Evidence: the foundation of justice.
The phone rang, it was my friend calling, he told me that he was released from detention. Some days before the call, I returned to my hometown after finishing my post-graduate. I tried to reach him but I couldn’t. When I went to check on him at his home, I met his grandma, who told me that he was in custody being questioned as a suspect in a case of robbery.
As a worried friend I asked if he has a lawyer to assist him,
and his grandma told me that he had one. As a suspect he was supposed to be
interrogated which is obvious. As his friends we knew that he was innocent,
which was later confirmed by the court. If the investigator did his job to find
exculpatory evidences as much as incriminating evidences my friend wouldn’t
pass that much time in custody.
As people who follow updates of the justice sector, we always
hear the famous problem of 30 days, which unfortunately ends turning into
years. Another case is of another friend, who was accused of having sex with a
minor. The young lady who was his girlfriend at the time. Her dad filed the
case, which resulted into him being held into custody. After his release when
the court found that he was innocent, he told us of people he met in the
custody who have been there for years on 30 days probation.
Investigators are legally compelled to collect both
incriminating and exculpatory evidence. This means that they must gather all
evidence that is relevant to the case, regardless of whether it helps or hurts
the suspect. In practice, however, investigators often focus on collecting
incriminating evidence. This is understandable, as they want to build a strong
case against the suspect. However, it is important to remember that the goal of
an investigation is to find the truth, not just to convict someone. By
collecting both incriminating and exculpatory evidence, investigators can more
accurately determine the guilt or innocence of the suspect.
As shown in the pre-trial detention survey on, practices and
human rights respect in Rwanda judicial system, following the National
Commission for Human Rights (NCHR) annual reports of the 3 years (2020-2021,
2021-2022 and 2022-2023), the pre-trial detainees were estimated to 9484, 11650
and 10959 respectively. The increased number of detainees in pre-trial
detention adversely affects the respect of human rights. Moreover, the Commission has
monitored the respect of pretrial detainees ‘rights and found that some are
subject of delayed justice because of their number in prisons which exceeds the
judges’ capacity of adjudication.[1]
It is clear that, our investigation organ and prosecution have to develop a
culture of finding more evidences before going further with the case. This is
even the conclusion we aways got in class after a discussion on the matter of investigation,
luckily the lecturers are even in those organs dealing with investigation and prosecution
let’s hope they will initiate more change.
In a criminal case, the prosecution bears the burden of
proving that the defendant is guilty beyond all reasonable doubt. This means
that the prosecution must convince the court that there is no other reasonable
explanation that can come from the evidence presented at trial.[2]
One of the things the Law relating to the criminal procedure provides on prosecution’s
case file on provisional detention in article74, stipulates that; the case file
to be submitted to the court must contains all the investigation records from
the organ in charge of investigation to public prosecution as well as the
public prosecution’s conclusions providing serious grounds for suspecting a
person of an offence, separately justified and linked with the relevant penal provisions.[3]
This reflects the principle stating that the prosecution bears the burden of proving that the
defendant is guilty beyond all reasonable doubt. On top of that, for the sake
of laying a strong foundation of justice the institution in charge of
investigation, should focus on investigating thoroughly.
Another thing we have to pay attention to is provisional
detention, and how it is done. Provisional detention is a situation where an accused
person temporarily in custody during pre-trial and/or trial stage. Provisional
detention, in principal in the time a person is under investigated, he/she must
be free during that period, in few words no one who can be investigated in the
time he/she is detained. But in the time the required conditions are met, the
suspect must be detained provisionary. The required conditions in order a
suspect be provisionary detained during investigation are these which follow,
when, they are serious grounds for suspecting him/her of an offence, the
offense alleged against him/her is punishable with imprisonment of at least two
(2) years, “If: there is reason to believe that he/she may evade justice; this
means that, the prosecution proves that the suspect may have some chances of
going outside of the country as the way of escaping justice.[4]
Before provisional detention and after the decision to
initiate it, the judicial police should be working tirelessly to find evidences
to prove their case. Detention should be an exception indeed. Most importantly,
during the investigation, the investigators or prosecutors should keep the same
determination in deciding to detain when they believe they have sufficient
evidence, but if the situation is otherwise, they should hurry to release the
suspect.
