Effective Mechanisms for Management of Pre-Trial Detention in Sub-Saharan Africa

 by

*Denis Bikesha is a PhD holder in Law and has much interest in Transitional Justice and Constitutional Law which courses he teaches at University of Rwanda, School of Law. *

Abstract

Currently, over three million people world-wide are remanded in prison facilities as they wait for trial.  The length of their detention ranges from days, months, and even years although they are presumed innocent before the law. Considering the prison conditions in Sub-Saharan Africa, these people are undergoing serious hardships. There is a need to make them free and consider very few cases whereby there is serious grounds for preventive detention to be considered as the last resort. This is possible when alternative ways are applied instead of applying this serious approach that leads to serious repercussions. This paper aims to investigate effective mechanisms that used as alternatives to pre-trial detention in Sub-Saharan Africa. The author has selected one of the countries in Sub-Saharan Africa, Rwanda, that went through a serious situation of genocide to analyse how the matter of pre-trial detention was handled. The efforts to manage the situation have been discussed as part of the success stories that may inspire other countries in this process of managing pre-trial detention. Rwanda is among the countries that have been identified to have success stories of dealing with pre-Trial detention in the aftermath of the Genocide against the Tutsi that claimed over a million people with more than a million criminal suspects in this regard. The author also discusses how Rwanda manages pre-trial detention related to ordinary crimes other than the genocide against the Tutsi.

 1. General Introduction

Pre-trial detention is a concept that has been defined in various documents; for example, the Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa define Pre-Trial Detention as “the period of detention ordered by a judicial authority pending trial”.[1] In general, it has a big socio-legal and economic impact on every society but when it comes to Sub-Saharan Africa it becomes more negatively impactful because of the situation of the detention facilities that do not fulfill the required standards. Pre-trial detention deprives a person from the right to the presumption of innocence and the right to liberty. In fact, some human rights activists consider this as one of the most unpleasant actions that a state can take against a human being and can have devastating consequences.[2]

Pre-Trial detention is legal as long as it not done basing on an arbitrary decision as it is mentioned in the International Covenant on Civil and Political Rights: “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are estab lished by law.”[3] Repercussions are many; detained people are separated from their family and friends, at risk of losing their job and home, and can have their reputation ruined especially with public figures and when their arrest and detention is covered and broadcast by media and this can be a shock in someone’s entire life especially the suspect is victimized because this is an act this infringes the right to presumption of innocence. With this error of social media, information goes very fast; often people read and hear of public figures and celebrities are detained but not often do people hear about them when they are released even when they are victimized or when they are arbitrary arrested and detained.

It should be noted that “excessive and arbitrary pretrial detention is an overlooked form of human rights abuse that affects millions of persons each year, causing and deepening poverty, stunting economic development, spreading disease, and undermining the rule of law.”[4] Referring to all the hardships that are aligned to it, pre-trail detention is “a measure of last resort and should only be used where necessary and where no other alternatives are available”.[5] Additionally, pre-trial detention should not be used as a tool to discriminate according to race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth, disability or any other status but rather on grounds that are clearly established by law and which are consistent with international standards.[6] In some Sub-Saharan Africa, there are many stories about governments that through their opposition leaders in detention facilities for some time to silence them from their political views. There should be independence of the investigators, prosecutors and Judges so that they do not fall in this trap spearheaded by politicians.

Whenever the right to liberty is infringed unlawfully, there is a room for the arrested and detained person to approach a judicial body that should quickly decide on the matter and order an immediate release if the detention is not lawful. The courts should make sure that they are also quick on making decisions. In the case between a criminal suspect and Italy; Bezicheri v. Italy135, the ECtHR held that an interval of five and a half months from the time the applicant lodged his application up to the time the investigating judge dismissed it did not comply with term “speedily” under article 5(4) the European Convention on Human Rights (ECHR). The Government’s arguments were that “the investigating judge suffered from an excessive workload at the material time” was not convincing since “the Convention requires the Contracting States to organise their legal systems so as to enable the courts to comply with its various requirements.”[7]This at least show how an independent court should operate; it should not be influenced by the Government.

Also, in such a case, the detained person may request for compensation as a remedy to the unlawful arrest and detention[8] in line with the violation of the right to habeas corpus. The principle of habeas corpus is part of one of the oldest documents in Europe, in the UK, known as Magna Carta Libertarum that was signed and issued by King John on 15 June 1215.[9] This was the document that equalized all the people before the law, including the King himself that signed it at Runnymede. By this equality before the law, it was possible for the courts to be approached to handle matters concerning the government and the people. The Roman law also capitalized on an expression related to the principle of habeas corpus known as interdicto de homine libero exhibendo- which means the guarantee a free person deprived from liberty has in order to approach the judicial power so that the lawfulness of his or her arrest and detention be determined.[10] Sub-Saharan African States that have this right in their laws should actively emphatically implement it and those that don’t have it their laws should domesticate it as it a good approach to combat arbitrary arrest and detention.

