UGANDAN POLICE SHOULD BE MORE RESPONSIVE TO ROAD ACCIDENTS

On Thursday, 10th September, 2015 at around 2:30 pm in Mukono near Centenary Bank Building a taxi from the nearby park hit a lorry heading to Kampala. It was such a tragic accident that the taxi had to be cut to remove the driver from the wreckage. What is so disappointing is that here was an accident in which the fuel tank of the lorry was damaged and fuel was flowing all-over the place on the Jinja-Kampala highway but Police did not come with or even call its fire brigade to be on standby in case of any fire outbreak. Worse still the taxi driver was still trapped in the wreckage but Police did not in any way use its expertise to remove him from the wreckage to save his life. But rather men around were struggling to pull the metal with their bare hands and piece of wood hitting right, left and centre. For close to one hour the men were still fighting to save a life. All police was doing was to take some recordings and guide traffic. I told one of my colleagues that the driver is likely not to survive basing on how long, without any ambulance nearby or even experts to remove him from the wreckage. No wonder just a few hours the following day, news was circulating that God for Bid the driver had died while being rushed to Kawolo hospital on a Police Pickup. The way we see police respond swiftly to calm riots should be the same way it responds to road accidents. My humble appeal goes to the IGP, that traffic police should be equipped with cutting devices to ease the saving of lives of people trapped in wreckages. Rather this habit of wanaichi rushing to the scene equipped with pangas and sticks delays the process of saving lives. And finally the police should not only come around to record statements but help in saving life. I commend that Police Officer in Eastern Uganda recently who kicked the wind screen of a mini bus that had overturned to ease the process of people getting out of the wreckage.

Garnishee Proceedings

GARNISHEE PROCEEDINGS/ATTACHMENT OF DEBTS

This is the process by means of which a judgment creditor is enabled to reach money due to the judgment debtor which is in the hands of a third person. The third person in whose hands the money from which is sought to be attached is called Garnishee and the necessary order is called the Garnishee order.
The Garnishee order changes the obligation, of the third party to pay the judgment debtor into an obligation to pay the judgment creditor directly.

When may garnishee proceedings be instituted?

They may be instituted by any person who has obtained a judgment or order for recovery or payment of money, by an assignee of a judgment debt or by representatives of the deceased judgment creditor who have been made parties to the action in which the judgment or order in question has been given or made.
It is important to note that only those debts owed by a third party to the judgment debtor can be attached under garnishee proceedings as was noted in the case of East African Airways V Lewis, in this case court held that only gratuity payable to an expatriate contract officer which was debt owing could be attached. It was also stated that it is not necessary that such debt is immediately payable
It is henceforth necessary to note that where an existing debt is payable by future instalments, the Garnishee order may be made to become operative on and when each instalment becomes due.
Similarly, money in hands of the Bank is attachable by Garnishee and the Bank has to show cause why the order nisi should not be made absolute by claiming a lien over the money in its possession.

Procedure

The Civil Procedure Rules SI 71-1 provide that Garnishee proceedings are commenced by way of application for an order for attachment of a debt which is made ex parte and served within 7 days onto the judgment debtor and the Garnishee. The application is made by Chamber Summons accompanied with a supporting affidavit of the decree holder or his/her advocate which must state the following;
The name and address of the Judgment debtor
Identify the judgment to be effected giving the amount remaining unpaid.
State to the best of information or belief of deponent is within jurisdiction and is indebted to the judgment debtor and address garnishee is a deposit taking institution having more than one place of business, give the name and address of the branch at which the judgment debtors account is believed to be held; the account number and if any information is not known to the deponent, it should be stated.  

The order made by the court (order nisi) will be made against the third person and the court will order that all debts owing or accruing from the garnishee to the judgment debtor be attached. Accordingly court may make a subsequent order that the garnishee appears before the court to show cause why he or she should not pay the debt to the decree holder or so much of it as is sufficient to satisfy the claim.
In the event that a decree nisi is granted, it is served on the garnishee and judgment debtor unless otherwise ordered within seven days. Service on the judgment debtor may be made either at the address of service if given by the debtor, on his/her advocates, leaving the order at his/her usual residence or place of business or such other manner as the court may direct.

Effects of the order

It is important to note that there is no attachment of the debt until service of the order nisi has been done.
If the Garnishee Bonafide pays to the judgment debtor the amount of debt before service, the order nisi is then absolute. This is due to the fact that in such a circumstance there is no longer any debt to which it can attach.
The service of the order nisi creates an equitable charge and the garnishee cannot pay the debt to anybody without incurring the risk of having to pay it again.

