COMPARATIVE OF PRESUMPTION OF INNOCENCE IN TRIAL AND APPEAL

UNDER COMMON LAW SYSTEM AND RWANDAN LAW

1. INTRODUCTION

the principle of “presumption of innocence” is stated as ‘Everyone charged with a criminal

offense shall be presumed innocent until proven guilty according to law’.1 It is a fundamental
principle in both domestic and international criminal procedure and international human rights
law (IHRL). It does apply to all major legal systems, with reasonable changes, and is an element
of customary international law. 2 hence, a fundamental to the protection of human rights"3

In addition to this, this principle ensures that the defendant is entitled to the benefit of the doubt
and is treated by this principle.4 But, it is astonishing to perceive how there is much debate on the
issue of the ‘presumption of innocence’ because of its dimensions in explanations. This is to
show that there are many thoughts on the issue of the presumption of innocence that are even
controversial in the minds of many scholars. In those definitions, there are the Presumptions of
innocence in the “broad sense” and “narrow sense”.

In the paper ‘Who Must Presume Whom to Be Innocent of What?’ by Antony R. Duff, 5 where
he stated ‘presumption of innocence’ in a broad sense to set to try to sidestep disputes between
advocates of broad and narrow readings of ‘the presumption of innocence’ 6, but mainly
describing the broad sense of presumption of innocence.

1
European Convention on Human Rights, Art. 6(2); see also International Covenant on Civil and
Political Rights, Art. 14(2).
2
Sayapin S, Presumption of innocence, (2021) JICP, P 2. Available at :
https://www.academia.edu/Documents/in/Comparative_Law?swp=tc-ri-47726453
Accessed on 22/July/2023
3
Para 30 of the Human Rights Committee´s General Comment No. 32
4
Human rights committee, General Comment No.32. available at:
https://www.tandfonline.com/doi/abs/10.1080/13642980902951854#:~:text=25%20January%202010).-,Human
%20Rights%20Committee,-%2C%20%E2%80%98General%20Comment%20No Accessed on 24/July/2023
5
Duff, Robin Antony, Who Must Presume Whom to Be Innocent of What? (December 17, 2012). Netherlands
Journal of Legal Philosophy, Forthcoming, Minnesota Legal Studies Research Paper 12-65, Available at
SSRN: https://ssrn.com/abstract=2190593
6
Antony Duff, Presumptions Broad and Narrow, Netherlands Journal of Legal Philosophy 2013 (42) p. 268, this
refers to the response in challenges written on the former article ‘Who Must Presume Whom to Be Innocent of
What?’ by Thomas Weigend.
 In response to that in an article called; “There is Only One Presumption of Innocence 7” also
Thomas Weigend, challenged Antony Duff’s broad sense of presumption of innocence by
defending the narrow sense. The issue was that Antony wanted to state that; the ‘presumption of
innocence’ has to go beyond the trial process, like when he said; ‘we can take a more relaxed
approach, and talk of not one but many Presumptions of Innocence: of different presumptions
made by and about different people in different normative contexts, with different effects,
defeasible in different ways.’8
As means that, even the presumption of innocence has to occur even outside the trial.
However, we are not here to discuss those issues and appreciate or criticize both views.
Rather, it is helpful if we restrict ourselves to some degree and discuss the issue specifically
namely in the comparative realm. This is to mean; the paper is concerned with the comparative
of the presumption of innocence in the common law system and the Rwandan law system trial
and appeal.
Mainly the role of ‘presumption of innocence’ comes into play only when an agent of the state
has raised a suspicion that an individual has committed a criminal offense. In other words, that
principle intends to protect the suspect from coercion Existence of mere personal suspicion
Criminal behavior has profound socio-psychological consequences. tends to be stigmatizing
suspects and jeopardize their acceptance as credible citizens 9. Hence, the presumption of
innocence is a fundamental principle in a fair trial in which the prosecution typically has the
burden of proving, beyond a reasonable doubt, each element of the crime charged and,
consequently, the guilt of the accused.10
This can lead to say that; the presumption of innocence is very challenging in legal philosophy
because of its scopes that are not clear because of the nature of the words. Nonetheless, it is put
in the legal systems at different levels which is also controversial and full of defects. Antony
Duff invokes the question of whether the presumption of innocence may play a different role in
civil law countries.11 In which he is replied that no systematic difference in that respect between
‘adversarial’ and ‘inquisitorial’ systems of criminal procedure, even though the consequences

