Penal code challenge back in Supreme Court today as journalists, women activists join contest

Richard Mugisha (right) chats with his legal team at the Supreme Court

It will be an action-packed courtroom Monday, as the penal law challenge returns to Supreme Court in a petition filed by prominent lawyer Richard Mugisha.

Mugisha, the Managing Partner of Trust Law Chambers filed the petition late last year challenging several provisions in the new penal law.

In total, there are five articles that are being contested by the lawyer.

Mugisha insists that these provisions contravene the letter and spirit of the Rwandan Constitution, hence asking for them to be omitted.

Among the articles he is contesting include those that criminalise adultery, publication of cartoons deemed defamatory against public officials and defaming the Head of State, among others.

The new penal law came into force in August 2018, replacing the penal code that had been into force for over 40 years.

The case, which is presided over by Chief Justice Prof Sam Rugege, and has on bench some of the most senior judges of the court, is expected to begin in its substance today.

The respondent is the government of Rwanda, represented by the Office of the Attorney General.

The new twist in the case is the filing of submissions by three other parties; Rwanda Journalists Association, the University of Rwanda’s school of law, and Pro-Femmes Twese Hamwe.

All three have since submitted to court their Amicus Curiae (Friend of Court) briefs.

Pro-Femmes, which is an umbrella body for organisations working to promote women rights, wants the articles - specifically on adultery - to remain in the current form while the other two parties support the challenge by Mugisha.

Speaking to The New Times on Sunday, Moise Nkundabarashi, one of the lawyers representing Mugisha, said that they were ready for the hearing and would be supported by the two parties.

He said that the journalist association filed their brief to the Supreme Court supporting the omission of two articles; one criminalising publication of cartoons and caricatures deemed defamatory and defamation against the Head of State.

The support by the media practitioners, Nkundabarashi believes, rises their hope to win the case.

On the other hand, the school of law wants adultery and concubinage removed in the penal law.

Meanwhile, Pro-Femme Twese Hamwe believes the articles criminalising adultery and concubinage, should remain so that to protect Rwandan families and society.

Each party will be represented by their own lawyer in the courthouse.

Speaking to The New Times, Jeanne d'Arc Kanakuze, the presidentProfemme Twese Hamwe confirmed they have filed their brief asking Supreme Court not to consider the petition by Mugisha.

“We wrote to the Supreme Court not to remove adultery and concubinage and we are still committed to push, we have procured a lawyer and we will be present in court,” she said.

During the initial hearing late last year, Principal State Attorney Speciose Kabibi had challenged the legitimacy of Mugisha’s petition on grounds that he was not directly affected by any of the articles he was challenging.

“Mugisha is not a journalist to have been a party directly affected by the provisions and the fact that he is a lawyer should not arise because he should have gone through Rwanda Bar Association,” she said.


Now that the case has attracted three other parties -two of which support the plaintiff- Nkundabarashi believes it will only strengthen his client's case.  

Besides Nkundabarashi, Mugisha - who has attended the previous two court appearances -  is also represented by Florida Kabasinga.

Nkundabarashi added: “We are confident because we can’t understand why the law can protect some people while the constitution protects everyone. We also hope that our concern on cartoons and defaming the head of state are considered.”

“We say that you can’t protect some people while the constitution grants equality to all.”

According to the new penal law, any married person found guilty of adultery risks a jail sentence of up to one year.

The same law provides for sentences of up to two years and a fine of Rwf1 million for anyone who publishes writings or cartoons deemed to humiliate public officials on duty.

The same law prescribes a seven-year sentence and a fine of Rwf7m for a person who defames the Head of State.