Re NGENDAHAYO KABUYE (Fond)

# Re NGENDAHAYO KABUYE (Fond)

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2023-02-10 - Case/document no.: RS/INCONST/SPEC 00004/2021/SC - Collection: Supreme Court

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Re NGENDAHAYO KABUYE (Fond) [Rwanda SUPREME COURT – RS/INCONST/SPEC 00004/2021/SC – (Mukamulisa, P.J., Cyanzayire, Nyirinkwaya, Hitiyaremye and Karimunda, J.) February 10, 2023] Constitution – Petition seeking to declare a law or a legal provision unconstitutional – Amicus curiae – An applicant for being amicus curiae should not only be reiterating the parties’ statements, rather, he/she is required to have a remarkable experience on the matter and has been conducting a research on issues relating to the subject matter in the case. Constitution – The principle of equality before the law and non-discrimination – Giving a special consideration to a widow/widower in comparison with other heirs should not be construed as discrimination or inequality before the law since such person has lost a spouse, whom they used to share household responsibilities which the widowed has to account for alone, considering that he/she contributed to the acquisition of the family property, while other heirs did not. Constitution – Right to property – The right to property shall not be encroached upon except in public interest and in accordance with the provisions of the law – No one shall claim the right to property that is not entitled to him/her yet, since such right is normally reserved for the

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assets one owns, and not the property one expects to own in the future. Family law – Succession – Opening of succession – Succession for spouses opens when they both decease or in case one of them remarries – The right to succession is made clear upon the opening of succession, and at that time, real heirs are identified and modalities for the succession are defined. Facts: Counsel Ngendahayo Kabuye petitioned the Supreme Court seeking to declare paragraph 2 of article 8, paragraph 3 of article 52, articles 75 and 76 (1o) of the Law nº 27/2016 of 08/07/2016 governing matrimonial regimes, donations and successions, inconsistent with articles 15, 18 and 34 of the Constitution of the Republic of Rwanda of 2003 revised in 2015 on grounds that when one of the spouses deceases, and it is found that there exists other children who were not born to both spouses, and other heirs in general, the remaining parent use the impugned articles to grab the entire property for him/herself alone, with no intention to share it with other heirs especially when they are not under his/her care. The petitioner refers to this to seek declaration that the foregoing is in contradiction with the principle of equality of all people before the law provided under the aforementioned article 15 of the Constitution of the Republic of Rwanda. The petitioner elucidates that the impugned articles are inconsistent with article 18 of the said Constitution, since such articles are the causes of family conflicts which may lead to other offences such as murder, and instead of

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protecting the family, they allow the widow/widower to grab the entire property for him/herself alone until he/she deceases or remarries, and surprisingly giving him/her the right to succeed the de cujus. He concludes by alleging that the impugned articles are inconsistent with article 34 of the Constitution of the Republic of Rwanda as they allow the surviving spouse to grab the entire property using the right entitled to him/her by matrimonial regime of community of property, hence disregarding the rights of other heirs of the de cujus especially children of the latter, while succession consists of the transfer of rights and obligations on the assets and liabilities of the de cujus. The petitioner finds that depriving some of the heirs of their right to succession is also depriving them of the right to property, while succession is a fundamental right. State Attorneys submit that paragraph 2 of article 8, and article 76 (1˚) of the aforementioned law nº 27/2016 of 08/07/2016 are not inconsistent with article 15 of the Constitution of the Republic of Rwanda since they contain no inequality among the heirs. The widow/widower does not remain with the property of the de cujus as the heir, rather, as the owner since the succession is not yet opened. In addition, article 76 (1o) does neither contain any discrimination, since when one of the spouses deceases, the impugned article entitles him/her the duty to take care of the children he/she had with the de cujus including children who were not born to both spouses. They conclude by submitting that the legislator’s purpose in the aforementioned law, was to provide special protection to the surviving spouse, on ground that it was

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found that in case of the death of one of the spouses, the surviving spouse especially the widow was used to be mistreated, harassed and even deprived of the right to the property she co-acquired with the de cujus whereas they were married under community of property regime. The issue of children who were not born to both spouses, who may be mistreated by the surviving spouse, this has also been provided by the legislator, where the latter gave the widow/widower the duty to take care of his/her children including legitimate children of the de cujus. Representatives of the School of Law of the University of Rwanda, who intervened as amicus curiae, aver that when you analyze the impugned articles, you find them contradicting the principle of equal rights and power for spouses married under community of property regime, whereby they agree to join their entire property, and with such matrimonial regime, each spouse has the right to the half of the co-owned property. They conclude by upholding that the two articles alleged to be inconsistent with the Constitution, are really problematic, since by allowing the surviving spouse to grab the entire property and use it as he/she wishes, while there are other heirs, this contradicts the principle of equality before the law provided under article 15 of the Constitution. Held: 1. An applicant for being an amicus curia should not only be reiterating the parties’statements, rather, he/she is required to have a remarkable experience on the matter and has been conducting a research on issues relating to the subject matter in the case.

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2. Giving a special consideration to a widow/widower in comparison with other heirs should not be construed as discrimination or inequality before the law since such person has lost a spouse, whom they used to share household responsibilities which the widowed has to account for alone, considering that he/she contributed to the acquisition of the family property, while other heirs did not. 3. The right to property shall not be encroached upon except in public interest and in accordance with the provisions of the law. No one shall claim the right to property that is not entitled to him/her yet, since such right is normally reserved for the assets one owns, and not the property one expects to own in the future. 4. The surviving spouse is entitled to the entire property and succession opens when he/she remarries or dies, limitations on the size of the property he/she may donate or give as a heritage are set, and penalties in case of failure to fulfil his/her duty to take care of their children left by the de cujus in order to avoid and minimize conflicts relating to succession, are provided. 5. Succession for spouses married under community of property regime opens when they both decease or in case one of them remarries. The right to succession is made clear upon the opening of succession, and at that time, real heirs are identified and modalities for the succession are defined. Petition seeking to declare provisions of a law unconstitutional lacks merit.