7
Thomas Weigend, "There is Only One Presumption of Innocence", Netherlands Journal of Legal Philosophy, 3,
(2013):193-204.
8
Supra no 5, p.172.
9
Supra no 7, p.196.
10
David ,H, The presumption of innocence and reverse burdens: Balancing act, (2007)CLJ,P 142.
11
Supra no 5, p.173
that are being drawn from the presumption of innocence differ substantially from one jurisdiction
to the other.12 This is due to the legal systems procedure between the trial and appeal difference.
In the common law system, there is a small link between the Trial at first instance and the appeal,
and on the other side, the Rwandan law system has the continuity of trial at the first instance and
the appeal. Hence, dictate the way this presumption of innocence can be applied as it will be
proven in the following pages. And at the end, it is very helpful to exhibit the preferences
between the two since they all have some critical matters. That is what this paper is concerned
about in general and to accomplish this work, the cases in common law countries will be used
and Rwandan Cases, the laws of both systems will be used and some other books and Articles on
the issue.

2. PRESUMPTION OF INNOCENCE IN THE TRIAL OF THE FIRST INSTANCE

At the first instance trial, there is a similarity if not at all. In the Rwandan legal system is stated
in the constitution that; “Everyone has the right to due process of law, which includes the right: to be
presumed innocent until proved guilty by a competent Court” .13 ”.14 Moreover, article 107 of criminal
procedure states that” An accused is always presumed innocent until proven guilty by a final
court decision. An accused is not obliged to prove his or her innocence unless his or her guilt
has been established. However, where evidence to support the offense is presented, the accused
or his or her legal counsel may present all the defenses available to him or her, raise a plea of
inadmissibility, or show that the allegations against him or she do not constitute an offense or he
or she is innocent and present all the facts challenging the veracity of incriminating evidence.15
In that provision, there is an existence of presumption of innocence in the trial at first instance.
In common law a trial as well as in the Rwandan law system, the accused is presumed innocent,
which means that the burden of proof is on the prosecution to prove beyond a reasonable doubt.
As even stated, “The burden of proof in a case lies on that person who would fail if no evidence
at all were given by either side.” 16 Or in The House of Lords quashed the conviction on appeal
with Viscount Sankey J stating that where stated that; “… Throughout the web of the English
12
Supra no 7, p. 193 ( it is stated on the second footnote of mentioned page)
13
Article 29 par 1 al 2 of the Constitution of the republic of Rwanda of 2003 revised in 2015
14
Article 29 par 1 al 2 of the Constitution of the republic of Rwanda of 2003 revised in 2015
15
Article 107 Par,2,3 of law Nº 027/2019 of 19/09/2019 Law relating to the criminal procedure
16
Section 111 of the Evidence Act, Cap 6
Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to
prove the prisoner’s guilt subject to what I have already said as to the defense of insanity and
subject also to any statutory exception. If, at the end of and on the whole of the case, there is a
reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to
whether the prisoner killed the deceased with malicious intention, the prosecution has not made
out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the
trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common
law of England, and no attempt to whittle it down can be entertained…”17
This is explained further when stated that; “In law, a fact is said to be proved when the Court is
satisfied as to its truth. The general rule is that the burden of proof rests on the party who asserts
the affirmative of the issue or question in dispute. When a party adduces evidence sufficient to
raise a presumption that what he asserts is true, he is to shift the burden of proof: that is, his
allegation is presumed to be true unless his opponent adduces evidence to rebut the
presumption”.18 However, this case is a civil matter.
More clearly, the Presumption of innocence imposes upon the state or the prosecution the burden
of proving a criminal case against the accused beyond reasonable doubt and this burden does not
shift. Neither is it derogated. It is clear that if an accused fails to discharge the burden now
imposed upon him or her by this provision, he would be found guilty of an offense. 19 This is the
same as the criminal procedure in Rwanda where it is stated that; where evidence to support the
offense is presented, the accused or his or her legal counsel may present all the defenses
available to him or her, raise a plea of inadmissibility or show that the allegations against him
or she do not constitute an offense or he or she is innocent and present all the facts challenging
the veracity of incriminating evidence.20
Moreover, Judge in the common law system is only concerned with an accused person who can
only be convicted by a court of law on the strength of the case as proved by the prosecution and
not on the weakness of the defense given by an accused. 21
this seems to be the same with the

