I am reacting to the article published in The New Times on Wednesday, March 3, 2010 titled “RIAM, MIFOTRA violated the Constitution”. I believe that the following clarification is necessary.
It is not provided for in any law in force in Rwanda that the “before heads of government parastatals assume office, they first have to be confirmed or approved by the Senate”.
The Constitution of the Republic of Rwanda states only that “the Senate approve the appointment of the heads of public institutions and parastatal organisations which have legal personality”.
In the case under debate, it can’t be considered the violation of the Constitution when the Cabinet takes the decision appointing a head of a public institution before the approval by the Senate.
The issue is whether the appointed person can enter the function before its approval. The answer is “yes”. The appointment is one thing and the entrance in function is another.
The first is a constitutional act while the second is only an internal administrative measure in the competence of the Executive to ensure the continuity of service. Such measure can never become an effective appointment before it is approved.
The violation of the Constitution would be committed when the President of the Republic or the Prime Minister signed an Order appointing the concerned person before the approval by the Senate or when the appointment act was signed although the Senate refused to approve it.
In conclusion, there is not any violation of the Constitution when a person supposed to be approved by the Senate enters the function before the approval by the Senate. When the Senate finds his/her credentials lacking, the appointment will not be effective.
I’m a legislative drafter. Before sending this letter I discussed this issue with different lawyers.