Last week, the Supreme Court made its ruling on some provisions in the penal law following a petition by seasoned lawyer Richard Mugisha.
Mugisha, a founding partner of Trust Law Chambers, petitioned the highest court of the land in December last year in his private capacity, challenging five provisions of the code.
Mugisha contested articles including those that criminalise adultery, the publication of cartoons deemed defamatory against public officials and insults or defamation against the Head of State.
Others include desertion of the marital home, concubinage, public defamation of religious rituals and humiliation of national authorities and persons in public service.
He was represented by Moise Nkundabarashi of Trust Law Chambers and Florida Kabasinga of Certa Law.
The penal law, went into force in August last year replacing the previous that had been in force for over 40 years.
The petition was a new kind for courtroom drama on the local scene as never before had a private citizen petitioned the court on a constitutional matter outside a legal proceeding.
Most were curious about his interest in the petition while others had interest in specific articles petitioned.
Mugisha said that for him and his legal team, the recent reforms in the judiciary designating the Supreme Court as a constitutional the court created an enabling environment to file the petition.
The petition subjects fall into two broad categories, laws against adultery and criminal defamation.
On this, he found that the two subjects to be of importance in that though the laws had good intentions, their unintended consequences bear far-reaching negative impacts.
For adultery related legislation, he told The New Times that it was important in that they are the foundation of society.
“The constitution provides for the protection of the family and the state is obliged to promulgate appropriate laws to promote and protect the family unit. If you look at the letter and the spirit of the constitution the whole idea is that any legislation should be appropriate to protect the above. To make sure that the family and children involved are not victims of circumstances,” he said.
However, the prescribed criminal punishment had consequences that did not protect the family unit.
Noting that the petition does not in any way mean condoning the vice, he said that he found that the consequences are not protecting the family unit.
“Prescribing criminal punishment for it, even though the legislators had very good intentions with it, its consequences are not protecting the family unit. The more I read about it and the more I thought about it, it occurred to me that while the politicians could have had the best of interest, the impacts is going to run counter to the objectives we have set for ourselves,” he added.
Among his arguments were that the role of the state on the subject can be more than just punishment while the resources diverted to investigate and prosecute the vices used in ways alternative to litigation in protecting the family unit.
“Shouldn’t the resources being diverted to investigate and prosecute these crimes be used in something that helps the family in alternative ways to litigation such as counselling? The state can play the role in many other ways beyond punishment. Where we differ is the remedy, I still maintain that,” he said.
On the subject of defamation, Mugisha said that he was inspired by the process of rebuilding the nation following the 1994 Genocide against the Tutsi. In his 2014 commemoration speech, President Paul Kagame said that the process was characterized by three things: unity, accountability and thinking big.
Mugisha’s petition sought to protect the accountability aspect noting that any legislation that could serve to stifle regulation and freedom of the media could create a breeding ground for absence of accountability.
“Accountability is extremely important…It would be unfortunate if we have a constitution which undermines the spirit. All of us -including the very leaders who might think that this legislation is protecting them will lose if we provide a breeding ground for absence of accountability,” he said in an interview with The New Times.
“As a society, we made a choice that accountability is what will characterize us. It’s that fundamental. It’s something that was fundamental.”
Despite the seemingly good intentions of his petition, the process was not a walk in the park as most would have expected. They suffered a slight setback.
The Principal State Attorney’s office challenged the legitimacy of the petition that he was not directly affected by any of the articles he was challenging as he is not a practicing journalist or ‘adultery suspect’.
This prompted the judges to adjourn the case, to deliberate on the challenge and come up with a decision to determine whether or not the case would continue to substance.
However, the judges ruled that any citizen has a right and interest in the constitution and went further to call for interest groups to be enjoined as friends of the court.
According to him, the challenge presented a chance to portray the outstanding position of the Supreme Court which in turn could be a turning point for future petitions.
“I think that the Supreme Court was really outstanding…The Supreme Court found that any citizen has an interest in any article of the constitution. The Supreme Court invited the entire public to submit their views through a process called Amicus Curiae,” he said
The response was overwhelming with parties such as the School of Law and the Association of Journalist submitting their viewpoints in on the subject.
Women’s organizations who may not have supported the petitioner’s view also expressed their viewpoint which he says provides a good foundation for any citizen to petition the court in coming days.
“Any citizen can do it, I can foresee that the court will be busy on such matters in future and it’s a good thing. Even the parliament knows that they represent the people and can be challenged and probably need to revise their legislative process to get more views from citizens. Their independence is guaranteed but if any member is not satisfied, the laws are not cast in stone,” he said.
The four judge-bench led by Chief Justice Sam Rugege ruled that the articles 233 and 154 criminalizing humiliation of national leaders and persons in charge of public service and Public defamation of religious rituals were against freedom of expression and press freedom granted by the constitution.
The ruling had initially retained a clause protecting the Head of State from defamation and public humiliation. However the Head of State on Friday last week reacted to the decision to grant the Head of State special legal protection from defamation and public humiliation, saying there is no need for the clause.
The Supreme Court however ruled to keep in the penal code, the provisions on adultery, desertion of the marital home and concubinage.
This, Mugisha said that development is consistent with the President’s principles of accountability and will further maintain and continue the debate on the article.
Though he did not win all petitions, he said that the greater win is that there is evidence that citizens who feel that there are aspects of the penal code that are not ideal do not need to tolerate their dissatisfaction and have a window to petition.
He also said that the process brought out very good ideas that can be considered by the government going forward such as ways to promote the family institution.
On whether he will be going back to the Supreme Court, he said; “there are issues that I feel so strongly about, maybe I will. The only thing that pleases me is that we have enabled everyone else to do the same on aspects that mean much to them.”