court also transferred to Rwanda the files of another five suspects who are still at large. A total of 17 Genocide suspects were brought back to Rwanda from seven countries in the last ten years. More than 600 fugitives continue to move freely, we have them in our database and a good number of them are in Africa and we are working with these countries to ensure an end to this impunity and stop them from enjoying these safe havens.
We have domestic mechanisms like the International Crimes Unit working on prosecution of international crimes before the high court; we have the Fugitives Tracking Unit, which is working on Mutual Legal Assistance and Cooperation on Criminal Matters and other policy levels. We are prepared, it takes time but eventually, we are going to ensure justice is dispensed.
Human trafficking is a fairly new crime in Rwanda but it also seems to be gaining some momentum. What strategy do you intend to use to deal with it?
It was not until probably the year 2000 that we first got an international legislation called the United Nations against Transnational Organised Crime. Rwanda ratified it in 2003 but it was not until 2012 that the Penal Code of Rwanda criminalised human trafficking as a crime under the law.
Human trafficking is a very challenging offence because of its nature. It’s difficult for someone to report that crime because the victims are not necessarily minors and it also involves recruitment through social media and personal contact.
It’s an organised crime and a business that is conducted through a network of trained criminal cartels. After recruitment, there is transportation. This is done in a way that the transporters will avoid law enforcers by passing through gazetted borders with sometimes authentic documents.
The third element is the exploitation phase because the victims are exploited sexually or through forced, hard labour. The update is that we have managed to prosecute some cases. In 2012, we recorded 12 files which was a small number and only seven were concluded.
As investigators begun to get a grip of the human trafficking crime, we saw an increment because in 2012/2013, we recorded 10 files but not all of them reached a conclusion. There was a shift from 2014/2015, when we recorded 51 files and concluded 41 meaning that 10 had no evidence to support them. For 2015/2016, we recorded 32 cases, and completed 31.
The challenge remains before the courts of law. Do we have the law enforcement prosecutors who are very well versed in the three elements I just highlighted? If you don’t tie the three elements together and create a link, the three elements that constitute human trafficking are about to be lost and when they do, you will have a weak case. We have mobilised our prosecutors to learn about the three elements.
We try to do victim rescue and we reintegrate them back into the community but they are traumatised and the institutions need to work hand in hand to give them a normal life since most of them are infected with diseases that they have contracted from the exploitation.
The figures go higher every time we go to court and we don’t know what will happen in the next three years but we are conducting research on the challenges and soon we will have findings that will help policy makers to confront the challenges.
The head of Police’s Criminal Investigations Department recently told MPs that he was now going after the ‘big fish’ in the drug business instead of the consumers. Are drugs something your office is seeing as one that should be dealt with, with urgency?
Drugs arecreating a big, negative impact on the youth and older people. We areworking with other institutions to concentrate more on preventive measures than prosecution.
There is a lot of sensitisation that needs to be done and you cannot be happy about having successful prosecutions on drugs where our children are involved without dealing with the important aspect that law enforcement agencies need to look at, which is curtailing the transportation and distribution of drugs.
Rwanda is not the origin and how do we deal with the source? If we can get to the root of the issue, then we are a step closer to dealing with the issue. In as much as prosecuting the users is also part of the remedy, the main and best way is to deal with the source.
And how do you intend to do this?
There is need to involve local authorities.They need to keepan eye on the people that they lead and they need to do more sensitisation. There are many countries that are already dealing with this issue; we could borrow some good practices.
The issue of religious radicalisation has been rearing its head in Rwanda. There are over 40 members of the Muslim community that are currently in custody over alleged terrorism crimes. What is the status of this case?
I won’t comment much about the ongoing case because I don’t want to jeopardise an ongoing judicial process but what I can tell you is that the issue of youth radicalisation based on religion has been reported and investigated. That one I can confirm. We have had grenade attacks in the country, we had the radicalised youth that were planning terrorist attacks and we are looking at the causes and how we can work with other institutions so that such people are brought to book but, most importantly, how do we prevent it?
Terrorism is a challenge all over the world and I am going to look into this because successful prosecution sends a very clear message to any criminal that we cannot tolerate such in our country.
The number of child abuse cases had gone down over the last few years but, recently, a report in the parliament said that the issue is back with full force. What is your office doing to deal with this?
According to our statistics on defilement, from 2011 to 2016, there has been an increment in terms of prosecution. In 2011, we recorded 1056 files and completed 634 but in 2015/2016, we registered 1917 files, which means that there is a huge increment in how many children are being violated. We completed 1907 files.
This means that the cases are in court on appeal, convictions have been reached, sentences have been passed or acquittals have been handed down. It at least shows the completion strategy.
As for rape, in 2016 we recorded 207 cases.
There is no consistency in the numbers but what is really important is sensitisation so that people can know the seriousness of these offences and do away with them.
We have established the DomesticViolence Unit and we attach a lot of importance to the investigation and prosecution of these crimes. They include defilement and neglect of minors, spousal abuse and child labour and we work with the national police to share mechanisms on how to deal with this because a family unit is the basis of the stability of the country.
Anything that attacks the fabric of the family affects the socio-economic development and security of the country.
The strategy is a prosecutorial one but we have a challenge within the legislation. Article 240 of the Penal Code provides for a lesser sentence as far as spousal abuse is concerned, which is one of the key elements of domestic violence.
I was amazed when I read it. It says “Any person convicted of harassment against a spouse like insults, assault and battery, refusal to assist in family responsibilities, denial of right to property or any act preventing him or her peaceful life shall be liable to a term of imprisonment of at least three months but less than six months.”
To me, as a prosecutor, I feel that this article needs to be revised given the gravity of a domestic violence matter.