Re. BUCYENSENGE MENDE

# Re. BUCYENSENGE MENDE

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2025-04-25 - Case/document no.: RS/INCONST/SPEC00006/2023/SC - Collection: Supreme Court

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Re. BUCYENSENGE MENDE [Rwanda SUPREME COURT – RS/INCONST/SPEC00006/2023/SC (Mukantaganzwa, P.J., Hitiyaremye, Cyanzayire, Kazungu and Kalihangabo, J.) April 25, 2025] The Constitution – The principle of equality before the law – The fact that a category of parties before the Court of Appeal and the Supreme Court are not allowed to make a third party opposition against judgments rendered by those courts, while parties before other courts are allowed to make a third party opposition against judgments rendered there, does not contradict the principle of equality before the law, as it is based on a reasonable and legitimate ground, namely the jurisdiction of the courts and the general principle that judicial proceedings have an end. The Constitution – The right to due process of law – The right to appear before a competent court – A third party opposition against judgments rendered by the Court of Appeal or the Supreme Court – The fact that the legislator, in their discretion, chose to include article 161, paragraph 4 of Law n0 22/2018 of 29/04/2018 relating to the civil, commercial, labour, and administrative procedure, intended a legitimate purpose of ensuring fair administration of justice, whereby a third party opposition against a judgment rendered by the Court of Appeal or the Supreme Court would deprive the losing party of the right to appeal at least once, since the

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judgments rendered by these courts are not subject to appeal. The Constitution – Unconstitutional – Right to private property – A law would be deemed contrary to article 34 of the Constitution, which guarantees the right to private property, either it deprives an individual of their property rights or permits interference without granting them any rights in return, or prevents them from freely enjoying their property. Facts: Bucyensenge Mende filed a petition before the Supreme Court, seeking to declare article 161, paragraph 4 of Law n0 22/2018 of 29/04/2018 relating to the Civil, Commercial, Labour and Administrative Procedure as amended, which provides that judgments rendered by the Court of Appeal or the Supreme Court shall not be subject to third party opposition, repealed as it contradicts articles 15, 29, and 34 of the Constitution of the Republic of Rwanda. Bucyesenge Mende filed this petition following previous cases which led him to buy, through auction, the property of Valois, who had failed to repay Dusabe, his creditor, an amount of 61,420 US dollars. Before the properties being sold, a non-professional court bailiff discovered that Valois co-owned them with his siblings, which required first bringing the matter before the Intermediate Court of Rubavu to determine his share. The judgment was decided on 05/04/2019, decided that the properties jointly owned by Valois and his siblings should be partitioned, and that his share shall be sold to execute the judgment. Valois and Dusabe appealed to the High Court, Musanze Chamber,

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which, on 31/07/2019, upheld the decision of the Intermediate Court of Rubavu. Valois and his siblings then appealed to the Court of Appeal, which declared their appeal unfounded. After those judgments, the non-professional court bailiff auctioned all properties, which were bought by Bucyesenge Mende for 111,600,000 Rwandan francs. From that amount, Valois’s share was deducted to pay Dusabe, and the remaining was allocated to his siblings. Valois and his siblings, together with Dusabe, filed a case review before the Court of Appeal, the case was rendered by the Court of Appeal which had previously declared their appeal unfounded. They apploaded a settlement agreement in the IECMS, and on 27/06/2025, the Court of Appeal confirmed that agreement reached between Valois and his siblings on one side, and Dusabe on the other side, thereby concludes case RC00001/2022/CA, and that their terms shall be enforced. Bucyensenge Mende states that after learning that the judgment in which he based on buying the properties at auction was replaced by a settlement agreement, he sought to apply for third party opposition against the said case RC00001/2022/CA in order to protect his interests, and was prevented by article 161, paragraph 4 of Law n0 22/2018 mentioned above; which provides that judgments rendered by the Court of Appeal or the Supreme Court shall not be subject to third party opposition. It is on the ground that he decides to file a petition to the Supreme Court seeking to declare paragraph repealed as it contradicts articles 15, 29 and 34 of the Constitution.

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Mende argues that the law allows a person who feels aggrieved by decisions rendered by other courts to for application for thirdy party opposition against those decisions, however, article 161, paragraph 4 of Law n0 22/2018 of 29/04/2018 mentioned above, prohibits a person who feels aggrieved by a decision rendered by the Court of Appeal or the Supreme Court from application for third party opposition against that decision, contradicts articles 15, 29, and 34 of the Constitution. He states that this paragraph 4 deprives a person of the right to make a third-party opposition against a decision of the Court of Appeal or the Supreme Court in case they feel aggrieved, whereas a person who feels aggrieved by decisions of other courts is allowed to do so. He considers this contrary to article 15 of the Constitution because it does not equally treat all individuals to seek redress. Mende explains that paragraph 4 contradicts article 29 of the Constitution because it deprives a person who feels aggrieved by a decision of the Court of Appeal or the Supreme Court of the right to have their case heard before a competent court during third party opposition, which is the only means by which they could seek redress before a court which rendered a decision that adversely affected their interests. He concludes saying that paragraph 4 also contradics article 34 of the Constitution because it prevents him from protecting property he bought at an auction while enforcing the judgment rendered by the Court of Appeal, and from registering that property, especially since a judgment under case review was also rendred by the Court of Appeal which declared it invalid, never appeared as a party. He explains that the Court of Appeal’s decision infringes upon and undermines his

