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Is the independence of the judiciary being sacrificed in the governments latest Rwanda plan?

Gemma Shepherd-Etchells

29th April 2024

The independence of the judiciary is key to the justice system. Senior judges are protected by security of tenure so they cannot be dismissed at will, and as was seen in the case of Sirros v Moore they have immunity from suit. They are also truly independent from the executive and can find against them as occurred in the case of Miller No 2. They are also independent from the legislature and those who make the law, as the Supreme Court was formerly in Parliament in the House of Lords but now they sit separately. They are also independent from cases as was seen in Pinochet when Lord Hoffman’s connection with an interested party, Amnesty International, led to the case being re-heard before a different set of truly independent judges. This independence is fundamental to the rule of law and the functioning of our legal system.

However the proposed controversial Safety of Rwanda (Asylum and Immigration) Bill which looks to remove illegal immigrants to Rwanda for their immigration claim to be processed has been challenged for undermining this key premise of the independence of the judiciary. UN experts have proclaimed that the bill constitutes ‘an interference with the independence of the judiciary and a violation of international law’. For it limits judicial independence by declaring that they regard Rwanda as safe country for these migrants to be deported to, regardless of any evidence put to them to the contrary. Thus they are precluded from acting independently as they are being told how to decide a case by the government. The government states that Rwanda is safe due to the 2023 Rwanda Treaty which declares the country to be such. This in itself could be seen to be an abuse of process by the government declaring something safe simply because they decide it to be so. This could also be seen as a merger of the separation of legal powers and not according with the fundamental rule of law.

Questions to consider

Why is the independence of the judiciary important?

How, according to the text, is the independence of the judiciary ensured?

How does the Safety of Rwanda (Asylum and Immigration) Bill threaten judicial independence?

Gemma Shepherd-Etchells

Gemma is an experienced Law teacher and examiner.

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