Matters of pre-trial detention should be analyzed at the level of detention facilities so that even those held as the last resort are treated appropriately. Africans have thought on the matters concerning pre-trial detention in different meetings; aiming at getting proper solutions for the persisting related matters. For example, in 2004, at Lilongwe, Malawi, participants of the conference on legal aid in criminal justice advised Governments to introduce some measures in prisons. Among the measures included that magistrates/judges should screen the remand caseload on regular basis to make sure that people are remanded lawfully, their cases are being expedited and that they are held appropriately. The participants added that even those who are there detained, it should because this rather a last resort; not the order of the day.[11]

In Sub-Saharan Africa, building on the regional legal instruments that have been enacted to help deal with this matter of pre-trial detention, the Sub-Saharan States have also domesticated laws that may help in case of violation of a person’s liberty in the course of arrest or detention of criminal suspects. These regional instruments also put in place measures that may lead to State agents be summoned by the courts in case of arbitrary arrest or detention. Regional Courts such as the African Court on Human and People’s Rights receives complaints from individuals from African States on condition that they have exhausted their local remedies lest the cases will be inadmissible.[12] This is a good approach because this matter should have a domestic way of dealing with it but when States show no or little will, regional blocks should intervene for the region to have an improved judicial system that promotes human rights.

As mentioned above, Rwanda has been identified a country that has had a lot of issues emanating from the genocide against the Tutsi henceforth, some success stories that have been learnt and these should be shared with other African States to pick some lessons. Rwanda’s Constitution has a provision on the subject of arrest and detention; “A person's liberty and security are guaranteed by the State. No one shall be subjected to prosecution, arrest, detention or punishment unless provided for by laws in force at the time the offence was committed.”[13] In Rwanda, arrest and detention of a person is only possible when he or she is suspected of having involved in commission of an offence under national or international law.[14]

Although Sub-Saharan African Courts may intervene in matters of arbitrary arrest and detention, African States should consider mechanisms that can help in effective management of pre-trial arrest and detention. These mechanisms include plea bargaining, fine without trial, bail, compensation for arbitrary arrest and detention, habeas corpus, alternative dispute resolution and standards of detention facilities.

2. Effective Mechanisms for the Management of Pre-trial Detention concerning genocide criminal suspects
   • Home-grown Solutions in the aftermath of the genocide against the Tutsi

On 7^th April, 1994, immediately after the death, in a plane crash, of President Habyarimana together with President Cyprien Ntaryamira of the Republic of Burundi, the genocide started. It is estimated that close to a million people lost their lives in a period of 100 days[15] (Rwanda is currently in the 100 days commemoration period). The genocide was stopped by Rwandese Patriotic Front (RPF) fighters who toppled the regime, called Abatabazi that had taken power after the death of President Habyarimana. Looking at the terrible situation that befell Rwanda, pre-trial detention would have also been terrible. Although detention facilities got filled up in the aftermath of the genocide, it was expected because this was a last resort. There are some criminal suspects that were handing themselves to authorities for pre-trial detention for reasons including that they could be killed by the survivors of the genocide for example who had survived because they had joined the rebel group, RPF.

As mentioned by Phil Clark, the genocide against the Tutsi should be distinguished from other incidences of genocide that took place in the 20^th Century; mainly in the following features. This is mainly because of:

1. the use of weapons of low technology (machetes, clubs and rifle wielding groups in a period of 100 days.^[16],…);
2. the mass involvement of Hutu in the killings (close to million people involved);
3. social and cultural similarities of the perpetrators and the victims;
4. the speed at which it happened (only took 100 days i.e., from April 7^th to around July 15^th).^[17]

The Government of Rwanda also carried out a census to find out the number of people killed during the genocide and revealed more than a million victims (Ministry of Local Government-MINALOC announced 1,050,000 people to have been killed during the genocide). Melvin provides slightly a different number - 951,018 whose names were established.^[18]

• Efforts Made to Render Justice in the aftermath of the genocide against the Tutsi

RPF took power on 19^th July, 1994 with Pasteur Bizimungu as President of the Republic and Paul Kagame (the current President of the Republic) as Vice President and Minister of Defence.[19]

There was a need to restore justice, law and order in the country. The first deal was to negotiate with United Nations so that an International Criminal Tribunal could be established to prosecute the genocidaires. The International Criminal Tribunal for Rwanda (ICTR) was created on 08^th November 1994. This was mainly charged with prosecuting the ‘big fish’ therefore was still more need to think of how the ordinary genocidaires should be prosecuted.