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rights over that property; therefore, he requests that paragraph 4 be repealed to allow him to make a third-party opposition against that judgment. The State attorney in this instant case explains that by the time article 161, paragraph 4 of Law n0 22/2018 of 29/04/2018 mentioned above, was included in the law, the legislator intended to prevent from initiating new cases in higher courts because the Court of Appeal ordinarily only hears cases at appeal level, while the Supreme Court examines matters either at the last instance or at both first and last instance, depending on the competence granted by law. He adds that application for a third-party opposition against decisions rendered by these courts is not possible, as doing so would amount to initiating a new lawsuit. He further explains that the plaintiff’s claim that this provision contradicts the principle of equality before the law is incorrect, because that principle means treating individuals who are in the same category with the same condition. He explains that the fact that this paragraph distinguishes between a person who feels aggrieved by a decision of the Court of Appeal or the Supreme Court and a person who feels aggrieved by a decision of other courts does not amount to unequal treatment since they do not belong to the same category. The State attorney further explains that the fact that judments rendered the Court of Appeal or the Supreme Court cannot be subject to third party opposition does not, by itself, deprive a person of the right to have their case heard before a competent court, because the law provides alternative procedure to seek redress at the first instance

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for matters that could otherwise be raised in judgment for third party opposition. He notes that the plaintiff can use the procedure of claim for the inconsistency of judgments, since there are precedents where such matters were addressed in cases decided by these higher courts such as case RCOM00001/2016/CA decided on 03/07/2020, and case RS/SPEC00002/13/SC decided on 14/07/2017. He further mentions another procedure in which the plaintiff could use to recover the amount paid for the property at auction and to claim compensation for being dragged into aunction after buying he was cheated by reaching agreement with the owner of the auctioned property. This procedure involves filing a lawsuit at the first instance against the court bailiff and Dusabe, who requested him to execute the judgment. The State attorney in this case concludes by stating that paragraph 4 does not contradict article 34 of the Constitution, because plaintiff cannot make a third party oopposition against a judgment rendered by the Court of Appeal in a way that would be considered an infringement on his rights over property bought at auction, since there are other legal remedies, he can use to seek redress. Held: 1. The fact that the category of the parties appears before the Court of Appeal and the Supreme Court are not allowed to make a third-party opposition against judgments rendered by those courts, while the category of the parties appears before other courts are permitted to make a third-party opposition against judgments rendered therein, does not contradict the principle of equality before the law. This distinction is based on a reasonable

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and well-founded justification, namely the jurisdictional competence and the general principle that judicial proceedings must have an end. 2. The fact that the legislator, in their discretion, deemed it necessary to include article 161 paragraph 4 of of Law n0 22/2018 of 29/04/2018 relating to the civil, commercial, labour, and administrative procedure, intended a legitimate purpose of safeguarding the proper administration of justice instead of making a third party opposition against judgments rendered by the Court of Appeal or the Supreme Court which would deprive the losing party of the right to appeal at least once, given that judgments rendered by these courts are not subject to appeal. 3. A law would be considered contrary to article 34 of the Constitution, which guarantees the right to private property, if it deprives an individual of their property rights, or allows interference with such property without due process, or prevents the owner from from freely enjoying their property. Petition seeking to declare a provison of law inconsistent with the Constitutional of the Republic of Rwanda, unfounded. Statutes and statutory referred to: The Constitutional of the Republic of Rwanda of 2003 revised todate, article 15, 29, 34 and 153. Unviversal Declaration of Human Rights 1948, article 7, 10 and 17.

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Internation Covenant on Civil and Political of 1966, article 14 and 26. African Charter on Human and Peoples’ Rights of 1981, article 3, 7 and 14. European Convention on Human Right, article 6. Law nᵒ 30/2018 of 02/06/2018 determining the jurisdiction of courts, article 52. Law no 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure, article 161, 162 and 165. Caselaws referred to: Re Feminist Action Development Ambition (FADA), RS/INCONST/SPEC00004/2019/SC, rendered by the Supreme Court on 26/04/2024. Re Uwombonye Hirwa Sudi, RS/INCONST/SPEC00002/2023/SC rendered by the Supreme Court on 12/04/2024. Re Kamanzi Anaclet, RS/INCONST/SPEC00002/2022/SC, rendered by the Supreme Court on 31/03/2023. Re Ngendahayo Kabuye, RS/INJUST/SPEC00004/2021/SC, rendered by the Supreme Court on 10/02/2023. Re Murangwa Edward, RS/INCONST/SPEC00001/2022/SC, rendered by the Supreme Court on 16/12/2022. Re Asiimwe Frank, RS/INCONST/SPEC00004/2020/SC, rendered by the Supreme Court on 26/03/2021. Re Murangwa Edward, RS/ INCONST/SPEC00001/2019/SC, rendered by the Supreme Court on 29/11/2019.

