Rights group urges end of fee foreign plaintiffs charged

Monday September 11 2017

The Supreme Court in Kigali. PHOTO | FILE

The Supreme court in Kigali. Human-rights activists are pushing for affordable access to justice for immigrants. PHOTO | FILE 

By ROBERT MBARAGA
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Human-rights activists want Rwanda to remove the cautio judicatum solvi from its law. This is a financial guarantee that a foreigner is required to provide when bringing an action before Rwandan courts.

The request comes at a time when the country is set to present its report to the UN Committee on the Protection of Rights of All Migrant Workers and Members of their Families (CMW).

A shadow report by local NGO the Great Lakes Initiative for Human Rights and Development (GLIHD), criticises the security paid by foreign plaintiffs.

It calls it discriminatory and a barrier to the Convention on the Protection of the rights of all migrant workers.

“The requirement of depositing a security by a foreigner plaintiff in order to be heard by the court is a form of discrimination and thus, constitutes a violation to the migrant workers’ right to effective remedy,” said Tom Mulisa, the executive director of GLIHD.

The Rwandan civil procedure law requires that “all foreign nationals, with the exception of nationals of the East African Community,” whether original plaintiffs or enjoined to the proceedings, deposit an amount of money as security that is enough to cover the costs and damages that might arise in the case.

According to the human-rights group, this provision should be revised to comply with the standards of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their families (ICRMW) and to allow all migrant workers to invoke their labour rights in Rwandan courts.
GLHID said that if the provision is not changed, migrant workers from countries outside the EAC would not be able to access justice for unfair dismissal without depositing a guarantee.
However, analysts say that despite the provision sounding discriminatory, it is also protective. They argue that the security guarantee protects Rwandan citizens who would be at risk of being dragged to court by litigants who are unwilling to pay for damages should they lose the case.

“The main purpose of the requirement is to ensure that the defendants can recover their costs if they win.

“It ensures enforcement of court judgements, since those required to provide this guarantee do not have any immovable property in the country,” said Jean Nepomuscène Mugengangabo, an advocate in Kigali, adding that,

Cautio judicatum solvi can only be removed if countries sign agreements to mutually exonerate their citizens of the caution and at the same commit to recognise and enforce judgments of their respective courts without any hurdle.”

Sources in the Rwanda Law Reform Commission (RLRC) said that the civil procedure code is being reviewed, but doubt the financial guarantee required from foreign litigants will be changed.

Besides the request to remove the financial guarantee requirement, the activists want CMW to recommend that Rwanda decriminalises immigration offences because “they lead to the exploitation of migrant workers and members of their families.”

According to their shadow report, some employers abuse and exploit undocumented migrant workers, as they know the victims will not report such malpractices.