In 1996, a law governing prosecution of genocide crimes was enacted and genocide cases started to be tried in the ordinary court system of Rwanda.[20] However, there two main challenges:

1. ICTR was very slow in rendering justice. ICTR maintained the slow speed to the end. In the whole life span of ICTR, only 93 indebtments were made and out of these, proceedings for 82 accused were the ones that got concluded.
2. The other challenge was that, within the jurisdiction of Rwandan ordinary courts, there were already many pending cases and the system could not try an increased number within a reasonable time. In a period of five years, only 6,000 cases were tried and concluded from over 120,000 cases that were pending and whose criminal suspects were in pre-trial detention.[21]

This created conditions for the emergence of a think-tank in the country whereby a group of people including civil servants, non-governmental organisations and diplomatic corps. They were meeting in the office of the President to think of and work out a more effective and efficient modality of handling the huge number of those cases. They soon came up, from revisiting the Rwandan traditional system of resolving conflicts, Gacaca system was suggested and adopted with its modified version to see if it could work. The modality was formally introduced in 2001 by a law establishing Gacaca courts.[22]

2.3 Gacaca Courts

According to the Gacaca Organic Law, the temporal jurisdiction considered for the genocide perpetrated against the Tutsi is between 1^st October, 1990 and 31^st December, 1994.^[23] In contrast, the competence given to the International Criminal Tribunal for Rwanda (ICTR) by the UN Security Council. These tradition-based courts have tried almost two million cases, 1,958,634 cases[24], to be exact.

The success of Gacaca courts in handling genocide cases has led to the conclusion that home-grown solutions be part of the Constitution of Rwanda of 2003 following the revised that took place in 2015; “In order to build the nation, promote national culture and restore dignity, Rwandans, based on their values, initiate home-grown mechanisms to deal with matters that concern them”.[25] Connected with this system, Rwanda established Abunzi Committees.

When Gacaca Courts started operating, the situation in prison facilities worsened because through the collection of information the number of genocide criminal suspects raised adding to those that were already detained so much that human rights activities were also pressing the government of Rwanda to look for a solution. The author, who worked for Gacaca Courts in a period of 8 years remembers when the boss of the International Committee of Red Cross can to his office and said “I will not leave your office unless we get a solution for the alarmin situation in Rwandan prisons”.[26] The conversation yielded some fruits because the Organic Law on Gacaca was revised and many people that were in detention got provisionally released. This shows the importance of discussions that happen between non-governmental organisations and representatives of government. By the time, the author was standing in for the Executive Secretary of the National Service of Gacaca Jurisdictions who had delegated her powers for those discussions.

• Citizens’ Participation in judicial matters

Citizens’ participation leads to restorative justice and this reduces the mentality of throwing people to detention facilities. Restorative justice should be emphasized because in a situation where the mentality is retributive, punishing begins from detention and in this regard, it includes even the innocent ones. With the orientation of restorative justice to support unity and reconciliation of Rwandans, at a certain stage, in….(year), the president of the republic instructed authorities to provisionally release the young people, the older people, those who had illness,… This happened with immediate effect and there was a breakthrough in Rwanda’s detention facilities.

“Citizen Participation is a process which provides private individuals an opportunity to influence public decisions and has long been a component of the democratic decision-making process”[27] thus leading to peace and security.

Participation should cover those mostly affected by the incident of the wrongdoing: victims, offenders, and their communities of interest and should be the major speakers other than the professionals representing the State.[28] Many people claim that citizen participation is expensive and thus opt to avoid it. During Gacaca Courts activities, Rwandans participated wholesomely. In her article, Wierzynsky wrote that the Gacaca Court system as Rwanda’s traditional, community-based restorative justice institution, has assisted to promote participation and contestation.[29] The Rwandans who were previously hostile to one another communally, have channeled their animosities through such community participation in a constructive dispute-resolution process rather than through communal violence.[30]

Wierzynsky concludes that Gacaca Courts system has the potential to play a seminal role in promoting democracy through encouraging popular participation and contestation and thus qualifies to be a successful transitional justice mechanism. Rwanda has not only been involving citizens in public decision making but also the financial expenses have been avoided on a greater scale leading to various voluntary services rendered by the citizens for their own betterment. Rwanda has been assisted by other countries in the process and has saved to carry out development activities.

