UNIVERSITYOFRWANDA(UR)CASS–SCHOOLOFLAW

GikondoCampus

Organisation,Competence&FunctioningofRwandan

CourtsSyllabus

By Louis GATETE

School of Law – LLB. II – Academic Year 2016 – 2017

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Descriptionofthecourse

ØThe Organization, Functioning and Jurisdiction of Courts (OFJC) is a module

which ensures that students are uninitiated with the structure and functioning of

Rwandan courts.

ØThe various Rwandan courts as well as people called to make them function arebuilt in a pyramid form, representing the various levels of the Rwandan legal

system. The course is divided into six (6) broad topics :

ü The introduction to the judicial law;

üStructure and functioning of ordinary courts;

üStructure and functioning of specialized courts;

üStructure and functioning of the Supreme court;

ü Legal status of judges & Prosecutors;

üOther representatives of the law.

ØThe course has 120 hours, which include a teaching load, that of practical work as

well as a number of approximate hours for outwork. As for class meetings, we will

have a total of around 12, an average of 2 meetings per topic.

ØReadings will be required on average for each meeting. One expects that students

read documents allocated for each meeting before this one takes place, and

should be prepared to discuss about it in class.

Objectivesofthecourse

ØAt the end of this course, the student should be able to understand and explain the

organization and functioning of Rwandan judicial courts.

Methodologyofteaching&Methodsofevaluation

Ø Lecture based on concrete examples

ØDiscussion of the subject by students

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ØMainly exercises posing problems to be solved by students.

Ø 3 ways of evaluation:

ü In-class & Collaborative Assignments: 50%

ü Final Exam.: 50%

Necessaryreadings

a.Books1. Williams J. CRAIG, How to Get Sued: An Instructional Guide, Kaplan Trade,2008, 254 pages, (ISBN: 978-1427797711)

2. William HALTOM, Distorting the Law: Politics, Media, and the litigation Crisis,

2nd edition, University of Chicago Press, 2004, 332 pages, (ISBN: 978-0226314648)

3. Margaret L. MOSES, The Principles and Practice of International Commercial

Arbitration, 1st edition, Cambridge University Press, 2008, 358 pages, (ISBN:978-0521685627)

4. Brian Z. TAMANAHA, Beyond the Formalist-Realist Divide: The Role of

Politics in Judging, Princeton University Press, 2009, 264 pages, (ISBN: 978-

0691142807)

5. Paul Craig ROBERTS, Lawrence M., JR. STRATTON, The Tyranny of Good

intentions: How Prosecutors and Law enforcement are Trampling the

Constitution in the Name of Justice, Three Rivers Press, 2008, 288 pages(ISBN: 978-0307396068)

6. Legal Review of the Bars, February - June 1999, No 55/56, Paris, Dalloz.

7. Alex STEIN, Foundations of evidence law, Oxford university Press, 2005, 264pages, (ISBN: 978-0198257363)

7. H.L. HO, A philosophy of evidence law: Justice in the search for truth, Oxford

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University Press, 2008, 300 pages (ISBN: 978-0199228300)

8. Philip HAMBURGER, Law and Judicial Duty, 1st edition, Harvard UniversityPress, 2008, 704 pages, (ISBN: 978-0674031319)

9. American Law Institute and UNIDROIT, Principles and Rules of Transnational

Civil Procedure, Cambridge University Press, 2005, 238 pages, (ISBN: 978-0521855013)

10. Renaud DEHOUSSE, The European Court of justice: Politics of Judicial

integration, Palgrave Macmillan, 1998, 240 pages, (ISBN: 978-0333693179)

11. Jennifer E. BEER, Eileen STIEF & alii, Mediator's Handbook, 3rd Revisededition, New Society Publishers, 176 pages, 1997, (ISBN: 978-0865713598)

12. Daniel ROUX, Jean Pierre SCARANO et Françoise SERRAS-BERAUD, Les

institutions Juridictionnelles en Qcm, 3e édition, Ellipses Marketing, 2008, 157pages, (ISBN: 978-2729840914)

13. Patricia VANNIER, Procès et institutions juridictionnelles, Ellipses Marketing,2008, 143 pages, (ISBN: 978-2729836795)

b.Judiciallaws

ØConstitution

ØOrganic law (13/06/2012) determining the organization, functioning and jurisdictionof the supreme court (mod. 11/03/2013)

ØOrganic law (19/09/2012) determining organization, powers and functioning of the

High council of the judiciary

ØOrganic law (03/10/2011) determining the organization, functioning and

competence of the National Public Prosecution Authority and the Military

Prosecution Department (mod. 11/03/2013)

ØOrganic law (09/09/08) determining the organization, functioning and jurisdiction of

courts(mod. 16/06/2013)

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Ø Law (08/03/2013) governing the statutes of judges and judicial personnel

Ø Law (14/6/12) determining civil, commercial, labour and administrative procedure;

Ø Law (24/5/2013) relating to the Criminal procedure

ØEtc.

PlanofthecoursePart 1. General considerations:

üDefinition, content and nature of judicial law

üApplication and sources of judicial law

ü Justice and other modes of conflict settlement; separation of powers; Guiding

principles.

Part 2. Courts

üOrdinary Courts

üSpecialized Courts

üSupreme Court

Part 3. Actors of justice

üPrimary actors (Judges & Prosecutors)

üOther contributors of justice

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PART1.GENERALCONSIDERATIONS

TITLE 1. INTRODUCTION TO JUDICIAL LAW

I. Definition

Ø Legislative provisions:

ü regulating organization of various courts and the judicial staff statute;

ü defining competence of each court as well as the way criminal or civil action is

introduced, investigated and judged.

II. Contents and Nature

Ø Judicial law includes :

ü judicial organization ;

ü competence of courts

ü and procedure in civil (civil procedure) and criminal (criminal procedure)courts.

Ø Judicial law has a mixed nature:

ü in criminal field, rules are mainly imperative (mandatory rules)

ü in civil field, they are sometimes suppletive (i.e. default rules)

III. Application of judicial laws

ØNon – retroactive nature : judicial instruments are governed by the law in force at

the time of their achievement:

ü in theory, a law lays out only for the future

üHowever, legislator can derogate from this principle (e.g. transitional

measures)

ØPrinciple of territoriality :

ü In theory, rules from judicial law apply only to the territory of the Rwandan

republic

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üHowever, foreign judicial instruments can be applied to Rwanda with the help

of exequatur procedure by the Rwandan judge

ØStrict interpretation (but also application of general principles of law in case the law

is unclear.)

