PROSECUTION v. MUKAMWIZA et al

# PROSECUTION v. MUKAMWIZA et al

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2016-03-11 - Case/document no.: RPA 0078/12/CS - Collection: Supreme Court

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PROSECUTION v. MUKAMWIZA et al [Rwanda SUPREME COURT – RPA 0078/12/CS (Mugenzi, PJ, Mutashya and Gatete, J.) March 11, 2016] Criminal Law – Penalty reduction – The judge shall determine a penalty according to the gravity of the offence taking into account offender’s motives, history and background, circumstances surrounding the commission of the offence and individual circumstances regardless of delayed their guilty plea – Organic Law n° 01/2012/OL of 02/05/2012 instituting the penal code, article 71. Facts: Munyakayanza Daniel, the former husband of Mukamwiza Vérédiane, and father of Hagenimana Jean Bosco and Ntakiyimana, was murdered and his body was thrown into toilet. Mukamwiza Vérédiane and his sons Ntakiyimana and Hagenimana Jean Bosco were suspected. The prosecution filed the case to the High Court, Rusizi chamber, accusing them assassination and parricide. As Hagenimana was minor, the High Court taht was seized decided to transfer the case to the Intermediate Court of Karongi, the one holding jurisdiction to hear cases against minors. The court convicted Mukamwiza Vérédiane and Hagenimana Jean Bosco, while Ntakiyimana was acquitted due to the lack of strong evidence. The court sentenced Mukamwiza Vérédiane to life imprisonment, while Hagenimana Jean Bosco was sentenced to twenty (20) years of imprisonment‚ his penalty reduced because he was only 15 years old at the time the offence was committed. Immediately, both appealed to the High Court, Rusizi chamber which found that the accused failed to challenge the incriminating evidence on which the previous court relied to convict them. Therefore, the court sustained the appealed judgment for both of them. They lodged an appeal before the Supreme Court, changing their pleadings into guilty plea and seeking forgiveness. The Prosecution contends that the penalty inflicted to Mukamwiza Vérédiane should be reduced because she had the courage to plead guilty, but her penalty should not be less than twenty years of imprisonment (20) the penalty of twenty(20) years of imprisonment, while the penalty inflicted to Hagenimana Jean Bosco should be sustained, because there is no other cinrcumstance that should make it reduced. However, he added, in case the court has a different opinion, it should decide on it. Held: The judge shall determine a penalty according to the gravity of the offence taking into account offender’s motives, history and background, circumstances surrounding the commission of the offence and individual circumstances. Therefore, the the penalty inflicted to both accused must be reduced regardless of their delayed guilty plea. Appeal has merit. Appealed judgment changes with regard to the penalty. Court fees charged to the public treasury. Statutes and statutory instruments referred to:

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Organic Law N° 01/2012/OL of 02/05/2012 instituting the penal code, articles 71 and 76 Decree - Law Nº 21/77 of 18/08/1977 instituting the penal code in Rwanda, article 83. Law Nº 30/2013 of 24/5/2013 relating to the code of criminal procedure, article 165,2o. Case laws referred to: RPA 0282/08/CS rendered by the Supreme Court on 12 March 2010, published in Rwandan Law Report, Volume I 2011, no8, January, 2011, page 15-22 RPA 0246/09/CS rendered by the Supreme Court on 14 December 2012, published in Rwandan Law Report, Volume II 2013, no17, April, 2013, page 41-45 Judgment I. THE BRIEF BACKGROUND OF THE CASE [1] In the night of 29 January 2001, Munyakayanza Daniel, the former husband of Mukamwiza Vérédiane, and father of Hagenimana Jean Bosco and Ntakiyimana, was murdered and his body was thrown into toilet. Mukamwiza Vérédiane and his sons Ntakiyimana and Hagenimana Jean Bosco were suspected. The prosecution filed the case to the High Court, Rusizi chamber, accusing them assassination and parricide. [2] During the hearing before the High Court,as Hagenimana Jean Bosco was still minor, the Court decided to transfer the case to the Intermediate Court of Karongi, the one holding jurisdiction to hear cases against minors. [3] The Court rendered the verdict, convicting Mukamwiza Vérédiane and Hagenimana Jean Bosco, while Ntakiyimana was acquitted due to the lack of strong evidence. The court sentenced Mukamwiza Vérédiane to life imprisonment, while Hagenimana Jean Bosco was sentenced to twenty (20) years of imprisonment‚ his penalty reduced because he was only 15 years old at the time the offence was committed. [4] Mukamwiza Vérédiane and Hagenimana Jean Bosco have immediately appealed to the High Court, Rusizi chamber. Mukamwiza Vérédiane was stating that witnesses wrongly accused her while Hagenimana Jean Bosco stated that he was convicted of murder as if it was intended while it was not. The court rendered the verdict on 29 December and found that the accused failed to challenge the incriminating evidence on which the previous court relied to convict them. Therefore, the court sustained the appealed judgment for both of them. [5] Mukamwiza Vérédiane and Hagenimana Jean Bosco lodged an appeal to the Supreme Court, and the hearing was scheduled on 8 February 2016, Mukamwiza Vérédiane present and assisted by the Counsel Uramije James, while Hagenimana Jean Bosco was assisted by Counsel Mukanyandwi Rois. On behalf of the Prosecution, Higaniro Hermogène, the Prosecutor at the National level was present.

