Last week, the Supreme Court made a landmark ruling on a public interest litigation that was challenging anti-constitutionality of criminalising adultery, concubinage and desertion of the marital home on the one hand and public defamation of religious rituals, humiliation of national authorities and persons in charge of public service and defamation against the President of the Republic on the other hand.
Under Article 69, paragraph 1, of Law n°30/2018 of 02/06/2018 determining the jurisdiction of courts, the Supreme Court has jurisdiction to take decision, among other issues, on petitions on the unconstitutionality of Organic laws, international instruments, laws and decree-laws.
This was unprecedented judicial decision ever taken challenging anti-constitutionality of an existing law. First off, the Court decision demonstrated the judicial observance of independence and impartiality. These are core values inherently characterise any judicial body. The independence and impartiality of judiciary is fundamental to ensuring public confidence in a fair and transparent judicial process. As the highest court in the land, it sets a hugely important precedent for the future. Equally, the court ruling illustrates the high moral character, impartiality, and integrity of justices of the Supreme Court.
In my view, the court decision affirms the credibility of the country’s judicial independence, impartiality and transparency of the judicial process, enhancing the public and international confidence.
Moreover, the decisions of the Supreme Court have an important impact on society at large, not just on lawyers and judges. The decisions of the Court have a profound impact on public interest. In fact, the court decision to reject decriminalizing adultery, concubinage and desertion of the marital home was vitally important as it upholds the fundamental values of a family. Indeed, the decision comports well with Article 18 of the Rwandan Constitution, which recognises a family as the natural foundation of the Rwandan society, thereby worth protecting.
As previously discussed in this column, the Court decision is a timely development to safeguard morality and sanctity of marriage. In other words, it maintains the cultural values of Rwandan society.
Importantly, maintaining the status quo in respect of adultery, concubinage and desertion of the marital home, under Penal Code, ensures the protection of monogamous marriage—between a man and a woman—enshrined in Article 17, paragraph 2, of the Rwandan Constitution. The provision recognises exclusively a marital union of a man and a woman. So, marital infidelity is an acceptable act to the marital union. Impliedly, fidelity in marriage fosters genuine love, harmony and happiness.
More interestingly, the Court decision ordered the removal of Articles 154 and 233 of the Penal Code, regarding public defamation of religious rituals and humiliation of national authorities and persons in charge of public service. The Court reiterated that these provisions are incredibly inconsistent with Article 38 of the Rwandan Constitution (Freedom of press, of expression and of access to information are recognised and guaranteed by the State). In this regard, the Court decision was an incredible judicial development welcomed by everyone. The Court exercised the judicial powers as contained in Article 43 of the Rwandan Constitution, which states “the Judiciary is the guardian of human rights and freedoms. This duty is exercised in accordance with this Constitution and other laws.”
In a well-reasoned decision, the Court ordered to discard the controversial provisions precisely because they don’t reflect equal treatment of Rwandans with respect to freedom of expression and freedom of the media. In truth, both provisions [154 and 233 of the Penal Code] encourage the curtailment of freedom of expression.
Judiciary, the guardian of human rights and freedoms, took a hugely important decision that reflects promotion and protection of freedom of speech and expression enshrined in various international human rights instruments Rwanda adhered to. Most notably, the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). A number of regional international human rights instruments contain similar protections of the right to freedom of expression, namely the African Charter on Human and Peoples’ Rights, the EU Convention for the Protection of Human Rights and Fundamental Freedoms, and the Treaty of for the Establishment of the EAC (especially, Article 6 which embodies principles of good governance including adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities etc.).
In particular, Article 19 of the Universal Declaration of Human Rights, common to ICCPR, provides that: ‘Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.’
It is clear from the international human rights instruments that freedom of expression includes the right to seek, receive and impart information and ideas. This is a critical component of a democratic society.
The internationally recognised basic hallmarks of the right to freedom of expression unequivocally and inherently protect the right to freedom of expression of the media, too. The expressive and information rights of individuals and the media are thus inseparable. In other words, freedom of media is a subset of freedom of expression principle.
The writer is a law expert.
The views expressed in this article are of the author.