Re. Dr BARIBWIRA

# Re. Dr BARIBWIRA

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2025-05-25 - Case/document no.: COURT-RS/INCOST/SPEC 00007/2023/SC - Collection: Supreme Court

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Re. Dr BARIBWIRA [Rwanda SUPREME COURT-RS/INCOST/SPEC 00007/2023/SC (Mukantaganzwa, P.J., Cyanzayire, Muhumuza, Kazungu and Kalihangabo, J.) 25 May 2025] The Constitution –The principle of equality before the law- Due to the fact that a party who raised the objection which was dismissed is entitled to file appeal against the ruling together with the judgment on the merits, he/she is different from a litigant who pleaded against it, who is entitled to immediately lodge appeal against the court decision which leads to the termination of proceedings; this does not imply the inequality before the law, because the two litigants are not in the same situation, and it has been so provided with reference to justified and reasonable grounds so as to avoid unnecessary dilatory proceedings. The Constitution – The Constitution –The right to appear before a competent court – It is the right to appear before a court with the jurisdiction over the case. Procedural law – Appeal – Appeal on the admissibility of a claim – The Legislator provided for the right and procedure for any party who is dissatisfied by the court’s decision on the admissibility of his/her claim – If the court decision can lead to the termination of proceedings, a dissatisfied party has the right to immediately file his/her appeal, but if the decision cannot prevent the continuation of the hearing of the case on the merits, a dissatisfied

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party has the right to lodge appeal against it together with the judgment on the merits. Facts : Dr Baribwira seized the Supreme Court and contended that the article 129, paragraph 3 of the Law N0 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure as amended to date, which provides that the decision establishing the inadmissibility of a claim may be subject to a separate appeal if such a decision can lead to the termination of proceedings, is contrary to the provisions of the article 15 of the Constitution of the Republic of Rwanda, which provides that all human beings are equal before the law. They enjoy equal protection of the law. He relates his argument to the case RCA 00139/2021/TGI/NYGE rendered by the Intermediate Court of Nyarugenge on 28 December 2022, wherein he raised an objection against the admissibility of the other party’s claim instantly, and it was dismissed, rather the hearing on the case merits proceeded. He argues that the Court never considered his objection, as it rather proceeded with the hearing on the merits, because the challenged article 129, paragraph 3 deprives him of the right for appealing against the Court’s decision; in case the Court admitted his objection, the other party would have thereof been entitled to immediately file the appeal against the decision related to it; therefore, he notes that the above article discriminates litigants as it entitles the party who did not raise the objection to lodge appeal, this contradicts the principle of equality before the law.

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The claimant as well states that article 129, paragraph 3 of the abovementioned Law N0 22/2018 of 29/04/2018 contradicts the provisions of article 29, paragraph 1, sub- paragraph c of the Constitution, since it does not safeguard the right to appear before a competent court. He refers his argument to a fact that when he raised an objection against the admissibility of the other party’s claim before the Intermediate Court of Nyarugenge and it was dismissed, rather the hearing on the case merits proceeded. For him, the right to appear before a competent court would have been observed, if his appeal against the decision preventing the continuation of the hearing of the case on the merits, pending a decision on the objection, as it is the case for the other party, the objection immediately leads to the termination of the proceedings. The State Attorney present in the hearing explains that the principle of equality of all human beings before the law provided under article 15 of the Constitution denotes that the law is equally applied to all human beings, only the human beings who are in the same category or in same situations should be equally treated. She submits that the article 129, paragraph 3, does not contradict the Constitution since the judgment about the objection does not end with the court’s decision, as the appeal against it is filed together with the judgment on the merits, the party that raises the objection is not wronged. Conversely, when the objection is admitted and it instantly terminates the proceedings while the losing party is unable to immediately file appeal against such decision without waiting for the decision of the judgment on the merits, he/she irreversibly loses his/her right. She further avers that in the interest of the enforcers of a law with the