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Doctrines referred to: Conseil de l’Europe et la Cour européenne des droits de l’homme, Manuel de droit Européen en matière d’accès à la Justice, p. 27. Judgment I. BACKGROUND OF THE CASE

On December 13, 2023, Bucyensenge Mende Claude filed a petition before the Supreme Court, seeking to declare article 161 paragraph 4 of Law n0 22/2018 of 29/04/2018 relating to the civil, commercial, labour, and administrative procedure as amended, repealed on the grounds that it is inconsistent with articles 15, 29, and 34 of the Constitution of the Republic of Rwanda.

He explained that a person named Dusabe Fazil had borrowed Valois Jean Marie 61,420 US dollars ($), and when the time came for repayment, Valois issued bouncing checks. As a result, the Prosecution charged him before the Primary Court of Kacyiru with the offense of issuing bouncing checks. He states that Valois Jean Marie was found guilty and sentenced to five months’ imprisonment, a fine of 61,420 USD, an order to reimburse Dusabe Fazil 61,420 USD corresponding to the bouncing checks he had issued, and 400,000Frw of damages.

He stated that after the judgment became final, Dusabe Fazil sought for a professional court bailiff for

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execution and it was discovered that the property belonging to Valois Jean Marie was jointly owned with his siblings1. The professional court bailiff seized the property, and filed a case before the Intermediate Court of Rubavu seeking to determine the share of Valois Jean Marie in that property so that it could be used for repayment. The case was decided on April 5, 2019, and the court declared the property jointly owned by Valois Jean Marie and his siblings divided, and his share be sold for judgment execution.

Dusabe Fazil and Valois Jean Marie appealed that decision to the High Court, Musanze Chamber, which on July 31, 2019, upheld the decision of the Intermediate Court of Rubavu. Valois Jean Marie and his siblings further appealed the case to the Court of Appeal, which rendered judgment n0 RCAA00017/2019/CA on October 3, 2019, declared their appeal unfounded.

On December 14, 2021, for the purpose of judgment execution, the professional court bailiff, Niyonshuti Iddi Ibrahim, sold at auction the properties with UPIs: 3/03/04/05/1837, 3/03/04/05/1838, 3/03/04/05/1852, and 3/03/04/05/1853. The properties were bought by Bucyensenge Mende Claude for 111,600,000Frw. From the proceeds, Valois Jean Marie’s share was used to repay Dusabe Fazil, and the remaining amount was given to his siblings.

1 Valois Jean Felix, Valois Jean Paul, Valois Jean Pierre, Valois Marie Rose are all the children of Kaptura Felix and his heirs.

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On November 10, 2022, Valois Jean Marie and his siblings filed a case before the Court of Appeal seeking a case review n0 RCAA00017/2019/CA, which had been decided on October 3, 2019. The new case was registered under 00001/2022/CA. The hearing of May 17, 2023, was postponed after the parties’ counsels informed the Court that they wished to settle their disputes amicable.

On June 15, 2023, the parties uploaded their settlement agreement to the IECMS, and on June 27, 2025, the Court of Appeal declared the amicable settlement reached between Valois Jean Marie and his siblings on one side, and Dusabe Fazil on the other, concluded case n0 00001/2022/CA and ordered that the terms of the settlement agreement be enforced.

Bucyensenge Mende Claude stated that after learning that the judgment on the basis of which he had purchased the property at auction had been replaced by a settlement agreement, he sought to make a third party opposition against case n0 00001/2022/CA to protect his interests but was prevented from doing so by article 161, paragraph 4 of the aforementioned Law n0 22/2018, which provides that judgments rendered by the Court of Appeal or the Supreme Court shall not be subject to third party opposition. For this reason, he decided to file a petition before the Supreme Court, seeking to declare a paragraph unconstitutional as it contracts articles 15, 29, and 34 of the Constitution.

The hearing was held in public on March 10, 2025, with Bucyensenge Mende Claude represented by Counsel Kwizera Bernard while the Government of Rwanda

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represented by Counsel Kabibi Speciose. During the hearing, the Court first examined whether Bucyensenge Mende Claude had interest in the case. Regarding the interest that Bucyensenge Mende Claude has in this case

After examining the submission prepared by counsel for Bucyensenge Mende Claude regarding the interest of Bucyensenge Mende Claude has in the case, the Court rendered the judgment in bench based on the interlocutory judgment RS/INCONST/SPEC00001/2022/SC decided by the Supreme Court on December 16, 2022 of Re Murangwa Edward where the Court explained that in order to declare that the plaintiff has interest in the case, it must atleast base on one of the following grounds: 1) The fact that a law which is alleged to be unconstitutional specifically concerns the plaintiff or category to which s/he belongs, so that s/he has a personal interest in filing the case. For instance, a law concerning journalists, medical professionals, teachers, and others; 2) The fact that a law which is alleged to be unconstitutional in general concerns the general public in a way that it may affect their rights; in such a case, any person who may be affected by it has the interest to bring it before the Court to declare it unconstitutional;

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3) The fact that the plaintiff is an advocate; in the interest of justice, they are allowed to file a case to promote the law or the rights of those affected by the law alleged to be unconstitutional, even if they have no personal interest in the case.

