Although pretrial detention should still be applied where it is deemed necessary and is supported by overwhelming evidence, there is reason to push for more people to be tried when they not incarcerated, the Spokesman for the National Public Prosecution Authority (NPPA), Faustin Nkusi has said.

Nkusi said this while appearing on a panel on the national broadcaster's weekly English programme, The Square, to discuss pre-trial challenges and solutions.

Addressing the questions that have frequently been raised on the country’s overcrowded prisons and the need to find alternatives to imprisonment, Nkusi said that pre-detention cannot be avoided in some cases, it should be a principle that someone can be investigated while they are free

"Although bail is provided for by the law and is applicable in but it is not automatic because it has to be evaluated. I agree that it should be a principle that someone can be investigated while they are free but we cannot avoid this detention where we deem it necessary and where we have overwhelming evidence,” he said.

The numbers

Nkusi reminded that pre-trial detention is a formal decision taken by a formal authority.

"There has been a court hearing that has taken place to determine that the person should be detained provisionally so it is not illegal as many would want to put it,” he said.

He explained that in the last few years, progress has been made in ensuring that more people are investigated and tried without necessarily being incarcerated.

For instance, he explained that between 2017 and 2020, Prosecution had received 141,701 files. Of these, 97,691 went to court while 42,484 were closed after investigations were done and it was determined that there was no enough evidence to back the case.

He added that a total of 33,395 were held in pre-trial detention, 8,347 people were released on bail and other conditions while 16,266 were released by prosecution but closed the files.

Unnecessary detention

Moise Nkundabarashi, a Partner at city-based private law firm Trust Law Chambers reminded that although the country’s criminal procedure law provides alternatives to pre-trial detention, most judges continue to ignore them.

He explained that the two reasons given by the Rwanda Investigation Bureau (RIB) and Prosecution for pre-trial detention are flight risk and unavailability of the suspect.

"They say this and yet most of the time, the suspect was called over the phone and he or she showed up one two three times and was arrested the fourth time. These institutions have to understand that it is not easy for a suspect to go on the run especially for people who are established,” he said.

He suggested conditions that may include limiting the suspect’s movement to within their province, applying the use of an ankle monitor and bail payment.

Nkundabarashi reminded that even though the suspect flees, this cannot stop the law processes from proceeding as he or she can be tried in absentia.

"These institutions have been very efficient in tracking and bringing someone back. There is always an alternative to pre-trial detention that can cost us less than someone being in jail for a long time and then eventually being found innocent,” he said.

Committee in place

In November last year, the Chief Justice Dr Faustin Ntezilyayo said that a special committee has been set up and tasked with looking into the issue of long correctional facility stays preceding suspects’ trials and suggesting ways how this can be remedied long term.

He said that the committee will come up with a list of people whose cases are yet to be tried by the courts of law and outline other challenges that arise from this.

"There are indeed some circumstances where a sentence that is finally made in a suspect’s trial is equivalent to the period that they have spent in jail. We have set up a special committee to look into this issue and we expect a report which we will base on to fix this issue that has been ongoing for a while,” he said.