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challenged article and the interest of the justice, the terms “peut” and “may” should be removed from the versions of French and English languages to avoid confusion for the provision to be uniformly construed in all languages in which the law is drafted. The State Attorney also submits that the challenged article does not contradict the provision of article 29, paragraph 1, sub-paragraph c of the Constitution and neither does it conflict the principle of the right to due process of law such as the right to appear a competent court because any party dissatisfied with the ruling about the raised objection, has the right to file appeal against it together with the judgment on the merits when the decision cannot prevent the continuation of the hearing of the case on the merits, or he/she can immediately file appeal if the decision can lead to the termination of proceedings. Held: 1. The Legislator provided for the right and procedure for any party who is dissatisfied by the court’s decision on the admissibility of his/her claim- If the decision can lead to the termination of proceedings, the dissatisfied party has the right to instantly file his/her appeal, but when the decision cannot prevent the continuation of the hearing of the case on the merits, the dissatisfied party has the right to lodge appeal against it together with the judgment on the merits. 2. Due to the fact that the party who raised the objection which was dismissed is entitled to file appeal against the ruling together with the judgment on the merits, he/she is different from a litigant who pleaded against it, who is entitled to immediately lodge appeal against the court

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decision which leads to the termination of proceedings; this does not imply the inequality before the law, because the two litigants are not in the same situation, and it has been so provided with reference to justified and reasonable grounds so as to avoid unnecessary dilatory proceedings. 3. The right to appear before a competent court is the right to be heard by a court entitled to hear the case. The petition lacks merit. Statutes referred to: Constitution of the Republic of Rwanda of 2003 as revised to date, articles 15, 29 and 96, Constitution of the Republic of Rwanda of 3/06/2003, article 19, International Covenant on Civil and Political Rights, article 14, Law N0 30/2018 of 02/08/2018 determining the jurisdiction of courts, article 44, Law N0 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure, articles 129 and 250. Cases referred to : Re Mironko François Xavier, RS/INCONST/SPEC00005/2023/SC, rendered by the Supreme Court on 07/03/2025. Re Murangwa Edward, RS/INCONST/SPEC00001/2022, 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.

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Murangwa Edward, RS/INCONST/SPEC00001/2019/SC rendered by the Supreme Court on 29/11/2019. Re Akagera Business Group (ABG), RS/SPEC/00001/16/CS, rendered by the Supreme Court on 23/09/2016. RCF/2019/ 655 endered by the Primary Court of Gihosha (Residence Court) on 26/11/2020. Constitutional Court, Decision N°91/2023, rendered on 08/06/2023, B.10, page 13. Case Konstantina Frantzeskaki v. Greece, Decision No 57275/17), Strasbourg, 12 February 2019. Affaire Zubac c. Croatie (Requête nᵒ 40160/12), Strasbourg, 4 April 2018. Affaire AshingdanE contre Royaume-Uni, Arrêt No 8225/78), Strasbourg, 28 May 1985. Scholars’ doctrines referred to: Droit judiciaire, Tome 2, Manuel de procédure civile, Bruxelles, Larcier, 2015, Hakim Boularbah, Olivier Caprasse et alii, sous la direction scientifique de Georges de Leval, p.772. Marc Uyttendaele, Précis de droit constitutionnel belge, Regard sur un système institutionnel paradoxal, Bruxelles, Bruylant, 2001, p. 481. A. Fettweis, A. Khol, G. de Leval, Eléments de compétence civile, Liège, P.ULG, 1988, p.1. Cass., 5 Mai 2004, Pas., 2004, p.762, in Georges de Leval et Frédéric Georges, Droit judiciaire, Tome 1, Institutions judiciaires et éléments de compétence, Bruxelles, Larcier, 2014, 2è édition, p.78, note 15.

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Judgment I. BACKGROUND OF THE CASE

Dr Baribwira Cyprien filed a claim before the Supreme Court and requested the Court to declare that article 129, paragraph 3 of the Law N0 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure as amended to date1 contradicts the articles 15 and 29, paragraph 1, sub-paragraph c of the Constitution.

He argues that the ground for filing this claim is that in the divorce judgment he pleaded against his wife, Dr. Gahimbare Laetitia, the divorce was granted, before the Primary Court of Kicukiro and the Intermediate Court of Nyarugenge, wherein he raised an objection related to the claim inadmissibility, but the Court dismissed his objection and the hearing of the judgment on the merits proceeded. He states that the objection he raised is based on the fact that in the divorce case file, the above mentioned Courts referred their rulings on a related judgment rendered by the Burundian Court2, their home country, without observing any procedure of “exequatur”3

1 This Law was amended by the Law N°007/2023 of 22/2023. 2 RCF/2019/ 655 rendered on 26/11/2020 by the Primary Court of Gihosha (Residence Court). 3 The article 44 of the Law N°30/20218 of 02/06/2018 determining the jurisdiction of courts provides that the High Court hears cases for exequatur of judgments and decisions rendered by foreign courts. The consideration of such a judgment is conducted to ascertain whether:

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as provided under the article 250 of the above mentioned Law N0 22/2018 of 29/04/2018.