Order Absolute

Court has the discretion whether the decree nisi should be made absolute. In exercising its discretion, it must take into account other creditors as far as they are known to court. And before an order nisi is made absolute, there must be a debt presenti.
In the event of a Garnishee order the judgment creditor is placed in the same position as an assignee of the judgment debtor and will make him subject to the equities, which exist against the debtor. The garnishee may also obtain execution if the money is not paid in accordance with the order absolute.

Negotiated Agreement

DR. RICHARD SINGSON
Members/the negotiating team
Director:  Catherine/Asingwire.
Human resource manager: Mr. Benoit
Expert in health management system: Mr. Theophile
Marketing officer: Madam Janne
Legal Advisor: Jean de Dieu
Interests of the parties
Shared interests.
Professional success
Making money
Safety and security of the parties
Interest in staying in the same town.
DR. SINGSONs interests
Keeping the doctor WHITTAMORE in the clinic
Enforcing the non-competition clause to the contract.
keeping clients
Enforcement of the penalty clause that is 100% of the remaining two years on the employment contract.
Maintaining daily revenues.

Team for DR. WHITTAMORE
Mr. Whittamore (Pediatrician)
Dentist (Robert)
Pharmacist (Prosecutor Janvier)
Whittamores Lawyer (Prosecutor Minani)
Chemist (Judge Felisie)
Interests of the parties
Shared
Professional success
Earning a living
Safety and security
Operating and staying in the same town
Whittamore
Leaving Fairview clinic
Opening a competing business in the same town
Non enforcement of non-competition clause
Non enforcement of penalty of 100%
Leaving for the benefit of the clinic
Living with the children
Opposed interests
Fairview
Keeping Whittamore at the clinic
Enforcement of non-competition clause
Maintaining patients/clients
Enforcement of penalty of 100% for breach of contract
Maintaining daily revenues
Whittamore
Leaving Fairview clinic
Opening a competing business in the same town
Non enforcement of non-competition clause
Non enforcement of penalty of 100%
Leaving for the benefit of the clinic
Living with the children
Options for Mutual gains
Mr. Whittamore suggested leaving Fairview and open up another clinic in the same town, however Singson stated that opening up the clinic would lead to breach of contract which attracts penalties as provided there in. However, both parties agreed that for the benefit of maintaining a good relationship they can become share holders in the same new clinic opened such that the interests of both parties are catered for.

NEGOTIATION AGREEMENT
This agreement is made on the 3rd day of April, 2015 by Dr. Andrew Whittamore an employee (Pediatrician) at Fairview Clinic and Dr. Richard Singson the owner of the clinic
Whereas Dr. Andrew Whittamore and Dr. Richard Singson are in conflict of interests
Whereas Dr. Andrew Whittamore wants to leave Fairview clinic before the expiration of his contract and establish his own private medical clinic in the same town
Whereas Dr. Richard Singson wants to keep Dr. Andrew Whittamore at his clinic due to the none competition clause in his employment contract
Whereas Dr. Richard Singson desires to enforce a 100% penalty for breach of contract as per the employment contract
Article 1
Dr. Andrew Whittamore was supposed to work for Dr. Richard Singson at Fairview clinic for a payment (salary) on monthly basis.
Article 2
Dr. Andrew Whittamore is allowed to leave Fairview clinic and establish the same business in the same town
Dr. Richard Singson is entitled to invest 50% shares in the new business (clinic) opened by Dr. Andrew Whittamore
No penalty as earlier agreed in the contract of employment will be enforced on Dr. Andrew Whittamore by Dr. Richard Singson for leave of the clinic before expiry of the contract
Dr. Andrew Whittamore and Dr. Richard Singson will manage the new clinic as a joint venture
Dr. Andrew Whittamore is free to live in the same town and look after his children
Dr. Andrew Whittamore and Dr. Richard Singson must receive profits from the new clinic in equal shares annually
Article 3
Dr. Richard Singson must not enforce the none competition clause against Dr. Andrew Whittamore
Dr. Richard Singson must not enforce the 100% penalty on Dr. Whittamore when he leaves the clinic before the expiration of his contract of employment
Dr. Richard Singson must pay 50% start capital of 100,000,000 million Rwandan Francs equal to 50,000,000 million Rwandan Francs within 6 months starting from the date of signature
Dr. Andrew Whittamore pay 50% start capital of 100,000,000 million Rwandan Francs equal  to 50,000,000 million Rwandan Francs within 6 months starting from the date of signature
Failure to pay the start capital in time will lead loss of all rights as a share holder
Dr. Andrew Whittamore must make sure that the conflict between him and his wife does not affect the new business
Dr. Andrew Whittamore must help Fairview clinic in finding another pediatrician to replace him.
Article 4
Both parties must observe the terms of this agreement and in case of any breach the dispute will be settled in mediation
In case of a dispute arising out of this agreement each party must appoint one (1), a qualified doctor of 10 years standing to act as a mediator.
In case the mediation fails the parties must refer the dispute to court
Article 5
This agreement is governed by Rwandan Law
Article 6
The original/genuine version of this agreement is in English

