To lawmakers and public officials: know the constitution before you pass any law

Former Chief Justice Professor Sam Rugege must be leaving the bench a happy and satisfied man. Not because he is retiring, although that is a good enough reason.

A rest after decades of dedicated service is surely well-earned. But retirement can also be a daunting prospect. What to do with the many hours at one’s disposal, leaving behind a world of familiar routine, or as he said, missing his colleagues, must require some getting used to.

The satisfaction comes mainly from two things.

One is that on his watch, the judiciary has made tremendous progress and earned the respect of many in Rwanda and abroad. He and his three predecessors have managed to rebuild a near non-existent judiciary to the level it is at today, at par with any on the continent.

Two, he got public praise from President Paul Kagame for the way he has led the judiciary. Not once, but on two separate occasions in the space of one month. The first was at the start of the judicial year in November; the second last Friday at the swearing in of the new Chief Justice.

Now, President Kagame does give credit where it is due. But he is not known to dwell long on lauding anyone. And so when he comes anywhere close to that, it must be because the credit is well-deserved.

Both these are enough reason to go into retirement with a contented heart, with a feeling of having run a good race.

This is not to say, however, that the Chief Justice, the Supreme Court, and indeed the entire judiciary have not been tested. They have come under scrutiny locally and internationally a number of times.

One such occasion involved the trial of so-called opposition politicians for crimes they committed against the Rwandan people. Some in the international community, who for their own reasons, have adopted the cause of politicians turned criminals or criminals turned politicians to escape justice, have sought to turn ordinary trials into political theatre.

Rwanda’s judiciary has steadfastly refused to be drawn into abuse of the judicial system or to be diverted from its professional role. It has stuck to it. The accused were duly tried, convicted and sentenced following due process.

Some received presidential pardon after serving a part of their sentence and retired to a quiet life. Others, obviously ungrateful and unrepentant, still want to hog the limelight and are bent on carrying on from where they had left off.

But even with these, it is only a matter of time before they realise their folly and give up.

Another one, which is the subject our discussion today, is a more recent development where individuals have challenged some laws in the Supreme Court.

This year alone, the Supreme Court with Rugege on the bench, adjudicated on at least three public interest litigations filed by Rwandan lawyers and other entities.

In one instance, they were challenging a string of provisions in the new Penal Code including one on defamation of public officials. The court decriminalised defamation of public officials except for the President of the Republic. The president then took issue with that exception and advised a revision of the article.

In another, they questioned certain provisions of a property tax law. Again the court found that some parts of the law went against constitutional provisions on people’s rights on property.

A third matter concerning judges’ discretion on passing sentence in defilement cases has also come up for review.

These cases are not out of the ordinary. However, they have a significance that goes beyond the validity or otherwise of specific laws, and are indeed a positive development in the justice system as a whole.

First, they are a confirmation, if any were needed, that Rwanda is a country where the rule of law is respected.

Second, the fact that the Supreme Court has found against the government and the legislature and made appropriate orders reinforces what has always been said: that the courts in this country are impartial and independent arbiters and interpreters of the law.

Third, they reveal how little many of us, including government officials and even lawmakers, know the constitution. It is not surprising to find senior government officials pushing for measures that, if challenged, would be found to be illegal.

Finally, the lawyers did not only challenge bad laws, they also brought out the centrality of the constitution as the basic law on which the legitimacy of the actions of the state is based. They brought it off the shelves and showed it to be a living document, not a dead letter or something we refer to only when it suits us.

And so, the ruling of the Supreme Court on various matters of public interest is bound to have important consequences in the conduct of public affairs. Certain things will have to change.

Lawmakers will have to scrutinise all laws brought before the house to ensure that they do not contravene the constitution or violate the rights of individuals. To do this, they must have a thorough knowledge of the constitution.

Knowledge of the constitution should be made a requirement for anyone in public service, particularly at higher levels. It must be taught as part of civic education at all levels, including schools and public service training institutions. It must be the catechism of civic education.

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