TITLE 2. PUBLIC UTILITY OF JUSTICE

I. Justice and other ways of conflict settlement

A. Ordinary non-jurisdictional modes

ØNo jurisdictional measure (=consisting in wondering about violation of a legal

provision; it – the measure – emanates from a court)

ØThere is no court;

ØOne does not propose to deduce a solution from the strict application of the law

ØOne seeks more to extinguish the conflict than to judge.

1. Their reason to be

ØNon-legal disagreements : some are not posed in truly legal terms. It is the case

especially for those which, one could describe as «political» disputes. This will bein particular to reconcile both sides.

2 disciplines provide examples :

ü Labour law : employees being opposed to their employer, further to a petition

requesting an increase of their remuneration go on strike.

üPublic international law : A State claiming against another, adjustment of itsborders.

Ø Legal disagreements : some of legal nature, can bring, by the will of both sides, a

solution which isn’t rigidly dictated by law (in other words, which draws aside a

jurisdictional settlement) : soft justice

ü for various reasons :

vthe winner – defeated status (established by any judgement) affects

deeply future relations between parties in the lawsuit ;

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vinduce parties to compose and accept an arrangement, while ruling in

equity.

ü For example: conflicts related to neighbourhood.

2. Principal modes

ØConciliation : the involved parties get along directly with assistance from a

conciliator

üwho can be a judge himself or a conciliator of justice

ü this is free

ØMediation :

ü done by a third party : more active role (he proposes some elements of

agreement to parties but without imposing them) (e.g.: Ombudsman)

ü also free (but sometimes paying)

ØTransaction : it can be reached during a lawsuit or to avoid a conflict (significant

application in insurance law); it involves at least 2 people,

ü each one putting forward claims;

ü litigation extinct or is prevented only at the price of a mutual abandonment ofpart of these claims .

B. Nonjurisdictional modes suitable for the administrative law

Ø litigation arise between a public legal entity and a private individual

Ø 2 administrative categories of recourse (see art. 98 SFP):

ü an internal administrative appeal for reconsideration (recours gracieux) – the

1st level which is carried to the authority from whom the act blamed emanates,

with a view to obtaining a discretionary withdrawal or repeal of the act in

question.

ü a formal complaint to a higher authority (recours hiérarchique) - the 2nd level

which is carried to the superior of the authority mentionned above (in Rwanda,

it is a commisso)

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C. Jurisdictional modes

ØSolution of litigations sought through jurisdictional award : the authority resolves or

decides a conflict – settles once and for all (« trancher ») – in accordance with the

law

ü the authority is organized so as to be independent from parties (impartiality)

ü and is compelled to comply with purely formal rules

Ø 2 categories : private jurisdictions/courts on one hand, and official public courts on

the other hand.

1. Arbitration

ØPrincipal difference with preceding forms : the fonction conferred to the

arbitrator (private judge)

üHe/she settles him/herself the dispute

ü he/she gives a ruling, in accordance with law (Statue en droit)

ØNeed for prior agreement between parties (unlike official courts)

üArbitration agreement (Compromis)

üArbitration clause (Clause compromissoire) (art. 31, Arbitration Rules1)

Ø In case of non-perfomance (inexécution) : the State holds the monopoly of

constraint: procedure of exequatur or «recognition»

ØPossible ways of recourse : appeal against foreign arbitrator’s decision2

ØCharacters (advantages & disadvantages):

ümore celerity in general, than justice of State

ü remuneration can be more expensive (arbitrators are expert lawyers or

technicians)

1 Ministerial Order no 16/012 of 15/05/2012 determining Arbitration Rules of Kigali International Arbitration Center(KIAC)2 According to art. 39, al. 6 in fine, Arbitration Rules), litigants, by submitting their dispute to arbitrators under KIACRules, shall be deemed to have waived their right to any form of appeal, review or recourse to any other judicialauthority.

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ü discreet justice (no public) and based on agreement between parties

ØApplication :

üCommercial international law

ü It can’t be applied to public legal entities.

2. Resort to official courts

Ø Jurisdictional activities of courts

ü any disagreement has vocation to be settled by a public court ; let us note 2

elements :

vpower to declare which one of the claims in conflict is in conformity with

the right in force (droit en vigueur)

vpower to pronounce an enforceable decision (force exécutoire) (=imperium ≠ jurisdictio)

ü records (actes de juridiction) can also be without litigation: (gracieux) control

by the judge to simply ensure guarantee of competence and impartiality (ex: toapprove an act whose content was decided beforehand by the interested

parties: change of the marriage settlement)

ØNonjurisdictional activities :

ü legal administration measures (management of the jurisdiction); ex: to register

a lawsuit.

ü Nonjurisdictional acts linked with solution of the litigation: judge conferring

executory force on a transaction.

II. Separation of powers

ØRwandan Courts (both ordinary and specialised) are organised in a sort of pyramid

...

Ø ... on top of which there is the Supreme Court

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A. Judicial authority and Parliament

1. limited Protection of the judicial authority

ØAs soon as the process is under way, the textual data of the lawsuit cannot be

modified any more;(the decision issued by the judge is not likely any more to be

deprived of effect by the legislator)

ØHowever, there can be interference of the Parliament in the litigations whose

courts have to take cognizance; 2 types of laws are concerned:

ü interpretative law :

adoption of this law which comes to be incorporated in the text that it

interprets to give a different direction; it has a retroactive effect

ü law of amnesty:

vit extincts the prosecutor action and erases the pronounced penalty, butdoes not erase the material facts and their civil consequences

vit represents a blow to the independence of the penal judge when it occurs

during progress of procedure (the judge is deprived of the proceedings

which are off - the Parliament replaces, somehow, the courts)

2. Wide protection of the legislature against the judgeThe legislative function of the Parliament profits from a particular protection by 2principles that all the courts have to obey:

ØSubordination of jurisprudence:

normative role of the judge is inevitable (the judge is possibly brought to create

whole or part of the law).To guarantee against this potential offence of his field, thelegislator enacts specific rules:

ü prohibition of ‘authoritative judgements’ (in French: « arrêts de règlement »):

It is forbidden for the judge to give his verdict by way of general provision or

regulations (dispositions réglementaires) on causes which are submitted tohim.