He further submits that the continuation of the hearing while he had filed appeal against the decision about such objection, was possible in reference to the article 129, paragraph 3 of the challenged Law which provides that the decision establishing the inadmissibility of a claim may be subject to a separate appeal if such a decision can lead to the termination of proceedings, he notes that such a stance contradicts the above mentioned articles of the Constitution.

The State Attorney of the Republic of Rwanda submits that the impugned article does not contradict the articles 15 and 29, paragraph 1, sub-paragraph c of the Constitution, but she agrees that in the interest of the law enforcers, its drafting should be harmonized, its drafting in Kinyarwanda should be uniformly translated into English and French. The terms “can” and “peut” must be removed since they cause confusion.

The case was heard in public on 2 April 2025, Dr Baribwira Cyprien was represented by Counsel Pierre Claver Zitoni, while the Republic of Rwanda was represented by Counsel Umwali Munyentwali Claire and

1° the foreign judgment does not comprise an element incompatible with the public order and Rwandan law principles; 2° the judgment has acquired the force of res judicata in accordance with the laws of the country of origin; 3° the copy of the judgment fulfils all the conditions necessary for its authenticity in accordance with such laws; 4° the rights of defence have been respected.

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the Court firstly examined the issue related to the interest that Dr Baribwira Cyprien has into this case. - Concerning the interest that Dr. Baribwira Cyprien has into this case

Having heard both parties concurring on the fact that the claimant has interest into this case and the bench made an instant decision, the Court held that he has interest into the case since the article he is challenging concerns all citizens in general, including himself, so that it can affect their right; this is one of the grounds held by the Supreme Court that justify the analysis of the issue related to the interest of the plaintiff who files the claim about the unconstitutionality4.

With regard to the merits of the case, the parties debated on whether the article 129, paragraph 3 of the Law N0 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure as amended to date, contradicts the articles 15, and 29, paragraph 1, sub-paragraph c of the Constitution.

4 Interlocutory judgment rendered on 16/12/2022, case RS/INCONST/SPEC00001/2022, party: Murangwa Edward, §17, p.10.

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II. ANALYSIS OF THE ISSUES OF THE CASE 1. Whether the article 129, paragraph 3 of Law N0 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure as amended to date contradicts the article 15 of the Constitution

Dr Baribwira Cyprien argues that the article 129, paragraph 3 of the Law N0 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure as amended to date, which provides that the decision establishing the inadmissibility of a claim may be subject to a separate appeal if such a decision can lead to the termination of proceedings, contradicts the article 15 of the Constitution of the Republic of Rwanda, which provides that all human beings are equal before the law. They enjoy equal protection of the law. In the case RCA 00139/2021/TGI/NYGE rendered by the Intermediate Court of Nyarugenge on 28/12/2022, he raised an objection related to the inadmissibility of the other party’s claim, but his objection was dismissed, and the hearing rather proceeded with the judgment on the merits.

He states that his objection was not considered by the Court, rather it proceeded with the hearing of the case merits, because the challenged article 129, paragraph 3 of the Law N0 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure as amended to date, prevents him from appealing against the court’s decision; in case his objection was considered, the

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other party would have been allowed to file an immediate appeal; therefore he notes that such a provision discriminates the litigants, since it only allows the party who did not raise the objection to lodge appeal, a scenario that conflicts the principle of equality before the law.

The State Attorney, Counsel Umwali Munyentwali Claire, who represented the Republic of Rwanda, states that the principle of equality before the law which is provided under the article 15 of the Constitution, denotes that the law is equally applied to the human beings, the human being in the same category or in similar situations should be equally treated; the article 129, paragraph 3 of the Law N0 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure as amended to date, is not unconstitutional, as the decision does not terminate the proceedings, rather the appeal against such decision should be filed together with the judgment on the merits, the party that raised the objection is not wronged; while when the objection is admitted, the proceedings are immediately terminated, while the party losing about the objection is unable to immediately file appeal against such decision without waiting for the judgment on the merits, he/she is irreversibly deprived of the right.

