"The judiciary remains largely subordinate to the executive branch and even to elite unofficial actors who enjoy both economic and partisan political power", writes HRW in its July report following a three year study conducted on the effectiveness of the adopted laws.
Referring to the improvements made during the past five years to the legal system, the independent Non-Government Organisation (NGO) cited the creation of the semi-traditional Gacaca courts have tried a considerable number of genocide cases. It also mentions the deep reforms of conventional justice intended to modernize judiciary.
From the legislative point of view, some of the rights of the defendants were reinforced in 2007, such as, for example, the right to be assisted by a lawyer at all stages of the legal proceedings, including during the first interrogations.
HRW noted the scrapping of the capital punishment but it moderates its enthusiasm on this point by deploring that this maximum sentence was replaced by the life in prison in isolation.
The Human Rights body has asked the Rwandan legislative bodies to remove the imprisonment in isolation.
‘'Nevertheless, the Rwandan authorities have improved the delivery of justice in the last five years... But the technical and formal improvements in laws and administrative structure have not been matched by gains in independence in the judiciary and assurance of rights to fair trial", the report observed.
Even if most jurists [interviewed by HRW] believe the reforms have improved the efficiency and general performance of the courts, the guarantees to have access to a fair trial, according to them, ‘'remain insufficient and the risk of influence of the executive on the judiciary''.
Throughout nine chapters of analysis on the independence of the judiciary, HRW, in particular, reports misuse of prosecutorial authority and interference in judicial cases whether they are political "to punish and limit the activities of persons seen as opposed to the government and to the Rwanda Patriotic Front (RPF-the party in power now), or of genocide.
Thus, a judge interviewed in August 2007 deplored that those who try to protect the independence and the integrity of the judiciary "pay a price".
Many persons have lost their positions in the legal system--three of them fled Rwanda and received asylum abroad, claimed the report.
Also, the orders of the courts are not always respected, explains HRW. "It would seem the police still have more power than the judges", says a court employee after a defendant ordered to be released by the court "was immediately handcuffed as he left the courtroom and was returned to prison" although the judges had ordered his release.
As for the standards relating to fair trials, the NGO considers that they "are not fully assured".
The presumption of innocence, the right to call witnesses, the right to a lawyer, the right to humane detention conditions and not to be subjected to torture, the right not to be tried twice for the same crime and, finally, the monitoring of trials are many guarantees identified by the NGO as being flawed.
The protection of witnesses, according to HRW, does not depend only on the capacity of the state to guarantee their safety but also its will to do so, notably when they are defence witnesses.
Of the 15 lawyers, judges and prosecutors interviewed, only one knew the provision according to which, in regards to evidence, it was possible to take any necessary measures to protect the witnesses.
As for the witness protection service created in 2005, "the witness protection service is under the national prosecutor's office, making it unlikely that witnesses for the defence who encounter problems would seek its assistance".
"The way justice was delivered, the primacy of political considerations in the process will remain a potent legacy", estimates Human Rights Watch. It encourages, by its many recommendations, the Rwandan government, the legislative power, each of the actors of the legal system and the aid partners to take action.
The NGO had already raised some of these elements in April before the International Criminal Tribunal for Rwanda (ICTR) when it had testified as amicus curiae (friend of the court) on a transfer request of defendants to Rwanda.
These arguments, also supported, for some, by other friends of the court, weighed in at the time of the decision making process of the first instance judges. On the five requests, the first three were rejected.
The judges believed that Rwanda did not present sufficient guarantees of independence of its judges and refused that the defendants risked, if they were convicted, to be imprisoned for life in isolation. They feared, finally, that the defendants will not benefit from a fair trial because of the alleged difficulties linked to the testimony of the defence witnesses.
Two of these three rejections, at the moment, are being studied by the ICTR Appeal Chamber, and two prosecutor's requests are awaited before the first instance trials.
Human Rights Watch states that Rwanda was still not ready to receive transfers or extraditions.
AV/PB/MMSC
© Hirondelle News Agency