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ü prohibition to refer legislative projects to the Parliament; however the annual

report of the Supreme Court enables to make available some appropriate law

reform to authorities.

ØObligation for the judge to apply the law:

He wouldn’t, under any circumstance, draw pretext from the gaps or imperfections

of the law, to refuse to rule.The judge cannot censure nor ignore a law.

However, a nuance: jurisdictional control of the constitutionality of the laws (the

control of the conformity of the laws to the Constitution is of jurisdictional nature)

B. Judicial power and Government

1. Protection of the Government vis-a-vis the judge

ØPrinciple: No interference of the judge in the administration

ØMost applications of the principle:

ü theory of the acts of the government:

Some acts, known as "acts of the government" profit from jurisdictional

immunity (can’t be subject recourse).For ex:

vacts related to relations between the Government and the Parliament(decision of the president of the Republic to send soldiers in a foreign

country)

vacts related to international relations (exercise of the diplomatic function)

ü prohibition for the judges to make act of administration:

It is forbidden for judges to replace the administration …

v… while carrying out acts of administration (For ex: the judge cannotreclassify a civil servant – un fonctionnaire)

vHowever, the judge can order administration to take a legal measure

(‘possibilité d’injonctions’)

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2. Protection of the judge vis-a-vis the Government

Ø It is necessary that the statute of the judge contributes to his impartiality (by

preserving him of the risk of pressure on behalf of the State).However the

professional judge is also a civil servant.

ØProblem of his/her independence in 3 components:

ü impartial recruitment of the magistrates:it is essential that only qualified judges are recruited.Various modes of

recruitment:

vdrawing lots (tirage au sort)

velection

vnomination : the most widespread system; but according to which criteria?

o if arbitrary, without any condition of competence: possibility of abuse

o if nomination by competition (sur réussite à un concours): it ensures

better than others the control of competence.

ü promotion of the magistrates:to avoid arbitrary and favouritism, you have to guarantee an automatic

promotion with seniority.

ü problem of judicial tenure / irremovability (inamovibilité): requirement of the

judge’s consent for any transfer (mutation)

III. Guiding Principles

A. Organization of Justice services

ØPrinciple of separation :

ü separation, inside the judicial order, of the civil and repressive courts

ü separation also of the bodies functioning inside each court : magistrate who

sits on the Bench (magistrats du siège ou juges) c/ Prosecutor (magistrats duparquet ou debout)

ØPrinciple of hierarchy :

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ü need for allowing parties to profit from a second examination of their legal

action (right to appeal to a higher court)

ü need to standardize jurisprudence, to control divergent solutions produced

from the same question (procedure before the Supreme Court)

ØPrinciple of independence and impartiality:

ü Independence of courts towards

vpolitical power (see supra)

vexperts

vthemselves.

ü independence does not merge with impartiality; it is a prerequisite (condition

préalable).

ØPrinciple of collegial structure, quid?

ü single judge:+ positive financial aspects

+ he is accountable - however see the mode of recruitment

ü collegial structure

+ concertation (more thoughtful and nourished decision) - but problem of

personal competence and training of judges+ independance (each one doesn’t personally fear to be blamed) - issue of

character or temperament

+ impartiality (judges work under control from/to each other) - issue ofcharacter or temperament

ü no valid arguments in favour of the collegial structure; perhaps distinguish

according to nature and degree of the court. Examples :

vsingle judge or college in accordance with appreciation of the president of

the court.

vsingle judge at the 1st degree in civil matter and a collegial structure at

appeal level.

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B. Functioning of Justice services

ØPrinciple of equality in court:

ü all the parties being in the same situation, must be judged by the same courts,

according to same rules' of form and content (même règles de fond & forme).

ü Limits :

vobligation for a foreign plaintiff to deposit a guarantee known as "cautio

judicatum solvi" to ensure his solvency

vjurisdictional assistance (aide juridictionnelle)

ØFree Justice care (Gratuité de la justice) (relative concept):

ü civil service (service public) :

vJudges being civils servant, could not receive remuneration from litigants

(otherwise, offence of misappropriation – délit de concussion)

vhowever, litigants are responsible for part of the courts’functioning

budgetary cost; in other words, the following are not free:

o records from the court (différents actes de justice)

o costs of the lawsuit (dépens) supported by the loser

o pleading fees (droits de plaidoirie)

vfor criminal lawsuit expenses, we distinguish:

o overhead charges (corresponding to the courts’functioning cost

supported by the State: ex magistrates pay)

o special expenses:

* prosecution expenses: incurred by prosecution authorities tocontribute to the manifestation of the truth (ex: technical operations

of the police)

* defense expenses: incurred by litigants to be assisted orrepresented by a lawyer

ü assistance from representatives of the law (auxiliaires de justice):

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vpossibility for a penniless litigant, to profit from assistance of a self-wilful

lawyer appointed by the bar.

vevolution of the legal aid to legal assistance (jurisdictional assistance vs

system aiming at ensuring access to justice in general, consultation for

example)

ØNeutrality of the judge:

ü technical neutrality

v«accusatory/adversarial system» (oral, public and contradictory

procedure): parties play a dominating role in the control of the lawsuit;legal evidence

v«inquisitorial procedure » in criminal matters (written, secret and

noncontradictory procedure): judges carry out an active role because there

is a need to control preliminary investigations and search for evidence:;evidence appreciated according to judge’s inward conviction.

vprinciple of party disposition (in French: “principe dispositif”), under which

the parties exercise, in principle, sole control over legal proceedings; the

judge is bound by the lawsuit framework as lay out by them.

vprinciple of unavailability of the criminal lawsuit since prosecution initiativeis entrusted to the Prosecutor

o civil matter:«accusatory procedure» subjected to the «parties’ disposition»

principle (possibility to advise a litigant very reduced)

o criminal matter:

unavailable «inquisitorial» procedure (during preliminary investigation)and «accusatory» procedure (during pleadings hearing).The judge can

advise applicant.