Regarding this case, the Court found that article 161, paragraph 4 of Law n0 22/2018 of 29/04/2018 mentioned above concerns all citizens in general, including Bucyensenge Mende Claude, and therefore ruled that he has the interest in this case.

Regarding the merits of the case, the counsel for Bucyensenge Mende Claude explained the fact that the law allows a person who feels aggrieved by decisions made in cases tried by other courts to make a third party opposition against those decisions, article 161, paragraph 4 of Law n0 22/2018 of 29/04/2018 mentioned above prohibits a person who feels aggrieved by a decision made in a case tried by the Court of Appeal or the Supreme Court from applying for third party opposition against such case, contradicts article 15, 29, and 34 of the Constitution.

The State Attorney explains that nowhere does article 161, paragraph 4 of Law n0 22/2018 of 29/04/2018 mentioned above contradicts the provisions of the Constitution as alleged by the plaintiff.

The Court examined the issue of whether article 161, paragraph 4 of Law n0 22/2018 of 29/04/2018 as amended, relating to the civil, commercial, labour, and

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administrative procedure, contradicts article 15, 29(1)(c) and 34 of the Constitution. II. ANALYSIS OF LEGAL ISSUE Whether article 161, paragraph 4 of Law n0 22/2018 of 29/04/2018 as amended, relating to the civil, commercial, labour, and administrative procedure, contradicts article 15, 29(1)(c) and 34 of the Constitution

The counsel for Bucyensenge Mende Claude states that article 161, paragraph one of Law n0 22/2018 of 29/04/2018 mentioned above, provides that third party opposition considers as a claim for the annulment or modification of a judgment requested by a person who was not a party to the case, while article 162 of the same law states that a person who was not a party to a case but who has an interest in it may make a third-party opposition to set aside a judgement which is prejudicial to his or her rights and if neither that person nor the person he or she represents were summoned at the trial.

He explains that the fact that of article 161, paragraph 4 of Law n0 22/2018 of 29/04/2018 mentioned above, denies a person the right to make a third-party opposition against a judgment rendered by the Court of Appeal or the Supreme Court when s/he feels aggrieved, while allowing such a right to those who feel aggrieved by judgments rendered by other courts, contradicts article

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15 of the Constitution2 because it does not treat all persons equally nor protect them in the same manner.

He further explains that article 161, paragraph 4 of Law n0 22/2018 of 29/04/2018 mentioned above, contradicts article 29(1)(c) of the Constitution3 because it deprives a person who feels aggrieved by a judgment rendered by the Court of Appeal or the Supreme Court of the right to seek justice before a competent court by making a third party opposition, even though it was the only procedure through which they could have defended their interests before the court that rendered the judgment adversely affecting them.

He also explains that article 161, paragraph 4 of Law n0 22/2018 of 29/04/2018 mentioned above, contradicts article 34 of the Constitution4 because it prevents him from protecting the property purchased through a public auction carried out in execution of judgment RCAA00017/2019/C as he failed to register it in his name due to judgment RCAA00001/2022/CA rendered by the Court of Appeal which annulled the previous judgment to which he did not appear. He further explains that the decision of the Court of Appeal infringed

2 All human beings are equal before the law. They enjoy equal protection of the law. 3 Everyone has the right to due process of law which includes the right to appear before a competent Court 4 It provides that everyone has the right to private property, whether individually or collectively owned. Private property, whether owned individually or collectively, is inviolable. The right to property shall not be encroached upon except in public interest and in accordance with the provisions of the law.

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and undermined his property rights over that asset; hence, he requests that the said paragraph be repealed so that he may have the opportunity to challenge that judgment.

The State attorney explains that article 161, paragraph 4 of Law n0 22/2018 of 29/04/2018 mentioned above, was included in the law, because the legislator intended to prevent cases from being initiated before higher courts, given that the Court of Appeal ordinarily hears cases only at the appellate level, while the Supreme Court examines matters either at the final level or at both the first and final instance based on the competence granted to it by law and that application for third party opposition against decisions rendered by these courts is not possible as doing so, would amount to initiating a new case.

Regarding the submission made by the counsel for Bucyensenge Mende Claude that article 161, paragraph 4 of Law n0 22/2018 of 29/04/2018 mentioned above, contradicts article 15 of the Constitution on the grounds that it does not treat people equally since a person who feels aggrieved by a judgment rendered by the Court of Appeal or the Supreme Court in which they were not a party is not allowed to make third party opposition against it, while a person who feels aggrieved by a judgment rendered by any other court is permitted to do so, the State attorney explains that the principle of equality before the law means treating equally those who are in the same category and under the same conditions. He explains that the fact that such paragraph distinguishes between a person who feels aggrieved by a decision rendered by the

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Court of Appeal or the Supreme Court and the one who feels aggrieved by a decision rendered by other courts does not mean that they are not treated equally, because they do not belong to the same category. He further explains that article 161, paragraph 4 of Law n0 22/2018 of 29/04/2018 mentioned above, treats all people equally, since none of them are allowed to make a third-party opposition against decisions rendered by the Court of Appeal or the Supreme Court.