SIGNED by the parties on the 6th day of April 2015

……………………………….                                                          ……………………………….
Dr. Andrew Whittamore  Pediatrician                 Dr. Richard Singson  Owner of Fairview

ADR agreements

Introduction
ADR is the name used for different ways of solving a dispute. For example, mediation, arbitration, adjudication and ombudsmen are all types of ADR. In many circumstances they are alternatives to going to court – which is why they are sometimes known as ‘alternative dispute resolution’. Alternative dispute resolution (ADR) consists of a variety of approaches to early intervention and dispute resolution. Many of these approaches include the use of a neutral individual such as a mediator who can assist disputing parties in resolving their disagreements.
The main ADR alternatives to civil litigation are negotiation, arbitration, conciliation and mediation.  The increased popularity of ADR methods has been due to the overloading of cases in the normal courts of and the disputing parties use these ADR methods because they are expeditious, private, and generally much less expensive than a trial.

We will draw much emphasis on looking at the parties’ agreement before taking a decision to go for ADR and after when a final settlement also known as final agreement in ADR is reached.

Mediation Is a voluntary, private and nonbinding process in which a neutral person (the mediator) assists the parties to reach a negotiated settlement. The mediator’s role is more pro active than that of a conciliator but a mediator does not have power to make any decision or award. Mediation is sometimes referred to as assisted negotiation and it employs a problem-solving approach to address conflict rather than the traditional, adversarial method. Mediation allows parties to control the dispute resolution process, rather than having a judge or some other official control it for them. Mediators are not decision-makers or judges and have no personal interest in the substantive outcome of a case but rather use their expertise in communication and negotiation to help the parties make effective, informed decisions on their own.

Negotiation
Negotiation is the processes in which parties that perceive one or more incompatibilities between them, try to find a mutually acceptable solution.Negotiation therefore is characterized by voluntariness of the parties where no third party is involved in imposing the resolution or a party forced to participate. Negotiation can involve two, three or dozens of parties and is Non-adjudicative since it involves only the parties and the outcome of a negotiation is reached by the parties together without recourse to a third-party neutral.

Arbitration
Arbitration is a procedure applied by parties to the dispute requesting an arbitrator or a jury of arbitrators to settle a legal, contractual dispute or another related issue. Arbitration is characterized by voluntary participation of the parties with the presence of a third party who as a private judge imposes a resolution. Arbitrations often occur because parties to contracts agree that any future dispute concerning the agreement will be resolved by arbitration. By employing arbitration, the parties lose their ability to participate directly in the process. In addition, parties in arbitration are confined by traditional legal remedies that do not encompass creative, innovative, or forward-looking solutions to business disputes.

Parties’ agreement before ADR
Since ADR is a private dispute settlement mechanism, parties are at free will to choose whether to settle a dispute through one of the methods of ADR. As a general rule, in all matters governed by arbitration, court shall not intervene except where the law provides. Which means that an arbitration agreement put in the parties’ contract is binding on them as it forms a contract. Article 64 provides that Contracts made in accordance with the law shall be binding between parties. They may only be revoked at the consent of the parties or for reasons based on law. They shall be performed in good faith. Similarly an agreement by parties to settle a dispute by mediation is binding on them until it fails then other forms of ADR or court can be involved.

Power to stay proceedings
Mediation and arbitration clauses are now regularly included in commercial contracts in Rwanda as the appropriate mechanism for resolving disputes. The clause usually stipulates that the parties will refer any dispute that arises out of the contract to either mediation or arbitration, where these processes do not result in a settlement the parties are still free to have court proceedings. However important to note is that in arbitration in Rwanda a party can only appeal on the procedural elements but rather not substantive elements of the dispute.

