A lot has been said following the release of the 2,140 prisoners, last Thursday. Two major issues stood out, in my view:
- The implications of the Presidential Pardon;
- The difference between a political prisoner and a convicted criminal.
I thought I would share a legal analysis on the two issues in the interest of the public, and, apparently in the interest too of the released convicts and the media.
First, in layman terms: We must retain from the onset that the sentences have been suspended temporarily – not erased; nor was the guilt. The released convicts remain culpable – and with a debt partly paid to society.
They are to observe a set of conditions of good behavior for the remainder of their suspended sentences, failure of which may see them rearrested and their sentences reinstated.
In legal terms, there is a difference between Amnesty and Presidential pardon.
An amnesty erases the crime and the sentence and makes the person innocent with retro and pro-active effects. It is as though the crime never existed and the person has always been innocent.
This is not the case of Mr. Kizito Mihigo or Ms. Victoire Ingabire Umuhoza, both released by Presidential Pardon, nor the case of the other 2,138 convicts who were released on Parole.
The code of criminal procedure (CCP) defines the effects of each clemency measure:
Article 256: Amnesty shall extinguish criminal liability. It shall extinguish imposed penalty.
Whereas: [Art. 236(2)]: ‘Presidential pardon shall remit in whole or in part penalties imposed […] and (Art. 243): shall not entail termination of additional penalties;
So when Ingabire and Kizito confidently declared to the media that they would ‘continue the fight’, I was worried that they may not really grasp the magnitude of their predicament, once again; and wondered if they meant the same fight that led them to prison in the first place; respectively: The crimes of, inter alia, propagation of the ideology of genocide (Art. 137, PC); Aiding and abetting terrorism on the one hand and ‘Conspiracy against the established Government or the President of the Republic’ (Art. 462 PC).
The difference between a political opponent and a convicted criminal:
One can be both a political opponent and a criminal; one can be either. The difference is; being a political opponent is totally legal: take new legislators Frank Habineza and Christine Mukabunani for instance; they are political opponents.
They oppose the ruling coalition and the political model adopted in Rwanda. That is perfectly legal, which is why they have just made it into the Rwandan Parliament.
Both politicians have never been convicted of any crime or sentenced to any jail-term.
Also important to note is that, by virtue of being convicted of crimes and sentenced to a period exceeding six months in prison, Ms. Ingabire may not run for political office in Rwanda before a long time, and provided she has been legally rehabilitated.
(Art. 99) of the Rwandan Constitution defines among requirements of a candidate for the office of President of the Republic, inter alia,
3° be irreproachable in his or her conduct and social relations;
4° not have been definitively sentenced to an imprisonment of six (6) months or more…
Whereas (Art. 260 CCP) defines conditions for legal rehabilitation:
Rehabilitation may be granted five (5)/ten (10) years for recidivists, [after the sentence has been served and completed] if during that time a convicted person has continuously and effectively demonstrated good behavior.
In other words, Ingabire will have to wait for the seven years for her sentence to run out, then conduct herself in an exemplary fashion for another five years, then apply for rehabilitation – which is not automatic.
If she is granted rehabilitation, she may then conduct political activities. In the meantime; a minor offence can land her in jail and thwart her political ambitions forever. A similar scenario applies to Kizito Mihigo.
Hon. Frank Habineza erred in inventing a nexus between the release of Ingabire and Other, with democracy!
There is no link between Presidential clemency and ‘the state of democracy’ in Rwanda. Presidential pardon is as a constitutional prerogative of the Head of State as it is routine.
In Rwanda, it is the norm, not the exception. Most Genocide convicts who expressed remorse have been massively released in similar conditions.
Their political ambitions notwithstanding, claiming that their release is somehow a triumph of democracy, is implying that their detention was in violation of democratic principles, which is intentionally misleading.
Ingabire, Mihigo and their over 2000 colleagues were convicted of major crimes by courts of law.
They appealed to the President’s clemency, as any other Rwandan and it was granted. Ms. Ingabire, who now claims that she did not apply for pardon, seems unaware that her letters to that effect are in the public domain – I have a copy.
But that’s unsurprising, given that her manipulation of public opinion is all captured in a book, titled: ‘Who is manipulating whom’, by the lead Prosecutor in the ‘Ingabire Case’, learned friend Alain Mukurarinda; again, – I have a copy.
Appearing on Al-Jazeera over the weekend, I was unsurprised as the journalist intentionally overlooked the crimes of the released convicts, and the clemency of the President, to question me on an imaginary political ulterior-motive.
However, as western media worries about sensational headlines, we in Rwanda are rather keen to preserving a safe and sound livelihood, and the Honorable Gentleman might have been well advised to speak to questions of concern to the Rwandan public, instead of playing to a foreign, excitable gallery - a paradigm shift…
The views expressed in this article are of the author.