The central government and its parastatals as well as local governments, combined, lose at least Rwf3 billion in legal settlements accruing mainly from cases lost in courts of law annually. This state of affairs has subsisted for quite some time.
For central government, the Ministry of Finance used to do the paying, but this function was shifted to the Attorney General’s office. Currently, the AG is trying to do something in between that engages the institution where the case originated.
Paying such huge expenses on litigation is disturbing to the Auditor General, the Ombudsman, Parliament, Senate, the media and taxpayers. They all maintain it is money spent needlessly that would be saved if we cared.
There is probably no major government forum, including National Dialogue, Leaders’ Annual Retreat, presidential tour of the countryside, where the issue has not come up in some form or shape.
Either it is on the amounts payable, or yet unpaid, and owing to citizens, or it is about individual officers responsible for the actions and/or omissions from which the cases emanated or at times it is one of those disturbing situations where, for instance, government loses a case of a million dollars to a contractor of a road when the road itself is not done at all, is half done or its workmanship is rated close to zero.
This expenditure hurts and we need to do what it takes to avoid it. Recently, we announced that we are embarking on a raft of measures to consign litigation against government into oblivion or at least have it drastically reduced.
At a town hall meeting on August 17, we restated the actions we are taking to tackle this issue. We almost immediately got reactions on our social feeds ranging from worry and skepticism to surprise. Very few kudos.
It seems to be universally accepted that litigation against government must happen not in small and sparse quantities but in large and concentrated ones. We seem to have resigned to the fact that government has to set aside a budget each year to pay citizens who win cases against it. Rather than study this trend, we simply study how to ensure prompt and regular payment.
A local proverb says that a man generally tends to become wise after a period of being unwise (ubwenge buza ubujiji buhise). Most of us have been actors in the country’s justice sector, and with a bit of influence.
How come we do not ask ourselves how government ends up paying big amounts of money from avoidable actions and omissions? How does it not register that this is money actually diverted from development work?
Over the last one year, we have attempted to make sense of this situation. We have quietly studied the nature and character of litigation against government.
Starting from the basis that government is the 100 per cent owner of its policies, funds, decisions and plans, we asked ourselves how come litigation develops from such a situation, and how on earth do we lose six out of every 10 cases, and it happens repeatedly over a long time?
Our study results show that government actually makes the choices that not only send it to court but send it there as a pre-ordained loser.
How government is dragged in
Litigation against government is basically in five major areas; contracting, procurement, administrative decisions, labour management and contract management. The laws, procedures, and processes regulating these areas do exist and are known.
Clear as they might be, they cannot protect government from litigation unless people who apply them act as they ought.
The human element is the critical variable. The government is dragged into litigation whenever its official somewhere, whose duty is to protect it, by commission or omission does an act, deliberately or inadvertently, whose result will be a bad case against government, the employer.
The failure to detect, prevent or resolve potential disputes and the failure to mitigate the effects of the dispute are the major triggers of litigation. Yet it is difficult to miss the moment to act in government’s interest. In fact, it is impossible if the process is handled by several actors along its way.
When a case comes up, we do a lot of talking to concerned institutions. We tend to conclude that the acts and/omissions were made deliberately or negligently without caring what the consequences would be.
The actual reality on the ground is that by the time a contract is signed in government, many people (private and public, officials big and small) would have met, talked, negotiated, whispered, agreed, disagreed, accepted and compromised.
At times other interests creep into the process to compete with public interest for official attention.
At the end we get a contract whose nature and management is reflective of the interests at play during its making. If it was pure public interest management is generally smooth and transparent. If other interests crept in, management will generally be problematic and translucent if not opaque.
These actions and omissions take place at different times, at many different levels in the processes and some of them in ways too subtle to be noticed outright or their future impact to be appreciated by all.
What happens is that along the chain of contracting and contract management, actors become knowing and unknowing accomplices to the causation of disputes and loss to government.
When the dispute inevitably rears its ugly head as a case against government the Attorney General’s machinery sets in and takes over the defence of a case whose genesis it knows nothing about, but which it is supposed to defend and win, its lateness and weaknesses regardless.
At the point the case is lost or won and government is charged money, the institution from where the case originated has no more connection, no iota of what is going on and the probability that it has learnt no lesson from its mistakes is 100 per cent.
This largely explains why government gets repeatedly dragged into litigation of generally similar facts. Litigation against government, therefore, isn’t mysteriously or always accidentally occasioned. Neither is it unforeseeable.
It is by the conscious or unconscious choices we, severally and collectively, make that it is born. Conversely, it is by making the opposite choices that we can stop or drastically reduce it.
We have attempted to adjust our response to match. As a result we are beginning to see a reduction in cases filed against government and are winning 60-70 per cent of those we defend. Too early to celebrate a complete breakthrough, but a validation nevertheless. Believing it validates our approach, we are institutionalising it.
An institution originating a case is now required to describe in detail to the Attorney General the circumstances of its genesis and the institution’s efforts to prevent, mitigate or resolve it. It is also mandatory that the inhouse lawyer writes a legal opinion on the issues in the case which becomes part of the record.
The institution effectively keeps ownership of the case, looks for and supplies to the Attorney General with all evidence in support of their side of the story, follow closely during litigation and where necessary participate thru its lawyer. +The Attorney General will be the institution’s lawyer but will not replace it.
Once the case is lost and government is ordered to pay money the institution will be the judgment debtor, not the Attorney General as has been the case before. Those funds will be found and paid from that institution’s budget.
In order for the Attorney General to determine whether an institution or an individual official is responsible for dragging government into litigation, the test will now be scientific.
The Attorney General will look out for failure to detect, prevent, resolve or mitigate the dispute. How these failures happen is easy to smell if one deals with litigation but the Attorney General will issue guidelines, instructions, do workshops, and online platform all aimed at clarifying things.
Going forward, questions like who drafted the contract, what was the inhouse lawyer’s input, who managed the contract are going to become very common. We will begin discussing names of individuals and their actions or omissions rather than discuss actions, omissions, loss, lessons learnt, among others, in abstract as if they happened on Mars.
If what we see is suggestive of a criminal intent, the criminal process will be activated. If it is proven tracer action will ensue to recover lost government assets. If unacceptable levels of negligence are to blame, it’s only fair and just that officials responsible will be required to pick up a part of the bill equivalent to their contribution to the loss.
This is work in progress. We think our diagnosis and treatment plan are correct. Rwandans are all winners when litigation against government ceases and we do things right. It is important that every official, senior and junior alike, the private sector and civil society embrace this approach as it is in our common interest as a government and country.
If we severally and collectively understand and embrace the “towards zero litigation” approach, take the right choices, sufficiently coordinate, litigation against government will end or st least drastically reduce.
The writer is the Minister for Justice and Attorney General.