ü social and political neutrality:

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vprotection of litigants against judge’s personal convictions or knowledge

about their dispute/lawsuit

vthe judge can abstain from sitting (disclaim competence) if there is alliance

or family tie with litigants; as he can be challenged in some indicated

cases

vthe judge is subjected to a deontology (ethical)

ØContinuity of civil service:

civil service of Justice functions permanently

ØPublic nature (Publicité) of Justice:

ü debates and pleadings are open to the public, except cases where the lawrequires or allows that they take place in camera.

ü decision/sentence: hearing can be not open to the public, but judgement must

be publicly issued/pronounced.

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PART2.COURTS

Ø unit of civil and criminal justice: 2 common features show it:

ü in spite of certain magistrates’ specialization, courts belonging to the judicial

order sit at the same time in civil and criminal matters: the same magistrates

are hearing, sometimes civil cases, sometimes criminal ones (see art. 9 OFJCfor IC -TGI)

ü all these courts are, without exception, attached to the supreme Court..

ØWe will respect a fundamental division in civil procedure: that of the common or

ordinary courts and specialized courts. We’ll end on a title devoted to the Supreme

Court. For each court, we will specify in a very summary way its competence and

organization.

TITLE 1. ORDINARY COURTS

Chapter 1 Primary courts (PC - TB)

A. Organization

ØThe scope of the PCs as their denomination are found in appendix of the organic

law determining OFJC (Article 3 al.1 OFJC).

ØAttributions of the PC are carried out at the seat of the court which is fixed by the

HCJ after dialogue with the sector council concerned (Article 3 al. 2 OFJC) butitinerant hearing were restored for all the courts except the supreme Court (Article

62 and 63 OFJC)

ØTraditional collegial structure (public sitting and room of the council) had been

replaced by single judge (Article 7 OFJC).

ØResponsibility and powers of the president of the court:

üHe/she is carrying out control and monitoring of judges,

üHe/she organizes administration service and distributes lawsuit cases (Article

5 al.1 OFJC),

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üHe/she can delegate a 3rd category of attribution to other judges: hearing

urgent cases (summary procedures) (Article 69 OFJC)

B. Competence

1. Civil competencePC civil competence must be specified from a double point of view: jurisdiction ratione

materiae and jurisdiction ratione loci.

Ø Jurisdiction ratione materiae:

ü exclusive competence for disputes related to civil status and family [Mariage,

divorce and judicial separation, filiation, etc. ](Article 67, 5o OFJC); land,

livestock and their succession (Article 67, 2o OFJC).

üRate of the scope/jurisdiction:

vit rules without appeal when the request does not exceed 300.000 frw(Article 68 OFJC)

vit rules with appeal opportunity, above this amount up to 5.000.000 frw

(Article 67, 1o OFJC)

Plurality of claims exceeding this last sum, as well as the same action comprisingrequests of which ones would not be of PC competence, make it unqualified

(i.e. incompetent see article 70 and 71 OFJC)

Ø Jurisdiction ratione loci: The applicable rules are not for public order – ordre public

(Article 178 al.2 OFJC).

ü lawsuit is in theory, carried before the PC of the place where the defendantlives [actor sequitur forum rei: plaintiff seizes the court of the defendant

domicile]

vif the defendant is an individual, he/she resides where is his/her domicile

(Article 121 al.1 OFJC) [About the elected residence, see art.125 OFJC],or failing that his/her residence (Article 121 al. 3 OFJC)

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vif the defendant is a legal entity (company or association), the place where

it has its registered office (or principal establishment) is considered.

(Article 123 OFJC)

ü exemptions from the principle actor sequitur forum rei:

vthe law can imperatively indicate another court : thus as regards real

action in rem – action réelle immobilière, the competent court is that of the

situation of the real estate – biens immeubles (Article 128, al.1 OFJC).See

also art.129 – 131 and 127 OFJC [concerning succession, bankruptcy and

guardianship - tutelle].

van option can be allowed to the plaintiff: as regards contract, he/she can

refer the matter to the court of the place where contractual obligation was

born – formation du contrat, or that of the place of its fulfilment – exécutiondu contrat (Article 124 OFJC).

2. Criminal competence

Ø It is a question of knowing which court will have to rule for a precise offence

ØCompared to the applicable civil matter rules, the criminal competence rules (i.e

competence ratione materiae, loci, personae and temporis) present an essential

originality: they are all for public order (; from where 2 consequences:

ü right to be judged by one’s natural judge:

vprohibition to modify competence rules in criminal matters;

vThe judge of the action is a judge for the exception:

o it is rather frequent that during a penal lawsuit, a difficulty arises whichnormally is a matter for civil courts [For ex., to initially note the

existence of a contract, to know if a breach of trust were carried out];

in that case, the criminal court to which legal action had been referredis qualified to rule on all exceptions suggested by the accused for

his/her defense (Article 161, al.1 and 2 OFJC)

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o exemption: criminal interlocutory questions – exceptions préjudicielles

pénales [the penal judge suspend to rule until the court to which the

exception was referred deliver its decision] which are in a higherjurisdiction’s scope, allow this one to evoke the entirety of the lawsuit

(Article 161, al.3 OFJC).

ü incompetency can be raised by litigants at all the stages of the procedure as it

can be raised by the court (Article 120 OFJC).

Ø 4 criteria make it possible to determine competent court to judge an offence:

ü Jurisdiction ratione temporis (according to the time period during which some

specific offences had been committed): only genocide against Tutsis and other

crimes against humanity committed between October 1st 1990 and December

31, 1994 are concerned (since Gacaca courts completed their work3) – see art.66 al. 1, 2o COFJC

ü jurisdiction ratione personae (according to personal characteristics of

offender): Leadership authorities4 at former sub-prefecture and commune

levels, involved in the genocide and crimes against humanity between October1st 1990 and December 31, 1994 – see art. 66 al. 1, 2o, h) COFJC.

