The Role of the Rwanda Bar Association in providing fair trial with the suspects of the 1994 Genocide against the Tutsi

The country is highly elevated, giving it the soubriquet „land of a thousand hills“, with its geography dominated by mountains in the west and savanna to the southeast, with numerous lakes throughout the country. The climate is temperate to subtropical, with two rainy seasons and two dry seasons each year. Rwanda is the most densely populated mainland African country. Its capital and largest city is Kigali accommodating a population of over 1.8 Million.

In April-July 1994, the Country lived a horrific period of 100 days during which over 1 Million of Tutsi and some Hutu who were against the genocide ideology of the then Government and armed forces were killed by the extremists Hutu regrouped in the so called Interahamwe militia and some elements of the former national army (FAR). Currently the tragedy is internationally known as the 1994 Genocide against the Tutsi of Rwanda.

Rwanda’s Justice system before 1994

Prior to the 1994 Tutsi Genocide against the Tutsi, Rwanda’s judicial system was marked by partisanship, discrimination and staffed with many political appointees whose objective was not to adhere to the law, but to satisfy the appointing authorities.

The justice sector suffered from the absence of well trained and qualified lawyers and magistrates, the deliberate obstruction of the establishment of a bar association, archaic laws, and the blatant violation of the principle of the judicial independence by placing the Supreme Council of the Judiciary under control of the executive.

The classical Courts and Prosecution Services in Rwanda were established in 1962 when Rwanda achieved independence. In 1992, an audit was held to evaluate the justice sector which found that out of 1000 judges in the country, only thirty-two (32) had law degrees (3.2%); and out of eighty-nine (89) prosecutors, only eighteen (18) had law degrees (20%). It was evident from these statistics that the judiciary was lagging behind.

Though the authorities attempted to establish Courts’ system in the Country from 1962 to 1994, they never thought of having in place an independent and well-functioning Bar Association which constitutes one of the three pillars of the criminal judicial system (Courts, Prosecution and Defense).

It is important to note that the faculty of Law in the University of Rwanda was established in 1978 (15 years after the establishment of the UR) and the admission of students to the Law faculty was very restricted (admission of a very small number of students), which justified the scarcity of legal professionals in the justice sector.

The absence of competent and independent judicial organs in post-independence Rwanda was one of the factors that contributed significantly to fostering the culture of impunity that led to the 1994 genocide against the Tutsi that took the lives of more than a million of Tutsi in 100 days only.

The post-genocide environment in the Rwanda’s justice sector was completely paralyzed as most members of the judiciary and most legal professionals were either killed during the genocide or went into exile as a result of the genocide.

The challenge, therefore, was to restore and put in place the necessary instruments and mechanisms not only to rebuild the justice sector and establish rule of law, but—most significantly—to address the legal challenges presented by the aftermath of the genocide with the country dealing with the deaths of over 1 million people and a prison population of over 120,000 people.

Rwandan society was inevitably traumatized by the absence of the rule of law while at the same time the justice sector needed to find an answer to handling the numerous genocide cases.

In response to this situation, the Rwandan Government in collaboration with local and international partners, introduced drastic law and judicial reforms aimed at establishing a system that would help decongest the system, accelerate trials, facilitate access to justice and strengthen respect for human rights.

The Bar Association in Rwanda before 1994

During colonial period, the term “Advocate” and his/her role in administration of justice was almost unknown and utilized in Rwanda.

At the acquisition of independence in 1962 until 1994, Rwanda did not have a Bar Association made of independent and qualified advocates. However, article 81 of the Code of Civil and Commercial Procedure of 15th July 1964 mentioned the term “Advocate enrolled in the National Bar association” as the one qualified to represent and assist parties in courts.

In 1984, The Government; instead of establishing a Bar Association; empowered the Minister of Justice through the Law N° 12/1984 of 12 May 1984 governing the mandate of representation and assistance in courts. The Minister of Justice got discretionary power to deliver cards of Attorney at Law to the applicants requesting to represent and assist people in courts.

Since the independence in 1962 up to 1994, there was absolute lack of political will to institutionalize a professional Bar Association. Lack of will was further explained by structured and organized institutional indifference to denounce human rights violations that characterized the period that led to the genocide against the Tutsi in 1994.

