Repealing colonial laws makes sense

The decision by Rwanda to repeal all legal instruments brought into force before independence is a tremendous legislative achievement.

The aspects of these legal instruments date back to the colonial era.

 

Rwanda was initially colonised by Germany from 1894 until 1918, as part of German East Africa. 

 

Following Germany’s defeat in World War I, Rwanda was made a Belgian protectorate under the League of Nations, as part of the “Territory of Ruanda-Urundi.”

 

Between 1919 and 1962, the central legal instruments enacted by Belgian authorities were reflective of Belgian traditional laws and practices.

Ignoring the unique characteristics of Rwandan society, Belgium imported the civil and criminal codes of the then Belgian Congo.

On July 1, 1962, Rwanda, like many other African countries that were under colonial rule, gained independence from Belgium to become Rwanda.

This effectively made it a sovereign State with an inherent international legal personality.

Under international law, it is recognised or accepted as being capable of exercising international rights and duties. 

In particular, under general criteria of international law, rights and duties of a State are indicative of the criteria required to be established as a State in the eyes of the international law.

As such, a state, as an international legal person, possess the following qualifications: a permanent population, a defined territory, government (perhaps effective) and capacity to enter into relations with the other states.

Naturally, the State is endowed with fundamental rights, such as sovereignty, signifying that it’s entitled to exercise political control within its territory and in relation to its citizens. It also enjoys the right to independence. 

Ideally, the concepts of sovereignty and independence are inseparably linked.

However, independence is defined, under the Draft Declaration on the Rights and Duties of States prepared in 1949 by the International Law Commission, as the capacity of a state to provide for its own well-being and development free from the domination of other states, providing it does not impair or violate their legitimate rights.

The notion of independence in international law implies a number of rights and duties: for example, the right of a state to exercise jurisdiction over its territory and permanent population, or the right to engage upon an act of self-defence in certain situations. It implies also a duty not to intervene in the internal affairs of other sovereign states.

In the course of the struggle to gain independence, Rwandans were entitled to the right of all peoples to self-determination.

This principle is spelt out in the UN Charter, especially in Article 1, paragraph 2, which states that: ‘to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace’.

Equally, the principle of sovereign equality of States is embodied in Declaration on Principles of International Law Friendly Relations principle.

As an independent state, Rwanda is entitled to the right to equality of states before the law.

This is a long-held principle of international law. More particularly, it is unarguably accepted by states in the sense of equality of legal personality and capacity.

The principle of equality is enshrined in Article 2, paragraph 1, of the UN Charter that ‘The Organization is based on the principle of the sovereign equality of all its Members’.

Back to pre-independence legal instruments, this new law repealing of all legal instruments brought into force prior to the date of independence of Rwanda is absolutely paramount, as it does away with the pre-colonial rule-driven laws.

But, in my view, the single most persuasive reason to repeal these pre-independence legal instruments were no longer relevant to the current context.

In other words, some of the laws have no place in modern, dynamic and democratic Rwanda. Imagine these legal instruments were running the year 1885 until were repealed most recently. In any event, such instruments would not be still relevant today.

As a matter of social justice and human rights, it was irrelevant for Rwandan to continue being subjected to a decree of a colonial governor or even wonder.

Another reason, why laws may need to change, is due to changing community contexts and values. Contexts across society change over time.

What people in society may consider important and relevant within one generation may alter over a period of time. In order to remain relevant, the law must uphold and reflect the contexts, values, and beliefs of society in the present time.

For example, people’s perspectives revolving around family matters prior to independence must have changed over time.

Another reason why laws may need to change or repeal is due to the change expectations towards the country’s legal system.

As a matter of belief, laws are expected to regulate behaviour, however, people now expect the law to uphold individual rights as well as protect people from harm.

As such, the pre-independence legal instruments needed to be repealed and to create an ideal opportunity for enacting new laws that would be relevant to the current context.  

The writer is a law expert.

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