As a law student a few years back, I enjoyed a few modules but none quite as much as constitutional law.
There was something about the entire subject that gave us, the students, a certain thrill. Maybe it was because of the overtly political nature of the curriculum; as any student of the laws will tell you, the study of the law and the facts on the ground as two very different things.
That is why the study of constitutional law was so fun; the theory of it, when put in the perspective of the reality ensured a class that was full of hot-blooded discussion.
Among the many tenets of this field of law is the fundamental belief in the separation of power i.e. the executive, the legislature and the judiciary.
It was drummed into our skulls that the legislature enacted laws, the judiciary interpreted them and the executive put them into action. That is what we were taught and that’s what I expected to find in the practice of the Rwandan government.
However, AS we learnt the theory, we also found out that this separation wasn’t guaranteed by our very own Constitution. To my surprise some arms of government interfere with other.
That is why I was so taken aback by recent events in the Lower Chamber of Parliament.
On Monday, the Minister of Justice, Tharcisse Karugarama, presented to the Lower Chamber a proposed constitutional amendment that would further establish a proper separation of powers.
For you see, presently Article 96 of the current constitution states the ‘the authentic interpretation of laws shall be done by both Chambers of Parliament acting jointly after the Supreme Court has given an opinion on the matter…’.
What this means is that if, for example, there is a certain law that isn’t totally clear cut, instead of the judges interpreting them in a manner that makes sense to them, the law must be taken back to both chambers where the legislators look at the law, interpret it and THEN tell the judges how they should interpret it.
The proposed amendment to the Constitution will give the Supreme Court the power to make authentic interpretation unlike before, therefore leaving Parliament with the duty of ‘only’ enacting legislation.
I would have thought that Members of Parliament would appreciate the efforts of the Executive branch, in the guise of the Justice Minister, to lighten their workload but interestingly enough, that isn’t what’s happening.
The first MP to disagree with this proposal was Alfred Gasana. He argued his position saying “when we are working on these laws, the Supreme Court is not here and that is why we should be allowed to have the powers to authenticate the laws”.
His statement was seconded by Théobald Mporanyi who proposed that the Supreme Court first consult Parliament before carrying out the interpretation stating that “there should be a system whereby the Supreme Court consults Parliament before the interpretation is done.”
As would be expected from a legal scholar, Minister Karugarama defended the proposed amendment eloquently.
He explained to them that then global legal consensus is that of the opinion that lawmakers jobs are to establish laws but not to interpret them.
“It is clearly defined in the judicial culture globally, the same system that is being used by the Commonwealth and East African Community. This is why I request you to adopt the preamble”, he is reported to have said.
While I can understand why some of the parliamentarians are quibbling, I really don’t have a lot of time for them. The need for an ‘authentic interpretation’ reveals an erroneous belief that the MP’s are doing their jobs properly.
In a civil law nation like ours where laws is usually easily interpreted, the fact that judges (people who are experts in legal interpretation) cannot understand a certain legal clause means that the writers of the problematic clause didn’t think it through properly.
The mere fact that the Constitution presently has this anomaly isn’t a reason to stay the course. While I’m of the opinion that a constitution should not be needlessly tampered with because, as the fundamental law of the land, it is the foundation of every single aspect of government and civil life, when the separation of powers is at stake I say “amend, amend, amend”.