An official who embezzles funds for a hospital has indirectly committed murder

My recent exchanges with some lawyers in town on the fact that corruption offences are imprescriptible in Rwanda seemed to raise some concerns, which I think needed some more explaining. First, it appeared to me that some individuals do not agree on what makes corruption so important to deserve such special attention; and to substantiate this argument, one person rhetorically asked: is corruption more important than the crime of murder? The second issue that was raised concerns evidence.  It was argued that it would be difficult for the defence counsel to assemble sufficient evidence in favour of the accused, in a situation where a case is brought 30 or more years after the commission of the alleged crimes. The third concern, related to the second, is a claim that the defence counsel (advocates) and the suspect might not have comparable resources with the State (through Rwanda Investigation Bureau/RIB and National Public Prosecution Authority/NPPA) to gather evidence that goes back to several years. These last two arguments also relate to the fact that some eyewitnesses might even have died.

I would like to respond to these concerns in the same order, but before I do that, I need to first explain the reasons behind making certain offences imprescriptible. It is a general principle of law that legal claims should have a statute of limitations (prescriptive period); a certain period in which a valid cause of action can be initiated. The purpose of the prescriptive period is to protect possible defendants from actions which would be brought against them after an unreasonably long period of time – when they have lost evidence. However, international crimes such as genocide, war crimes and crimes against humanity, are an exception to this principle. This is due to the belief that some crimes are too heinous to forget or forgive. Therefore, the purpose of imprescriptibility is to fight impunity of those crimes a society considers unforgivable.

Article 21 of the law (no. 54/2018 of 13/08/2018) relating to the fight against corruption has a very simple and clear sentence stating that ‘the offence of corruption is imprescriptible.’ In response to the first concern of whether corruption is too serious compared to other offences such as murder, the answer is that the determination of which is graver strictly belongs in the discretionary powers of a legislator, and it seems to be true that indeed corruption in Rwanda is a very serious offence. We can also, even if hypothetically, argue that someone who appropriates public funds may have committed murder.  For instance, a public office holder who embezzles the funds earmarked for the construction of a hospital has indirectly committed murder.  This is because even if it would be difficult to attribute deaths resulting from not having built such a hospital to that person, it is fair to claim that the conduct of that person in selfishly depriving other citizens access to medical care is deplorable and may have led to the death of many. It is also not difficult to attribute other aspects, especially negative social-economic impacts, resulting from corruption which undermines development.

The concerns of having difficulties in obtaining sufficient pieces of evidence for an offence that occurred several years ago are not limited to the defence. It can also be a challenge to the Prosecution, and it is not particular to the crime of corruption because it concerns all imprescriptible crimes. The concern which deserves more attention, to which I don’t have an immediate answer, is the view that the defence counsel and the suspect might not be having comparable resources with the prosecution due to inequality in resources, which undermines the principle of equality of arms. This argument, however, makes more sense when it is made outside the strict confines of imprescriptibility. First, it is important to highlight that (ordinarily) collecting and preserving all evidence is a legal obligation on the state (investigators/prosecutors). Articles 16 alinéa 3 and 72 alinéa 6 of the law no. 027/2019 of 19/09/2019 relating to the criminal procedure clearly state that investigators are responsible for collecting and preserving both incriminating and exculpatory evidence. Therefore, if RIB and NPPA were performing their duties as they should, concerns relating to limited resources could be mitigated. The probable reason some lawyers are concerned is that this requirement of gathering both incriminating and exonerating evidence is rarely taken seriously. Second, there is a perception that the prosecution is often too close to the judiciary. This perception is probably created by two reasons:  one is the fact that the prosecution offices are often housed together with Courts in the same building. Two is a misconception that the work of the prosecution is more important to the justice system than that of the defence counsel. This belief probably stems from a French system where a prosecutor in court is called a magistrat debout as in relation to a judge who is a magistrat assis, thus understanding both prosecutors and judges as magistrates, unlike advocates.

The truth of the matter is that the issue of limited resources to defence counsels is a common problem around the world. When the UN ad hoc tribunals (International Criminal Tribunal for the Former Yugoslavia and that of Rwanda) were created, resources and infrastructure were first and foremost made available to the Office of the Prosecutor. The defence counsels were left with minimum support in the registrar’s office. It is after realizing these challenges that an office of the Principal Defender was established in the Registrar’s office at the United Nations Special Court for Sierra Leone (SCSL). The creation of the Defense Office provided a structural counterbalance with that of the prosecution. Therefore, instead of criticizing the imprescriptibility of corruption offences in Rwanda, the investigation and prosecution offices should be reminded of their responsibility to collect both incriminating and exonerating evidence, and, certainly, a conversation is worth having on how support can be provided to the defence from the early stages of investigations.

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