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Statutes and statutory instruments referred to: The Constitution of the Republic of Rwanda of 4/06/2003 revised in 2015, articles 10, 15, 16, 17, 18 and 34; Universal declaration of human rights of 1948, articles 7 and 17; Article 1 of Protocol nº 1 to the European Convention on Human Rights; Article 239, the National Civil (Code) Act, 2017 (2074); African Charter on Human and Peoples' Rights of 27/06/1981 article 3 and 14; Law nº 32/2016 of 28/08/2016 governing persons and family, article 2; Law nº 27/2016 of 08/07/2016 governing matrimonial regimes, donations and successions, articles 8, 49, 51, 52, 55, 56, 57, 59, 73, 75, 76, 83-87, and 94- 99; Law n° 22/99 of 12/11/1999 to Supplement Book I of the Civil Code and to Institute Part Five Regarding Matrimonial Regimes, Liberalities and Successions. Cases referred to: RS/INCONST/SPEC 00001/2019/SC, Re Murangwa Edward, rendered by the Supreme Court on 29/11/2019. RS/SPEC/0001/16/CS, Re Akagera Business Group rendered by the Supreme Court on 23/09/2016. RS/SPEC/0002/15/CS, Democratic Green Party of Rwanda, rendered by the Supreme Court on 09/09/2015.

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RS/INCONST/PEN 0005/12/CS, Prosecution v Uwinkindi Jean, rendered by the Supreme Court on 22/02/2013. HRC, Muller and Engelhard v Namibia (Communication nº. 919/00). Morarjee Rajkotia & Ors vs Union of India & Ors case nº 46 of 1965, on 4 February, 1966. The case no 22744, John O. Miron and Jocelyne Valliere v; Richard Trudel, William James Mc Isaac and the Economical Mutual Insurance Companye vs. The Attorney General of Canada, the Attorney General for Ontario, the Attorney General of Quebec and the Attorney General of Manitoba, decided by the Supreme Court of Canada, on 25/05/1995; The case nº 75-6289, Moore v. City of East Cleveland, U.S. Supreme Court, 431 U.S. 494 (1977), decided on May 31, 1977; Ivcher Bronstein case vs Perou, Inter-American Court of Human Rights of February 6, 2001 (Merits, Reparations and Costs) para. 122. Application 6833/74, Marckx v. Belgium, 13 June 1979, para.48. Marckx c. Belgique, arrêt du 13 juin 1979, Série A nº 31, op.cit, para 49. Application no. Application no. Greece (Strasbourg 6 April 2000, para 72. Application nº 69498/01, Pla et Puncernau c. Andorre (2004), Para 26. Application nº 28369/95, Bourimi v. the Netherlands, (2000), Para.35

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Application 011/2011, Rev.Christopher Mtikila v. United Republic of Tanzania, par. 119 13, para 106.1. Application 001/2014 - APDH v. Republic of Cote d’Ivoire, par.146, Application 022/2017 Harold Muthali v. Malawi, par.81. Application nº. 9540/07, Murat Vural v. Turkey, of 21/01/2015, para. 64. Requête nº 10465/83, Olsson c. Suède, (24 Novembre 1988) nº 130 (A), para. 68. Requête nº 8919/80, Van der Mussele, (23 novembre 1983), para .48. Application nº 35014/97, Hutten-Czapska v Poland [GC] ECHR 2006-VIII, para 165. Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Series C Nº 79, Inter-American Court of Human Rights, August 31, 2001. African Commission on Human and Peoples’ Rights v. Kenya, Application no 006/2012, African Court on Human and Peoples’ Rights, May 26, 2017. Center for Minority Rights in Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, Communication No. 276/2003. Requête nº 76639/11, Denisov c. Ukraine, (25 septembre 2018), para. 137 63 Requête nº 44912/98, Kopecky c. Slovaquie, (28 septembre 2004), para.49. Requête no 1513/03, Draon c France, (6 octobre 2005), para. 68. Authors cited:

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Chemerinsky, Erwin, In defense of equality: A reply to Professor Westen, Mich. L. Rev. 81 (1982): 575. Thomas M. Featherston, Jr. Separate Property or community Property: An introduction to marital property law in community property States, Texas: Baylor, University, School of Law, 2016, P.4. Assembly, UN General, Universal declaration of human rights, UN General Assembly 302.2 (1948): 14- 25. Dictionnaire des droits de l’Homme, sous la direction de Joël Andriantsimbazovina, Hélène Gaudin, Jean- Pierre Maguénaud, Stéphane Rials et Frédéric Sudre, Presses Universitaires de France, 2008, p.284 10. Dictionnaire de Droit International Public, sous la direction de Jean Salmon, Bruylant, Bruxelles, 2001, p.344. Human Rights Committee, General Comment 18, Non- discrimination (Thirty-seventh session, 1989), Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, U.N. Doc.HRI/GEN/1/Rev.1 at 26 (1994). I-A Court H.R, Proposed Amendment to the Naturalization Provision of the Constitution of Costa Rica, Advisory Opinion OC 4/84 of Jan 19, 1984, series A Nº 4, p.104-106 paras 56-57. Andrews c. Law Society of British Columbia - [1989] 1 RCS 143 - 1989-02-02, para. 52. Danièle Lochak, Les minorités et le droit public français. Du refus des différences à la gestion des

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différences. Alain Fenet; Gérard Soulier. Les minorités et leurs droits depuis 1789, L’Harmattan, pp.111-189, 1989. Jouanjan, Olivier, Logiques de l’égalité, Titre VII 1 (2020): 1-8. Viola, André, La loi doit être la même pour tous: vers la fin d'un principe républicain (2005): 601-618. Barrois de Sarigny, Cécile, Le principe d’égalité dans la jurisprudence du Conseil constitutionnel et du Conseil d’État, Titre VII 4.1 (2020): 18-25. Buffelan-Lanore, Yvaine, and Virginie Larribau- Terneyre, Droit civil. Introduction Biens Personnes Famille, Sirey, 2013, p.737. Beignier, Bernard, and Sarah Torricelli-Chrifi, Libéralités et successions. Montchrestien, ed. Lextenso, 2015, p.223. Walker, Lara, The impact of The Hague Abduction Convention on the rights of the family in the case- law of the European Court of Human Rights and the UN Human Rights Committee: the danger of Neulinger, Journal of private international law 6.3 (2010): 649-682. Roagna, Ivana, Protecting the right to respect for private and family life under the European Convention on Human Rights, (2012), p.6. Guide sur l’article 1 du Protocole nº 1 à la Convention Européenne des droits de l’homme: Protection de la propriété, 2022, P.7. Burke, D. Barlow, and Joseph A. Snoe, Property: Examples & Explanations, Wolters Kluwer, 2008, p 5.