3. Effective Mechanisms for the Management of Pre-trial Detention for Ordinary Crimes

As mentioned above, the author has categories the situation of managing pre-trial detention especially in Rwanda, in two different situations: management of pre-trial detention in the aftermath of the genocide against the Tutsi and in the ordinary times dealing with ordinary crimes. Above, the author has discussed the matter of pre-trial detention in the aftermath of the genocide and dealing with the genocide criminal suspects where the numbers were alarming. Below, the author discusses the situation of Rwanda in ordinary times and dealing with ordinary matters, ranging from plea bargaining, fine without trial, bail, Alternative Dispute Resolution mechanisms such as Abunzi committees and mediation in general.

• Plea bargaining

Plea bargain is referred to as an agreement between the prosecutor and defendant in which the defendant agrees to plead guilty to some of the charges, or a lesser charge, in exchange for a reduced sentence, or some other concession by the prosecution.[31]

In criminal justice system, plea bargaining is regarded as a contract like any other, and it must fulfil the legal requirements for the formation of the contract, namely offer, acceptance, licit cause and intention to create legal relationship. Furthermore, a plea bargaining agreement shall be voluntarily given with the best knowledge of the charges that the defendant is admitting and its consequences.

3.1.1 Plea bargaining under ICTR proceedings

The International Criminal Tribunal for Rwanda was established pursuant to United Nations Security Council Resolution 955 of November 8, 1994 and it was responsible for prosecuting the individuals believed to be most responsible for the Genocide against Tutsi in 1994. Currently, it closed and the International Residual Mechanism for Criminal Tribunals (IRMCT) was established by the UN Security Council in 2010, to continue to conclude the remaining work of the ICTR and its counterpart the International Criminal Tribunal for the Former Yugoslavia (ICTY).

Under the rules of ICTY and ICTR about criminal procedure and evidence, an accused can enter a plea agreement expressing his or her admission of guilt to all or certain charges. Such an agreement is negotiated between the prosecution and the accused.

The Rule 65 of ICTR about Plea Agreement Procedure, states that “the Prosecutor and the Defence may agree that, upon the accused entering a plea of guilty to the indictment or to one or more counts of the indictment, the prosecutor shall; apply to amend the indictment accordingly, submit that a specific sentence or sentencing range is appropriate; or shall not oppose a request by the accused for a particular sentence or sentencing range.”[32]

3.1.2 Plea bargaining under Rwandan jurisdiction

Criminal investigation in Rwanda is controlled and headed by the National Public Prosecution Authority (NPPA). During the course of investigation, Rwandan law on criminal procedure recognizes the plea bargaining between the suspect and prosecution.

At the end of the suspect’s interrogation, the prosecutor may propose a plea bargaining agreement whereby the suspect helps the prosecutor to obtain all the necessary information in the prosecution of the offence and to know other persons involved in the commission of the offence and in return of some benefits but without hindering good administration of justice. The prosecutor undertakes to make concessions to the suspect in relation to charges against him or her and the penalties that he or she may request.[33]

Until recently, plea bargaining has been mentioned only two provisions of the Criminal Procedure Code of Rwanda and this could not be enough for execution. On 19 July 2022, the Prosecutor General of Rwanda signed instructions that currently facilitate in the implementation of plea bargaining in criminal procedure. It should be note that Rwanda has not used this process before as it seems more of common law system yet Rwanda, for many years has been using civil law system. Currently, the legal system of Rwanda has not kept as civil law nor common law system by is practicing a hybrid approach. To make sure that plea bargain is well implemented, the Government of Rwanda is collaborating with Pepperdine University of California, United States that has availed their experts to work with the Rwandan staff responsible for this process from both the Judiciary and the Public Prosecution Authority sides.

After signing an MoU[34] with Pepperdine University, the judiciary of Rwanda is carrying out a campaign in Rwandan detention facilities to make sure that the process is well understood by the stakeholders including the criminal suspects. The judiciary of Rwanda selected five Intermediate Courts: Nyarugenge Intermediate Court, Gasabo Intermediate Court, Musanze Intermediate Court, Muhanga Intermediate Court, and Gicumbi Intermediate Court where this pilot phase will take place.

The fact that crimes such as stealing[35] and assault or battery[36] are the most common crimes that lead to many criminal suspects for pre-trial detention and their penalties are not very heavy. The judiciary of Rwanda has considered these crimes to for the pilot phase that going on in order to decrease the number of pre-trial detainees. Also, Intermediate Courts in Kigali District were selected in the pilot phase because they have very many files compared to other courts. However, to balance the selection, a few countryside courts were also selected (Musanze and Muhanga).