Not only in criminal cases, even in civil cases providing
evidences by the claimant, he/she has the burden of proof. Article 12 of the Law No 22/2018 of
29/04/2018 relating to the civil, commercial, labour and administrative
procedure, on the issue of burden of proof, stipulates that; The claimant must
prove a claim, failing which the respondent wins the case. Likewise, a party
who alleges that he/she has been discharged from an obligation established by
evidence must justify the cause as a result of which the obligation has
extinguished. Failure to do so, the other party wins the case.[5]
Evidence can take several forms such as documents, sound and video recordings
and witness statements (written statements about what the witness saw or
heard). Evidence can also be given through oral statements (testimony) made at
court by witnesses.
To understand more about evidence, we’re going through the Law
n° 062/2024 of 20/06/2024 governing evidence published in the official Gazette
n° Special of 27/06/2024. The law relates to evidence produced before the
court. It can also apply to other institutions with powers to settle disputes
without prejudice to evidence provided by specific laws.[6]
This law defines evidence as a means of demonstrating the
truth of a fact. Another thing worth mentioning is expert evidence; means
testimony intended to give explanations and a conclusion based on expertise
that goes beyond the
ordinary knowledge of a judge or a person ruling on a dispute within the scope
of his or her duties, due to the special expertise of the subject of the
dispute.[7]
The other thing we can look at is the burden of proof. Generally,
burden of proof describes the standard that a party seeking to prove a fact in
court must satisfy to have that fact legally established. For example, in criminal cases, the
burden of proving the defendant’s guilt is on the prosecution, and they must
establish that fact beyond a reasonable doubt. In civil cases, the plaintiff
has the burden of proving their case by a preponderance of the evidence, which
means the plaintiff merely needs to show that the fact in dispute is more
likely than not. A "preponderance of the evidence" and "beyond a
reasonable doubt" are different standards, requiring different amounts of
proof.[8]
In order to reach the level of justice we want, and to place
evidence finding as the foundation of our justice, the public prosecution authority
should act more. According to the Nº 027/2019 of 19/09/2019 of Law relating to
the criminal procedure, article 17 on the power to investigate; The public
prosecution may also conduct preliminary investigations in case it believes there
are subjects that had to be investigated but were not investigated.[9]
This will solve the issues of not having enough evidences, that may lead to
injustices. Evidence being the foundation of justice, it is a way to prevent
innocent person to be imprisoned. As William Blackstone said, “it is better
that 10 guilty persons escape, than that 1 innocent suffer.” I share the same
feeling on the matter, because people can lose trust in our justice system due
to not finding enough evidence, which can lead to the imprisonment of an
innocent person, we might be risking of having a chaotic society.
According to the new law of evidence, on the burden of proof;
it provides that, a claimant has the burden to prove his or her claim. The
respondent provides arguments substantiating his or her defence. However, a
judge or an adjudicator may order the party to a claim or any other person to
produce evidence he or she possesses.[10]
This should be in the spirit of finding justice not putting traps in the way of
finding justice. At the end of the day the whole society is the one that pays the
price of those in prison, through their taxes.
There are effects of refusing to produce evidence. Following
the decision by the competent organ, a party to the claim or one of the
contending parties who refuses, without valid reasons, to produce evidence may
lose the case as consequence. In case the person who refused to produce evidence
is a third party, he or she is summoned before the competent organ to justify
such a refusal, unless the law provides otherwise. A Judge or any other
adjudicator may sanction him or her to the payment of late penalties which may
be calculated on a daily, weekly or monthly basis in order to compel him or her
to produce the evidence.[11]
This should teach us that providing evidence it is in the way of finding the truth
and helping the court to provide real justice. Not doing so with not reason it
is obvious, the individual might be even be feeling guilty or actually being
guilty, or for the reasons to cover the
person in question.