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Sprankling, John G., Understanding property law, LexisNexis, 2012, p. 4. Mariana Karadjova, la protection du droit de propriété au niveau européen et son inportance pour l’harmonisation des pratiques des cours constitutionnelles, Bulgarie, p.4, para 1. Carss-Frisk, Monica, The right to property: A guide to the implementation of Article 1 of Protocol nº 1 to the European Convention on Human Rights. Council of Europe, 2001. Urs, Ilie, the inheritance rights of the surviving spouse provided by the Romanian law, Revista de derecho (Valparaíso) XXXII (2009): 209-220. Miriam Anderson and Esther Arroyo i Amayuelas, The Law of Succession: Testamentary Freedom: European Perspectives, op.cit, p.11. Judgment I. BACKGROUND OF THE CASE

Counsel Ngendahayo Kabuye petitioned the Supreme Court seeking to declare paragraph 2 of article 8, paragraph 3 of article 52, articles 75 and 76 (1o) of the Law nº 27/2016 of 08/07/2016 governing matrimonial regimes, donations and successions, inconsistent with articles 15, 18 and 34 of the Constitution of the Republic of Rwanda of 4/06/2003 revised in 2015 on grounds that the surviving spouse is entitled the right to grab the entire property for him/herself alone by using the fact that they were married under community of property regime, hence

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depriving other heirs, especially the children of the de cujus, of their right to succession. Four (4) articles under unconstitutionality petition to the Supreme Court are in two categories: - -The first category consists of article 8, paragraph 2 and article 76 (1o). Article 8, paragraph 2 reads that “Where dissolution of such a regime occurs due to death of one of the spouses, the property is owned by the surviving spouse until succession execution”. Article 76 (1o) stipulates that “Succession of spouses married under the community of property regime is done as follows: if one of the spouses dies, the surviving spouse is entitled to the entire property and fulfils the duty to take care of their children and that of the legitimate children of the de cujus”. - -The second category is made up of article 52, paragraph 3 and article 75. Article 52, paragraph 3 provides that “Succession for spouses opens when they both decease or in case one of them remarries, unless otherwise provided by law”. Article 75 reads that “The surviving spouse is entitled to take part in succession of the deceased spouse’s estate; the surviving spouse called to succeed inherits in equal portions with first category heirs”.

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Counsel Ngendahayo Kabuye avers that, based on the provisions of the aforementioned articles, he finds them inconsistent with the Constitution of the Republic of Rwanda of 04/06/2003 revised in 20151, on grounds that when one of the spouses deceases, and it is found that there exists other children who were not born to both spouses, and other heirs in general, the the surviving parent uses the impugned articles to grab the entire property for him/herself alone, with no intention to share it with other heirs especially when they are not under his/her care. He further states that the surviving spouse may be given such the duties but fail to fulfil them as required, hence leading to family conflicts and frequent litigations.

He adds that such the heirs have been losing in various cases, hence allowing the surviving spouse to take the entire property, while the principle is that all people are equal before the law, and the State has the duty to protect children, by entitling to them the right to the property left by their late parent, and to avoid family conflicts.

1 Article 15 reads that all persons are equal before the law and they are entitled to equal protection of the law. Article 18 stipulates that the family, being the natural foundation of the Rwandan society, is protected by the State. Paragraph three of the same article reads that the State puts in place appropriate legislation and organs for the protection of the family, particularly the child and mother, in order to ensure that the family flourishes. Article 34 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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The hearing of this case was conducted on 13/01/2022, Counsel Ngendahayo Kabuye being assisted by Counsel Umulisa Kayigamba Alice together with Counsel Serugo Jean-Baptiste, while the Government of Rwanda was represented by its attorneys namely Counsel Kayitesi Petronille and Counsel Ntwali Emile.

At the beginning of the hearing, the Court first examined the application for appearing as Amicus Curiae submitted by a Rwandan non-governmental organization that works to defend and promote the rights of women and children (HAGURUKA) thereby represented by Umuhoza Ninette. The Court found no new argument by such Organization that could allow it to appear as Amicus Curiae which could help the Court in rendering a judgment other than issues raised by one of the parties. The Court based this decision on the position it adopted on a similar issue in the case of Democratic Green Party of Rwanda, where it elucidated that for a person or an organization to be allowed to appear as Amicus Curiae, they should present an argument that will help the Court other than the parties’ statements2. The Court therefore rejected the application by Haguruka Organization to appear as Amicus Curiae.

The hearing was resumed, and the parties debated on the issue of determining whether Ngendahayo Kabuye has an interest to lodge a petition seeking to declare article 8, paragraph 2; article 52, paragraph 3; articles 75 and 76

2 See Judgment RS/SPEC/0002/15/CS rendered by the Supreme Court on 09/09/2015 for the Democratic Green Party of Rwanda, paragraph 5

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(1o) of the Law nº 27/2016 of 08/07/2016 governing matrimonial regimes, donations and succession, inconsistent with articles 15, 34 and 18 of the Constitution of the Republic of Rwanda.