The court before which an action regarding an arbitration agreement is seized shall submit it to the arbitration, if a party so requests, before submitting his or her statements on the substance of the dispute, unless it finds that the agreement is null and void, inoperative or incapable of being performed. Where an action referred to has been brought in a court but before being heard, arbitral proceedings may nevertheless be commenced or continued, and a decision may be taken while the issue is pending before the court. In that case, the action submitted to the court shall be null and void. Similarly if parties had a mediation agreement in their contract courts can distance themselves from hearing such a dispute until a proper mediation process has been concluded.

Stay of proceedings and ADR Clauses
The enforceability of a dispute resolution clause was definitively established by the High Court in Health Service Executive v Keogh, trading as Keogh Software. In this case, the defendant had an extensive software services and maintenance contract with the plaintiff, the HSE, which was at the time of the case in use at approximately 180 sites around the State in connection with radiology, accident and emergency and hospital billing. A dispute arose between the parties, in which the defendant asserted that it had been underpaid by the HSE, and the defendant then ceased to supply the support staff for the software system. The HSE then requested the defendant to supply it with the computer source codes for the software system, which the defendant refused. A contract between the parties included a dispute resolution clause, under which the defendant agreed that the source code, which were held by a third party company, could be released to the HSE ―on the decision of an independent expert whose appointment will be mutually agreed, or, failing mutual agreement, who will be appointed by the President for the time being of the Law Society. The dispute resolution clause also provided that:

The independent expert‘s decision will be final and binding on all parties to this agreement and shall not be subject to appeal to a court in legal proceedings except in the case of manifest error.
Both parties applied to the High Court for interlocutory relief, the HSE seeking a mandatory injunction requiring the defendant to supply the support services contracted for, the defendant seeking to be paid the fees it claimed were owed and to have the dispute resolution clause and expert determination process suspended. Laffoy J stated, in applying the principles set out in the Via Networks case, that there was no reason for the parties to depart from the dispute resolution mechanism provided for in the agreement, and she refused all relief applied for by both parties. She noted that ―an examination of the... agreement clearly demonstrates that its terms are designed to facilitate speedy resolution of a dispute. In other words the principle in these two cases in as much as are English we would wish be instructive in submission, it is clearly stated that where parties agree to use any form of ADR for settlement of a dispute it shall be binding on them, neither party can depart from the earlier agreed settlement mechanism and this has also been the practice in Rwanda.

Severability of mediation and conciliation clauses
In relation to arbitration, the doctrine of severability means that even where the agreement containing an arbitration agreement is alleged to be invalid, the arbitration agreement itself can be valid and thus the question as to the validity or otherwise of the main agreement can be referred to arbitration. In Doyle v Irish National Insurance Co plc, Kelly J held that the arbitration clause survived the voidance of the contract and the defendant was, accordingly, entitled to have the dispute referred to arbitration.
The English Court of Appeal placed a limit on the doctrine of severability in the case of Soleimany v Soleimany in which it was decided that contracts for illegal adventures which are illegal or tainted in their very purpose (such as a contract of co-operation between highwaymen) could not be the subject of arbitration. However, the Court of Appeal in Fiona Trust & Holding Corporation & Ors v Yuri Privalov & Ors required the parties in this case to proceed to arbitration where one party to the contract containing that arbitration clause had purported to rescind the contract as a whole following allegations of bribery. It was held that if a contract were to be invalid for reasons such as bribery, unless that bribery relates specifically to the arbitration clause, the clause survives and the validity of the contract as a whole is to be determined by the arbitrators, not the court. In doing so, it stressed the severability of an agreement to arbitrate from the larger contract of which it was part.

Similarly in Rwanda as seen in Article 7 of law n°005/2008 of 14/02/2008 on arbitration and conciliation in commercial matters and Article 64 of LAW N°45/2011 OF 25/11/2011 GOVERNING CONTRACTS in Rwanda an arbitration agreement is binding on the parties and is not affected by the validity of the main contract itself. 