ü jurisdiction ratione materiae (according to seriousness of offences):

vfor common criminal acts (see art. 66 al. 1, 1o & al. 2 COFJC), …

o PCs are competent to judge minor offences – contraventions and more

serious offences (or misdemeanours) – délits [ about the difference

between them, see art. 21 to 24 Pen. C: 0-6m-5yrs].

o PCs are unqualified to judge felony and all offences against traffic

rules.

vAbout crimes against humanity committed between October 1st 1990 andDecember 31, 1994, PCs are, in accordance with art. 66 al. 1, 2o, a) to g)

COFJC competent for:

33 Organic Law no 04/202/OL of 15/06/2012 Terminating Gacaca Courts and Determining Mechanisms for SolvingIssues which were under their Jurisdiction, in Official Gazette (special no) of 15/06/2012, pp. 9-224 Public administration, Police and gendarmerie, political parties, religious denomination, militia

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o Homicide, serious attack causing death, dehumanizing acts on dead

bodies,

o Rape, sexual torture, and other acts of torture;

o Injuries with intention to cause death and criminal acts without

intention to kill

ü jurisdiction ratione loci (according to geographical localization of the offence):to attach geographically a criminal lawsuit to a court, there are 3 possibilities:

vplace of commission of the offence (Art. 117, 1o OFJC),

vthe offender domicile or, failing that, his/her residence (Art. 117, 2o OFJC),

vplace of arrest (Art. 117, 3o OFJC).

In the event of pendency of case, the order previously stated prevails (Art. 117 al.

2 OFJC). In the event of connexity, it is the court ratione loci qualified to judgethe most serious offence to which are referred all the offences (Art. 118

OFJC).

Chapter 2. Intermediate Courts (IC – TGI)

A. Organization

ØScope of the ICs as their number and denomination are indicated in appendix of

the organic law determining OCJ (Art. 8 al.1 OCJ);

Ø the OFJC prescribes that:

ü the seat of each court is fixed by the HCJ in dialogue with the Councils of

districts concerned (Art. 8 al.2);

ü the composition of each court includes at least 7 judges (of which a presidentand a vice-president) (Art. 10).

Ø to perform its jurisdictional functions,

ü the IC sits at the 1st degree, as at appeal level, with single judge (Art. 14 al.1

OFJC);

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ü but the president can (only at appeal level – see new CCLAP), according to

his/her appreciation, decide that a case will be settled by a college of 3 or

more judges (Art. 14 al.2 OFJC).

Ø responsibility and powers of the president (Art. 12 OFJC):

üAttributions of judge (judicial duties);

üAdministrative organization and functioning of the court.

ü To rule on requests … (Art. 88 OFJC)

v… of case transfer (due to public safety or impossibility of regular

composition of seat of PCs)

v… in relation with conflict of jurisdiction between PCs under the IC’s scope.

v… related to summary procedures falling within the IC’s competence (Art.

80)

B. Competence

Ø Jurisdiction ratione materiae rules are for public order (Art. 86 and 178 OFJC)

Ø IC decisions can be attacked in opposition before themselves; and at appeal levelbefore the High court – HC (Art. 87 OFJC)

1. Civil Competence

Ø Jurisdiction ratione materiae:

üResidual jurisdiction: IC takes cognizance of all the civil lawsuits not having

been expressly assigned to any other court (Art. 78 OFJC).

ümoreover, it has an exclusive competence as regards insurance before

ordinary courts (i.e. excluding commercial courts) (Art. 78 in fine OFJC)

üAs for civil matters falling outside of the PC’s exclusive competence5, the IC

rules for requests which exceed 5.000.000 rwf

5 See at page 19

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ü it is also competent for appeal against 1st degree decisions and those related

to summary procedures, brought in by PCs (Art. 79 OFJC)

Ø Jurisdiction ratione loci:

ü the actor sequitur forum rei principle, like its exemptions analyzed previouslyfor PCs (see art. 121 OFJC), apply for cases brought before the IC as a 1st

instance.

ü as a court of appeal, the IC has a jurisdiction ratione loci with regard to all the

PCs having their seat inside the IC’s scope.

2. Criminal Competence

Ø Jurisdiction ratione temporis for genocide against Tutsis and other crimes against

humanity committed between October 1st 1990 and December 31, 1994 (sinceGacaca courts completed their work) – see art. 73 al. 1, 3o COFJC

Ø Jurisdiction ratione personae: Leadership organs6 at national and former

prefecture levels, involved in the genocide and crimes against humanity between

October 1st 1990 and December 31, 1994 – see art. 73 al. 1, 3o, b COFJC

Ø Jurisdiction ratione materiae:

ü specifically for offences related to planning, organization, supervision and

incitement to Tutsis’ genocide and crimes against humanity committed

between October 1st 1990 and December 31, 1994 – see art. 73 al. 1, 3o, a

COFJC

üOffences qualified as felony or crime (> 5 yrs) (art. 73 al.1 OFJC);

ü exclusive competence as regards offences against traffic rules (Art. 73 al.2

OFJC)

ü appeal against decisions delivered by PCs under the IC’s scope (Art. 74

OFJC)

Ø Jurisdiction ratione loci:

art.117 and 118 OFJC seen previously for PCs are applicable

6 Public administration, Police and gendarmerie, political parties, religious denominations, militias

25

Chapter 3. High Court

A. Organization of the High Court

ØAccording to art.15 OFJC,

ü there is only one High court;

üwhose seat is established in the town of Kigali;

ü and its scope corresponds to all the extent of Rwanda, divided in:

v4 chambers (Art. 16 OFJC):

o Chamber of Nyanza (Muhanga, Huye and Nyamagabe ICs);

o Chamber of Musanze (Musanze and Rubavu ICs);

o Chamber of Rusizi (Rusizi and Karongi IC’s);

o Chamber of Rwamagana (Ngoma and Nyagatare ICs).

Each chamber is headed by a president with jurisdictional and

administrative attributions and includes full-time judges (Art. 22,

al.3 and 2 OFJC)

vin addition to the seat of High court (Nyarugenge, Gasabo and GicumbiICs) see art.16, al.6 OFJC.

vA specialized chamber (with national competence) for international &

trans-border crimes

Ø the composition of the high court includes at least 26 judges (among them, the

president and the vice-president) (art. 18 OFJC)

Ø to perform its jurisdictional functions,

ü the HC sits at the 1st degree, as at appeal level, with single judge (art. 23 al.1

OFJC);

ü but can (only at appeal level – see new CCLAP), according to the complexity

of a case appreciated by the president, sit composed of 3 or more judges (art.

23 al.2 OFJC).