In an interlocutory judgment rendered on 18/02/2022, the Court, based on the position it adopted in the judgment RS/INCONST/SPEC 00002/2018/SC for Mugisha Richard, found that Ngendahayo Kabuye as a learned counsel who contributes to the promotion of laws in the society, and as a Rwandan concerned by the law under his petition, has interest to lodge a petition seeking to declare some of the articles of the Law nº 27/2016 of 08/07/2016 governing matrimonial regimes, donations and succession, inconsistent with the Constitution of the Republic of Rwanda, though it may be evident that he has no personal interest in the petition.

The hearing was resumed on 12/04/2022 with Ngendahayo Kabuye being assisted by Counsel Umulisa Kayigamba Alice and Counsel Serugo Jean-Baptiste, while the Government of Rwanda was represented by its attorneys : Counsel Kayitesi Petronille and Counsel Kabibi Spéciose ; the School of Law of the University of Rwanda appeared as Amicus Curiae represented by Uwineza Odette and Dr Turamwishimiye Marie Rose.

On the same date, it was examined whether the School of Law of the University of Rwanda should be allowed to appear as Amicus Curiae as per its application of 08/04/2022. The Court found that the School fulfils all the required conditions to appear as Amicus Curiae in the instant case, conditions including the fact that an applicant

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for appearing as Amicus Curiae should not only be reiterating the parties’ statements, rather, he/she is required to have a remarkable experience on the matter and has been conducting a research on issues relating to the subject matter in the case, and thus it approved the application submitted by the School.

Counsel Kabibi Spéciose representing the Government of Rwanda requested the Court to adjourn the hearing for allowing them to deeply analyse reviewed submissions presented by the representatives of the School of Law from the University of Rwanda, since such submissions came late. The Court adjourned the hearing and parties were informed that the hearing will be resumed on 19/09/2022, but on that day, the hearing was not conducted due to the training of representatives of the Government of Rwanda, and it was scheduled on 22/11/2022.

The hearing was resumed on the said date, Counsel Ngendahayo Kabuye was assisted by Counsel Umulisa Kayigamba Alice, whereas the Government of Rwanda was represented by its attorneys : Counsel Kayitesi Petronille and Counsel Kabibi Spéciose ; while the School of Law from the University of Rwanda was represented by Uwineza Odette and Dr Turamwishimiye Marie Rose.

Parties debated on the issue of determining whether the impugned four (4) articles are inconsistent with articles 15, 18 and 34 of the Constitution of the Republic of Rwanda. With regard to the issue of determining whether article 8, paragraph 2; article 52,

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paragraph 3 and articles 75 and 76 (1o) of the aforementioned Law nº 27/2016 of 08/07/2016 encroaches the application of other provisions relating to succession and other civil legislations, the Court held not to analyze such issue since it does not consist of a petition seeking declaration by the Court for unconstitutionality of a law3. II. ANALYSIS OF LEGAL ISSUES 1. Whether paragraph 2 of article 8, and article 76 (1o) of the Law nº 27/2016 of 08/07/2016 governing matrimonial regimes, donations and successions, are inconsistent with article 15 of the Constitution of the Republic of Rwanda of 4/06/2003 revised in 2015

Ngendahayo Kabuye avers that article 8, paragraph 2 and article 76 (1o) of the Law nº 27/2016 of 08/07/2016 governing matrimonial regimes, donations and successions, are inconsistent with article 15 of the Constitution of the Republic of Rwanda of 4/06/2003 revised in 2015, since they do not treat equally the heirs of the de cujus.

He further elucidates that article 15 of the Constitution reading that all persons are equal before the law and that they are entitled to equal protection of the

3 This article provides that only the Supreme Court has jurisdiction to hear petitions for unconstitutionality of a law, and to explain modalities and procedures of lodging such petitions.

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law, however, the Legislator entitled to surviving parent the rights reserved for many people, and by protecting him/her, he encroached upon others’ rights, since such a surviving parent is entitled by the law the right to succession, as well as the right to the property he/she co- owned with the de cujus, his/her spouse.

He further alleges that the impugned articles encroaches the right to equality before the law provided under article 15 of the Constitution, since they entitle excessive right to the surviving spouse because the latter enjoys the right emanating from the matrimonial regime concluded with the de cujus, whereby the surviving spouse owns 50% of the entire property for marriage under community of property regime, 50% of shared property plus her/his personal property for the regime of limited community of property, and for the separation of property regime, the surviving spouse remains with his/her individual property since it is what he/she chose. He finds that, by making him/her the heir of the de cujus is to entitle to her/him excessive right compared to other heirs.

Ngendahayo Kabuye adds that his petition emanates from such an inequality, which he wished to submit to the Supreme Court that the impugned articles are inconsistent with the Constitution especially its article 15, because its article 10, subparagraph 5 reads that “the State of Rwanda commits itself to … building a State committed to promoting social welfare and establishing appropriate mechanisms for equal opportunity to social

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justice”; while its article 16 stipulates that “all Rwandans are born and remain equal in rights and freedoms”.

He further states that the principle of equality before the law means that all people are equally treated and under the same conditions before the law, and the law cannot be differently applied for similar issues, and this means that it is not possible to entitle the rights to some people while depriving of such rights to others in case such rights are entitled to all those people by the law.

He adds that such a principle is not only provided under the Constitution, it is also provided under article 7 of the Universal Declaration of Human Rights, article 2 (1) of International Covenant on Civil and Political Rights, article 2 of International Covenant on Economic, Social and Cultural Rights, and article 2 of African Charter on Human and Peoples' Rights. He also quoted Erwin Chemerinsky who also explained such principle as follows: "Things that are alike should be treated alike, and things that are unalike should be treated unalike in proportion to their unalikeness”4.

Counsel Umulisa Kayigamba Alice assisting Ngendahayo Kabuye states that article 8, paragraph 2 and article 76 (1˚) of the aforementioned Law Nº 27/2016 of 08/07/2016 entitles to the surviving spouse with the right to inherit the entire property, but it has been evident that such spouse uses such property as he/she wishes, by even selling it or even use it to take care of the children born to

4 Chemerinsky, Erwin, In defense of equality: A reply to Professor Westen, Mich. L. Rev. 81 (1982): 575.

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both spouses while leaving behind the children who are not born to both spouses.