The State attorney further explains that the fact that judgments rendered by the Court of Appeal or the Supreme Court shall not be subject to third party opposition as provided under article 1655 of Law n0 22/2018 of 29/04/2018 mentioned above, does not in itself deprive a person of the right to bring a case before a competent court, because the law provides other procedure through which they can file a claim at the first instance level concerning matters they intended to raise in a case meant for third party opposition against another judgment because, according to him, such a case cannot be final as he is not bound by the principle of “res judicata”. He notes that Bucyensenge Mende Claude may use the procedure for filing a claim based on conflicting judgments, as they are precedents such as case RCOM00001/2016/CA decided on 03/07/2020 and case RS/SPEC00002/13/SC decided on 14/07/2017.

The State attorney also explains that Bucyensenge Mende Claude has the right to file a first-instance case

5 A third-party opposition against a judgement in principal action is brought before the court which rendered the contested judgemen…

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against the court bailiff and Dusabe Fazil, who requested the execution of the judgment, so that they may refund the money he paid to purchase the property at the public auction and compensate him for the damages suffered since they involved him in an auction only to later bypass him and reach an agreement with the person whose property had been auctioned. He adds that this procedure could also enable him to handle his issue without the need to amend the law.

The State attorney concludes by stating that article 161, paragraph 4 of Law n0 22/2018 of 29/04/2018 mentioned above, does not contradict article 34 of the Constitution, because although the right to private property is inviolable, it may be restricted under circumstances provided by law. He further explains that the fact that Bucyensenge Mende Claude cannot make a third-party opposition against a judgment rendered by the Court of Appeal cannot be considered a violation of his property rights over the property he purchased at a public auction, since there are other procedures, he may follow to protect those rights as explained above. DETERMINATION OF THE COURT

The debate on this issue is based on the disagreement between the counsel for Bucyensenge Mende Claude and the counsel for State attorney regarding whether judgments rendered by the Court of Appeal or the Supreme Court are not subject to third party opposition, thereby depriving a person who believes they

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were aggrieved by those courts in a case to which they were not a party of the right to request a retrial in his presence, as it is permitted in other courts, the plaintiff argues that such would be contrary to the principle of equality before the law, the right to be heard before a competent court, and the right to private property, while the State attorney contends that such rights can be protected through other legal remedies provided by law. a) Whether article 161, paragraph 4 of Law n0 22/2018 of 29/04/2018 relating to the civil, commercial, labour, and administrative procedure as amended, contradicts article 15 of the Constitution

In order to determine whether article 161, paragraph 4 of Law n0 22/2018 of 29/04/2018 mentioned above, is inconsistent with the principle of equality before the law and, consequently, contradicts article 15 of the Constitution as alleged by the plaintiff, it is necessary first to explain the principle of equality before the law.

Article 15 of the Constitution provides that all human beings are equal before the law. They enjoy equal protection of the law.

The provisions of article 15 of the Constitution are consistent with those of article 7 of the Universal

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Declaration of Human Rights6, article 26 of the 19667 International Covenant on Civil and Political Rights, and article 3 of the African Charter on Human and Peoples’ Rights8; all of them emphasize that all human beings are equal before the law and are entitled to equal protection without any form of discrimination.

The principle of equality before the law means that all individuals are treated equally before the law, without inequalities or discrimination. However, this principle may have limitations based on a legitimate or rational purpose as explained by the Supreme Court in various cases, including case n0 RS/INJUST/SPEC00004/2021/SC, decided on 10/02/2023 of Ngendahayo Kabuye. In that case, the Court explained that individuals who are in the same situation or belong to the same category are treated equally, and that when they are treated differently without a legitimate or rational purpose, it constitutes

6 Article 7 of the Assembly, UN General. Universal declaration of human rights. UN General Assembly 302.2 (1948): 14-25 states: “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against discrimination in violation of this Declaration and against any incitement to such discrimination”. 7 Article 26 of International Covenant on Civil and Political Rights/Pacte International des droits civils et politiques states: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law”. 8 Article 3 of African (Banjul) Charter on Human and Peoples’ Rights (Adopted 27 June 1981, OAU Doc.CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force 21 October 1986) states: “Every individual shall be equal before the law. Every individual shall be entitled to equal protection of the law.”

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discrimination. However, the Court noted that the State may differentiate between individuals or categories of persons without violating the principle of equality before the law or the principle of non-discrimination, provided that there is a legitimate and reasonable purpose, established in accordance with the law and serves the public interest9.

In the case RS/INCONST/SPEC 00004/2019/SC, decided on 26/04/2024 of Feminist Action Development Ambition (FADA)10, the Supreme Court explained that the principle of equality before the law means that the law treats as equal those who belong to the same category and is applied to them in the same manner. It is clear that those individuals who do not belong to the same category cannot be treated equally.