In this campaign, Pepperdine University availed 7 experts that worked with the Rwanda team composed of staff from the Judiciary, the National Public Prosecution Authority, the Bar Association of Rwanda, Rwanda Investigations Bureau[37] and Rwanda Correctional Service and this campaign has been impactful beyond expectations. In the two three days of collective campaign by these organs involved in rendering justice in Rwanda, over 200 criminal suspects demonstrated their will to be involved in plea bargaining and when the exercise started, some of the criminal suspects that were detained went home on account of penalties that were suspended and other reasons.

The Rwandan Criminal Procedure provides that at the end of the suspect’s interrogation, the prosecutor may propose a plea bargaining agreement whereby the suspect helps the prosecutor to obtain all the necessary information in the prosecution of the offence and to know other persons involved in the commission of the offence and in return of some benefits but without hindering good administration of justice. The prosecutor also undertakes to make concessions to the suspect in relation to charges against him or her and the penalties that he or she may request.

During investigations, a suspect who enters into plea bargaining with the prosecution may be prosecuted while free. At the end of the suspect’s interrogation, the prosecutor may propose a plea bargaining agreement whereby the suspect helps the prosecutor to obtain all the necessary information in the prosecution of the offence and to know other persons involved in the commission of the offence and in return of some benefits but without hindering good administration of justice. The prosecutor undertakes to make concessions to the suspect in relation to charges against him or her and the penalties that he or she may request. During investigations, a suspect who enters into plea bargaining with the prosecution may be prosecuted while free.[38]

1. Issues subject to plea bargaining negotiation
2. Confession of some or all charges the suspect is being prosecuted for
3. Confession of some or all the facts constituting the crimes for which the accused is suspected

• To provide necessary information in the prosecution of the offence and to know other persons involved in the commission of the offence

1. The dues resulting from the commission of the offense and where they are kept.[39]

In the process of plea bargaining, the victim has to be informed of what is going on between the criminal suspect and the prosecutor. The victim may support the process or not but his or her reaction does not bind the prosecutor.

1. Effects and binding nature of plea bargaining contract under Rwandan law

Plea bargaining agreement imposes an obligation to the public prosecution to charge the suspect as agreed on by both parties. However, the court has discretion power to admit or reject an agreement of plea bargaining but cannot alter the agreement.[40] Therefore, the plea bargaining contract is solely binding to the prosecution and accused. The judge is free to consider or ignore the bargaining.

The same practice was applied by the ICTR rules as the rule 65 (b) of ICTR as stipulated above, “the Trial Chamber shall not be bound by any agreement between the prosecutor and the defendant”.[41] Trial Chamber shall not get involve in the negotiation of the plea agreement, but it has to accept it for the agreement to come into force. In order for a plea of guilty to be accepted, The Trial Chamber has to be satisfied that it is voluntary, informed and unequivocal and that facts point to the accused’s responsibility for the charged crime.[42]

4. Fine Without Trial

According to Rwandan law, for any offence that falls within his or her competence, if the prosecutor considers that the offence may be punishable by a fine, he or she may ask the suspect to choose between being brought before the court or paying a fine without trial. This derogates the common idea that "everybody gets their day in court" that is widely taught in schools and promoted in pop culture in many societies including Rwanda where people would otherwise think of meeting in the courts of law. According to Rwanda Criminal Procedure law, this practice is different from plea bargaining because this process has only one option; the fine that will be paid by the criminal suspect whereas in plea bargaining even prison custody may be part of the penalty.

This fine referred to cannot exceed a maximum fine increased by any possible additional amount than what is stipulated by Law. If the suspect decides to pay the fine without trial, the criminal action against him or her is discontinued and the decision is notified to the victim.[43]

5. Bail

According to the Rwandan Criminal Procedure code[44], a bail may be paid for a criminal suspect to be provisionally released but this has to be approved by either an investigator, a prosecutor or a judge depending on circumstances aligned to the commission of the crime and the criminal suspect. Also, a criminal suspect may be provisionally released on bail only or with additional conditions in company with payment of the bail.

6. Alternative Dispute Resolution (ADR)

Recently, the Government of Rwanda approved two important policies: Alternative Dispute Resolution Policy and Criminal Justice Policy. Looking at these two policies, they may help Rwanda in the effective management of pre-trial detention. These policies cover some of the practice has been operational in Rwanda while other ideas are total new in the Justice Sector of Rwanda. Rwanda is a country that has developed ideas that tradition-based ranging from the time solutions were sought to deal with the genocide against the Tutsi that took place in 1994 when over one million people were slaughtered in a period of 100 days.[45]