Counsel Kayitesi Petronille, representing the Government of Rwanda, avers that article 8, paragraph 2 and article 76 (1˚) of the aforementioned Law nº 27/2016 of 08/07/2016 are not inconsistent with article 5 of the Constitution of the Republic of Rwanda since they do treat all the heirs equally. She states that equality before the law means to treat equally all people under same conditions and circumstances, and based on the aforementioned article 8, paragraph 2, the surviving spouse does not remain with the property of the de cujus as the heir, rather, he/she remains with it as the owner while awaiting the succession to open.

She also avers that article 76 (1º) of the aforementioned nº 27/2016 of 08/07/2016, is not inconsistent with article 15 of the Constitution as it does not contain any discrimination, because such article entitles to the surviving spouse the duty to take care of the children born to both spouses as well as the children not born to both spouses.

Counsel Kabibi Speciose also representing the Government of Rwanda purports that the two impugned articles are not inconsistent with article 15 of the Constitution, because people under different conditions and circumstances cannot be equally treated. She adds that the legislator’s purpose in the aforementioned law, was to provide special protection to the surviving spouse, on ground that it was found that in case of the death of one of the spouses, the surviving spouse especially the widow

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was used to be mistreated, harassed and even deprived of the right to the property she co-acquired with the de cujus whereas they were married under community of property regime. On matters relating to the issue of children who were not born to both spouses, who may be mistreated by the surviving spouse, she states that this has also been provided by the legislator, where the latter gave the surviving spouse the duty to take care of his/her children including legitimate children of the de cujus.

Uwineza Odette and Dr Turamwishimiye Rose representing the School of Law of the University of Rwanda, which intervened as amicus curiae, aver that when you analyze paragraph 2 of article 8 as well as article 76 (10) of the aforementioned law, you find them contradicting the principle of equal rights and power for spouses married under community of property regime, whereby they agree to join their entire property, and with such matrimonial regime, each spouse has the right to the half of the co-owned property (Undivided half interest)5.

They further state that the principle of equality of the right and powers entitled to spouses under community of property regime has an effect on the share reserved for each spouse in case of marriage termination due to various reasons including death. They conclude by upholding that the two articles alleged to be inconsistent with the Constitution, are really problematic, since by allowing the

5 Thomas M. Featherston, Jr. Separate Property or community Property: An introduction to marital property law in community property States, Texas: Baylor University, School of Law, 2016, P.4.

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surviving spouse to grab the entire property and use it as he/she wishes, while there are other heirs, this contradicts the principle of equality before the law provided under article 15 of the Constitution.

DETERMINATION OF THE COURT

Before examining whether article 8, paragraph 2 and article 76, (1˚) of the Law nº 27/2016 of 08/07/2016 governing matrimonial regimes, donations and successions are inconsistent with the Constitution as alleged by the petitioner, it is better to explain first some of the principles evoked in that Constitution related to the instant case, namely the principle of equality before the law and the one of non-discrimination. i. The principle of equality before the law and the principle of non-discrimination

Article 15 of the Constitution of the Republic of Rwanda of 04 June 2003 revised in 2015 reads that “All persons are equal before the law. They are entitled to equal protection of the law”. The content of this article will be summarized in the following paragraphs as the principle of equality before the law.

Article 16 of the Constitution of the Republic of Rwanda of 04 June 2003 revised in 2015 provides that “all Rwandans are born and remain equal in rights and

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freedoms. Discrimination of any kind or its propaganda based on, inter alia, ethnic origin, family or ancestry, clan, skin color or race, sex, region, economic categories, religion or faith, opinion, fortune, cultural differences, language, economic status, physical or mental disability or any other form of discrimination are prohibited and punishable by law”. The content of the foregoing article will be reiterated in the following paragraphs as the principle of non-discrimination.

The principle of equality before the law and of non-discrimination are also provided under international covenant ratified by Rwanda. The example is article 7 of the Universal Declaration of Human Rights of 1948 which reads that “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”6.

In addition, article 26 of the International Covenant on Civil and Political Rights of 1966 provides that “All persons are equal before the law and are entitled without any discrimination to equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color,

6 Assembly, UN General, Universal Declaration of Human Rights, UN General Assembly 302.2 (1948): 14-25.

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language, religion, political or other opinion, national or social origin, property, birth or other status”7.

Article 3 of African Charter On Human and Peoples' Rights adopted on 27/06/1981, also reads that “Every individual shall be equal before the law. Every individual shall be entitled to equal protection of the law”8.

The foregoing principles have been also explained by legal scholars, courts as well as other institutions concerned with the human rights. According to the Dictionary on Human Rights, the principle of equality before the law implies that the law protects everyone without discrimination9. Discrimination is defined as the differentiation of persons or situations on the basis of one or more non-legitimate criteria10. The principle of non- discrimination means to avoid differentiation of persons on basis of a non-legitimate criteria.

Explanations provided by legal scholars concur with court precedents. In the judgment of Akagera

7 International Covenant on Civil and Political Rights/Pacte International des droits civils et politiques 8 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). 9 Dictionnaire des droits de l’Homme, sous la direction de Joël Andriantsimbazovina, Hélène Gaudin, Jean-Pierre Maguénaud, Stéphane Rials et Frédéric Sudre, Presses Universitaires de France, 2008, p.284. 10 Dictionnaire de Droit International Public, sous la direction de Jean Salmon, Bruylant, Bruxelles, 2001, p.344.

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Business Group rendered by the instant Court on 23/09/2016, it was determined that articles 15 and 16 of the Constitution are so close that they should be jointly interpreted. Article 15 reads that “All persons are equal before the law and that they are entitled to equal protection of the law”. This means that any form of discrimination encroaching upon equal protection of all persons or deprivation of their rights entitled to them, should be avoided. Article 16 provides on how differentiation of persons is construed as discrimination, which is inconsistent with the Constitution11.