In the case RS/INCONST/SPEC00002/2022/SC, decided on 31/03/2023 of Kamanzi Anaclet, the Court, based on the position of legal scholar Erwin Chemerinsky, explained that things that are alike should be treated alike,

9See Case RS/INCONST/SPEC00004/2021/SC, decided by the supreme Court on 10/02/2023, Ngendahayo Kabuye v. State OF Rwanda, paragraph 36 and 39. 10 See Case RS/INCONST/SPEC00004/2019/SC, decided on 26/04/2024, Feminist Action Development Ambition (FADA) v. State of Rwanda, in paragraphs of 41 and 43. Which is also reiterated in the Case RS/INCONST/SPEC00003/2019/SC decided on 31/03/2023, Kamanzi Anaclet v. State of Rwanda, in paragraph 35 up to 37, in Case RS/INCONST/SPEC00002/2023/SC decided on 12/04/2024 Uwombonye Hirwa Sudi v. State of Rwanda, in paragraph 24 and 25 and in Case RS/INCONST/SPEC00001/2019/SC Murangwa Edward decided on 29/11/2019, in paragraph 35.

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and things that are unalike should be treated unalike in proportion to their unalikeness. In other words, people must be treated equally, but with consideration of their respective categories, meaning that individuals belonging to different categories should be treated differently.

Regarding this case, the Court finds that article 161 of Law n0 22/2018 of 29/04/2018 mentioned above, provides that third party opposition is an extraordinary appeal procedure, a person who was not a party to a case but who has an interest in it, can file a claim against a judgment that has been rendered on the merits and which is no longer subject to appeal in the court that has rendered it seeking its annulment or modification. This article also provides that judgments rendered by the Court of Appeal or the Supreme Court shall not be subject to third party opposition.

The Court finds that this provision allows any person who was not a party to a case decided at the final level by other courts, except the Court of Appeal and the Supreme Court, to make a third-party opposition against it if they have an interest in the case and comply with all the required conditions.

The Court finds that article 161 of Law n0 22/2018 of 29/04/2018 mentioned above, provides for two categories: the first category includes parties in the Court of Appeal and the Supreme Court, who are not allowed to make a third-party opposition against judgments rendered by those courts; the second category includes parties in other courts, who are allowed to make a third-party opposition against judgments rendered by those courts.

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The Court finds the fact that the legislator provided for this based on the competence of courts and the general principle that judicial proceedings must have an end, aiming to protect the rights of a person who loses a case of third-party opposition against the judgment rendered by the Court of Appeal or the Supreme Court and left without a remedy, does not contradict the principle of equality before the law, as it is based on a legitimate or rational purpose. Therefore, article 161, paragraph 4 of Law n0 22/2018 of 29/04/2018 mentioned above, does not contradict article 15 of the Constitution. b) Whether Article 161, paragraph 4 of Law n0 22/2018 of 29/o4/2018, relating to the civil, commercial, labour, and administrative procedure as amended, contradicts article 29(1)(c) of the Constitution

Article 29(1)(c) of the Constitution provides that everyone has the right to due process of law which includes the right to appear before a competent court.

The provisions of article 29(1)(c) of the Constitution are consistent with the provisions of article 10 of the Universal Declaration of Human Rights11, article 14(1) of the International Covenant on Civil and Political Rights12, article 7(1)(d) of the African Charter on Human

11 Article 10 of the Declaration states: “everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal”. 12 Article 14(1) of the Convenant states: “All persons shall be equal before the courts and tribunals.”

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and Peoples’ Rights13, and article 6(1) of the European Convention on Human Rights14.

The right to appear before a competent court, as interpreted by the European Court of Human Rights, indicates that the right to due process of law provided under article 6(1) must be understood in light of the principle of the rule of law. It requires the fact that a party can bring their case before the courts to claim their civil rights. The Court explained that this right is not absolute and may be subject to limitations, provided that such limitations do not deprive a person of the essence of their right15.

13 Article 7(1)(d) of the Charter stipulates: “Every individual shall have the right to be tried within a reasonable time by an impartial court or tribunal.” 14 Article 6 (1) stipule “Toute personne a droit à ce que sa cause soit entendue équitablement, publiquement et dans un délai raisonnable, par un tribunal indépendant et impartial, établi par la loi, qui décidera, (…) des contestations sur ses droits et obligations de caractère civil (…)”. 15Le droit à un procès équitable, garanti par l’article 6 § 1, doit s’interpréter à la lumière du principe de la prééminence du droit, qui exige l’existence d’une voie judiciaire effective permettant de revendiquer les droits civils. Chaque justiciable possède le droit à ce qu’un tribunal connaisse de toute contestation relative à ses « droits et obligations de caractère civil[…] .Le « droit à un tribunal », comme le droit d’accès, ne revêtent pas un caractère absolu : ils peuvent donner lieu à des limitations, mais elles ne sauraient restreindre l’accès ouvert à l’individu d’une manière ou à un point tels que le droit s’en trouve atteint dans sa substance même » ; Guide sur l’article 6, Droit à un proces équitable(volet civil), Conseil de l’Europe/Cour européenne des droits de l’homme, 2013, www.echr.coe.int.