After ADR

The enforceability of outcomes is an important feature of dispute resolution processes. A decision of a court is legally binding and is enforceable by the parties to the dispute and enables the final resolution of a dispute. It is important to note that mediation and conciliation processes are not binding in themselves, but agreements reached through those processes can be made binding. For example, a mediated agreement can be in a binding contract, which can then be enforced in court. It has been argued that mediated agreements may prove to be longer lasting than imposed settlements, such as court orders, because the parties have voluntarily participated in drawing up the terms of the agreement and are, therefore, more likely to adhere to the terms of the agreement. Similarly in Rwanda mediation and negotiation final settlements/agreements are not binding on the parties and only become binding when the parties intend to make them so by way of signature hence making a contract.

In Rwanda, An arbitral award, irrespective of the country in which it was made, shall be recognized as binding. However, this shall not be respected if the country in which the award was issued does not respect the provisions with reference to cases decided in Rwanda. Similarly an interim measure issued by an arbitral tribunal shall be recognized as binding and, unless otherwise provided by the arbitral tribunal, enforced upon application to the competent court, irrespective of the country in which it was issued but subject to the conditions of reciprocity of the interim measures taken by arbitral tribunals in Rwanda.

Conclusion

All in all, mediation and negotiation agreement as forms of dispute settlement can be appealed in courts of law in Rwanda but Arbitration is not appealable and a dissatisfied party can only do so where there was gross violation of the arbitration procedures.

BIBLIOGRAPHY
Laws

LAW N° 005/2008 OF 14/02/2008 on Arbitration and Conciliation IN COMMERCIAL MATTERS in Rwanda
LAW N°45/2011 OF 25/11/2011 GOVERNING CONTRACTS in Rwanda
Health Service Executive v Keogh, trading as Keogh Software [2009] IEHC 419
Doyle v Irish National Insurance Co plc [1998] 1 I.R. 89
Fiona Trust & Holding Corporation & Ors v Yuri Privalov & Ors [2007] E.W.C.A. Civ. 20 (Court of Appeal, January 24, 2007]. See Carey New Guidance on the scope of arbitration clauses (2007) 14(4) CLP 72

Writings

Alternative Dispute Resolution Leaflet, written by  Margaret Doyle published by Advice Services Alliance, June 2012 (http://asauk.org.uk/wp-content/uploads/2013/08/Why-use-ADR.pdf)
Alternate Dispute Resolution Handbook at pg.1 (http://www.opm.gov/policy-data-oversight/employee-relations/employee-rights-appeals/alternative-dispute-resolution/handbook.pdf)
http://www.mediate.com/articles/sgubinia2.cfm
Dispute resolution guide by KIRKPATRICK & LOCKHART NICHOLSON GRAHAM LLP, 2005 (http://www.klgates.com/files/Publication/d4e79514-1038-414f-8394 7c2c22272645/Presentation/PublicationAttachment/2b825492-c6d1-46d6-b2db 7f913295536a/Dispute_Resolution.pdf
http://www.lawreform.ie/_fileupload/consultation%20papers/cpadr.pdf
http://www.cs.uu.nl/docs/vakken/vm/college9.pdf
http://assets.cambridge.org/97805217/35216/excerpt/9780521735216_excerpt.pdf

Alternative Dispute Resolution

What is ADR?
ADR is the name used for different ways of solving a dispute. For example, mediation, arbitration, adjudication and ombudsmen are all types of ADR. In many circumstances they are alternatives to going to court – which is why they are sometimes known as ‘alternative dispute resolution’. Alternative dispute resolution (ADR) consists of a variety of approaches to early intervention and dispute resolution. Many of these approaches include the use of a neutral individual such as a mediator who can assist disputing parties in resolving their disagreements.

Advantages for using ADR

It is cheaper
Mediators will commonly claim that mediation is cheaper than going to court. Mediation can be much cheaper than taking legal action as it does not require filing fees in order for a dispute to be lodged like in court where filing fees is a must.

Quicker
Some forms of ADR can be quicker than going to court. If you are involved in a small claim in court, for example, your case can go to mediation sooner than a hearing can be arranged. ADR processes do not follow strict rules of civil procedure and this helps the parties to settle disputes urgently.

Not adversarial
Going to court can risk making a bad situation worse. That’s because the legal system is adversarial – it puts one side against the other, and at the end there is a winner and a loser.
Using ADR like in mediation, where you talk to each other to find a solution you can both live with, can help preserve an ongoing relationship.

Getting what you want
There is a much wider range of outcomes with ADR than with courts. Mediation and Negotiation may well be more appropriate than court if what you want is an apology, an explanation, or a change in policy or practice by an organisation.