The idea of a joint interpretation of the aforementioned principles, was also stated in the case of Rev. Christopher Mtikila et al. against Tanzania12, rendered by African Court of Human and People’s Rights, where such Court explained that the right not to be discriminated against is related to the right to the equal protection by the law. This has also been upheld by this Court in other following cases13.

Additionally, the United Nations Human Rights Committee14 also stated that: “Non- discrimination,

11 Judgment RS/SPEC/0001/16/CS, Akagera Business Group, rendered on 23/09/2016, paragraph 29. This is also reiterated in the judgment RS/INCONST/SPEC 00001/2019/SC, Murangwa Edward, rendered on 29/11/2019, paragraph 32. 12 Application 011/2011, Rev.Christopher Mtikila v. United Republic of Tanzania, par. 119. 13 Application 001/2014 - APDH v. Republic of Cote d’Ivoire, par.146, Application 022/2017 Harold Muthali v. Malawi, par.81. 14 United Nations Human Rights Committee/Comité des Nations- Unies sur les droits de l’homme.

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together with equality before the law and equal protection of the law without discrimination, constitute a basic and general principle relating to the protection of human rights”15.

Based on the foregoing elucidations, it is evident that the principle of equality before the law is in line with the principle of non-discrimination, and both principles are closely related. For that reason, such principles have to be jointly read since both reiterate on an important issue of non-differentiation of persons, unless there is a legitimate and reasonable criterion. ii. Is differentiation of persons or a group of people always construed as infringing the principle of equality before the law and of non-discrimination?

In attempting to answer this question, it is also better to analyze positions adopted by various courts and other dispute resolution organs on matters relating to human rights as well as findings by legal scholars on the matter.

In the case of Marckx vs Belgium, the European Court of Human Rights explained that “a violation of the principle of non-discrimination. arises if: a) equal cases are treated in a different manner; b) a difference in

15 Human Rights Committee, General Comment 18, Non- discrimination (Thirty-seventh session, 1989), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc.HRI/GEN/1/Rev.1 at 26 (1994).

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treatment does not have an objective and reasonable justification; or c) if there is no proportionality between the aim sought and the means employed”16.

Again in the judgment of Akagera Business Group referred to in the paragraph 33 of this judgment, the very Court explained that equality before the Law and non- discrimination do not always mean that differentiation of persons itself entails discrimination. Differentiation or categorization of persons can be necessary for legitimate or rational purpose17.

In the case of Muller and England v. Namibia, the United Nations Committee reiterated its constant jurisprudence on this issue. Such jurisprudence was expressed in the following words : “The Committee reiterates its constant jurisprudence that the right to equality before the law and to the equal protection of the law without any discrimination does not make all differences of treatment discriminatory. A differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of article 26”18.

16 Application n°6833/74, Marckx v. Belgium, 13 June 1979, para.48. 17 See judgment RS/SPEC/0001/16/CS, for Akagera Business Group, op.cit, par 18. That case was also referred to in other case RS/INCONST/SPEC 00001/2019/SC rendered by the Supreme Court on 29/11/2019 for Murangwa Edward, paragraph 35 18 HRC, Muller and Engelhard v Namibia (Communication Nº. 919/00), para 6.7. That case was also referred to in other case RS/INCONST/SPEC 00001/2019/SC rendered by the Supreme Court on 29/11/2019 for Murangwa Edward, paragraph 36.

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The elucidations provided by the said Committee concur with the conclusions of the Inter American Court of Human Rights, where it upheld that “Precisely because equality and non-discrimination are inherent in the idea of the oneness in dignity and worth of all human beings, it follows that not all differences in legal treatment are discriminatory as such, for not all differences in legal treatment are in themselves offensive to human dignity. There may well exist certain factual inequalities that might legitimately give rise to inequalities in legal treatment that do not violate the principle of justice”19.

The very Court also elucidates that “there would be no discrimination in differences in treatment of individuals by a state when the classifications selected are based on substantial factual differences and there exists a reasonable relationship of proportionality between these differences and the aims of the legal rule…” 20

In the case of Thlimmenos v. Greece, the European Court of Human Rights submitted its consideration in the following words : “The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification”.

19 I-A Court H.R, Proposed Amendment to the Naturalization Provision of the Constitution of Costa Rica, Advisory Opinion OC 4/84 of Jan 19, 1984, series A Nº 4, p.104-106 paras 56-57. 20 Idem

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The case of Tanganyika Law Society et al.21 was also referred to on this issue. In that case, the African Court of Human and People’s rights motivated that “The jurisprudence regarding the restrictions on the exercise of the rights has developed the principle that, the restrictions must be necessary in a democratic society; they must reasonably proportionate to the legitimate aim pursued...”22

In the case of Andrews c. Law Society of British Columbia, the Supreme Court of Canada stated that the fact that the law differentiates certain persons, this does not always entail inequality since there are circumstances where equality of people by the law finally ends in a serious inequality.23

In their analysis in various cases, some courts explained why a State needs to have a reason or interest to protect, for its act of differentiating or categorizing persons not to be considered as illegitimate or that it has used the manner that is not matching with its purpose. Such courts also indicated how the courts supervise the State or its organs to make sure that they abide by the law.

21 Application no. 34369/97), Thlimmenos v. Greece (Strasbourg 6 April 2000, para 72. 22 Application 011/2011-Rev.Christopher Mtikila v. United Republic of Tanzania (merits), para 106.1. 23 Andrews c. Law Society of British Columbia - [1989] 1 RCS 143 - 1989-02-02, para. 52: The Court based this on the statement of Justice Frankfurter (judge) that he was a wise man who said that there was no greater inequality than equal treatment for unequal individuals (C'était un homme sage celui qui a dit qu'il n'y avait pas de plus grande inégalité que l'égalité de traitement entre individus inégaux).

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In the case of Murat Vural v. Turkey, the European Court of Human Rights explained that “in exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole. In particular, it must determine whether the interference in question was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”24.

