During the public hearing of 24 May, Human Rights Watch, as the defender of Yussuf Munyakazi, questioned the guarantees that the defendants could expect. To answer them, the representative of lawyers from Rwanda and afterwards the prosecutor general of Rwanda explained that this measure was regularly in effect.
According to a former head of the LWOB France mission in Rwanda, this guarantee is not really assured. “The public debate on legal aid has been ongoing for the last ten years” and it is still not organized, explained Hugo Moudiki Jombwe, the former head of the LWOB France mission, to the Hirondelle agency. According to him, since the legal reform of 2003/2004, “there is a real will, demonstrated to organize legal aid”; but “there is a gap between this will and reality”, especially due to “real financial difficulties”.
In August 2007, a meeting in Kigali was organized by the Conference of Lawyers from Rwanda for their tenth anniversary. The obstacles and the difficulties encountered were clarified. The inexperience of the majority of the legal partners, the insufficiency of the means necessary to respect the defence rights and the ignorance of people to their rights, was in particular mentioned.
At this meeting, Christine Tuyisenge, of the Forum of Legal Aid and the Haguruka association, had shown that the supply was far lower than the demand: “there is 1 lawyer for every 40 000 citizens and (…) only 10% of the population can afford the services of a lawyer”, she regretted.
The Universal Declaration of Human Rights of 10 December 1948 presents in its article 11 that any person accused of a punishable act has the right that “all the necessary guarantees to their defence” is assured.
In the International Covenant on Civil and Political Rights of 16 December 1966, that Rwanda signed on 6 April 1975,Article (14) 3 prescribes as a condition of minimum guarantees for a fair trial, that any person accused of a criminal offence has the right “to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case”.
The African Charter on Human and Peoples’ Rights, ratified by Rwanda on 15 July 1983, also mentions the right to be defended by a lawyer of one’s choice (Article 7). On the other hand, it does not mention free legal aid. However, it is fair to think, so that the right of defence does not remain theoretical, it is the duty of the government to provide representation by a lawyer.
Beyond the prescribed international law to which Rwanda became involved by signing the conventions, it enshrines legal aid for the poor in article 19 of its constitution, which takes exactly the terms used in the Universal Declaration of Human Rights.
It is law n°3/97 of 19 March 1997 which created the Bar of Rwanda which concretely creates legal aid.
Article 60 poses the general principle, “the assistance to people whose incomes are weak” is ensured by the Office of Consultation and Defence (OCD) of the Bar of Rwanda. It is “charged with advising, consulting and defending the poor”, explains the website of the Bar of Rwanda.
The OCD, which became fully operational at the end of 2000, designates defenders to represent defendants and victims.
Whereas the law of 1997 which created the Office of Consultation and Defence provides (articles 61 to 63) that interns and lawyers will be paid for their assistance mission to indigent on the basis of legal aid, it is on the basis of foreign funds that the lawyers are paid. The OCD has been thus supported for several years, in particular, by the Belgian and French NGO Lawyers Without Borders (LWOB).
In theory, the funds for legal aid are managed by the control of the order of lawyers and are allocated by grants from the state and “various contributions”. But the presidential decree project issued in 1998, and renewed in 2003, which was suppose to finance the legal aid fund has still not been adopted.
To alleviate the missing fund, the Rwandan government decided to allot 20 million Rwandan francs (approximately 40 000 USD) from the budget to pay the lawyers who provide legal aid. But until 14 month ago, when Moudiki Jombwe was still in his position for LWOB in Kigali, the Bar had never received it, he tells.
“All of this is rather complicated”, he adds. “On one side are the legal institutions which look towards international cooperation to obtain the means of financing legal aid. On the other side, the co-operation estimates that legal aid must come from the state” knowing that the national budget of Rwanda is still to 60 even to 70% tributary of international assistance, points out the former mission head.
Practically at the same time that the OCD was created, the Organ of Legal Defenders was instituted, composed of lawyers, to alleviate the number of lawyers at the time of the creation of the Bar (about thirty lawyers in 1997. 131 lawyers were recorded on 30 August 2007). This Organ of Legal Defenders still exists. It benefits from technical and financial support, in particular, from the Danish Institute for Human Rights (DIHR), which also works hard on the creation of the assistance fund.
Other types of associations or national and international institutions also provide legal counsel and assistance to vulnerable groups such as the survivors of the genocide and orphans. Some of them pay for a lawyer, such as the association of genocide widows Agahozo, provided that the person is a widow of the genocide and a member of the association. UNICEF, in partnership with the ministry of justice and institutional relations, ensures the representation of minors in cases of genocide and criminal cases implicating rape.
In the decision to refuse the transfer in the Kanyarukiga case last week, the First Instance Chamber seemed reassured by the Rwandan assurances, even if it specified that it did not belong to it to study if the legal aid fund allocated to transfer cases (approximately 500 000 dollars) would be sufficient or not. It reminded that potential financial problems should be the object of the evaluation of the monitoring mechanism envisaged by article 11 bis of the ICTR Rules of Procedure and Evidence.