What are the big Questions/Quest in the field of International Law?

Access to Justice: Judicial Reform in Rwanda
Vicki Miles-LaGrange
CONTENTS
About This Issue
Freedom of the Press
The Central Role of Economic Freedom in Democracy
Freedom of Conscience
Citizenship and Good Democratic Government
Access to Justice: Judicial Reform in Rwanda
Bibliography
Internet Resources
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SIDEBAR
First International Conference on Rwanda Law Reform and Law Revision, 2002

Vicki Miles-LaGrange
An independent judiciary is necessary to ensure access to justice for all citizens, argues the author in this article. Judge Vicki Miles-LaGrange discusses her experience assisting judges in post-genocide Rwanda to reform the country's judicial system so that Rwandan citizens might have greater access to the law. Vicki Miles-LaGrange is a U.S. district judge for the Western District of Oklahoma and a former member of the U.S. Judicial Conference's International Judicial Relations Committee and chair of the committee's Africa Working Group (1999-2005).
The words "Equal Justice Under Law" are carved in stone above the entrance of the U.S. Supreme Court building in Washington, D.C. These words represent the promise of America to its people. Unless there is free and unrestricted access to our justice system for all people despite their place or position in life, the U.S. promise of "equal justice under law" cannot be realized.
AN INDEPENDENT JUDICIARY AND ACCESS TO JUSTICE
One of the most important aspects of ensuring that all people gain equal access to the law is an independent judiciary. In the U.S. system of the administration of justice, no person can tell a judge how to decide a case, regardless of that person's position, power, or influence. The decision of a judge must be based upon the law and can be changed only by a higher court, whose decision must also be based upon the applicable law.