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In the case of Lurdo v. Italy, the European Court of Human Rights upheld that the right to appear before a competent court may be subject to limitations, such as, requirements for the admissibility of appeal, because in establishing the governing rules, the State has the discretional power16.

Similarly, in the case of Stanev v. Bulgaria, the European Court of Human Rights declared that the right to appear before the courts may have legitimate limitations because, given its nature, it requires the State to establish governing rules that may vary according to the needs and capacities of the country and its people. In enacting such laws, States act within their discretion17.

In a manual prepared by the Council of Europe together with the European Court of Human Rights

16“La Cour rappelle aussi que le « droit à un tribunal » n'est pas absolu ; il se prête à des limitations implicitement admises, notamment pour les conditions de recevabilité d'un recours, car il appelle de par sa nature même une réglementation par l'Etat, qui jouit à cet égard d'une certaine marge d'appréciation”; Affaire Luordo v. Italie, Requete No 32190/96, Arret du 17 Juillet 2003, para 85, https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001- 65798%22]}. 17“Le droit d’accès aux tribunaux n’étant pas absolu, il peut donner lieu à des limitations implicitement admises car il « appelle de par sa nature même une réglementation par l’Etat, réglementation qui peut varier dans le temps et dans l’espace en fonction des besoins et des ressources de la communauté et des individus” […] En élaborant pareille réglementation, les Etats contractants jouissent d’une certaine marge d’appréciation”; Affaire Stanev v. Bulgarie, Requête No 36760/06, Strasbourg, 17 janvier 2012, para 230, https://hudoc.echr.coe.int/eng?i=001-108696.

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explaining the right to access justice, the authors state that limitations on the right to be appear before competent courts18 should be admissible for legitimate purposes, and the legitimate purposes should include the fair administration of the justice19.

In the case of Ernst et al. v. Belgium, the applicants claimed that their right under article 6(1) of the European Convention on Human Rights mentioned above, had been violated because their civil action within criminal proceedings was dismissed, given that the defendant was a judge enjoying immunity. The European Court of Human Rights first noted that judicial immunity, as a measure aimed at ensuring the fair administration of justice, serves a legitimate purpose20.

The European Court of Human Rights also noted that, in order to determine whether judicial immunity does not violate the European Convention on Human Rights, it

18 “Le droit d’accès à un tribunal signifie que les tribunaux doivent être accessibles. Cette accessibilité peut concerner la disponibilité des tribunaux compétents […]”, le Conseil de l’Europe et la Cour européenne des droits de l’homme, Manuel de droit Européen en matière d’accès à la Justice, p. 27. 19“Les restrictions sont autorisées si elles poursuivent un but légitime et sont proportionnées. Elles ne doivent pas porter atteinte à la substance même du droit en cause. Exemples de buts légitimes: la bonne administration de la justice […]”, ibidem, p. 125. 20“Elle considère dès lors qu'en l'espèce, la mise en œuvre du privilège de juridiction applicable aux magistrats, en tant que moyen veillant au bon fonctionnement de la justice, poursuivait un but légitime”. CEDH, Affaire Ernst et autres v. Belgique, Requête No 33400/96, 15 juillet 2003, para 50. https://hudoc.echr.coe.int/eng?i=001-65779.

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is necessary to examine whether the applicants had access to other remedies to protect the rights guaranteed by the Convention21. It explained that filing a civil action within criminal proceedings, is a remedy of claim for damages, and the applicants would have resorted to other remedies to claim their rights22. The Court concluded that the limitations imposed on the right to file a claim before a court, based on judicial immunity, do not undermine the essence of the right to file a claim before a court and are not inconsistent with the provisions of article 6(1) of the European Convention on Human Rights23.

From the aforementioned explanations, the following key points can be understood: a. The right to appear before a competent court is one of the components of the right to due process of law;

21“Pour déterminer si un tel privilège de juridiction est admissible au regard de la Convention, il importe, selon la Cour, d'examiner si les requérants disposaient d'autres voies raisonnables pour protéger efficacement leurs droits garantis par la Convention”, ibidem, para 53. 22“A cet égard, la Cour attache de l'importance au fait qu'en droit belge, la constitution de partie civile entre les mains du juge d'instruction est un des modes d'exercice de l'action civile et que les victimes disposent en principe d'autres voies pour revendiquer leurs droits civils”, ibidem para 54. 23“La Cour estime que se limitant à reconnaître les spécificités liées au privilège de juridiction, les restrictions apportées au droit d'accès n'ont pas porté atteinte à la substance même de leur droit à un tribuna […] la Cour conclut qu'il n'y a pas eu violation du droit d'accès à un tribunal garanti aux requérants par l'article 6 § 1”, ibidem para 56- 57.

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b. The State enacts laws governing the right to appear before a competent court, at its discretion and in accordance with necessity; c. This right may be subject to limitations, such limitations should be admissible for legitimate purpose. Among such legitimate purposes include the fair administration of justice; d. A plaintiff cannot claim to have been denied the right to appear before a competent court if other remedies exist through which they can claim their rights.

