With examples explain the following general principles of law a. En ibis in idem b. In dubious pro ere c. Frauds Omni corrupt 2. Give the Institutional framework of the applicability of accountability principle in Rwanda A. THE PRINCIPLE OF EN IBIS IN IDEM: A person may not be tried for a criminal offense for which he or she has previously been finally convicted or acquitted. The principle of en ibis in did, also known as double jeopardy, is deemed a constitutional right and a procedural right in the constitutions or the domestic registration of many states.
It is also an internationally protected human right ender the international Covenant on Civil and Political Rights, Article(7);the American Convention on Human Rights, Article 8(4); and protocol 7 to the European Convection for the protection of Human Rights and Fundamental Freedoms, Article 4(1). The purpose of a provision on en ibis in idem is to protect the individual against the arbitrary power of a state and to prevent a state from prosecuting someone for the same offense twice.
The scope of exceptions to the en ibis in idem: * If proceedings were for the purpose of shielding the person concerned from criminal responsibility. For example when the accused bribed the judge. This exception allows the court to look into the substance of the previous case to determine whether another trial for the same criminal offense can go ahead. * If proceedings were not conducted independently and impartially in accordance with the norms of due process recognized by international law, and were conducted in a manner that, under the circumstances, was inconsistent with intent to bring the person concerned to justice.
For example the person A may have disputes with person B and the latter may want to bring person A in courts for unfair issues (through hatred of something). B. PRINCIPLE OF IN DUO PRO ERE: doubt must be interpreted in favor of accused. This principle is not expressly found in the criminal procedure but may be induced from the presumption of innocence. In a situation where the evidence presented seems to establish the accused capability, any doubt should prevent the judge of convicting.
But the presumption of innocence has other manifestations: for example in the right of an accused person to interim release pending trial, subject to exceptional circumstances in which preventive detention may be ordered, the right of the accused person to be detained parallel from those who have been convicted, and the right of the accused to remain silent during the investigation and during trial.
Several of the rules that reflect the presumption of innocence are incorporated within the Statute. For example, with reference to Rome Statute, during an investigation there is a right to remain silent, without a consideration in the determination of guilt or innocence; there is a right to interim release and there are grounds for appeal which are wider in scope for the defense that the prosecution.
The burden of proof is thus on the prosecution, which has to collect and present enough impelling evidence to convince the Trier of fact, who is restrained and ordered by law to consider only actual evidence and testimony that is legally admissible, and in most cases lawfully obtained, that the accused is guilty beyond a reasonable doubt. If reasonable doubt remains, the accused is to be acquitted. C. FRAUDS OMNI CORRUPT: Fraud negates everything This principle derives from basic legal principle that a person should not benefit from the fruits of his or her fraud.
The case law accordingly holds that COUrts may hear argument that a final foreign judgment is not binding due to fraud. For example: in the court’s adjusted view, the maxim frauds Omni corrupt prohibits parties who acted fraudulently from invoking merely contributory negligent behavior of the victim to make the latter bear part of his own damage. Through fraud an individual can benefit from things he or she doesn’t deserve and vice versa. For example if judges were corrupted and there was no transparency and fairness in the trial.
Q. 2. Institutional framework of the applicability of the accountability principle in Rwanda. Rwanda is trying to enhance accountability especially in the public sector by assessing the extent to which the executive can be held accountable for its use of funds and for the results of its actions by the electorate and by the legislature and judiciary, and the extent to which public employees within the executive are required to account for administrative decisions, use of resources, and results obtained.
There are opportunities to strengthen accountability, by working with bodies that provide an oversight function monitoring government performance. This section examines institutions providing two types of accountability: horizontal accountability between governmental and Constitutional bodies (for example the role of parliament in monitoring the executive) and vertical accountability between government and organized groups of citizens (for example, civil society, private sector and media organizations).
Relevant principles in supporting the function of institutions of accountability are to ensure operational independence, to ensure appropriate separation of judicial, political and administrative functions when applying regulation, building integrity and ethical standards within the institutions, and strengthening capacity, advocacy and communications functions. In terms of horizontal accountability, the special Commissions established by the Constitution play an important role.
They include the National Commission for Human Rights, the National Unity and Reconciliation Commission ,the National Electoral Commission , the Office of the Ombudsman and the Office of the Auditor- General of State Finances. All of these perform a vital function and have demonstrated their willingness to call other parts of government to account. In some specific cases identified in this report, there are opportunities to strengthen further their operational independence. Parliamentary oversight revised an important SOUrce of horizontal accountability.
The Senate and Chamber of Deputies maintain numerous standing committees, which can address issues of concern through oral questions, written questions, hearings and commissions of inquiry. These committees are for the most part active and committed to their duties. Ministers are called to answer Parliamentary questions on a weekly basis, and some have been sanctioned in the past by parliament. In terms of institutions of vertical accountability, the principal challenge is to establish mechanisms to aggregate citizen’s demands and articulate them upwards.
There are examples of new and innovative institutions connected with the decentralization process some of which there is amigo process, which have important potential for building upward accountability. In addition, public accountability days providing open public access to government offices and officials are organized quarterly across local government and the Ministry of Local Government. The following paragraphs will discuss two other sources of vertical accountability: civil society and the media.
The effectiveness of local government depends above all on accountability to citizens. In this regard Rwanda has put in place a well-developed system of monitoring and evaluation based on the custom of Amigo. Traditionally this was a public pledge made in front of local leaders to perform a brave act or other public spirited accomplishment. This practice has been adopted as an instrument to boost public accountability and performance in local government.
Since 2006 all District Mayors have entered into amigo, which are intended to instill a strong sense of accountability for achieving stated commitments. Amigo are formalized as a performance contract proclaimed publicly and signed with he President, and are based on detailed monitoring frameworks and a quarterly review process. The government intends to strengthen the accountability of local government officials towards citizens through participatory planning and monitoring processes, as well as through amigo.
The government built a state of equal opportunities, zero tolerance to corruption and where accountability is a key. This was done by putting in place institutions of accountability to ensure that public finances are well managed and jobs in public services are offered on merit. During the financial year 2010-2011 a lot was done in terms of fighting irruption and any kind of injustices, and prosecuting graft cases.