Pleading about the statements of Dr Baribwira Cyprien, she sustains that the interpretation in Kinyarwanda of the article 129, paragraph 3 of the Law N0 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure as amended to date, is different from its versions in English

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and French languages, the Kinyarwanda version should be applied as it is the language of the law adoption, as provided under the article 96 (4) of the Constitution.

She however concludes by submitting that in the interest of the challenged law enforcers and of justice, the terms “peut” and “may” should be removed for avoiding the confusion in French and English, so that the challenged article should be uniformly construed in all languages. DETERMIANTION OF THE COURT

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 the above article have been explained by this Court through different cases that include the case RS/SPEC 00001/16/CS rendered on 23 September 2016, wherein the party was Akagera Business Group (ABG). In that case, the Court explained that the article 15 of the Constitution which provides that all human beings are equal before the law. They enjoy equal protection of the law; this implies that there should not be discrimination which should cause their inequality or non- enjoyment of their entitled rights5.

5 See Judgment RS/SPEC/00001/16/CS rendered on 23/09/2016, wherein the party was Akagera Business Group (ABC), paragraph 15

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The Court has also explained that equality before the law and non-discrimination may not mean that differentiating the human beings in all circumstances is discrimination, differentiating the people or categories of people might be necessary depending on legitimate and rational purpose6.

In the case RS/INCONST/SPEC 00001/2019/SC rendered on 29 November 2019, wherein the party was Murangwa Edward, the Court again explained how the principle of equality before the law should be interpreted, it held that things that are alike should be treated alike, and things that are unalike should be treated unalike in proportion to their unlikeness7.

The legal scholar Marck Uyttendaele has as well stated that the equality before the law should mean that all persons must be equally treated without inequality nor discrimination, an enacted law should equally treat the targeted people; however, even if the human beings should be equal before the law, differentiating or categorizing them cannot always be considered as discrimination in case of justified and reasonable purpose (justifié et raisonnable)8; the discrimination can be

6 Ibidem, Para 18.

7 See Judgment RS/INCONST/SPEC00001/2019/SC, rendered on 29/11/2019, wherein the party was Murangwa Edward, paragraph 34. 8 Les regles constitutionnelles de l’égalité des Belges et de la non- discrimination n’excluent pas qu’une différence de traitement soit établie selon certaines catégories de personnes pour autant que le critére de différenciation soit susceptible de justification et raisonable et que l’existence d’une telle justification doit s’apprécier

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considered when the people are differentiated without justified nor reasonable purpose9.

The provision of the article 129, paragraph 3 of the Law N0 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure as amended to date, challenged by the claimant alleging that it contradicts the article 15 of the Constitution, it provides that the decision establishing the inadmissibility of a claim may be subject to a separate appeal if such a decision can lead to the termination of proceedings. Dr Baribwira Cyprien states that such article creates the inequality of parties because the party that raises the objection which is not considered, is not entitled to immediately file appeal, but he/she waits for the judgment on the merits; however, in case such objection is considered, the party who does not raise the objection is entitled to immediately file appeal against the decision taken on it.

The legal scholars explain that an appeal is an ordinary procedure by which a party that feels aggrieved

par rapport au but et aux effets de la norme considérée; le principe de l’égalité est violé lorsqu’il est établi qu’il n’existe pas de rapport raisonable de proportionalité entre les moyens employés et le but visé”. ( Marc Uyttendaele, Précis de droit constitutionnel belge, Regard sur un système instutionnel paradoxal, Bruxelles, Bruylant, 2001, P. 481). 9 Issues reiterated by the Belgium Constitutional Court, Constitutional Court, Decision N°91/2023renderd on 08/06/2023, B.10, page 13.

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by a judgement requests the court higher than the one having heard the case to quash or rectify such judgment.10

The Court finds that the Legislator provided to any aggrieved party the right and the procedure for filing appeal against the court’s decision on the admissibility of his/her claim. In case the decision leads to the termination of proceedings, the dissatisfied party is entitled to immediately file appeal, but when the court’s decision allows proceeding with the hearing on the case merits, the unsatisfied party is entitled to file appeal against it together with the judgment on the merits.