17
Woolmington V. DPP(In Woolmington’s case Violet Woolmington was married to Reginald Woolmington. She
left him and went to live with her mother. He sought her out and shot her. Reginald Woolmington was convicted of
murder. He appealed the case which reached the House of Lords (now theSupreme Court)).
18
LUBEGA v. OKUDI JOSEPH, CIVIL SUIT NO. 2177 OF 2016
19
francis tumwesige Ateen v. Attorney General, Constitutional Petition No. 36 of 2018, JUDGMENT OF FREDRICK
EGONDA-NTEI\DE. JCC. Paragraph 49. ( this is in contradiction with Article 28 of the constitution of Uganda, para50)
20
Article 107 para,3 of law Nº 027/2019 of 19/09/2019 Law relating to the criminal procedure
21
UGANDA v. DR. STELLA NYANZI, CRIMINAL APPEAL NO. 0080 OF 2019
Rwandan legal system because it also states that; “The benefit of the doubt is given to the
accused. If the proceedings conducted as completely as possible do not enable judges to find
reliable evidence proving beyond reasonable doubt that the accused committed the offense, the
judge orders his or her acquittal”.22
All of this indicates that in the trial the presumption of innocence is on the accused until proven
guilty beyond reasonable doubt in general.23 However, there is a difference occurs in determining
where the final decision is said to be whether in the Rwandan legal system or common law
system. Because they all say, after the “final decision” of the court the presumption of innocence
ceases.
It is observed well by Thomas Weigend when he said; “…Whereas in the common law tradition,
the verdict of the jury concludes the trial process and thus removes the protection of the
presumption of innocence, the civil law tradition does not regard a conviction as final until all
avenues of appeal have been exhausted or waived.”24 The latter is the case in Rwanda while the
former is the case in the Common law system. For more details about criticizing is left to the last
heading.

3. PRESUMPTION OF INNOCENCE BEFORE APPELLATE COURTS BY

ANALYZING THE STATUS OF THE ACCUSED WHILE IN DETENTION OR
TRIED WHILE FREE.

At this point, there exist differences between those two systems of common law and Rwandan
law already because in Rwanda, When the court is seized to hear the case on its merits while the
accused is detained, the accused remains in detention until the judgment is pronounced or the
court decides otherwise. If he or she was not in detention or was provisionally released before
the court is seized to hear the case on its merits, he or she is tried while free, when the accused
who is free during the trial is sentenced to imprisonment, he or she remains free when he or she
has filed an appeal against the judgment.25

22
Supra no 15, Art 111
23
The word “general” is inserted because there is an exception where the trial starts with the burden of truth on
the accused, not the accuser. That is why the definition given in section 111(see footnote 16) is consistent and
appreciated.
24
Supra no 7, p.200
25
Article 186(3), supra no 20
The above provision is a clear indicator of the scope of the presumption of innocence before
appellant courts. For instance, the Supreme Court in the Case of Prosecution V.
HABYARIMANA ruled that “it is unlawful detention by which Habyarimana was  free during
the trial and got sentenced to life imprisonment without an order of immediate arrest by the trial
court and appealed against that judgment as explained; but in the meantime, they have been
arrested and detained  while the appellate court has neither decided on that appeal nor decided
to arrest and detain him pending the appeal decision”.26

On the other side, in the Common law system since the appeal is separated from the trial at first
instance the presumption of innocence ceases. The convicted person sentenced to imprisonment
is taken to jail immediately and applies for ‘bail pending appeal’ while in jail. 27 This shows that
the difference already occurs in the status of the convicted person before appeal whereby in the
Rwanda system the convicted person is tolerated while in common law, the convicted his/her
presumption of innocence is removed literally. But here also some unclear issues have to be
addressed since after that there is an Appeal even though it is separate from the first instance
trial.

4. THE SCOPE OF PRESUMPTION OF INNOCENCE BEFORE APPELLANT

COURTS

In the Rwandan legal system, regarding the issue that was tackled previously about the “final
court decision”28 plays a big role in this heading because it was stated that the person is presumed
innocent until proven guilty, and the question comes when the issue of “when someone is proven
guilty?” arise. In the Rwandan legal system, the trial is continuous up to the appellate level as to
mean that it is continuous from trial at the first instance up to appellate level or as was stated
earlier; “…the civil law tradition does not regard a conviction as final until all avenues of appeal
have been exhausted or waived.”29

26
PROSECUTION v. HABYARIMANA et. Al. Case No: RPA0152/12/CS, of October 10, 2014.Para,19.
27
John Rutta, Introduction to common law. p.10.
28
See on reference of 12
29
See above on p.7
This is admitted in the case of Prosecution v Mugesera, the Court of Appeal explained that the
presumption of innocence as provided by Article 29 of the constitution was not violated. 30 , the
Court finds that the statement of Mugesera Léon that the Rwandan Courts cannot grant him a fair
trial including the presumption of innocence, Court of Appeal ruled that “the judges are
independent in exercising the judicial functions as they adjudicate the cases in full independence
on basis of the law and evidence.” Even if Mugesera objection to the presumption of innocence
was not accepted by Court of Appeal but the court tries to explain that the right of presumption
of innocence is even granted to him by the Court of Appeal.31

Additionally, the issue of presumption of innocence is also raised by Col. Tom Byabagamba
before the Court of Appeal, in which he found no reason why a detained military should be
removed from MMI beneficiaries as long as there is no final verdict finding him guilty because
since he is still pleading, he is presumed to be innocent as provided by the Constitution of the
Republic of Rwanda.32 This means to show that in the Rwandan legal system, the presumption
of innocence is still in existence even on the appellate level.