Flexibility
ADR processes are usually more flexible than the court process. Mediators will usually bring both parties together for a face-to-face discussion. However in negotiation, parties will try to negotiate a deal through a series of phone calls. In ADR like negotiation it is by parties’ choice of preference in sorting out a problem either by phone, through letters or emails, or face to face. Whereas court system follows strict rules of procedure that are brought in force by law and cannot be avoided save for circumstances where they have been amended.

Longer lasting
When it works, mediation and negotiation can produce a solution that satisfies both sides. Mediators encourage people in dispute to have creative discussions about a range of options. Rather than just aiming for an acceptable compromise, they will try to end up with an agreement which reflects the best possible outcome for all involved. This can have an effect on what happens afterwards. Research indicates that agreements reached through mediation are more likely to work out in practice, and to last longer, than those imposed by a court.
Confidentiality
Since ADR is a private settlement mechanism and is not done in open the dispute at hand remains private and is not published in public domains like in court system that can be open. This has helped in the protection of the image of investors in commercial matters in Rwanda.

Disadvantages for using ADR
There are some situations when ADR may not be appropriate, and may even be risky for one of the parties. It is a good idea to get some independent legal advice about this. It is important for solicitors and legal advisers to use their professional judgement in each case, but these are some of the factors you should think about:
Power differences
There may be an imbalance of power between the parties, which could make face-to-face ADR unfair. For example, mediation between an individual and a large organisation such as a local authority or company where the size and resources of the organisation could put the individual at a disadvantage, this doesn’t always mean that mediation is inappropriate, but it’s something to consider.
Urgency
There may be an urgent need (for example if you are threatened with being evicted or losing your home) which requires an immediate legal remedy. ADR does not give interim remedies like injunctions and hence forth party can lose his property in continued violation of his rights even during settlement of dispute in ADR and requires court intervention to stop such violation.
Reluctant opponent
ADR requires both parties to be willing to give it a try, so if the other side is not willing to participate, you might need to go to court instead. The unwillingness to participate delays the process of effective settlement of disputes, because ADR does not have compelling measures to bring by force parties who are not compliant.
No precedent
Agreements reached in mediation do not act as precedents in future cases. They are usually private and confidential.
If you need to establish a legal point that other people can rely on, you may need to go to court.

No ruling on legal rights and entitlements
You cannot get a ruling on your legal rights, including discrimination and human rights, in ADR processes. You can still resolve a dispute about these issues, but you won’t get a decision about whether or not the law has been broken.

Lower compensation amounts
Although arbitrators can make compensation awards, they are often lower than is likely to be achieved in court. Research shows that in arbitration of small claims cases, settlement amounts tend to be lower than amounts claimed. If you need a significant sum of money in compensation, then you might get a higher award through the court.
Binding decisions
Arbitration, and often adjudication, are processes that result in legally binding decisions. This means that you cannot reject the decision if you don’t like it, and you can’t take the claim to court instead. Arbitration in Rwanda can only be appealed on procedural grounds but rather not the substantive elements of the settlement.
Quality control
There are no consistent quality standards or regulation for ADR providers, so it can be hard to know how to choose a good service.
Costly
Arbitration in Rwanda like in international commercial matters where the seat can be in any country of parties’ choice is costly in terms of buying air tickets for participants, reservation of hotels and remuneration of arbitrators. Article 65 provides for costs in Arbitration in Rwanda.
Bibliography
Laws
LAW N° 005/2008 OF 14/02/2008 on Arbitration and Conciliation IN COMMERCIAL MATTERS
Reports
Alternative Dispute Resolution Leaflet, written by  Margaret Doyle published by Advice Services Alliance, June 2012 (http://asauk.org.uk/wp-content/uploads/2013/08/Why-use-ADR.pdf)

Alternate Dispute Resolution Handbook (http://www.opm.gov/policy-data-oversight/employee-relations/employee-rights-appeals/alternative-dispute-resolution/handbook.pdf)

Criminal Process in Rwanda Legal System

A crime is an act or omission made and punishable by law. Discuss this theme under criminal process perspective.

Introduction

The criminal justice process entails quite a good number of procedures to be followed and varies from one jurisdiction to another. It is also important to note that the same criminal justice system further more varies from capital offenses to minor criminal offenses even within the same jurisdiction. And in some circumstances even the procedures vary depending on the nature of the case. What was done in one case might not necessary be the same that is done in another case even with similar facts. Our focus however is going to base more on the Rwandan Criminal process and much emphasis and reference will be made to the Code of Criminal Procedure of Rwanda. The Rwanda Constitution of 2003 as amended provides that no person shall be denied of personal liberty and shall not be arrested or prosecuted for an offense that is not provided for by the law, he/she shall be entitled to be informed about the offense she/he is being charged and such a trial shall be conducted in the gazetted trial procedures.