The same Court upheld this in the case of Olsson v. Sweden, where it states that with regard to compelling social reasons, the Court verifies not only whether the State concerned has exercised its discretion in good faith, but also whether the reasons put forward are relevant and sufficient.25

In the case of Morarjee v. Union of India, the Supreme Court of India also held that “An applicant pleading that Article 14 has been violated must make out that not only he had been treated differently from other but he has been so treated from persons similarly circumstanced without any reasonable basis, and such differential treatment is unjustifiably made”26.

24 Application nº. 9540/07, Murat Vural v. Turkey, of 21/01/2015, para. 64. 25 “En ce qui concerne les raisons sociales impérieuses, la Cour vérifie, non seulement si l’État concerné a usé de son pouvoir d’appréciation en bonne foi, mais également si les raisons avancées sont pertinentes et suffisantes”, Requête nº 10465/83, Olsson c. Suède, (24 Novembre 1988) nº 130 (A), para. 68. 26 Morarjee Rajkotia & Ors vs Union of India & Ors case nº 46 of 1965, on 4 February, 1966, para 8.

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In the case of Uwinkindi Jean, the Supreme Court explained that differentiation of persons should be done for a legitimate and reasonable purpose and based on public interest27.

As reiterated above, apart from various courts which have been explaining the principle of equality before the law and of non-discrimination, legal scholars also provided their inputs on the meaning of such principles. Daniel Lochak states that the principle of equality, which should now be interpreted more as a principle of non-discrimination, no longer requires all members of society to be treated identically, but prohibits illegitimate differences in treatment, i.e. differences not justified by differences in situation28.

Another legal scholar named Olivier Jouanjan explained that a formal identity of treatment can lead to a substantial, real, social difference and, where appropriate, discrimination.29

27 See judgment n° RS/INCONST/PEN 0005/12/CS rendered on 22/02/2013, paragraph 16. 28 “Le principe d'égalité, qu'il convient d'interpréter plutôt, désormais, comme un principe de non- discrimination, n'impose plus de traiter tous les membres de la société de façon nidentique, mais il proscrit les différences de traitement illégitimes, c’est-à-dire non justifiées par des différences de situation”, Danièle Lochak, Les minorités et le droit public français. Du refus des différences à la gestion des différences. Alain Fenet; Gérard Soulier. Les minorités et leurs droits depuis 1789, L’Harmattan, pp.111-189, 1989. 29 “Une identité formelle de traitement peut induire une différence substantielle, réelle, sociale et, le cas échéant, une discrimaination”, Jouanjan, Olivier, Logiques de l’égalité, Titre VII 1 (2020): 1-8.

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Referring to the statement of M. Pelissier, André Viola pointed out that equality is not simply identity of treatment, it is the quality of a relationship between two terms declared to be comparable. Consequently, a difference in treatment commensurate with a difference in situation constitutes a relationship of equality30.

For Cécile Barrois de Sarigny, a legal scholar, Judges take a broad view of the equality standard, which leads them to exercise a distanced review, ensuring that they do not substitute their own assessment for that of the public authorities as to the best way of achieving the desired objectives31.

She further states that this distancing is reflected in the very wording of the principle of equality, which is presented by the case law as a hollow principle that does not preclude the legislature or the authority vested with regulatory power from regulating different situations in different ways, or from derogating from equality for reasons of general interest, provided that, in either case,

30 “Comme le souligne M. Pélissier, l’égalité n’est pas seulement une identité de traitement, elle est la qualité d’un rapport entre deux termes déclarés comparables. Par conséquent, une différence de traitement à la mesure d’une différence de situation constitue une relation d’égalité”, Viola, André, La loi doit être la même pour tous: vers la fin d'un principe républicain, (2005): 601-618. 31 “Les juges appréhendent la norme d’égalité prise dans sa généralité, ce qui les conduit à opérer un contrôle distancié garantissant qu’ils ne substituent pas leur propre appréciation à celle des pouvoirs publics quant au meilleur moyen de parvenir aux objectifs vises”, Barrois de Sarigny, Cécile. "Le principe d’égalité dans la jurisprudence du Conseil constitutionnel et du Conseil d’État." Titre VII 4.1 (2020): 18-25.

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the resulting difference in treatment is directly related to the purpose of the rule establishing it32.

The very legal scholar further explains that in this context, the public authorities' room for manoeuvre is guaranteed. It is up to them to identify the different categories or to define the requirements of the general interest, with the courts assessing only the relevance of the categories or the considerations of general interest put forward, as well as the consistency of the choice of a difference in treatment33.

Following the foregoing elucidations on the principles provided under 15 taken jointly with article 16 both of the Constitution, the following main points are retained in those articles : a. -Persons under similar circumstances and categories are equally treated ;

32 “(Cette prise de distance se traduit dans la formulation même du principe d’égalité, lequel est présenté par la jurisprudence comme un principe « en creux » qui « ne s’oppose pas » à ce que le législateur ou ... l’autorité investie du pouvoir réglementaire règle de façon différente des situations différentes ni à ce qu’il déroge à l’égalité pour des raisons d’intérêt général pourvu que, dans l’un comme l’autre cas, la différence de traitement qui en résulte soit en rapport direct avec l’objet de la norme qui l’établit”, Ibidem. 33 “La marge de manœuvre des pouvoirs publics est dans ce cadre garantie. C’est à eux qu’il appartient de caractériser des catégories différentes ou de définir les exigences de l’intérêt général, le juge appréciant seulement la pertinence des catégories ou des considérations d’intérêt général avancées, ainsi que la cohérence du choix d’une différence de traitement”, Barrois de Sarigny, Cécile. "Le principe d’égalité dans la jurisprudence du Conseil constitutionnel et du Conseil d’État., Op.cit, p.20.

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b. -Unequal treatment towards them without legitimate and reasonable ground is construed as discrimination ; c. -The State may differentiate people or groups of people, without encroaching upon the principle of equality before the law and of non- discrimination ; d. -To that effect, the State should base on reasonable and legitimate ground aiming at protecting public interest.