ØPower of the president (art. 20 OFJC):

26

üAttributions of a judge; he can even chair sittings of the chambers (art. 20, 1o

OFJC);

üAdministrative organization and functioning of the court (interior service) and

discipline of the staff (art. 20, 2o OFJC);

üHe/she convenes the general assembly of magistrates and the beginning of

the judicial year ceremony (art. 20, 3o OFJC)

ü and rules on requests … (art. 104 OFJC)

v…of case transfer (due to public safety or impossibility of regular

composition of seat of ICs)

v… in relation with conflict of jurisdiction between ICs under his scope.

B. Competence

ØAccording to art.103 and 108 OFJC, HC judgements can be … :

ü … attacked by opposition before the court;

ü… appealed against, before the Supreme Court (SC), except:

vcases having been initiated (1st degree) before PCs

vand those which are not in the jurisdiction of the SC.

1. Civil Competence

Ø Jurisdiction ratione materiae:

üHC has an exclusive competence as regards eexxeeqquuaattuurr …

v… of decisions taken by foreign courts7 or arbitrators (art. 91 OFJC);

v… of authentic deeds [which must not be against Rdan public order & be

authentic] drawn up by foreign authorities (art. 92 OFJC)

üHC takes cognizance of appeal against:

7 which must not be against Rwandan public order, have a force of res judicata, be authentic & respect rights ofdefense

27

vjudgments delivered by ICs in the 1st instance, and exceptionally in the 2nd

instance (art. 106 al.2, 1o to 5o OFJC);

vdecisions from foreign arbitrators8 (art. 106 in fine OFJC)

vsummary procedures ruling from ICs (art. 107 OFJC)

Ø Jurisdiction ratione loci:principle actor sequitur forum rei, like its exemptions analyzed previously for PCs

(see art. 121 OFJC), apply in accordance with the scope allotted to each

chamber (see art.16 OFJC).

2. Competence ratione materiae in administrative disputes

Ø According to art. 93 OFJC, the HC has, as a 1st instance, competence for …

ü… administrative disputes, from decisions taken in the last instance by thePresident of the Republic, the President of the Senate, the Speaker, the Prime

minister, Ministers, and Ministers of State, ...

v… seeking annulment

v… (on grounds of incompetence, abuse of power or breach of general

statutes for civil servants – see art. 93 al. 1, 1o & 2o)

ü The HC rules also on incompatibilities of official functions and political posts

(see art. 93 al. 1, 3o)

ØAgain, the HC has, in accordance with art. 93 al. 2, the competence to decide on disputes

related to extradition & asylum.

3. Criminal competence

Ø Jurisdiction ratione materiae:

üCompetence of ordinary chambers (4+1) for offences … (art. 89 OFJC):

vof high treason and attack on national security;

vof terrorism;

8 Let’s recall that KIAC arbitrator’s decisions can’t be appealed against.

28

üCompetence of the specialized chamber as regards …

vtrans-border crimes [hostage taking, negationism, revisionism, etc., see

provisions]

v genocide, war crimes and other crimes against humanity9

ü judgments delivered by ICs on the 1st instance, and exceptionally on the 2nd

instance (art. 105 OFJC, same content as for art. 106 al. 2, 1o to 5o)

Ø Jurisdiction ratione loci:

art.117 and 118 OFJC seen previously for the PCs are applicable

TITLE 2. SPECIALIZED COURTS

Chapter 1. Commercial, Labour & Administrative specialized courts / chambers

A. Commercial courtsCommercial courts are the Commercial High Court (CHC) and Commercial Courts (CCs)

(art. 36 OFJC, 2 al.1 CJ)

1. Commercial Court (CC)

a. Organization

ØAccording to art.2 CJ, CCs are 3:

üCC of Nyarugenge (scope of ICs of Nyarugenge, Gasabo, Ngoma, Gicumbi

and Nyagatare);

üCC of Huye (scope of ICs of Huye, Muhanga, Nyamagabe and Rusizi);

üCC of Musanze (scope of ICs of Musanze, Rubavu and Karongi).

ØEach CC includes a president, a vice-president and at least 3 judges. There should

also be nonpermanent specialized judges (art. 6 al.2 and 4 CJ).

ØThe president, in addition of jurisdictional duties, is, under art.9 CJ, charged with:

ü the administrative organization of the court;

ümonitoring of the performance and the discipline of his staff

9 slavery, extrajudicial execution, abduction & rape, torture, etc

29

ØEach case is settled by a single judge (art. 10 al.1 CJ)

b. Competence 1o. ratione materiae

ØCC is, under art.3 & 5 CJ, competent to be referred to, at the 1st degree, financial,

tax and commercial cases that follow:

ü disputes relating to contracts & activities considered as commercial; (art. 3, 1o)

ü disputes relating to negotiable instruments (art. 3, 2o);

ü disputes relating to transactions between persons and banks (art.3, 3o);

ü cases related to the insurance litigation, but not including compensation claims

from a third litigant, victim of a road accident (art. 3, 5o);

ü actions relating to transport disputes.(art.3, 7o)

ü requests relating to intellectual property (art. 3, 10o);

ü litigations related to trade competition & consumer protection (art.3,13o)

ü actions relating to tax disputes (art. 3, 6o);

ü litigations concerning commercial companies in trouble (art. 3, 4o);

ü actions related to registration or banning from register of business (art. 3, 11o);

ü requests relating to bankruptcy (art. 3, 9o);

ü requests for purposes of appointment/removal of the liquidators of company(art. 3, 12o).

ü disputes between shareholders, directors, auditors, liquidators, etc. (art. 3, 8o);2o. ratione loci

Ø In theory, the domicile of the defendant (actor sequitur forum rei) court principle

(art.121 al.1 OFJC) applies.

ØExceptions:

üAccording to art.123 OFJC, disputes between shareholders or directors, or

between managers and shareholders (see art.3 above mentioned CJ) are

30

carried before the court of the company's registered office (if not, that of the

place of the object of the litigation). The same court is qualified, even afterdissolution of the company, for partition – partage - and obligations which

result from it.

üActions against directors, administrators, accountants and other agents

commissioned by justice must be carried before the court which appointed

them (art. 126 OFJC).

2. Commercial High Court

a. Organization

ØAccording art.2 al.1 and 4 al.1 CJ, there is 1 Commercial High Court for all theextent of the Republic, with its seat in the town of Kigali.