The after 1994 situation

As a result of the 1994 Genocide against the Tutsi, hundreds of thousands of suspects were apprehended by the Rwanda’s judicial authorities, and by the end of July 1996, 120,000 inmates were being held in a prison system with a capacity of only 18,000 (+666% of the prisons accommodation capacity).

In November 1994, the International Criminal Tribunal for Rwanda (ICTR) was established by the United Nations Security Council in Resolution 955 in order to judge the people responsible for the Genocide against the Tutsi and other serious violations of International Law in committed in Rwanda between 1 January and 31 December 1994. In 1995 the Court was located in in Arusha/ Tanzania and indicted a total of 96 individuals.

The government of Rwanda recruited interim judges who, with only a secondary school education, required further training in legal matters especially in criminal law so that they can support in processing the pending genocide cases.

In 2007, Rwanda abolished the Death Penalty in its Penal Code.

But one of the most outstanding innovations of the Rwanda’s Justice Sector was the establishment of the Bar Association in 1997. The Bar Association was established for the first time in Rwanda in 1997 by the Law Nº 03/97 of 19th March 1997 published in the official gazette J.O Nº 8 of 15th April 1997 which was repealed by the Law No 83/2013 of 11/09/2013 Establishing the Bar Association and determining its organization and functioning.

The Bar Association started with only 37 members in 1997 most of them being senior advocates from the Rwandan diaspora (DR Congo, Burundi, Uganda, Belgium, France, etc..) others being former attorneys at Law who had been providing legal assistance in Rwanda under the authorization of the Ministry of Justice.

Currently the Rwanda Bar Association counts more than 1,000 members and only 15 out of the current entire membership had practiced as advocates before 1994 (0.9%) while 99.1% of its membership started to practice as advocates after 1997.

The capacity of the Rwanda Bar Association to handle genocide cases

Increasing the Bar Association membership

After the creation of the Bar Association IN 1997, the first challenge that the institution faced was the very limited number of professional advocates that would serve the people in need of legal services and it was imperative for the Bar Association to increase the number of its members. The Bar Association undertook the annual enrollment of Lawyers aspiring to practice as advocates; (in 1997 the Lawyer-Population ratio was 1 lawyer per 216,000. Today the Lawyer-Population Ratio is 1 lawyer per 8,500 people).

Skills Development

After the establishment of the Bar Association, the Bar association in collaboration with its local and international partners invested in capacity building of advocates and judicial defenders in orders to address the justice demands especially for the criminal cases including the crime of Genocide.

The focus on this capacity building was put on International Criminal law given the high demand of justice deriving from the Genocide against the Tutsi and other acts of serious violation of Human Rights that took place in Rwanda in 1994.

Key partners in this program were mainly the ICTR, Avocats Sans Fontiėres, RCN Justice & Démocratie, Barreau du Val d’Oise (France), Barreau de Liėge (Belgium), American Bar Association, etc…

In 2008, the Institute of Legal Practice and Development (ILDP) was established and the main target group to be trained was the Bar Association members as to promote the capacity development in Legal Practice and Professionalism among the legal practitioners.

All the members of the Bar Association (especially those with little professional experience) were obliged to undergo a one-year training program awarding the Post Graduate Diploma in Legal Practice.

More recently, another program was put on International Criminal Law in Collaboration with the International Development Law Organization (IDLO) which provided the support for a more practical training on effective legal defense for the suspects of International crimes such as the crime of Genocide.

Skills development within the Rwanda Bar Association has been made compulsory since 2014 and every member of the Bar Association has to prove that he/she attended at least 30 hours of Continuing Legal Education (CLE) annually.

Legal Aid Program
In order to promote Human Rights through Access to Justice in Rwanda and in consideration of the aftermath of the Genocide, the 1997 and 2013 Laws establishing the Bar Association in Rwanda, provided for strong legal Aid program to be provided by members of the Bar Association and funded by the Government of Rwanda and other different partners operating in the Justice Sector (Belgium, Germany through GTZ/GIZ, the Netherlands, Avocats Sans Frontiere, etc..).