         6.1 Abunzi Committees

Abunzi Committees were constitutionally established in 2003 in the first version of the Constitution and started operating in 2004[46]. Abunzi Committees came as solution to the backlog that was in Rwanda courts and according to the reports published by the Rwandan Judiciary, the committees help a lot. For example, in the fiscal year 2015-2016, Abunzi Committees received 47, 966 and out of these, 44,679 were successfully handled. There were 35,953 civil matters and 12,013 criminal matters.[47] “The Abunzi Committees are responsible for conciliating parties in conflict to consolidate national unity and peaceful co-existence among Rwandans.”[48] 

Abunzi, a mediation system, is a traditional African mechanism initiated by Rwandans for conflict resolution of unique conflicts within a specific context. Abunzi is responsive to the justice needs of society.[49] At a certain stage, Abunzi’s jurisdiction to settle criminal cases was suspended. However, according to the ADR Policy, it was suggested that Abunzi regain their jurisdiction to handle some criminal acts “Consider the possibilities of a limited criminal jurisdiction for the Abunzi in the interest of the public for particular cases as may be determined by the concerned authorities after a proper assessment for its feasibility.[50]

       6.2 Mediation

In Rwanda, unlike before, mediation has gained a good foundation in the judiciary. However, much has to be done to make sure that the mentality of professionals including advocates.  There are not sufficient opportunities for diversion from prosecution. The mentality of most of the professionals is to start a case file with aiming to the prosecution rather than considering diversion. As a member of the court annexed mediators in Rwanda, the author has discovered that advocates fear that supporting mediation would lead to losing their honorarium because more money is made when an advocate is involved in a case file oriented in the courts of law than mediation. In any case, a firm mediation may lead to effective management of pre-trial detention since the parties involved in some criminal cases such as family related including adultery whereby one of the parties is the one to support prosecution. The prosecution of adultery is initiated only upon complaint of the offended spouse. In that case, the prosecution is initiated against the accused spouse and the co-offender.[51]The provision adds that the offended spouse may at any stage of the procedure request that the proceedings be terminated when he/she retracts and withdraws the complaint.[52] This should not be interpreted as a promotion of the culture of impunity but remember that instead in some countries this is not treated as a criminal matter.

Like the campaign regarding plea bargaining that is currently happening in Rwanda as mentioned above, there is a need to campaign for mediation so that it may pick up a higher momentum in the Rwandan society.

Also, at the moment, mediation is also done free of charge, by the court registrars and judges. By this, parties prefer approaching registrars and judges other professional court annexed mediators because they charge a certain fee. Although they are the ones that are mostly approached, Judges cannot have enough time for the ordinary workload in courts and effectively do mediation as well.

7. Promotion and implementation of the principle of Habeas Corpus

In Rwanda, detention of criminal suspects can be done by investigators for a maximum of five days and the same period is given to prosecutors which means an individual may be detained for 10 days before a detention is pronounced by a court which will take a maximum of 30 days. This process may also concern wrong deed that may be committed by a judge. This is why, in Rwanda, there is an office responsible for inspection at the National Public Prosecution and the judiciary. The author was a member of the Rwandan High Council of the Judiciary and High Council of the National Public Prosecution. These two organs are important and helpful when it reaches to the discipline of the judges and prosecutors that may abuse their powers and react unprofessionally. These High-level Councils give administrative sanctions after uncovering wrongs deeds. The administrative sanctions may include firing the wrongdoers that have acted unprofessionally including violation of the principle of habeas corpus. The fact that this is administrative approach, it does not stop criminal justice steps to unfold so that the wrong acts may lead to penalties although the matter of compensation is still at a very low level.

8. Crime prevention through crime prevention campaigns

As mentioned above, the author considers that as some point it becomes inevitable for competent authorities to detain a criminal suspect as a last resort.  Under Rwandan law, “a suspect normally remains free during investigation. He or she may be held in provisional detention if there are sufficient grounds to believe that he or she committed an offence which is punishable with imprisonment for a term of at least two (2) years”.[53]  In such circumstances, there is a need for awareness in terms of crime prevention. This has to be done by security and investigation organs. For the case of Rwanda, Rwanda National Police and Rwanda Investigations Bureau may carry out crime prevention campaigns targeting reducing commission of crimes in the community. This is usually effective when these organs work in the auspices of community policing programs.

9. A suspect may be monitored through technology

With high level technology, it may not be necessary to keep criminal suspects behind the bars. The Rwandan law of Criminal procedure has a provision on using technology to monitor a criminal suspect.[54] What is lacking is to implement this provision as it may reduce the number of criminal suspects in detention facilities thus preventing them from the harsh conditions that may be otherwise suffered. Although it was not against this background, during the time COVID-19 was severe in Rwanda, the government used technology to track those that had contracted it other than quarantining them in one collective place. With is experience, technology was tested and it worked very well and hopefully it can work even in monitoring criminal suspects other than putting them in detention facilities.