Similarly under Article 19 of the Rwanda Constitution a person shall be presumed to be innocent until a fair and just trial has been conducted publicly and the accused has been proved guilty. It is also important to note that under Article 20 of the Rwanda constitution, a person cannot be tried or arrested for an act that did not constitute an offense at the time of commission.

Preliminary investigation

The Code of Criminal procedure of Rwanda provides that the Judicial Police is responsible for detecting offenses and gathering incriminating and exculpatory evidence and also searching for perpetrators of such offenses, the co-offenders and accomplices. This provision gives the judicial police to do the very first investigations in case a crime has been committed. It is important to note however that such investigations can either be on a judicial police officer’s own initiative, after a complaint has been lodged by an individual or after being instructed by the public prosecution. After the complaint has been lodged or upon receiving instruction from the public prosecution, the judicial police officer then immediately must move to the scene of crime and collect all the relevant facts as seen in Article 23 of the Code of Criminal Procedure. The Code of Criminal procedure under Article 24 provides that a judicial Police Officer must preserve evidence which is found at the scene and no one should tamper with the condition in which the scene is found apart from the judicial police itself in circumstances prescribed by law. Further the police officer has to interrogate any person that has vital information in regards with the crime committed and such persons can be called by way of summons. At the end of the interrogation, then a statement is written and the interrogated person confirms the contents in it and sign with the judicial police officer’s counter signature.

Similarly the judicial police officer may retrieve information that is held by any one by way of conducting a search which might be of the premises or even a body search of the individual being investigated. However such searches must be conducted after obtaining a search warrant from the public prosecutor for the premises and authority from the public prosecutor to conduct a body search. However the person being body searched has a right to be searched at a place in the presence of any person he/she trusts. In the Rwandan legal system if a judicial police officer finds movable property belonging to the suspect and it was used in the commission of a crime. Such property can be seized by the officer and a statement of seizure written showing the details of such item seized and such statement must be signed by the owner of property being seized as seen in Articles 30 and 31 of the Code of Criminal Procedure.

The Code of Criminal procedure under Article 33 provides for being caught red-handed or presumed to be caught red-handed and this is a person caught in the act of committing an offense or immediately after committing an offense. A person presumed to be caught red-handed shall be a person being yelled at by the public or found with arms, instruments, documents or any other objects which give reason to assume that he/she is a perpetrator or an accomplice provided that it is soon after the offence. And in such circumstances a speedy trail must be commenced by submission of the case file to prosecution within 72 hours and the prosecution must seize court within 5 days whereof trial must commence within 15 days as seen in Article 34.

If the offender commits an offence liable to 2 years and more of imprisonment and is arrested by the judicial police he must be put in a gazetted custody facility. Similarly he should be informed of the charges being preferred against him and also given a right to legal counsel or a right to inform a person he trusts about his/her arrest. Immediately after preliminary investigations are done a report in form of a case file is submitted to the prosecutor. Such report includes the following; Police officer who conducted the investigations, the plaintiff and defendant, the law violated and Mens Rea of the suspect, participation of the suspect in commission of the offence, Date and place of commission, evidence against the accused and a list of witnesses if any.

PROSECUTION

The power for prosecution in the Rwandan legal system lies with the prosecution. If a report is handed over to them they might choose to do further investigations. And these may include summoning of witnesses and any other person they deem relevant to deliver information about the crime committed, interrogation of the suspect(s) and witnesses. The interrogated persons are made to record statements and the contents read unto them, they also have to sign the statement. The prosecutor can also conduct cross examination between the suspect(s) or witnesses listed at the request of any interested party or at the prosecutor’s own initiative for purposes of clarity. Similarly the prosecution can conduct search of premises and body search of suspect and if there is any incriminating movable property belonging to the accused can be seized and a statement of seizure written by  the prosecutor and signed by the accused.   