More particularly, the Government of Rwanda committed to provide legal aid funds for the genocide cases transferred to Rwanda from the ICTR (before 2015) or the International Residual Mechanism for Criminal Tribunals (IRMCT) after 2015, this being an International Court established by the UN Security Council in 2010 to perform the remaining functions of the ICTY and the ICTR following the completion of those tribunals‘ respective mandates. The transfer of the suspects of the crime of Genocide has been also operated by other foreign jurisdictions (The Netherlands, Canada, Germany, Denmark, Norway, Sweden, USA, etc…)

The provision of Legal Aid support to the suspects of criminal offenses was also supported by the Constitution of the Republic of Rwanda of 2003 as revised in 2015 (article 29: Right to due process of law: art.29, (1) Right to defense and legal representation) and the Criminal Procedure Law of 2013 (Art.39: Right to Legal Counsel) and 2019 (art. 46, 68 & 76 : Rights of the Suspect)

The Bar Association enacted clear regulations on pro bono and other legal aid services to ensure every citizen access quality legal service free of charge or on a subsidized cost (especially for compulsory legal representation for children below 18 in criminal matters, compulsory legal assistance for litigants in Court of Appeal and Supreme Court, compulsory legal assistance for the suspects of the Genocide crime and related crimes transferred to Rwanda from ICTR or other foreign jurisdictions.

In 2014 Rwanda adopted its first Legal Aid policy in the justice sector history and the Bar Association contributed to its elaboration. The policy provides for clear guidelines and process to access and to finance legal aid services for the needy.

ICTR inspiration on Rwanda Bar Association legal aid in Criminal matters

In 2012 the management of assigned legal counsel to the suspects was problematic because the prevailing practice under Rwanda bar association rules provided that an indigent assigned with a legal counsel wouldn’t reject him/her unless he/she provides professionally accepted grounds for the rejection (conflict of interest, mainly). In the beginning (2011-2013) most suspects rejected the assigned legal counsel and this refusal of legal counsel assigned by the Bar Association delayed the process.

In collaboration with the ICTR, the Rwanda Bar Association learned a good experience and started to register a number of Advocates passioned with International criminal matters on condition that they fulfil the set requirements (experience, adequate training, good disciplinary record) and ready to accept the financial package that was offered by the Bar Association and as of the December 2020, the Roster was made of 100 adequately trained advocates.

The roster of defense counsel for the suspects of the crime of Genocide and other international crimes is regularly updated and shared with the Rwanda Investigation Bureau (RIB), the Prosecution and the Rwanda Correctional Service to be used in case a suspect needs to select a legal counsel of his/her choice.

In addition, when there is a case transferred to Rwanda from IRMCT or other Countries, the Bar assigns a “Duty Counsel” whose role is to receive the suspect upon his/her arrival at the Airport and brief him/her about his/her constitutional and other legal rights as a suspect. This approach started in 2015 and it works perfectly so far. The service of a duty counsel is not paid for.

As of currently, more than 20 genocide suspects have been transferred to Rwanda from ICTR/IRMCT and other different countries and different continents and 15 out them have benefited from subsidized legal aid program of the Bar Association while others paid for their legal counsel on their own. The Netherlands and ICTR/IRMCT leads in transferring a big number of suspects to Rwanda with 4 and 3 transferred cases respectively, Canada, Denmark and USA follow with 2 transferred cases each while Norway and Germany have transferred one case each.

Legal aid fund for transfer cases

The Ministry of Justice provide financial support to the Rwanda Bar Association to ensure the suspects of the crime of the genocide get legal assistance and fair trial through the Rwanda Bar legal aid program. The financial support includes the remuneration for the legal counsel, the fees for witness collection in-country and out of the Country. As of currently Rwanda Bar Association has received more than 270 Million Rwandan Francs (slightly more than $ 270,000) for the legal assistance of the suspects of the crime of the genocide transferred to Rwanda from ICTR/IRMCT and other different foreign jurisdictions.