Ø It counts at least 7 judges of whom, the president and the vice-president (art. 6 al.1

CJ). There are also nonpermanent judges (art. 6 al.4 CJ).

Ø In its jurisdictional duties, the CHC sits with single judge at the 1st degree, and by

collegial judge at appeal level (art. 10 al.2 CJ).

ØAs for attributions of the president, see those of CC president (art.9 CJ)

b. Competence

Ø Judgments delivered by the CHC can be attacked:

ü by opposition before itself (see art.12 CJ);

ü by appeal before the supreme Court;

ØThis one can settle on advisory opinion of committees instituted in liaison with the

HCJ – CSM – to speed up commercial cases (art. 11 CJ) 1o ratione materiae

Ø It is, according to art.5 al.3 CJ, qualified to rule on appeal against judgmentsissued by CCs.

2o ratione loci

ØProvisions seen previously for CCs (in fact, art.121, 123 and 126 OFJC) apply.

31

B. Labour specialized chambers (LC)

1. Organization

ØEach IC includes a specialized chamber for labour matter (art.9 al.2 OFJC).

ØGeneral rules about organization of ICs seen previously apply to them.

Ø IC president and vice-president, or any appointed LC judge takes cognizance of

summary procedure of labour disputes (art. 82 OFJC).

2. Competence

ØAccording to art.81 OFJC, LCs are qualified for:

ü individual or collective disputes between private workers and their employers

relating to employment or apprenticeship contracts, collective bargaining

conditions or related administrative decisions;

ü labour disputes among private workers or employers;

ü disputes between social security organizations, workers and employers

concerning implementation of social security laws, without prejudice to legal

provisions relating to institution of commissions empowered to hear some

specific categories of disputes;

ü civil disputes resulting from an offence for breach of labour laws, without

prejudice to legal provisions which allocate this responsibility to criminal courts

when legal action is referred to them.

Ø LCs are also qualified to try offences related to labour and social security laws, as

well as their implementation measures (art. 77 OFJC).

C. Administrative specialized chambers (AC)

1. Organization

ØEach IC includes a specialized chamber for administrative matters (art.9 al.2OFJC).

ØGeneral rules about organization of ICs seen previously apply to them.

32

Ø IC president and vice-president, or any appointed AC judge takes cognizance of

summary procedure of administrative disputes (art. 85 OFJC).

2. Competence

ØAccording to art.83 OFJC, ACs are qualified for:

üDisputes arising from elections at local administration levels (art. 83, 1o);

ü disputes related to administrative contracts at local administration levels (art.83, 2o) under public or private law, except those related to public procurement

(see art. 83, 7o);

ü actions for damages arising from liability inherent to public agents & institutions

(art. 83, 3o) or due to public interest activities (art. 83, 6o);

üPetitions against decisions from local administrative authorities (art. 83, 2o)and requests for annulment of administrative decisions at the same level

illegally taken, taken by incompetent persons or taken with abuse of power

(see art. 83, 4o); or non observance of the general statutes for Rwandan public

service (see art. 83, 5o)10.

ü Labor disputes between the State or public institutions and individuals (see art.83, 8o);

üClaims relating to seizure for public interest (art. 83, 9o) and expropriation in

public interest (art. 83, 10o);

ü Issuing injunctions to local administrative authorities under their own civil

liability, and granting them the right to choose between paying in kind or cash

(see art. 84)

üReceiving oaths of the members of the Council and Executive Committee of

the District (see art. 83 in fine).

10 NB: when such petitions/requests are against decisions from higher administrative authorities (President of theRepublic, president of the Senate, the Speaker, the Prime Minister, Ministers & Ministers of State) the HC iscompetent at the 1st instance (see art. 93, 1o & 2o)

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Chapter 2. Criminal Courts

A. Juvenile Chambers

1. Organization

ØEach IC includes a specialized chamber for minors (art.9 al.2OFJC).

ØGeneral rules relating to IC organization also apply to JCs.

2. Competence

Ø Legal infancy is limited to 18 years (see art. 217 CP). The mode of responsibilityvaries according to whether, on one hand, the minor is under 14 years and, the

other hand, he/she is 14 but under 18.

ü In the 1st case (minor under 14), only care/assistance and continuing education

arrangements are considered. The child shall not be criminally liable (see art.100 PC)

ü In the 2nd (minor from 14 to under 18), the minor is sentenced to imprisonment,

but generally which does not exceed half of that planned for an offender who

reached the age of majority (18 years and more) see. art.72 PC.

ØAll minors supposed to be guilty are subject to be tried at the 1st degree before thespecialized Juvenile Chamber (CJ) (Art. 75 OFJC).

ØThis chamber is qualified to decide, in addition to imprisonment, of care, education

and monitoring arrangements applicable in particular for minors under 14 years

(see art.76 OFJC).

B. Military Courts

ØThe Rwandan judicial law envisages 2 levels within military courts: the Military

Tribunal (1st degree) as well as the Military High court.

ØConcerning their jurisdiction ratione loci, they …

ü… take cognizance:

vof all offences…

34

v..committed on all the extent and apart from the Republic of Rwanda by

people prosecuted before military courts (Art. 139 al.1 OFJC)

ü and can sit in any place on the territory of the Republic (Art. 139, al.2 OFJC)

ØConcerning jurisdiction ratione personae, people subject to be tried before militarycourts,

ü… are in theory soldiers.

üHowever, people subject to be tried before ordinary courts,

vwhen prosecuted with soldiers, are tried before qualified military courts

(Art. 148, al.1 OFJC);

vexcept when they are answerable to the Supreme Court (art.148 al.2

OFJC)

1. Military Tribunal (MT)

a. Organization

ØThe Military Tribunal’s seat is in the town of Kigali, with a scope covering the

extent of all the country (Art. 26 OFJC)

Ø It is made up:

ü… of 10 judges at least,

vof whom the president and the vice-president (Art. 27 al.1 OFJC);

vthe first being replaced by this one, himself, in event of absence, being

replaced by the senior judge in the highest rank among the members of

the bench (al.2 of art.27 OFJC)

ü…as necessary registrars (with at least a rank of sergeant) and support staff.(Art. 30 OFJC).