The author is seated second from the left at this seminar on judicial reform sponsored by the Legislative Reform Commission Panel. Participants included U.S. judicial delegates and other international judges. Courtesy Judge Vicki Miles-LaGrange
An independent judiciary is part of the greater "rule of law" system that exists in the United States and other democratic nations. According to the World Bank, the rule of law prevails where (1) the government itself is bound by the law, (2) every person in society is treated equally under the law, (3) the human dignity of each individual is recognized and protected by law, and (4) justice is accessible to all. Accordingly, the rule of law requires "a judicial system that is independent and where courts can interpret and apply the laws and regulations in an impartial, predictable, efficient, and transparent manner. Consistent enforcement in turn provides for a stable institutional environment where the long-term consequences of economic decisions can be assessed."
Some argue that the purpose of an independent judiciary is to limit government power and to protect the rights of individuals. Certain safeguards must be in place for a court to function independently. Organizationally, the transparency of the judicial appointment process and, subsequently, the ability of judges to be free from threats to job security or salary enhance the ability of the judicial branch to interpret the law without unnecessary interference from other branches of government or any individual. For example, the U.S. Constitution provides that federal judges "shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during that Continuance in Office." Administratively, the independence of the judicial budget process from other branches and the transparency of procedures to discipline and remove judges also enhance the independence of the judiciary. Also, judicial codes of conduct for U.S. judges and lawyers provide minimum, uniform standards for their ethical conduct. Finally, the ability of judges to enforce their rulings through the power to hold violators in contempt of court seals the independence of the U.S. judiciary.
AN EXAMPLE: JUDICIAL REFORM IN RWANDA
Theoretically, many of these safeguards were adopted constitutionally and by legislative enactments during the process of law reform and law revision in Rwanda. The model developed by this tiny country in Africa set out to address the urgent need to rebuild the judicial system and to ensure that trials against thousands of imprisoned genocide suspects can proceed according to due process of law. The state of the justice system in Rwanda in 2001 was a reflection of the country's history. Judicial institutions were marked by partisanship and corruption, staffed with many political appointees whose objective was to satisfy their appointing authority instead of following the law. The absence of competent 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 in which more than one million Rwandans were slaughtered.
After the genocide, Rwandan society inevitably was traumatized by the absence of the rule of law, and it was burdened by a slack economy and weak institutions. More than two million Hutu refugees and internally displaced people migrated to the neighboring countries of the Democratic Republic of the Congo, Burundi, and Tanzania. The post-genocide justice system in Rwanda was in a state of inertia. Many police and security forces had fled the country. There was a prison population of more than 100,000 genocide suspects. Very few judges, prosecutors, and lawyers were alive, and no bar associations were in existence.
In response to the situation, the Rwanda Law Reform Commission was established by legislation in July 2001. The commission is composed of Rwandan citizens from diverse professional and legal institutions, including the Supreme Court, the Ministry of Justice, Prosecution Services, the national university, and the bar association. The commission is mandated to propose an act to provide for the organization and jurisdiction of the Courts of Judicature; an act relating to the code of ethics for the judiciary; an act providing for the organization, functioning, and jurisdiction of the Superior Council of the Judiciary; an act to provide for the creation of a National Prosecution Authority; a Criminal Procedure Act; and an act relating to the code of evidence.
Beginning in 2002, I was a U.S. delegate to a series of law reform and law revision initiatives in Rwanda. The First International Conference on Rwanda Law Reform and Law Revision, held that year, was created to promote an exchange of information. The conference was conducted under the auspices of the Rwanda Law Reform Commission and funded by the U.S. Embassy and the U.S. Agency for International Development (USAID). The participants included Rwandan judges, prosecutors, and lawyers, and representatives from Argentina, Burundi, Cameroon, Canada, Kenya, Mauritius, Senegal, South Africa, Tanzania, Uganda, and the United States.
The 2002 conference focused on law reform and revision, independence of the judiciary, and the rule of law. Delegates presented recommendations through six working groups that addressed the issues of judicial independence, judicial ethics, judicial administration and the role of court administrators, governance of the judiciary, judicial recruiting and training, and the judicial budget process. The results of two of the groups' deliberations—the Judicial Independence Working Group and the Judicial Ethics Working Group—are summarized in the accompanying sidebar.
RECOMMENDATIONS FOR CHANGE
The Second International Conference on Rwanda Law Reform and Law Revision took place in 2003. Its objective was to develop a framework for judicial reform in Rwanda that would be consistent with universal standards of a sound and effective judiciary. The conference presented recommendations for incorporation into both the constitution and the organic laws regarding the issues considered by the 2002 working groups. The participants included delegates from the nation-states represented at the 2002 conference plus delegates from Denmark, Ethiopia, France, Germany, Guatemala, Malawi, Mali, the Netherlands, Nigeria, the United Kingdom, and Zambia.
The formal recommendations, unanimously presented by the international delegates to the conference, were as follows:
The rank of judicial officers should be equivalent to that of senior members of the other branches of government and should be guaranteed in the organic law.
The salary and benefits of a judge shall not be reduced while in office.
There shall be established a department of finance and administration within the judiciary.
There shall be a permanent staff of the judiciary whose terms and conditions of employment shall be determined by the judiciary.
There shall be established a department of finance and administration within the Office of Public Prosecutor.
An organic law shall be enacted to establish a permanent and independent Law Reform Commission, describing its composition, powers, and functions.
The judiciary shall be granted the authority to draft all rules relating to court procedures and court operations, subject only to the approval of Parliament.
Judges of the Supreme Court and of the high court may only be removed from office on account of incompetence or gross misconduct.
A judge shall be removed following a resolution of the Senate passed by at least a two-thirds majority upon the recommendation of the Superior Council of the Judiciary.
The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as prescribed by law.
It was clear at the conclusion of the 2003 conference that training judges and prosecutors was critical, so that they could adequately fulfill their new assignments. A distinguished Rwandan jurist described the Rwandan judiciary as "not vibrant" and expressed concern that the average Rwandan jurist is fairly passive and lacking in self-confidence. Prior to the constitutional and legislative reforms, trial judges sat in panels of three. They are now required to decide cases in single-judge courts, which will require more self-confidence and the capacity to exert influence and command respect. Judges must now become accountable for increased competency, productivity, and ethical conduct because of the new powers and authorities vested in an independent judiciary. If an independent judiciary is to be truly established and sustained in Rwanda, fast-track judicial training and education in multiple areas is required.
As part of another visit to Rwanda in 2002, I served as a member of a team that developed a Judicial Education and Training Needs Assessment - Proposed Training Plan and Implementation Strategy. The purpose of the assignment was to gather information about the existing legal education and training of the Rwandan judiciary and to develop a plan for creating and implementing a judicial education and training program using those resources. The plan presented a process by which Rwandan judges of the ordinary courts might best be prepared to function effectively in the new environment anticipated in the proposed legislation. The preparation involved a much greater commitment to judicial education and training than previously existed. To the extent that all judge positions in the current court system would be abolished and a new system with new judge positions created upon passage, the Rwandan government had an unprecedented opportunity to evaluate objectively and select the most qualified candidates who could transform the judiciary into an independent and
distinguished body trusted by the Rwandan people to establish, preserve, and enforce the rule of law.
Another interesting outcome of the Rwanda model is a constitutional provision that mandates that women must fill at least 30 percent of "posts in decision-making organs," which presumably includes judges.
CONCLUSION
Judicial reform is ultimately aimed at enhancing independence and increasing efficiency, equity, and access to the legal system. It is imperative that the courts work operationally, administratively, competently, and ethically, if "equal justice under law" is ever truly to be a reality anywhere in the world.
If the judicial system is not in good working order, then justice is not being dispensed or administered. If the courts do not work properly, there can never be equal access to justice.
The opinions expressed in this article do not necessarily reflect the views or policies of the U.S. government.
http://usinfo.state.gov/journals/itdhr/1205/ijde/lagrange.htm
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