Regarding to this instant case, Bucyensenge Mende Claude argues that article 161, paragraph 4 of Law n0 22/2018 of 29/04/2018 as mentioned above, deprives him of the right to appear before a competent court, because it prevents him from making a third-party opposition against the judgment rendered by the Court of Appeal.

Article 153(5) of the Constitution provides that a law determines the organisation, functioning and jurisdiction of Courts. This means that the Constitution empowers the legislator to define the competence of courts through legislation. Based on this power, the legislator provided in article 161, paragraph 4 of Law n0 22/2018 of 29/04/2018 as mentioned above, that judgments rendered by the Court of Appeal or the Supreme Court shall not be subject to third party opposition.

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The Court finds that, in enacting that provision, the legislator acted within his/her discretion for a legitimate purpose of ensuring the fair administration of justice because to make a third-party opposition against judgments rendered by the Court of Appeal or the Supreme Court would deprive the losing party of the right to appeal at least once, given such decisions of these courts are not subject to appeal24. As was also upheld in the case RS/INCONST/SPEC00004/2020/SC decided by the Supreme Court on 26/03/2021of Asiimwe Frank, the right to appeal once is inviolable, although it may be subject to limitations for a legitimate purpose.25.

The Court also finds that Bucyensenge Mende Claude cannot claim to have been denied the right to appear before a competent court, since he has other remedies through which to claim his rights. Indeed, as explained by Gasasira Ephrem, to make a third-party opposition against a judgment is not the only remedy available to a person seeking to have a decision that infringes upon their interests set aside, as such a person has the right to file a claim before another competent court of first instance26.

24 Article 52, last paragraph of Law n0 30/2018 of 02/06/2018 determing the jurisdiction of courts as amended by article 50 of the Law n0 012/2018 of 04/04/2018 determining organization and functioning of the Judiciary. 25Case RS/INCONST/SPEC00004/2020/SC decided by the Supreme Court on 26/03/2021 Asiimwe Frank, paragraph 26. 26“[…] La tierce opposition n’est pas une procédure obligatoire dans le chef d’un tiers qui veut faire annuler un procès qui préjudicie à ses intérêts”; Gasasira Ephrem, Manuel de Droit Rwandais, Procédure Civile et Commerciale, Printerset, 1993, p. 221.

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Based on all the aforementioned explanations, the Court finds that article 161, paragraph 4 of Law n0 22/2018 of 29/04/2018 relating to the Civil, Commercial, Labour, and Administrative Procedure as amended, is not inconsistent with article 29(1)(c) of the Constitution. c) Whether article 161, paragraph 4 of Law n0 22/2018 of 29/04/2018 relating to the Civil, Commercial, Labour, and Administrative Procedure as amended, contradicts article 34 of the Constitution.

Article 34 of the Constitution provides that every one has the right to private property, whether individually or collectively owned, and that such property is inviolable. It further stipulates that the right to property may not be interfered with except for reasons of public interest and in accordance with the provisions of law.

The right to private property is also guaranteed under article 17 of the Universal Declaration of Human Rights27, article 14 of the African Charter on Human and Peoples’ Rights28, and article 1 of Protocol n0 1 to the European Convention on Human Rights29.

27 Article 17 of the Declaration states: “Everyone has the right to own property alone as well as in association with others. No one shall be arbitrarily deprived of his property”. 28 Article 17 of the African Charter states: “The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws”. 29 Article 1 states: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions

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In the case of Broniowski v. Poland, the European Court of Human Rights stated that a person has the right to the peaceful enjoyment of property, and that when this right is not respected, it must be examined whether the interference with that property was in accordance with the law and based on legitimate and reasonable grounds30.

The Court finds that a law would be inconsistent with article 34 of the Constitution, which guarantees a person’s right to private property, if it either deprives the person of the property they own, subjects them to interference without their consent, or prevents them from using it peacefully.

The Court finds that Bucyensenge Mende Claude failed to prove how article 161, paragraph 4 of Law n0 22/2018 of 29/04/2018 mentioned above, allegedly deprives him of his property rights.

Based on the aforementioned explanations, the Court finds that article 161, paragraph 4 of Law n0 22/2018 of 29/04/2018 mentioned above, does not contradict article 34 of the Constitution.

provided for by law and by the general principles of international law”. 30 Case of Broniowski v. Poland, Strasbourg, 22 June 2004 § 148- 149: “Any interference with the enjoyment of a right of property recognised by the Convention must pursue a legitimate aim. it is thus for the national authorities to make the initial assessment as to the existence of a problem of public concern warranting measures to be applied in the sphere of the exercise of the right of property”. https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001- 61828%22]}

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III. DECISION OF THE COURT

Declares the claim filed by Bucyensenge Mende Claude, seeking to repeal article 161, paragraph 4 of Law n0 22/2018 of 29/04/2018 relating to the Civil, Commercial, Labour, and Administrative Procedure on the grounds that it contradicts the Constitution of the Republic of Rwanda, unfounded.

Declares article 161, paragraph 4 of Law n0 22/2018 of 29/04/2018 relating to the Civil, Commercial, Labour, and Administrative Procedure as amended, does not contradict articles 15, 29(1)(c), and 34 of the Constitution of the Republic of Rwanda.