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II. ANALYSIS OF LEGAL ISSUES . 1. Whether the guilty plea by the accused can serve as a mitigating circumstances. a. With regard to Mukamwiza Vérédiane [6] Mukamwiza Vérédiane states that she changes her pleadings because she intends to tell truth, that she pleads guilty and seeks forgiveness. She proceeds that they use to have ethnic, economic and adultery related conflicts with her husband, something which made them separated and the deceased went to live in another house with his son Hagenimana Jean Bosco. She keeps on stating that she once plotted to kill her husband, and shared it with Hagenimana Jean Bosco, requesting him to help him as he had started to have an affair with other women with whom they even got children, something which had direct impact to her kid’s assets. She states that Hagenimana Jean Bosco accepted her plot and he opened the door for her in the night, she got in and strangled her with loincloth. She keeps on stating that aftr killing him Hagenimana Jean Bosco helped her to throw him intp the toilet, the offence for which she is seeking mercy especially that she mixed his son into such malicious plot, requesting the penalty reduction. [7] Counsel Uramije James argues that the statements made by Mukamwiza Vérédiane are faithful and reflect the given testimonies. Therefore, it should be considered. [8] The Prosecution contends that the penalty inflicted to Mukamwiza Vérédiane should be reduced because she had the courage to plead guilty, but her penalty should not be less than twenty years of imprisonment (20) OPINION OF THE COURT [9] Article 76 of Organic Law n° 01/2012/OL of 02/05/2012 instituting the penal code provides that the judge shall determine a penalty according to the gravity of the offence taking into account offender’s motives, history and background, circumstances surrounding the commission of the offence and individual circumstances, while article 83 of the Decree - Law nº 21/77 of 18/08/1977 instituting the penal code in Rwanda that was into force at the time the offence was committed provides tha way penalties are reduced in case of mitigating circumstances. [10] The Court finds that in the previous courts, Mukamwiza Vérédiane wanted to conceal the truth but however, before this court, she changed her mind and pleaded guilty, explaining her role and motive of the offence, proving the regret and forgiveness seeking. Therefore, the court finds her guilty plea sincere. [11] The court finds that nothing can prevent the accused to plead guilty in the appeal even when he/she pleaded not guilty at the first instance, because no time limit is provided for by the Law for the guilty plea. This view was shared by this court in the case RPA 0282/08/CS rendered on 12 March 2010 where the court found that the delayed guilty plea as such cannot prevent the reduction of the penalty inflicted to the accused1, even in the case RPA 0246/09/CS rendered on 1 Rwandan Law Report, Volume I 2011, no8, January, 2011, page 15-22

