The Abunzi Committee and what it entails
Looking at the law on establishment of the Abunzi committee and how it operates, it is clear that it should be a platform to assist in mediation and amicable settlement on petty cases. The law however instead accords to the Abunzi Committee powers to adjudicate and render binding decisions over matters with such colossal subject matter that’s to say subject matter of up to three million Rwandan francs (3,000,000Rwf) which the members of Abunzi Committee are unable to solve expeditiously because they are not trained legal practitioners and thus in Our opinion might not be able to solve these matters in accordance with the law. Inpractice of the Abunzi Committee it has been found that the Abunzi Committee in most cases applies morals, reasonableness and custom which in the eyes of the law such approach can and is most likely to result into injustices to the disputing parties.
Pursuant to Article 27 of the law on jurisdiction of courts of 2018, it is showcased that for one to bring a case in the primary court which is the smallest court, the case should have a subject matter of three million and above. Other matters which are below this amount are referred to Abunzi committee. This basically means that a plaintiff with a matter of subject matter valued to 2.5 million has no other choice but to take the matter to Abunzi committee. Like I mentioned above, the members of Abunzi are not trained legal practitioners which is why I recommend that they should not be accorded such jurisdiction to handle such matters but instead they should only operate as a means to facilitate mediation and amicable settlement and if this fails, then the parties should be given the chance to initiate the matter in court.
I might be inclined to argue that by limiting the minimum price at 3 million Rwf and above to bring a matter to court, it would help to curb case backlog but people with cases of subject matter below the amount mentioned above are likely to face injustices in the process. I might also argue that the parties are given a chance to appeal to court in case they are not satisfied by the Abunzi decision but the practice of first referring the matter to Abunzi is time consuming and also we have seen instances where evidence is lost at Abunzi and the party is left with a weak case when they appeal to court and yet they would have had the chances of winning had they started at the court level first.
Abunzi committee and its way of operation:
An Abunzi committee is a tribunal established at the cell and sector level with jurisdiction over the cell and by way of appeal at the sector level. At the cell and sector levels, the Abunzi committee is comprised of 7 persons of integrity who must all be residents of the cell and the sector respectively and well known for their conciliation skills.
Members of the Abunzi committee are elected by the cell council or the sector council from the people other than high authorities, cabinet members, parliamentarians, and staff of judicial organs, security services, local administrative entities and others whose duties are incompatible in accordance with specific laws.
This showcases that members of Abunzi committee are lay people well versed with morals and tradition but with no trained expertise about legal mechanisms and principles.
Members of Abunzi committee serve on a voluntary and non-remunerative basis which means that they are not paid for their time and services rendered and thus are prone to corruption tendencies and can easily be bribed by the parties.
Article 11 of the law on Abunzi committee of 2016 states that in no way, may disputes involving the state, its organs or associations and companies with regard to legal personality whether private or public be referred to an Abunzi committee. This provision leaves an injustice to people who have matters against the state and whose subject matter falls below three million Rwanda francs (3m Rwf). This is because the above mentioned matter is neither admitted in the primary court and nor is it admitted in Abunzi committee. So they are left to cut their losses and move on. Nevertheless, the courts have in such cases found a way to help out such people who fall in this category. However, we recommend that the law making body puts this into consideration and in place legal provisions to cater for the aforementioned category of people.
In addition, in Abunzi committee, a lawyer cannot represent or plead for a party but can rather assist him or her if he or she asks for his assistance. This means that the party’s right to legal representation is denied of him or her in this instance. If it was an amicable settlement/mediation platform as it is supposed to be, we wouldn’t be having this discussion but since the Abunzi committee is given the powers of a court, then the parties should be allowed a right to legal representation because without legal representation, the parties’ chances of fair justice are always scarce.
Article 17 of the Abunzi law states that the dispute must be settled within a month. This means that the matter is not given ample time and hence the parties’ chances of getting justice are limited since the whole process is rushed. Nevertheless a speedy hearing is also advantageous on the other hand.
Small claims procedure:
The Rwandan civil procedure law provides for small claims procedure where by a small claims case is that whose main subject-matter’s value is of five million Rwandan francs (5,000,000 Rwf) maximum excluding interests of this value and procedural fees. In my opinion, this is the provision that should be catering for people with matters whose subject matter is below the amount required by the primary court (3 million RWF and above). However, it is clearly stated that under small claims procedure, primary tribunals have jurisdiction on civil claims related to movable or immovable property which does not fall within the jurisdiction of Abunzi committees meaning that matters of below three million do not fall within small claims but rather are handled by Abunzi. Our East African counterparts have provisions for small claims procedure to cater for people with cases of small subject matter. A case in point in Uganda, small claims procedure admits matters which do not exceed ten million Uganda shillings which is like 2.5 million Rwandan Francs.
I recommend that Abunzi committee be made a platform to facilitate mediation and amicable settlement but not render binding court decisions. This is because the people who make up Abunzi are not trained legal practitioners and also work on a voluntary basis meaning that they could easily be corrupted.
I recommend the amendment of Article 11 of Abunzi law which stipulates that in the event that any person has a dispute against the state, its organs or companies, he or she should not refer the case to Abunzi. This means that a person with a suit against the state of subject matter below 3 million is left with no platform to refer his or her claim. I recommend that the law should provide for an alternative platform where they can refer these matters since they are neither admitted in the primary court nor in Abunzi committee.
I recommend the amendment of provisions on small claims procedure to accommodate matters of subject matter below three million. For example the small claims procedure can be amended to accommodate matters of subject matter of 1 million minimum and 5 million maximum Rwanda Francs. The matters of below 1 million can then be handled by the Abunzi committee. I recommend that Abunzi committee be given the authority to oversee amicable settlement for all civil matters. This means that all civil matters must first go through Abunzi for amicable settlement. This will maintain the rationale of curbing case backlog as the initiators of Abunzi committee wished.
That being said, in the event that these recommendations are put into consideration, the people who have not been getting justice at the hands of Abunzi will complain no more since they will have a platform to cater for their issues and as a result justice will not only be done but it will be seen to be done.
Regarding to the amendment of article 11, i personally, it can not be amended because the article 36 of LAW N°30/2018 OF 02/06/2018 DETERMINING THE JURISDICTION OF COURTS stipulates that “The specialised chambers of Intermediate
Courts for labour and administrative cases,
have jurisdiction to try at first instance the
following cases related to administrative
decisions taken at last instance by the
administration: 11°claims against the State, except where the
law provides otherwise.”