The criminalization of adultery, concubinage, and desertion of the marital home, under Rwanda’s 2018 Penal Code remains a topic of significant debate.

While some people argue that these legal provisions protect family values and stability, others believe that treating such issues as criminal offenses does more harm than good, tearing families apart instead of mending them.

The debate was reignited recently when a former mayor was arrested on charges of concubinage - the practice of keeping a concubine, or the state of being a concubine - and desertion of the marital home, following a case filed by his wife. He was later released after his wife withdrew the complaint, prompting the prosecution to drop the case during the pre-trial stage. The incident sparked diverse public opinions on the matter.

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In an interview with The New Times, Moise Nkundabarashi, the President of the Rwanda Bar Association, said that lawyers are advocating for a shift from criminal to civil handling of these matters. He argued that Articles 136 (Adultery) and 140 (Concubinage and Desertion of the Marital Home) contradict the spirit of Article 18, Paragraph 3 of the Rwandan Constitution, which mandates the government to protect families.

"We believe these articles, instead of protecting families, often worsen the situation. Children become the ultimate victims, and the possibility of reconciliation between spouses diminishes once one partner is imprisoned. It drains emotional and financial resources without necessarily resolving the underlying issues,” he said.

Nkundabarashi pointed out that criminalizing these offenses does not stop them from happening, nor does it restore broken family ties.

"We are not promoting such behaviors, but if one spouse is offended, we believe the matter should first be handled within the family. If that fails, the civil route, such as divorce proceedings, should follow.”

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The lawyer emphasized that resolving family conflicts through incarceration often causes more damage than enabling the process of healing.

Nkundabarashi highlighted the need to address gender stereotypes associated with these laws. "There is a common misconception that only men commit these offenses, yet it goes both ways. As a society, we need to mature in the way we handle issues while minimizing damages,” he added.

On her part, Marie Louise Mukashema, the Legal Advisor at Pro-Femmes Twese Hamwe, emphasized the institution’s stance on Articles 136 (Adultery) and 140 (Concubinage and Desertion of the Marital Home) of the 2018 Penal Code, describing them as crucial "guardrails” for family stability. She noted that while the law applies to both genders, women are often the most affected by these issues, making legal protections essential.

Mukashema highlighted instances where men abandon their families, leaving wives pregnant and young children unsupported.

According to her, the intention behind these laws is not merely punitive but aims to promote reflection and responsibility within families. She pointed out that the law allows complainants to withdraw their cases at any stage, underscoring its flexibility and alignment with safeguarding families.

While Pro-Femmes Twese Hamwe advocates for resolving issues within families, she explained, the legal framework remains vital for accountability. "We encourage people to resolve such issues within their families as the first option. However, if legal intervention becomes necessary, we believe that prosecution can take place without incarceration, ensuring privacy protection. There are alternatives to imprisonment, such as fines or suspended sentences that prioritize family preservation over punitive measures.”

Mary Balikungeri, the Director and Founder of Rwanda Women’s Network, presented a balanced perspective, noting that criminalizing these offenses could both protect and harm families. According to her, while accountability is crucial, resolving family issues within community-based structures, such as family councils, should be the priority.

"When matters reach the courts, it’s often the point of no return for couples who once loved each other. Strengthening family councils would provide a platform for dialogue and resolution before legal action is considered,” Balikungeri said, stressing that imprisonment often fractures families further, affecting not just the couple but also their children and extended families. Balikungeri advocated for stronger family-based conflict resolution mechanisms, emphasizing that family is more than just two people—it is a community.

She pointed out the effectiveness of community gatherings through Rwanda Women’s Network, where women come together to share domestic challenges and seek collective solutions.

"We strongly believe such issues can be resolved within families, with legal action as a last resort.”