ØTM sits by collegial formation with odd figure (at least 3 judges) assisted by a

registrar (Art. 29, al.1 OFJC), with a presiding judge holding a rank equal or higher

than that of the accused (Art. 29 al.2 OFJC).

35

b. Competence ratione materiae

ØTM takes cognizance at the 1st degree …:

ü… of all offences committed by soldiers, whatever their ranks (Art. 137 al.1

OFJC);

ü…and the crime of genocide against Tutsis and other crimes against humanity

committed by any soldier or gendarme between October 1st 1990 andDecember 31, 1994, except offences relating to looting and damaging

properties (see art. 137, al. 3 COFJC)

ü TM is also qualified for opposition against its own judgment by default (Art.

140, al.1 OFJC)

2. Military High Court (MHC)

a. Organization

Ø Like MT, MHC has its seat in the town of Kigali, with a scope covering the extent of

all the country (Art. 31 OFJC)

Ø It is made up:

ü… of at least 9 judges, of whom the president and the vice-president (Art. 32

al.1 OFJC);

ü … as necessary registrars (with at least a rank of sergeant) and support staff.

(Art. 35 OFJC).

Ø It sits by collegial formation with odd figure (3 judges at least) assisted by a

registrar (Art. 34, al.1 OFJC), with a presiding judge holding a rank equal or higherthan that of the accused (Art. 34 al.2 OFJC).

b. Competence ratione materiae

ØMHC is, according to art. 138 al.1 OFJC, qualified at the 1st degree for:

ü…offences:

vof attack on national security, aggravated murder

vand exceptionally of murder (Art. 138 al.2 OFJC).

36

ü…committed by soldiers, whatever their ranks.

Ø It is also qualified for:

ü opposition against its own judgments by default (Art. 140, al.2 OFJC),

ü appeal against decisions issued by MT (Art. 138 al.3 OFJC)

ü and requests for rehabilitation of people sentenced by all military courts (Art.

138 al.4)

TITLE 3. SUPREME COURT (SC)

The highest court of the Rwandan judicial order (Art. 1 SC). Indeed,

Ø no recourse can be exercised against its decision;

Ø except the presidential pardon, the opposition and the petition for review11

Chapter 1 Organization & functioning

A. Composition

Ø uniqueness of SC (Art. 1, al. 2 SC):

ü it is single for all Rwanda; its seat is established in the town of Kigali;

ü its scope covers all the extent of the territory of the republic.

ØStaff: SC is composed (Art. 2 SC):

ü of a president who:

vcarries out significant administrative duties : administration of the SC,functioning and conduct of the staff (see art. 10, 1o to 9o SC);

vchairs the HCJ (see art. 9 and 13, 1o – 11o HCJ)

ü of a vice-president (who replaces the president absent or held up see art.11

al.1 SC)

ü of 12 other judges (art. 2 al. 1 SC) + 6 more judges (art. 2 bis SC)12

11 Needless to say the presidential pardon and the law of amnesty would be concerned but they are not amongrecourses of appeal.12 As completed and modified by OL No 01/2013 of 7 february 2013

37

ü registrars and other civil servants (see art. 3 SC).

vGeneral Inspectorate of courts

vGeneral Secretariat

vOffice of the president (see art. 7 SC)

vAdvisors

vLegal researchers

vAdministrative assistants

vOther Staff members

B. Jurisdictional duties (art. 22 SC)

ØSC sits in a collegial formation of 3 judges;

Ø however, it also judges with a variable odd number, according to the importance of

the legal matter: 5, 7, 9, 11 13, etc. judges.

C. Nonjurisdictional duties

Ø beginning of the judicial year ceremony (see art. 13, 9o SC)

Ø the SC general assembly (all the judge) (Art. 10, 5o SC) plays an administrativepart: to discuss each quarter any question of justice interest.

ØActivities of the Bureau of the Judiciary (see art. 14 & 15 SC)

Ø each year, a report on SC activities and other courts is made public (Art. 13, 5o

SC). This document should allow:

ü to highlight the most significant decisions;

ü to reveal points on which legislative intervention appears necessary.

Chapter 2. Competence

A. Jurisdiction ratione materiaeSC is qualified for:

Ø appeal against …

38

üHC decisions issued at 1st degree (Art. 103 OFJC and 28 al.1 SC)

üCHC decisions issued at 1st degree/instance,

üMHC decisions issued at 1st degree (Art.141al.2 OFCJ and 28 al.1 SC);

ü decisions issued at the 2nd degree by HC, CHC and MHC under 10

circumstances enumerated by art.28 al.2 SC

va case lost in the first and second instances basing on similargrounds shall not be appealed against (see art. 28, al. 5 in fine SC)

Ø petition for review against its decisions (Art. 29, 10o & 11o and art. 33SC) 13

ü about the review due to injustice, see art. 13,4o and art. 82 SC

Ø contradiction between judicial decisions (see art. 29, 12o SC)

B. Jurisdiction ratione personae (art. 30 SC)

ØThe SC tries without appeal:

ü the president of the republic …

v… for treason and deliberate violation of the constitution – see art. 29, 1o

SC)

vThe President of the Republic can’t be prosecuted since 2/3 of

Parliament members had not decided to do so (see art. 30 al. 5 SC)

ü presidents of the Senate and the Chamber of deputies;

ü the president of the Supreme Court;

ü the prime minister;

ü their accomplices

ØThe bench shall be of, at least 9 judges (see art. 30, al.4 SC)

C. Ad hoc jurisdiction

ØConflict between high courts (art. 13, 3o SC)

13 See also art. 81, 82 & 86 SC

39

Ø constitutionality control of laws (Art. 29, 2o SC);

Ø electoral disputes (limited to referendum, presidential and legislative elections)

(Art. 29, 3o and 17o);

Ø expelling a Senator or a Deputy from Parliament or from a political party (art.29, 4o)

Ø conflicts of attribution between various official institutions (Art. 29, 5o);

Ø report of vacancy of the President of the Republic Office (Art. 29, 6o);

Ø to put the President of the Republic under oath (Art. 29, 7o); for other authorities,

see art. 29, 8o

Ø authentic interpretation of laws (art. 29, 16o) and custom if silence of the law (Art.

29, 9o)

Ø former Presidents of the Republic requesting for senatorial seat (art. 29, 13o)