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
