Judges given greater latitude in adjudication of defilement cases

Supreme Court judges at a past event in parliament. File

Supreme Court has ruled in favour of a petitioner who sought broader latitude of judges in adjudication of defilement cases.

In a verdict delivered Wednesday, court declared as unconstitutional a clause under Article 133.3 of the 2018 Penal Law, which states that “if child defilement is followed by cohabitation as husband and wife, the penalty is life imprisonment that cannot be mitigated by any circumstances.”

Chief Justice Sam Rugege, who presided over the trial, said the bench agreed with the petitioner, Certa Law, a law firm, that the provision limits judges from exercising their constitutionally bestowed powers to adjudicate cases independently.

Certa Lawfiled a petition against the provision last month arguing that it deprives judges of their constitutional powers of discretion to freely determine the severity of a sentence for an offender who cohabited with a minor.

The plaintiff argued that the judges should have powers to decide severity of sentences after looking at possible mitigating factors.

The law prescribes 20-25 years in prison for anyone convicted for defilement, but the now-scrapped provision left judges with no choice but to hand down a life sentence in case of cohabitation with a child – as man and wife.

The petitioner was represented by Florida Kabasinga.

Speaking to The New Times in an earlier interview, Fiston Rwagitare, a lawyer at the firm, said the judge should be able to look at the context within which an offence was committed and have the latitude to listen to any mitigating circumstances that could warrant a lighter sentence.

“Take an example of an 18-year-old boy who has defiled a 17-year-old girl, you can say they are almost the same age despite the fact that one is considered an adult and the other a minor under the law,” she said.

He added: “Look at a situation where they engage in sexual intercourse and the girl gets pregnant, and because of fear of rebuke from parents, they decide to elope and go on to stay together as husband and wife. Under the law, the boy will be imprisoned for life even if there were mitigation circumstances.”

“We find this provision faulty because the judge is not allowed to objectively look at the circumstances in which the offence was committed. It is a closed provision and the judge is not afforded room to make independent judgement.”

He gave an example of two cases where two 18-year-old boys were found guilty of defiling 17-year-olds and were subsequently sentenced to life imprisonment, even as prosecution had asked for a lenient sentence.

Life imprisonment is the highest sentence in Rwanda.

“Court had no way of giving them lesser penalties, and we are saying that such a young person is needed by his family and country and the judge should be allowed to use their discretion to deliver an appropriate sentence.

“We are not supporting defilement, all we are saying is that the victim has to get justice, but the perpetrator needs a fair sentence too, depending on the circumstances.”

During the ruling, Rugege said that after analysing the law, court found that the provision in question contradicts article 151 of the constitution, which stipulates that in exercising their judicial functions, judges at all times do it in accordance with the law and are independent from any power or authority.

However, he said, in this case “the judge is not allowed to make a decision independently since they are strictly required to deliver a particular sentence.”

The outgoing CJ noted that the constitution provides for a judge to decide on a sentence based on the severity of the crime, how it was committed, its consequences, the reasons behind the crime, and the general conduct of the offender in their ordinary life.

“Court hereby declares this provision of article 133 of the penal law null and void. Court also has ordered that this ruling is immediately published in the Official Gazette,” he said.

hkuteesa@newtimesrwanda.com

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