The Court finds that discrimination is considered when the law unequally treats the litigants whose objections are dismissed : whereby some are entitled to lodge immediate appeal against the decision without waiting for the judgment on the merits, others are not entitled to so proceed while they are all in a similar situation. Due to the fact that when the raised objection is admitted, the party pleading about it is entitled to immediately file appeal, it is evident that when the raised objection is admitted, the proceedings are terminated; this means that the party pleading about it does not immediately file appeal, is irreversibly deprived of such right. Such party should not be considered as being in the

10 “L’appel est la voie de recours ordinaire par laquelle la partie qui s’estime lésée par un jugement en sollicite l’annulation ou la reformation par une juridiction supérieure” (Droit judiciaire, Tome 2, Manuel de procédure civile, Bruxelles, Larcier, 2015, Hakim Boularbah, Olivier Caprasse et alii, sous la direction scientifique de Georges de Leval, p.772).

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same situation as the one who raised the objection which is not admitted.

The Court therefore finds that the fact that paragraph 3 of article 129 of the above mentioned Law N0 22/2018 of 29/04/2018 differentiating the parties cannot be interpreted as inequality before the law, more so that they are not in the same situations and it has been so provided due to justified and reasonable grounds that include avoiding unnecessary dilatory proceedings.

Considering all the above provided explanations, the Court finds that article 129, paragraph 3 of the Law N0 22/2018 of 29/04/2019 relating to the civil, commercial, labour and administrative procedure as amended to date, does not contradict the provisions of article 15 of the Constitution. 2. Whether the article 129, paragraph 3 of the Law N0 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure as amended to date contradicts the article 29, paragraph 1, sub-paragraph c of the Constitution

Dr Baribwira Cyprien avers that the article 129 paragraph 3 of the Law N0 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure as amended to date contradicts the provisions of article 29, paragraph 1, sub-paragraph c of the Constitution, because it violates the rights to due process of law, notably the litigant’s right to appear before a competent court. He submits that he bases his argument on the fact that he raised the objection related to the

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inadmissibility of his other party’s claim before the Intermediate Court of Nyarugenge and it was not admitted, rather the hearing of the case on the merits proceeded.

The State Attorney states that the above mentioned article does not contradict the Constitution, neither does it violate the right to due process of law, especially the party’s right to appear before a competent court, because any litigant dissatisfied with the ruling of the judgment on the merits about the raised objection, has the right to file appeal against it together with the judgment on the merits, in case such decision cannot lead to the termination of the proceedings or to immediately lodge appeal against it in case such decision can lead to the termination of the proceedings. In other words, she sustains that the right to appear before a competent court provided under the article 129, paragraph 3 of the above mentioned Law N0 22/2018 of 29/04/2018, because each party, depending on the situations, is entitled with the procedure of proving that he/she is dissatisfied with the ruling. DETERMINATION OF THE COURT

Article 29, paragraph 1, sub-paragraph 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.

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The above mentioned right is also enshrined in International Conventions that Rwanda has ratified. We can hereby cite article 14, paragraph 1 of the International Covenant on Civil and Political Rights which provides that […] everyone shall be entitled to a fair and public hearing by a competent, independent and impartial court established by law11.

In the judgment RS/INCONST/SPEC 00004/2020/SC rendered on 26 March 2021, wherein the party was Asiimwe Frank, this Court held that the right to appear before a competent court is one of the rights meant for due process of law12.

In the judgment RS/INCONST/SPEC 00005/2023/ SC rendered on 07 March 2025, wherein the party was Mironko François-Xavier, this Court held that for a litigant to enjoy the right to fair trial, the litigant’s case must have observed the following (d): everyone has the right to be heard by a competent, independent and impartial court established by law, and this requirement is

11 “All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. […]”. 12 See Judgment Nᵒ RS/INCONST/SPEC 00004/2020/SC rendered by the Supreme Court on 26/03/2021, wherein the party was Asiimwe Frank, paragraphs 18 and 19.

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coupled with the principle that no one should be a judge for his/ her own cause13.