10. Conclusion

Pre-trial detention has detrimental effects in African communities but something may be done to make sure that it is only done at the last resort. Also, there is much to do so that even those detained as the last resort may be put improved detention facilities especially in the Sub-Saharan Africa where, currently, the facilities are unfriendly. There is also much to with the mentality of considering detention as a principle when it is supposed to be seen as an exception to the principle of prosecuting a criminal suspect that is free until the time he or she may be convicted and be in prison custody or otherwise continue to be free when acquitted. Rwanda has recorded many success stories but the current criminal justice system has more to be done too like any other Sub-Saharan counties. Nevertheless, Rwanda has to be commended for the way the aftermath of the genocide against the Tutsi was handled in terms of administration of pre-trial detention. Although there were more than criminals that played a role in the genocide against the Tutsi, currently the number of people detained in Rwandan Courts are only 24,019.

[1]African Commission on Human and People’s Rights, “Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa”, (2014), art.10(a), available at: https://www.achpr.org/public/Document/file/Any/guidelines_on_arrest_police_custody_detention.pdf, accessed on 28^th October 2022.

[2]Georgia Palaiologou, “Pre-Trial Detention”, available at: https://www.fairtrials.org/campaigns/pre-trial-detention/, accessed on 29^th October 2022.

[3]International Covenant on Civil and Political Rights. Adopted by the General Assembly of the United Nations on 19 December (1966), art. 9(1).

[4]Open Society Foundations/United Nations Development Project (UNDP) Report (2011), “A Global Campaign for Pretrial Justice Report -The Socioeconomic Impact of Pretrial Detention”, p.5.

[5]African Commission on Human and People’s Rights, op.cit. art.10(b).

[6]Ibid, art.11.

[7]European Court of Human Rights (EctHR) Case of Bezicheri v. Italy, Application n^o. 11400/85, par. 22-26.

[8]See: The International Convention on Civil and Political Rights (ICCPR), art. 9(4) and art. 5(4) of the European Convention on Human Rights (ECHR).

[9]UK Parliament, Magna Carta, available at: https://www.parliament.uk/about/living-heritage/evolutionofparliament/originsofparliament/birthofparliament/overview/magnacarta/, accessed on 29^th October 2022.

[10]AcademiaLab, Interdictum de Homine Libero Exhibendo, available at:

 https://academia-lab.com/2016/09/16/writ-of-homine-libero-exhibendo/, accessed on 25^th October 2022.

[11]Penal Reform International, Africa’s Recommendations for Penal Reform, Bell and Bain Limited (2008), p.58.

[12]See: art. 56(5) of the African Charter cited in the case brought to the court: 258/02: Miss A / Cameroon, June, 2004.

[13]The Constitution of the Republic of Rwanda revised in 2015, art.24.

[14] Ibid., art.29(4).

[15]Melvern, L., ‘The Eight Stages/Distorting the Evidence: Facts and Figures in a Campaign of Genocide Denial, in:Gasanabo, J.D. et al., Confronting Genocide in Rwanda: Dehumanization, Denial, and Strategies for Prevention, Colombia, Apidama Ediciones Ltd, p.236

[16]Amnesty International, “Gacaca: A Question of Justice”, Report, December, 2002. p.1, http://www.amnesty.org, accessed on 22^nd November, 2012.

  [17]Clark, P., “Creeks of Justice: Debating Post-Atrocities in the Accountability and Amnesty in Rwanda and Uganda”, in: Francesca Lessa and Leigh A. Payne (eds), Amnesty in the Age of Human Rights Accountability, Cambridge University Press, 2012, p. 213.

[18]Melvern, L., supra note 4.

[19]Republic of Rwanda, “A brief History of Rwanda”, available at: http://www.gov.rw/home/history/, accessed on 16^th July, 2016.

[20]Organic Law n°08/96 30/08/1996 organizing the prosecution of Genocide crimes and other crimes against humanity committed since the 1st October, 1990.

[21]See: Mukantaganzwa, D., Executive, Secretary of the National Service of Gacaca Jurisdictions, Presentation of made at International Conference on Gacaca Courts, Kigali, 17^th June, 2012.

[22]See: Organic Law n˚ 40/2000 of January 2001 Governing the Creation of Gacaca Courts and Organizing the Prosecution of Genocide Crimes and Other Crimes against Humanity Committed between the October 1st 1990 and the December 31st 1994, O.G. of 15th March, 2001.

  [23] See: Organic Law on Gacaca, op. cit. art. 1.

[24]The National Service of Gacaca Courts, “Summary of the Administration Report”, Kigali, 2012.