Upon completion of further investigations the prosecutor shall draft an indictment which includes the name and jurisdiction of court being seized to commence trial. The claimant and defendant and in purposes of criminal offences the NPPA is at all times the claimant. The facts of the case, offence committed, and the law violated, particulars of the suspect(s) elements of the offence(s) committed, showing the intention (moral element), the legal element and the actus reus (material element). It is also important to include witnesses information, material  evidence and most importantly not forgetting the prosecution prayer because it is the main reason as to why court is seized. The indictment is concluded by statement of contents of the dossier, place where the indictment was done and signature of the prosecutor. According to the Code of criminal Procedure of Rwanda, court shall be seized when the prosecutor files a case and in such circumstances after drawing an indictment he files it in a competent court to try the criminal suspect and  the trial shall be presumed to have been commenced.

Trial Process and Sentencing

The Rwanda Criminal trial process suggests a speedy and fair trial especially for the persons caught red-handed as has been discussed earlier. Similarly a person is entitled to legal representation or can choose to be assisted. In case of legal representation, he may not appear in court like for minor offences but capital offences like murder the accused must be present. During hearing, the court registrar calls the roll of parties to the proceedings; the court registrar reads out particulars of the accused and the offence alleged against him/her; the court asks the accused whether he/she pleads guilty or not guilty; the Public Prosecution presents evidence proving the guilt of the accused; the accused presents his/her defense and explains the circumstances in which he/she committed the offence if he/she pleads guilty; parties to the proceedings, prosecution or defense witnesses are examined by the judge, or parties directly cross-examine each other or witnesses, and disputed points of testimonies given are debated and the court decides thereon; experts are heard, if necessary, if necessary, evidence that may be conducive to ascertaining the truth is examined; the civil party explains his/her claim, the person liable for damages is also heard; the Public Prosecution presents a summary of charges against the accused and the punishment requested against him/her; the accused person is given the last opportunity to be heard; if necessary, the court registrar reads in public the record of hearing before it is signed; the hearing is declared closed and the presiding judge informs the parties present the date and time when the judgment will be pronounced. Such a seating must be conducted at a place set by court and on a date well known to the parties. Proceedings can either be held in public or for purposes of public morals in camera.

Sentencing

Sentencing procedures vary with the type of sanction under consideration. In as much as judicial officers are given discretion in determination of a proper sentence for a criminal; however such discretion must be exercised in accordance with the law. In the past judges were given a lot of discretion to decide in a way they feel appropriate. However, with the introduction of precedent judges are compelled to treat like cases alike for purposes of predictability.Similarly, In Rwanda the doctrine of Precedent has been appreciated and judgments decided by the Supreme Court of Rwanda are binding on all other courts.After hearing both the prosecution and defense when the pleadings have been closed, on the date of judgment a sentence shall be pronounced by the presiding judge and he/she must besides precedent follow the following while writing the final judgment/sentence;

Article 82 of the Code Penal of Rwanda states that in the event of combination of aggravating, excusable, recidivism and mitigating circumstances, Courts shall apply the penalty taking into account these factors in the order set out under this Article.

Article 79 the same law defines recidivism, for the purposes of this Organic Law, recidivism occurs when a person who was previously sentenced to imprisonment of at least six (6) months, commits another felony or misdemeanor within a period of five (5) years after completion of the penalty. In case of recidivism, the convict shall receive the maximum penalty provided by law and the penalty may be doubled.

Article 71 of the Code Penal of Rwanda provides the factors taken into account by the judge in determining a penalty. The judge shall determine a penalty according to the gravity of the offence taking into account offender’s motives, history and background, circumstances surrounding the commission of the offence and individual circumstances.

Article 70 of the Code Penal of Rwanda provides that the Court shall pass judgment in accordance with the provisions of law and must state the reasons for its decision.

Similarly under Articles 77 and 78 of the Code Penal mitigating circumstances are provided for which may include reporting oneself after commission of the offence, pleading guilty at the beginning of trial or if the offence committed carries minor consequences.

Conclusion

All in all the Criminal process perspective is a justice dispensing system which involves well laid down procedures by law for tracking down offenders, bringing them to justice and giving them a suitable punishment. This system carries with it deterrent, retributive, reformation, protection of the community and reparation measures.

BIBLIOGRAPHY
Primary Sources

Laws

The Constitution of Rwanda of 2003 as amended

Law Nº 30/2013 of 24/5/2013 relating to the Code of Criminal Procedure

Organic Law N° 01/2012/OL of 02/05/2012 instituting the Penal Code

Text books

Criminal Procedure by LaFave, Israel, King and Kerr, 5th Edition Hornbook Series printed in