In this case, the issue at hand is the decision about the inadmissibility of the objection which was not considered, when the party who raised it filed appeal, the hearing of the judgment on the merits was not immediately terminated, rather it proceeded, before the Court which took such decision. The applicant states that he notes that the right to due process of law by appearing before a competent court would have been observed if his appeal on the objection was immediately heard by the court higher than the one having heard the case. In other words, for him, his right to appear before a competent court would have been respected, only if his appeal on the objection had led to the termination of proceedings, pending a ruling on his objection ; just as it is the case for the other party, if the objection leads to the termination of proceedings.

The legal scholars explain that the court’s jurisdiction is its portion entitled to each court, in consideration of all courts14, the jurisdiction is the authority to hear and render a case15.

13 See Judgment RS/INCONST/SPEC00005/2023 rendered on 07/03/2025, wherein the party was Mironko François-Xavier, paragraph 35 14 “La compétence est la portion de juridiction attribuée par la loi à chacun des tribunaux de l’ordre judiciaire” (A. Fettweis, A. Khol, G. de Leval, Eléments de compétence civile, Liège, P.ULG, 1988, p.1). 15 “Pour une juridiction, [la] compétence est l’aptitude à instruire et juger une affaire, à en connaître” (Gerard Cornu, Vocabulaire juridique, V°, compétence).

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This denotes that, for a litigant, the right to appear before a competent court is the right to be heard by a court that has been legally established to hear his /her case; such a court must be firstly provided under the law, instead of being established by the time when the issue occurs. For example, if Rwanda Revenue Authority (RRA) incriminates a company X for the unpaid taxes, it will take X to the commercial courts, since it is the commercial courts that have the jurisdiction to hear tax-related claims. Therefore, they are entitled with such jurisdiction.

Anyone who needs to understand “the competent court” as it is provided under article 29 of the Constitution, he/she should read jointly all its sub- paragraphs (b) and (c). The sub-paragraph (b) reads that (…), Everyone has a right to due process of law which includes the right to be presumed innocent until proven guilty by a competent court, while the sub-paragraph (c) provides for the right to appear before a competent court. The provision of sub-paragraph (b) concerns the criminal matters, a suspect is tried by a court firstly provided under the law and which exists by the time of the offence commission and has the jurisdiction to hear the case.

[34] In the sub-paragraph (c) of the article 29, the idea is about the competent court in general. Even at this point, such a court must be established by the law, existing and competent to hear the party’s case. The common idea in sub-paragraphs (b) and (c) is that a competent court must have been established by a law, it cannot be an ad- hoc court, specifically established.

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The underlying idea of article 29 (b) and (c) of the Constitution is as well reflected in other countries’ Constitutions. For example, article 15 of the Belgium Constitution provides under the article 15 that no one shall be barred from being heard by his/her legally entitled judge16. The Cassation Court of Belgium explained that the rationale of such article is that everyone must be tried with reference to the existing laws relating to the jurisdiction of courts and judicial procedures, none shall be brought before any court other than the legally provided and existing ones17.

In the case Zubac v. Croatia, the European Court of Human Rights explained that the right to appear before a competent court is a right that is provided under article 6 (1) of the European Convention on Human Rights, the Court elucidated that everyone has the right to have his rights and obligation grievances referred to a court, and the court clarified about a need for well-structured judicial

16 Nul ne peut être distrait, contre son gré, du juge que la loi lui assigne”. This was the language of the principle under the Rwandan Constitution of 03 June 2003. See article 19, paragraph 2, French translation. 17 “L’article 13 de la Constitution (…) énonce que nul ne peut être distrait, contre son gré, du juge que la loi lui assigne, signifie uniquement que toute personne doit être jugée suivant les règles de compétence et de procédure objectivement fixées et ne peut être citée devant une juridiction autre que celle prévue par la loi” (Cass., 5 mai 2004, Pas., 2004, p.762, in Georges de Leval et Frédéric Georges, Droit judiciaire, Tome 1, Institutions judiciaires et éléments de compétence, Bruxelles, Larcier, 2014, 2è édition, p.78, note 15).

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procedures for referring matters to courts and seeking restoration of any violated rights18.