On the side of common law, as stated at the appeal level in the case of Herrera; “In criminal
cases, the trial is the paramount event for determining the defendant's guilt or innocence. Where,
as here, a defendant has been afforded a fair trial and convicted of the offense for which he was
charged, the constitutional presumption of innocence disappears.”33 Federal habeas courts do not
sit to correct errors of fact, but to ensure that individuals are not imprisoned in violation of the
Constitution. Thus, claims of actual innocence based on newly discovered evidence have never
been held to state a ground for federal habeas relief…34

It is clear, in this instance, that the presumption of innocence no longer applies during an appeal
procedure since the defendant has been found guilty and it imposes on him a burden to
30
Prosecution v Mugesera, RP/GEN 00003/2019/CA.Para,46
31
Ibid
32
PROSECUTION v. Col. BYABAGAMBA ET.AL, RPA00001/2019/CA, of 12 July 2019, para.16, Rwanda law reports, of.
4 - 2019 December.
33
Herrera v. Collins, 506 U.S. 390 (1993)
34
Ibid. (Herrera filed a petition for a writ of “habeas corpus” in federal court, claiming that new evidence
demonstrated he was actually innocent of the murder of Carrisalez. Herrera included two affidavits with his
petition from Hector Villarreal, an attorney who had represented Herrera's brother, Raul Herrera, Sr., and Juan
Franco Palacious, Raul Herrera's former cellmate. Both affidavits claimed that Raul Herrera, who was murdered in
1984, had told them that he had killed Rucker and Carrisalez. Leonel Herrera claimed that the new evidence
showed that he was innocent and that executing an innocent person would constitute cruel and unusual
punishment in violation of the Eighth Amendment.)
demonstrate why his conviction should be overturned.35 The appeal process is not for suspending
the sentence or recovering the presumption of innocence, as it can happen in the Rwandan Law
system where An appeal that is admitted has the effect of returning a case to the situation as it
was before the judgment, but only as to issues that are the subject-matter of the appeal.36

Rather, the intention of the Appeal is for defendants to appeal their convictions either on legal
grounds or on constitutional grounds like when illegal search and seizure… happened.
Nevertheless, they are not called to present new evidence or testimony on appeal if that evidence
or testimony could have been presented at trial. However, if new evidence is discovered that was
unknown or unknowable to the defense at trial, then an appeal can sometimes be made based on
that new evidence.37

This is the same as Article 154 in paragraph one where no new claim may be lodged at the
appeal level unless it concerns compensation or if the new claim constitutes a defense to the
principal action before the court of appeal. 38 However, it is not prohibited to submit in appeal
new arguments or elements of evidence that were not heard at the first level. 39 Even though this
is in civil matters but it can be applied in criminal matters according to Article 1.40

Thus, the appellate court is tasked with re-evaluating evidence at trial, reviewing how
testimonies and evidence were collected and the procedures used, and also reconsidering the
accusations against the defendant. appeal and the elements constituting the crime against the
appellant. and finally, check whether the first instance court properly applied the law to the
circumstances before making a decision, then the appellate court based on its conclusion can
cancel or confirm the decision of the superior court.41

CRITICIZING BOTH PROCEDURES ON PRESUMPTION OF INNOCENCE

1. To be presumed innocent and prove your innocence

35
Robert Bohm and Keith Haley, INTRODUCTION TO CRIMINAL JUSTICE, (1997). p.335.
36
Art 155, in CCLAP
37
See supra no 35.
38
Ibid.
39
Ibid.
40
Ibid, Art 1.
41
Supra no 21, p.8
This is the first challenge that is set forward in the Rwandan Legal system. How could someone
still be presumed innocent and try to prove his/her innocence? This is solved in common law
where in appeal there is no proving innocence while presumed innocent because already
presumption of innocent has ceased in the trial of the first instance.

2. Final court decision is on the appellate level?

It is very interesting to observe that, in the first instance of Rwandan courts the decision can be
taken and then be continuous in the appeal while all of those courts are authoritative. It can be
said in effect that, the judgment in the first instance that was followed by an appeal was not
binding. That is a contradiction indeed. But in common law, it is solved by making a separation
between the first instance and the appeal level.

3. How can a convicted person stand on the appeal

If someone is no longer presumed to be innocent, how does the convicted again stand on trial
while seen as a defendant already? As it seems here, there is a contradiction of theory and
practice because for someone to stand on the appeal there is a need of being presumed innocent
otherwise, the guilty person deserves a punishment for what he/she is guilty of.