What is prominent in the new penal code?

Johnston Busingye. / Internet photo

A few weeks back, the long awaited new law determining offences and penalties in general went in force after it was published in the official gazette.

This law, which replaced the previous voluminous penal code, has caused a conversation bubble in homes, bars, buses, newsrooms and other places about how it affects our society.

Its publication comes after an extended process of reviewing and amending the penal code, a process that started in 2015 as part of efforts to keep the country’s laws up-to-date.

In line with this, in the past seven days alone, 24 new and modified laws were published in the official gazette.

Justice Minister Johnston Busingye on Monday told reporters the changes therein reflect and impact on various areas of the country’s life including taxation, family, health, genocide ideology, and gun control.

The review was also inspired by the amended constitution which provided that it should not be an organic law but an ordinary law.

Besides removing provisions which belong to specific laws, there was also need to have harmony between offences and punishments or penalties, create deterrents so that people fear crime and find ways of rehabilitating offenders, among others.

Previously, the Penal Code had 766 articles but it now has 335 as a result of the resultant merging and streamlining of things.

There are many important changes in the new law and one cannot, plausibly, mention the most important without some unintentional omissions.

Here, we highlight what could be the most prominent changes.

Defamation decriminalized

The law has officially decriminalised general defamation, a development the Rwanda Journalists Association (ARJ) recognises as a “very important step by the government” as it is another major reform towards expanding freedom of the press and free expression in general.

In the West and elsewhere, defamation remains a criminal offense. In Africa, it is only Rwanda, Kenya, and Ghana that have decriminalised it. 

However, the ARJ is concerned with Articles 233 and 236 relating to cartooning of politicians or public officials and defamation against the President of the Republic respectively.

Such clauses have been in place for over the past 30 years and the ARJ intends to consult and seek legal interpretations on if and how the two articles could affect press freedom and advise members accordingly.

Solitary confinement no longer a form of punishment

Solitary confinement, a form of imprisonment in which an inmate is isolated from any human contact, was removed because it was categorized as inhuman and degrading as well as torture.

Globally, solitary confinement has reportedly received severe criticism for having detrimental psychological effects and, and in some cases, constituting torture. Rwanda made the in order to, among others; comply with international obligations on the same.

Community service now a penalty

Unlike before, community service is now a form of penalty but not an additional penalty.

If convicted by a court of law, one can now either be sentenced to a term of imprisonment, pay a fine, or can be sentenced to undergo productive community service.

No judge’s say in abortion

From now onwards, unlike before, abortion will be carried out on consultation between a woman and her doctor unlike the previous legal regime that compelled a decision of the judge before the procedure can be carried out.

Parliament removed the requirement of a judge to approve abortion.

However, the law still prescribes situations where abortion is legally permissible but it provides that the minister of health, by a ministerial order, indicates how or which criteria is okay and how everything will be done by a medical doctor.

Drug trafficking will be dealt with heavily

Drug trafficking - a global illicit trade involving the cultivation, manufacture, distribution and sale of substances which are subject to drug prohibition laws – has got more serious attention in the new law.

Penalties for drug trafficking were heightened in a bid to deter the scourge and punish offenders. Big traffickers will get even bigger punishments as the government moves to deter offenders.

For example, any person who, unlawfully produces, transforms, transports, stores, gives to another or who sells narcotic drugs and psychotropic substances commits an offence, upon conviction, is liable to: life imprisonment and a fine of more than Rwf20 million and not more than Rwf30 million in regard to severe narcotic drugs

Child defilement

Like in the case of drug trafficking, any sexual intercourse with a child under the age of 18 years old, whether or not the child consents, is being given the due special attention when it comes to deterrents or punishments.

“If child defilement is committed on a child under fourteen (14) years, the penalty is life imprisonment that cannot be mitigated by any circumstances,” reads part of the law.

Corruption

The crime of corruption was also reviewed to remove the ambiguity under the previous law where there were instances where offences would be called “corruption” while others were called “offences related to corruption,” a situation that often caused unwarranted confusion and feebleness in the crusade against corruption.

All these were merged to imply the same thing – corruption – and will carry higher fines and punishments.

Embezzlement, bribery, self-enrichment and many such others are all corruption. The conceptual clarity will help nail offenders.

Government also moved to make corruption imprescriptible or not subject to being taken away by prescription or by lapse of time. If you are pursued for corruption, the offense will not die before the offender.

Changes in criminal procedure

The review of the Penal Code also resulted in new developments as regards matters to do with criminal procedure, the adjudication process of the criminal law.

Criminal procedure differs by jurisdiction, but the process generally begins with a formal criminal charge with the person on trial either being free on bail or incarcerated, and results in the conviction or acquittal of a defendant.

Bail applicable to all

One of the critical changes is the fact that, unlike before, bail is now applicable to all. In the past, for certain offenses, one would not apply for bail. That is no more.

It all depends on how long the investigations have taken but everyone has a right to bail.

And during bail, the law will now permit use of electronic ankle monitors for suspected criminals.

This enables a judge not to imprison someone but at the same time also allows the other party to, for example, carry on with their work. The device would also serve the purpose of disabling one from jumping bail as he or she would be under constant monitoring.

Sureties allowed

A surety is a person who takes responsibility for another's performance of an undertaking, for example their appearing in court or paying a debt.

In the past, there were some offenses where no one was allowed to bring in sureties but this no more. Sureties can be used in any case.

Plea-bargain

Plea bargaining is an arrangement between prosecutor and defendant whereby the defendant pleads guilty to a lesser charge in exchange for a more lenient sentence or an agreement to drop other charges.

In Rwanda, it will now be possible for a lawbreaker to go to a prosecutor and, for example, say “you are pursuing me for five cases. Unfortunately you only arrested me but this crime was committed by five of us. And I would never tell you the other four but if you drop two charges against me, then I will tell you my accomplices.”

Also, unlike before, criminals will be allowed to “transact in their offense.” According to Busingye, “if you commit an offense and you are summed to the Rwanda Investigation Bureau (RIB), you can go and offer to have a transaction. You negotiate and matter ends there as long as they are sure it serves the interest of justice.”

Perjury

Perjury, the intentional act of swearing a false oath or falsifying an affirmation to tell the truth, whether spoken or in writing, concerning matters material to an official proceeding, also gets serious attention.

Busingye said: “Lying on oath is going to be a more serious offence than the offence itself in order to ensure that people don’t play games with the justice system.”

The same applies to nondisclosure of material facts, fraudulent transactions to evade justice and so on.

Friend of the court

An amicus curiae (friend of the court) is someone, who is not a party to a case and may or may not have been solicited by a party and who assists a court by offering information, expertise, or insight that has a bearing on the issues in the case.

Unlike before, friends of the courts are also permissible now.

RCS to manage the pardon portfolio

The Rwanda Correctional Service (RCS) is now charged with managing the pardon portfolio nearly almost alone so that other institutions – including the ministry of justice – simply check whether the process is done well, and in the process ease how it is done.

Prescription of offences and penalties

Normally there were provisions which stated that, for example, if one is sentenced and is not taken to jail, after a certain period, the sentence lapses.

“Or if you commit an offence now and nobody takes you to the prosecutor, then after four years the offense lapses. That principle still stands but the counting of the principle has changed to when you are physically available,” Busingye said.

“It means that if you are sentenced to jail and you run and hide, the clock will stop counting and only resume counting when you are available. The burden will be on the offender to make sure they are available.”

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