[25]The Constitution of Rwanda, op.cit. art.11.

[26] Conversation between the author and the Head of International Committee of Red Cross, Kigali, 2007.

[27]http://pages.uoregon.edu/rgp/PPPM613/class10theory.htm, ‘Planning Analysis: The Theory of Citizen Participation’, accessed on 22^nd December, 2015.

[28]Jim, B. et al, “How Does Restorative Justice Ensure Good Practice?” in: Howard, Z. and Barb (eds), Critical Issues in Restorative Justice, William Publishing, UK, (2004).

[29]Wierzynska, A., “Consolidating Democracy through Transitional Justice: Rwanda's Gacaca Courts”, New York University Law Review, November, 2004, Vol. 79:1934, 1934-1970, available at: http://www.nyulawreview.org/sites/default/files/pdf/NYULawReview-79-5-Wierzynska.pdf, accessed on 12^th January, 2016.

[30]Ibid.

[31] https://legaldictionary.net/plea-bargaining/, accessed on 28^th 0ctober 2022

[32]ICTR rules of criminal procedure and evidence, Rule 65 (A).

[33]Law nº 027/2019 of 19/09/2019 relating to the criminal procedure, Official Gazette n° Special of 08/11/2019, art.26.

[34]See: The Judiciary of Rwanda, “The Chief Justice, Dr. Faustin NTEZILYAYO signed an MoU to start a 5 year-pilot project on Plea-Bargaining”. The MoU signed between the Judiciary of Rwanda and University of Pepperdine, California, United States, available at: https://www.judiciary.gov.rw/index.php?id=13&tx_news_pi1%5Bnews%5D=772&tx_news_pi1%5Bcontroller%5D=News&tx_news_pi1%5Baction%5D=detail&cHash=c242dad375bfc9fc69f84860b4c51714#:~:text=Chief%20Justice%2C%20Dr.-,Faustin%20NTEZILYAYO%20signed%20an%20MoU%20to%20start%20a%205,pilot%20project%20on%20Plea%2DBargaining&text=10.8.,presided%20over%20by%20the%20Hon., accessed on 25^th October 2022.

[35]Law No68/2018 of 30/08/2018, determining offences and penalties in general,  Official Gazette no. Special of 27/09/2018, art. 120-121.

[36] Ibid, art.165-166.

[37]Law Nº12/2017 Of 07/04/2017 Establishing the Rwanda Investigation Bureau and Determining its Mission, Powers, Organisation and Functioning, Official Gazette (O.G)., nᵒ Special of 20/04/201

[38]Criminal Procedure law, op. cit., art.26(2).

[39]Article 8 of Prosecutor General’ instructions Nº 6/2022 of 19 /7 / 2022 relating to plea bargaining.

[40]Ibid, article 27

[41] ICTR, rule 65.

[42] ICTY, Guilty pleas, available at https://www.icty.org/en/cases/guilty-pleas, accessed on 29^th October 2022

[43]Ibid, art. 25.

[44]Criminal Procedure Code, art.81.

[45]Organic Law N°16/2004 of 19/6/2004 Establishing the Organisation, Competence and Functioning of Gacaca Courts Charged with Prosecuting and Trying the Perpetrators of the Crime of Genocide and Other Crimes Against Humanity, Committed Between October 1, 1990 and December 31, 1994. See also: Rwanda: Organic Law No. 08/1996 of 1996 on the Organization of Prosecutions for Offenses Constituting the Crime of Genocide or Crimes Against Humanity committed since 1 October 1990, 1 September 1996, available at: https://www.refworld.org/docid/3ae6b4f64.html, accessed 30 August 2022.

[46]See: Organic Law n° 17/2004 of 20/06/2004 on Organization, Powers and Functioning of the Mediation Committee.

[47]Ministry of Justice.

[48]The Constitution of the Republic of Rwanda Revised in 2015, op.cit. art. 141,

[49]Mutisi, M., “The Abunzi Mediation in Rwanda: Opportunities for Engaging with Traditional Institutions of Conflict Resolution”, 2011, available at http://www.accord.org.za/publication/the-abunzi-mediation-in-rwanda/, accessed on 30^th March, 2022, African Centre for the Constructive Resolution of Disputes (ACCORD).

[50]See: The Summary of ADR Policy, 2022.

[51]Law No68/2018 of 30/08/2018 Determining Offences and Penalties In General, Official Gazette, no. Special of 27/09/2018, art.

[52] Ibid., art. art.136(2).

[53] Law No 027/2019 of 19/09/2019 relating to the criminal procedure, Official Gazette (OG) n° Special of 08/11/2019, art.66.

 [54] Ibid, art. 70.