The Independence of the Judiciary – The case of Jay Polly

Throughout the Bible, consensus seems drawn on the masculinity of Angels: Michael, Gabriel, Lucifer, etc., until a verse, Zechariah 5:9 alludes to the appearance of two women with wings. That gave way to long, preposterous synods of religious leaders, pondering on the Sex of Angels for weeks, at times months – in camera. Two thousand years later, they seem to have reached no consensus, pointing perhaps, to the triviality of their anthological theories. Kigali too is a city of opinions, faiths and imposture, preferred to science and norms. Here is the background: One popular singer known as Jay Polly was recently detained for allegedly beating his wife and breaking three of her teeth, then, allegedly released after promising to buy her new teeth and a new iPhone. This provoked public outcry on social media condemning the Public Prosecutor’s action, resulting in Jay-Polly’s re-arrest and currently undergoing prosecution. In the Sunday edition of this paper, a fellow columnist published a story titled: ‘Put Jay Polly on Anti-GBV community service’, inferring an analysis on gender-based violence (GBV) and the penitentiary service in Rwanda. With the introduction that goes: ‘The news of local artist battering his wife shouldn’t shadow the growth in Rwanda’s music and quality of videos’, the story never got better or any closer to the gist, in my own opinion. Instead it meandered into approximate commentary on pop music, TV and artists in 14 out of its 16 paragraphs, quoting ‘tweets’, before concluding on a ‘good idea’: ‘Let’s put Jay Polly on community service’; So I wished to share some insights on how the Judiciary works. Opportunity of prosecution: The Public Prosecutor represents the public. His/her role is to safeguard public order. In principle he/she acts in accordance with the law, but his/her actions can be influenced to a certain extent by public opinion and they can choose to prosecute a case or not. The Rwandan Constitution determines the Collaboration between the National Public Prosecution Authority and other organs: Art. 145 (1) The National Public Prosecution Authority is under the supervision of the Minister in charge of Justice. (3) The Minister may also, in cases of urgency and in public interest, issue written instructions to any Prosecutor to investigate and prosecute or refrain from investigating and prosecuting an offence and inform the Prosecutor General of such instructions. For instance, if Jay Polly was booked for a concert and thousands of people had bought tickets, the prosecutor would be ill-advised to detain or prosecute him for a felony of drunk-driving, because the public’s reaction after learning the cause of his no-show, is likely to disturb public order more than letting him off the hook. Even in more serious crimes, celebrities and VIPs are at times let free worldwide for public safety. However, criminal offenses, such as Gender Based Violence are not private matters, they are in the realm of public order and the public has a vested interest in their outcome, as the saying goes: ‘Justice is rendered in the name of the people’ Hence the theory of Civil Action filed by way of private prosecution: Injured individuals (victims) or interested third parties have the prerogative to move an action against the culprit and compel the Public Prosecutor to join in and do their job. The moment we took to Twitter to express our disquiet with the decision to release Jay-Polly, we were hinting to the Attorney General and the Public Prosecutor that women associations, human rights lawyers and other social activists may end-up compelling them to prosecute anyway. The Code of Criminal Procedure provides for ‘civil action by way of private prosecution’. Article 142: A civil action by way of private prosecution is a claim a person aggrieved by an offence files in a criminal court demanding that the offender, his/her co-offender or accomplice be punished and ordered to pay for the damages caused. Once that is done, the victim may not be coerced or otherwise convinced (e.g. with I-Phones and golden teeth) to interrupt the prosecution of the culprit: Article 145(3): ‘However, the withdrawal of a civil action filed by way of private prosecution shall in no way prevent the continuation of criminal proceedings.’ The prosecutor was ill-advised to release a wife-beater on financial settlement. In fact, Jay Polly’s trial should be held next to his home for everyone to see and his sentencing done in the presence of his neighbors and fellow musicians, in accordance with the GBV law: Article 12: Where it is convenient for the victim, gender based violence related cases shall be heard and pronounced at the scene of the crime if possible. Now that the case is currently in the hands of a Judge, what happens? Independence of the Judiciary: Unlike the public prosecutor, the judge is neither a representative of the public nor a guarantor of public safety. Judges do not receive injunctions from the Minister of Justice; in fact, even the Chief Justice does not influence decisions of judges in the lowest of jurisdictions: Elementary Courts (TB). Judges act independently from the state and from public opinion. Their role is to render Justice in accordance with the law. If anyone is not satisfied with their decision, they can appeal to another judge, in accordance with the law. The Principle of the Independence of the Judiciary is enshrined in the Rwandan Constitution: Art. 151(5) in exercising their judicial functions, judges at all times do it in accordance with the law and are independent from any power or authority. If convicted, Jay Polly faces the following sentence: Penal Code, Article 148: Aggravated assault and battery: Any person who intentionally causes injuries to another, or beats or commits any serious acts of violence against another person shall be liable to a term of imprisonment of (6) six months to two (2) years and a fine of one hundred thousand (100,000) to five hundred thousand Rwandan francs (500,000) or one of these penalties. The views expressed in this article are of the author.

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The Independence of the Judiciary – The case of Jay Polly