Technology is becoming part of our daily lives. It is in that
same involvement where criminals and other people have learnt different ways to
commit crimes using technological means. To find a solution legislators became
aware and showed it in this new law especially in section two, article 34,[12]
on admissibility and probative value of scientific and digital evidence. It stipulates
that; especially in paragraph one; evidence collected through scientific and
digital means or either of them is admissible and has the same probative value
as other evidence if an expert confirms its truthfulness. This shows that as
the nature od crimes changes especially in using technology as a mean, using digital
means to find evidence is the solution.
To understand even more on this topic, we are going to use
the famous case of Titi Brown, whose actual names are Thierry Ishimwe. The
decision to acquit Ishimwe was reached due to the absence of concrete evidence
beyond M.J.'s testimony to conclusively link Ishimwe to the rape and pregnancy.
The Nyarugenge Intermediate
Court on November 10, 2023 acquitted him. The verdict states that the court
considers the victim's testimony insufficient as the sole evidence to rely
upon, as there was no additional corroborating evidence. This doubt in the
absence of supporting evidence works in favor of the accused's defense. Ishimwe
was acquitted, and an immediate release was ordered.[13]
This example also bring us back to the idea that, evidence in
the foundation of justice.
Ishimwe has been detained since 2021, after being accused of
sexually assaulting and impregnating a 17-year-old. However, it was later
revealed that she underwent an abortion because she was a minor. During the
prosecution's case presentation, they introduced multiple pieces of evidence,
with a particular emphasis on highlighting the victim's account. This played a
significant role in confirming the occurrence of the defilement. Since the trial began, Ishimwe has
consistently pleaded not guilty, asserting that the girl came to his place to
inspect the dance studio he was getting ready to open, but did not actually
enter his house. Consequently, he emphasizes that he neither sexually assaulted
her nor got her pregnant.[14]
After having a new law governing evidence after 20
years, which is reflecting new realities in our society. Especially the investigation
and prosecution organ should use it with
a new attitude to dig deep before submitting the case to the court. Concerning
us as individuals in civil cases, we should make sure that the case we want to
file is reasonable and has enough evidences to back it. This will not only lay
a stronger foundation of justice, but also create a society where every member
is responsible to make sure that the case he/she willing to initiate has strong
foundations. As human beings we are not perfect and can be wrong even on the
matters we thought we were certain about. Finding enough and accurate evidences
will give us a trustworthy justice system.
[1] https://www.umucyo.gov.rw/eb/common/fileIdDownload.do?fileId=052023122554509-1ee4#:~:text=Following%20the%20National%20Commission%20for,the%20respect%20of%20human%20rights.
[2] https://www.law.cornell.edu/wex/beyond_a_reasonable_doubt#:~:text=In%20a%20criminal%20case%2C%20the,the%20evidence%20presented%20at%20trial.
[3] Official
Gazette n° Special of 08/11/2019, Law Nº 027/2019 of 19/09/2019
relating to the criminal procedure, article74
[4] http://dr.ur.ac.rw/bitstream/handle/123456789/873/MWIHOREZE%20Claudine%20thesis.pdf?sequence=1&isAllowed=y
[5] Official
Gazette nº Special of 29/04/2018, Law No 22/2018 of 29/04/2018 relating to the
civil, commercial, labour and administrative procedure Article 12
[6] official
Gazette n° Special of 27/06/2024, Law n° 062/2024 of 20/06/2024 governing
evidence. Article 3
[7] official
Gazette n° Special of 27/06/2024, Law n° 062/2024 of 20/06/2024 governing
evidence. Article 2
[9] Official
Gazette n° Special of 08/11/2019 , Nº 027/2019 of 19/09/2019, Law relating to
the criminal procedure
[10] official
Gazette n° Special of 27/06/2024, Law n° 062/2024 of 20/06/2024 governing
evidence. Article 4 paragraph 1.
[11]
official Gazette n° Special of 27/06/2024, Law n° 062/2024 of 20/06/2024
governing evidence. Article 5
[12] official
Gazette n° Special of 27/06/2024, Law n° 062/2024 of 20/06/2024 governing
evidence. Article 34 paragragh 1
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