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14 December 2012, the court found that the fact that the accused did not admit the offence before the commencement of prosecution cannot prevent his/her penalty to be reduced while he/she during appeal explained the way he/she committed it and sought forgiveness1. Therefore, the penalty inflicted to Mukamwiza Vérédiane should be reduced due to the fact that she pleaded guilty and sought forgiveness. [12] With regard to the penalty reduction, the court finds that in the light of the provisions of article 71 of Organic Law nº 01/2012/OL of 02/05/2012 instituting the penal code provides that The judge shall determine a penalty according to the gravity of the offence taking into account offender’s motives, history and background, circumstances surrounding the commission of the offence and individual circumstances. Mukamwiza Vérédiane deserves the slight penalty reduction because she is the one who plotted to kill her husband, and shared it with Hagenimana Jean Bosco, who, following the young age and respect he has for her mother accepted to be her accomplice in such wicked act till it was executed. [13] The court finds that considering the above mentioned, the penalty that was inflicted to Mukamwiza Vérédiane shouldbe reduced from the life imprisonment to twenty years of imprisonment (20). 2. With regard to Hagenimana Jean Bosco [14] Hagenimana Jean Bosco admits to have been accomplice in the murder, explaining that her parents started having ethnic related conflicts. He keeps on stating that the conflicts remained till they were separated, though divorce was not yet pronounced and he opted for living with his father. He proceeds that her mother Mukamwiza Vérédiane come up to convince him that his father was intending to live with other wives. She told him that she would come at their home during the night and when she arrived, he opened the door for her, left her come in and he went out. He states that he had quarrels from outside the house and when he got in the house, heis mother told him that she had accidentally killed his father. Hagenimana Jean Bosco admits to have known the plot and adds that considering the way his father was, his mother Mukamwiza Vérédiane would not fail to kill him. He concludes that he started by protecting his mother and concealing the truth, but then, hep leads guilty and seeks forgiveness, requesting the penalty reduction. [15] Counsel Mukanyandwi Rois argues that Hagenimana Jean Bosco started being rigid with justice entities, but before this court, he ended up by being flexible. She adds that the fact that hep leads guilty at a late stage could not prevent his penalty to be reduced, because the High Court reduced his penalty only with regard to the fact that he was minor. She requested the consideration of articles 77, 82 and 83 of Decree - Law nº 21/77 of 18/08/1977 instituting the penal code in Rwanda that was into force at the time the offence was committed. [16] The Prosecutor contends that the penalty of twenty(20) years of imprisonment inflicted to Hagenimana Jean Bosco should be sustained, because there is no other cinrcumstance that should make it reduced. However, he added, in case the court has a different opinion, it should decide on it. 1 Rwandan Law Report, Volume II 2013, no17, April, 2013, page 41-45

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The opinion of the court [17] Article 76 of Organic Law n° 01/2012/OL of 02/05/2012 instituting the penal code provides that the judge shall determine a penalty according to the gravity of the offence taking into account offender’s motives, history and background, circumstances surrounding the commission of the offence and individual circumstances, while article 83 of the Decree - Law nº 21/77 of 18/08/1977 instituting the penal code in Rwanda that was into force at the time the offence was committed provides tha way penalties are reduced in case of mitigating circumstances. [18] The court notices that in his pleadings before the previous courts, Hagenimana Jean Bosco concealed the truth, but rather intended to protect his mother. However before this court, he changed his pleading and opted for the guilty plea while explaining the motive behind the offence and his role in its commission. He proved therefore, the regret by seeking forviveness, and the court finds sincere his guilty plea. [19] The court finds that though he pleaded guilty in the appeal level, it could not be a ground for not reducing his penalty, because as it was considered with regard to Mukamwiza Vérédiane, there is no time limit set for the accused to plead guilty. [20] With regard to the penalty reduction, the court finds that considering the provisions of article 71 of Organic Law nº 01/2012/Ol of 02/05/2012 instituting the penal code stating that The judge shall determine a penalty according to the gravity of the offence taking into account offender’s motives, history and background, circumstances surrounding the commission of the offence and individual circumstances, Hagenimana Jean Bosco deserves a slight penalty reduction because even if he was misled by hi mother, he found himself committing parricide. [21] The court finds that at the light of the above mentioned, the penalty inflicted to Hagenimana Jean Bosco should be reduced to fifteen (15) years of imprisonment. III. THE DECISION OF THE COURT. [22] Finds appeal lodged by Hagenimana Jean Bosco and Mukamwiza Vérédiane with merit; [23] Sentences Mukamwiza Vérédiane to twenty (20) years of imprisonment; [24] Sentences Hagenimana Jean Bosco to fifteen (15) years of imprisonment; [25] Decides that the judgment RP 0001/10/HC/RSZ rendered by the High Court, Rusizi chamber on 29 December 2011 changes only with regard to the penalty inflicted to Mukamwiza Vérédiane and Hagenimana Jean Bosco; [26] Orders that the court fees be charged to the public treasury.