In the case Ashingdone v. United Kingdom19, and the case Konstantina Frantzeskaki v. Greece20, the European Court of Human Rights clarified that the litigant’s right to be heard by a competent court should not be considered absolute. It was so held since States always

18 Affaire Zubac c. Croatie (Requête nᵒ 40160/12), Strasbourg, 4 Avril 2018, §§ 76 et suivants: “Le droit d’accès à un tribunal a été défini comme un aspect du droit à un tribunal au sens de l’article 6 § 1 de la Convention. Se référant aux principes de la prééminence du droit et de l’interdiction de tout pouvoir arbitraire qui sous-tendent pour une bonne part la Convention, la Cour y avait conclu que le droit d’accès à un tribunal était un élément inhérent aux garanties consacrées par l’article 6. Ainsi, l’article 6 § 1 garantit à chacun le droit de faire statuer par un tribunal sur toute contestation portant sur ses droits et obligations de caractère civil”. 19 Affaire Ashingdane contre Royaume-Uni, Arrêt No 8225/78), Strasbourg, 28 Mai 1985, § 57: “[….] Le droit d’accès aux tribunaux n’est pas absolu. Il peut donner lieu à des limitations implicitement admises car il appelle de par sa nature même une réglementation par l’État, réglementation qui peut varier dans le temps et dans l’espace en fonction des besoins et des ressources de la communauté et des individus. Elles ne se concilient avec l’article 6 par. 1 que si elles poursuivent un but légitime et s’il existe un rapport raisonnable de proportionnalité entre les moyens employés et le but visé”. 20 Affaire Konstantina Frantzeskaki contre la Grèce, Arrêt No 57275/17), Strasbourg, 12 février 2019, § 29-30: “[….] Toutefois, le droit d’accès à un tribunal n’est pas absolu et se prête à des limitations implicitement admises, car il appelle de par sa nature même une réglementation par l’État, lequel jouit à cet égard d’une certaine marge d’appréciation. En outre, les limitations appliquées ne se concilient avec l’article 6 § 1 de la Convention que si elles poursuivent un but légitime et s’il existe un rapport raisonnable de proportionnalité entre les moyens employés et le but visé”.

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reserve a right to limit such a right due to some justified purpose and the existence of reasonable nexus between the applied procedure and the purpose.

The Court finds that the statements of Dr Baribwira Cyprien that his right to appear before a competent court was violated, as he is not entitled to lodge appeal against the objection he only raised, cannot be considered because the fact that the Legislator provided that the court’s decision on an objection can only be separately appealed when such decision can lead to the termination of the proceedings, but when such a decision does not lead to the termination of the case on the merits, any dissatisfied party has the right to file appeal against it together with the judgment on the merits, does not deprive him of his right to appear before a competent court, as above elucidated.

The fact that the Legislator provides that the decision on the objection can be separately appealed when such a decision can lead to the termination of the proceedings, is not a particularity of Rwanda, since it is also provided under the laws of other countries such as Italy21.

The Court finds that article 129, paragraph 3 of the above mentioned Law N0 22/2018 of 29/04/2018 does not

21 “En Italie, selon l'article 340 du Code de procédure civile, une décision rendue sur une fin de non-recevoir est susceptible d'appel séparé si elle met fin à l'instance. Cette règle s'applique également aux décisions interlocutoires, à condition qu'elles aient un effet substantiel sur la poursuite de l'instance”.

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contract the article 29, paragraph 1, sub-paragraph c of the Constitution, neither does it deprive Dr Baribwira Cyprien of his right to due process of law, more especially his right to appear before a competent court, because, the fact that he is not entitled to immediately lodge appeal against the decision on the objection related to the inadmissibility of the claim he filed, does not deprive him of the right to so proceed when the judgment on the merits is pronounced and he is dissatisfied with its decision.

Regarding the statements of Dr Baribwira Cyprien that the impugned article contains typographical errors in the judgement copy, the rectification of typographical errors cannot be effectuated along with the application seeking to declare unconstitutional the legal provisions.

Considering all the above provided explanations, the Court finds that article 129, paragraph 3 of the Law N0 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure, does not contradict the provisions of article 29, paragraph 1, sub-paragraph c of the Constitution. III. DECISION OF THE COURT

Holds that the application filed by Dr Baribwira Cyprien seeking to declare unconstitutional the article 129, paragraph 3 of the Law N0 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure as amended to date, is unfounded.

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Holds that article 129, paragraph 3 of the Law N0 22/2028 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure as amended to date, does not contradict the articles 15 and 29, paragraph 1, sub-paragraph c of the Constitution of the Republic of Rwanda.