M&E & Quality Assurance

The legal assistance provided with suspects of the crime of genocide is regularly monitored by the Rwanda Bar Association and the teams of the IRMCT
The Rwanda Bar Association has established a legal aid department within its Secretariat which manages on a daily basis the comprehensive Bar Legal Aid Program and particularly the management of the files of the suspects of the genocide transferred to Rwanda by ICTR/IRMCT or other foreign jurisdictions;

The legal counsel for the suspects transferred to Rwanda produce a monthly report to the Bar Association on the progress of the file assigned to him/her/them by the Bar Association;

The Legal Aid commission of the Bar Association in collaboration with Legal Aid Department of the Bar follow all the hearings to ensure that the suspects get adequate legal assistance from the legal counsel;

The Bar Association has put in place a free hot line (2425) which is shared with Rwanda Investigation Bureau, Prosecution and Prisons’ Authorities and which is used by all legal aid seekers including the suspects of the crime of Genocide to communicate any issue that need particular attention for their legal support.

The legal Aid Commission of the Rwanda Bar Association also visits the suspects in prisons at least once in a quarter to acquire any information with regards to the services they are receiving from their legal counsel and any other problem that need to be addressed by the competent authorities.
The Rwanda Bar Association provide a quarterly report to the Ministry of Justice indicating the progress made with regards to legal assistance to the suspects, the budget incurred, challenges encountered and proposed remedies.

The Rwanda Bar Association and the Ministry of Justice meet twice a year to assess the status of the legal aid services provided with the suspects transferred to Rwanda and jointly address the challenges affecting the adequate defense (budget issues).

The Bar Association work closely with the monitors of the IRMCT to exchange information aimed to guaranteeing fair process for the suspects in line with the Rwanda’s commitments;

The Bar Association organizes regular trainings and webinars on international criminal matter for the lawyers enrolled on the roster of legal counsel for international crimes and cross border-crimes.

The Bar Association may take disciplinary measures against any lawyer who doesn’t fulfill properly his/her duty vis-à-vis his Client (suspect) in accordance with the Bar Rules and Regulations.

In sum

The 1994 genocide against the Tutsi in Rwanda was one of the most terrifying episodes of targeted ethnic violence in recent world’s history;
Between April and July 1994, Hutu extremists in Rwanda carried out a genocide that took the lives of more than one million of Tutsi in just three months;

After the 1994 the Government of National Unity invested in restoring the Rule of Law in Rwanda and eradicating the culture of impunity;
The government carried out a range of legal and institutional reforms that have improved the Rule of Law and respect of due process especially for the suspects of the crime of genocide and related crimes;

The establishment of the Bar Association in Rwanda in 1997 is one of the biggest contributions towards the enhancement of the Rule of Law in Rwanda;
The legal profession in Rwanda has learned and continue to learn from the best international practice standards of the legal practice;
The Bar Association in Rwanda has contributed and continues to contribute to effective access to Justice with much focus on the suspect of International crimes such as the genocide;

International assessors have found the Rwanda Bar Association competent enough to provide adequate defense for the suspects of international crimes such as the Genocide which is proven by continuous transfer to Rwanda of the suspects from IRMCT and other foreign jurisdictions;
The international legal fraternities to which Rwanda Bar Association is a member have contributed to the buildup of the Bar Association in Rwanda as far as institutional and membership capacity development are concerned (International Bar Association, Pan African Lawyers’ Union, East Africa Law Society, Commonwealth Lawyers Association, Conference International des Barreaux, etc…)

The Rwanda Bar Association is currently considered as one of the key players in the criminal justice chain in Rwanda and it is a member of the High Council of the Judiciary, the High Council of the Prosecution and the High Council of the Rwanda Criminal Investigation Bureau (RIB)
The Rwanda Bar Association has established and strengthened a well-functioning legal aid program that is supported by different stakeholders operating in Rwanda.

The Rwanda Bar Association provides effective and well monitored legal aid services to the suspects of the international crimes (Genocide) transferred to Rwanda by the ICTR/IRMCT or other foreign jurisdictions;

Rwanda Bar Association operate in a friendly political environment whereby the protection of the Legal Profession is entailed in the law establishing the Bar Association (article 48 of the Bar Law on Independence & Immunity of Advocates before courts);

The membership of the Bar Association has drastically increased from 37 members in 1997 to more than 1600 in 2023.
Capacity development and ethics have been made the drivers of the legal profession in Rwanda;

The breach of professional obligations and other professional misconducts are severely sanctioned by the Rwanda Bar Association Disciplinary tribunal which is made of different stakeholder institutions that are concerned with Human Rights, Access to Justice and Legal Education.