Checks and balances and separation of powers in Rwanda (Part One)

‘In our system, judges do not make cases for litigants; they have to make do with what is before them. Suffice it to note that a judgment is an outcome of an intricate evaluation of the total legal materials presented by the parties. Everything being equal, procedural justice requires that parties be held to their pleadings. Justice Ditgang Moseneke, Chief Justice of South Africa.

I was delighted to learn of the petition by Senior Counsel Richard Mugisha of Trust Law Chambers to the Supreme Court, challenging, inter alia:

Article 136 of the Rwandan Penal Code, punishing Adultery with between six months and one year of imprisonment, and:

Article 236: criminalising ‘Insults or defamation against the President of the Republic’ and providing for between five years and seven years of imprisonment and a fine between five million Rwandan francs and seven million Rwandan francs.

Before I proceed, allow me to take this opportunity to debunk a pervasive urban legend: All foreign media and most local media implied that Rwanda has enacted a new law criminalising cartoons. This is untrue. These laws have been in force in all Rwandan penal code, since 1977.

Article 234 of the law n° 21/77 of August 18, 1977 enacting the Penal Code, provided for a sentence between one month and one year and a fine between two hundred and five thousand for defamation and disparaging, inter alia trough drawings and ‘gestures’ against Members of Parliament, cabinet, judiciary, and any other public official. The sentence would go up to five years imprisonment if concerning the head of state.

As for adultery: Article 354 of the same penal code provided for between one month and one year for the woman and half of that or just a fine of 1,000 Francs for the man.

Back to the topic: I will refrain from commenting on the merits of an ongoing case, especially since I might be moved to file an ‘Amicus Curiae’ in due course, should the court find it admissible.

Until a decision is reached, I will be publishing an analysis to speak to the significance of such a ground-breaking case in strengthening Rwandan democracy.

Today, I will start with a bit of background: Historically, Rwanda was a monarchical society. All subjects in their individual capacity did pay allegiance to the king at the top of the pyramid, and his structural representatives at regional and local levels.

They regarded the king’s powers and decisions with awe and reverence. It was thus unimaginable to question or resist the king’s will, and its execution through his representatives.

The monarchy was eventually abolished and a democratic republic ushered in. Democracy, which is defined as the rule of the people, by the people for the people, may only flourish, if citizens are empowered to approve and organically adhere to decisions of the ruler; as opposed to resigning their sovereign power of scrutiny.

The Rwandan law is the foundation upon with such scrutiny is based; especially the Bill of Rights as enshrined in the Rwandan constitution and international law, ratified by Rwanda. The law also serves as the benchmark against which every policy is checked.

Public Interest Litigation is thus the next frontier in the state building process within the current Rwandan political spectrum. It is an important component of civic awareness and participation and an avenue for the public to agitate for rights, resist bad policy and ultimately negotiate positive change.

There are a number of policies that, if revisited, might prove to be in contradiction with the constitution and in violation of citizen’s human rights. But that is not new or exclusive to Rwanda; it is true to every state, which is based on the rule of law. Moreover, to err is only human.

The Rwandan legislator expected this situation and provided measures to mitigate such legislation, by empowering citizens to conduct a posteriori (after effect) constitutional challenge.

What the petition aims to achieve:

1.      The circle of checks and balances is rendered perfect.

Beyond the prayers requested by the petitioner, his case aims to reinforce the principle of checks and balances within the Rwandan system of governance. It aims to encourage Rwandan courts and particularly the Supreme Court to interact more with other bodies of the government with the aim of safeguarding democracy, human rights and the rule of law in Rwanda. The petition also seeks to empower the public to effectively participate in the policy formulation process.

2.      Enabling the Constitution to remain a living document

In order to stand the test of time, the Constitution needs to be dynamic. The best way to accomplish that is through developing the jurisprudence by interpreting the Constitution and applying it to arising matters, thus enabling the law to evolve, without losing democratic gains and the value golden-thread that was in the mind of the legislator when drafting the Constitution. No one is better placed for such critical enterprise than the highest court in the land.

3.      Reduce the amounts of constitutional amendments

One of the characteristics of a strong and reliable constitution is the limited amount of amendments to which it is subjected. For example, the Constitution of the United States of America has only been amended 27 times in more than two centuries of existence, with the first ten amendments famously known as the Bill of Rights, adopted within four years of its promulgation. As for the Rwandan Constitution, it has been amended more than five times in just fifteen years.

Constitutional petitions would enable the development of constitutional jurisprudence by Rwandan courts, without requiring amendment of the Constitution document.

In Rwanda, like in many African states with civil law systems, the task to make the law is afforded to the Parliament and to a limited extent the executive. Situations arise when the majority of members of the legislature and the executive pay allegiance, in one way or the other, to the ruling party. This may lead to instances where political interests thwart constitutional aspirations.

To avoid such a situation, Section 145(5) of the Rwandan Constitution empowers ‘the Supreme Court to hear petitions on the constitutionality of laws and decree-laws’.

However, the hands of courts are tied, as they may only hear matters presented to them by parties.

It is to that effect that on September 23, the Democratic Green Party of Rwanda petitioned the Supreme Court to seeks amendment of Article 101 of the amended constitution; a case in which yours truly appeared as ‘Amicus Curiae’.

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The views expressed in this article are of the author.