The foregoing elucidations imply that the State, through its decisions or legislations, may reserve a particularity to certain people or group of people with the intention to treat them differently from others. This cannot be considered as discrimination, rather, it consists of differentiating or categorizing people based on a reasonable ground, in accordance with the targeted Government policies in place. iii. Matters relating to the instant petition

As above reminded, the issue to be settled is to determine whether article 8, paragraph one and article 76 (1º) of the aforementioned law nº 27/2016 of 08/07/2016 are inconsistent with the Constitution of the Republic of Rwanda. Ngendahayo Kabuye, hereinafter referred to as the petitioner, alleges that the impugned articles contain inequality among the heirs, since they entitle excessive rights to the surviving spouse, hence discriminating other heirs.

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In the course of analyzing the petitioner’s allegations about the impugned articles, it is better to analyze first the rationale and purpose of the impugned law. In the previous parts, it was explained that the purpose of the law should be reasonable, substantial and legitimate.

As mentioned in the explanatory note of the aforementioned Law nº 27/2016 of 08/07/2016, before its adoption, various people provided their opinions thereof. In such explanatory note, the opinions provided indicated that the former law of 199934 was so problematic that resolving issues arising from it required to modify many of its articles, and this is the reason, instead of modifying some of its articles, it has been better to enact a new one. The following are some of the main issues arising from the application of the former law :  -Not providing for the succession modalities for female children after the death of their parents before its application ;  -Such a law has never provided the death as one of the reasons of termination of the matrimonial regime, which caused a confusion about whether such regime should remain valid while one of the spouses has deceased. This was a cause of confusion during succession, so that some

34 Law n° 22/99 of 12 November 1999 to Supplement Book I of the Civil Code and to Institute Part Five Regarding Matrimonial Regimes, Liberalities and Successions.

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people used to confuse the right to succession and the right entitled to the surviving parent, which emanates from matrimonial regime chosen by both spouses ;  -The former law did not provide for the succession between spouses.

Furthermore, the rationale for the adoption of the impugned articles of the said law is upheld by the minutes of the Parliament session, Chamber of Deputies35, and the report of the Gender and Policy Commission36, during the consideration of the draft of the said law.

According to those minutes and reports, before the consideration of such draft of law got started, Members of the Commission travelled all over the country and met citizens’ representatives, with an aim to gather opinions that would help in the consideration of the said draft law. Those documents indicate that this was done after it was found that more than 50% of articles of the aforementioned law n° 22/99 of 12 November 1999, were obsolete, and this is the reason why Members of the Commission deemed necessary to enact a new law instead of modifying the said articles.

Members of the Parliament also indicated that in order to protect the surviving spouse from begging and being in harsh living conditions in comparison to the

35 See the minutes of 15/11/2013. 36 Sessions from 03-26/06/2014.

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situation prevalent when his/her spouse was alive, when one of spouse married under community of the property deceases, the surviving spouse has to own the entire property since he/she co-owns it with the de cujus since he/she has the duty to maintain the household responsibilities alone.

They also found that there was an issue that in case one of the spouses dies, the surviving spouse had no right to inherit her/his partner, while he/she had contributed in the acquisition of the property, and this is a reason for the amendment of the existing law. They elucidated that, for the spouses under community of property regime, their children should inherit them after both parents have died, this means that the succession should open when both spouses are dead or when the surviving spouse remarries.

The content of the aforementioned explanatory note and the minutes of the Parliament’s sessions are in line with the opinions provided by some public institutions during the preparation of the aforementioned draft law. The statement in the casefile prepared by the Ministry of Gender Promotion and Family (MIGEPROF), indicates that for spouses under community of property regime, the surviving spouse deserves the right to own the entire property for her/his welfare in the old age and for having contributed to the acquisition of that property all along the marriage, especially since the said property belong to spouses and not to their heirs.

The Gender Monitoring Office also prepared a study in the case file on the effects of equality on the Law nº 22/99 of 12/11/1999, and found out that when one of

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the spouses deceases, the surviving spouse deserves the full right to the entire property.

As it has been above explained, the impugned articles of the aforementioned Law nº 27/2016 of 08/07/2016 were meant to award particular protection for the surviving spouse for the reasons mentioned above, by giving him/her special attention compared to other heirs, because such a spouse has lost his/her partner for the duties he/she has to perform alone. It has been also elucidated that the surviving spouse should not be compared with other heirs, since he/she contributed to the acquisition of the household property while other heirs did not, and the purpose of the Legislator was to protect the surviving spouse from the disputes which used to arise after the death of his/her partner, disputes caused by the family relatives of the de cujus who wished to have a share on the property left by the latter.

Such particularity awarded to the surviving spouse was also reiterated by legal scholars namely Yvaine Bufferan Lanore and Virginie Larribau, whereby they explain that spouses’ life does not end with the death of one of them, only, one of the spouses deceases, the other one survives alone, this is different from the spouse divorce. Unlike divorce, death leaves spouse status intact. After the death of one of the spouses and the dissolution of the marriage, certain effects of the marriage or the alliance created by the marriage survive37.

37 “La qualité d’époux ne disparaît pas pour autant, avec le décès, le conjoint devenant simplement le conjoint survivant. Contrairement au divorce, le décès laisse intacte cette qualité d’époux. C’est

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Bernard Beignier & Sarah TorricellI-Chrifi state that there is a difference between the surviving spouse and other heirs of the de cujus. They aver that the heirs from the de cujus have not the right to succession, rather, they have the right to participate in the succession, therefore, they should share the remaining property left by the de cujus, and while contemporary law has evolved to make the rights of the surviving spouse a genuine right to maintain his or her lifestyle. A powerful idea emerging from that right is that children only really inherit on the death of the last of the spouses38.

The reason for the adoption of the impugned articles of the Law Nº 27/2016 of 08/07/2016, which are alleged to be inconsistent with the Constitution has been explained in the previous paragraph. It is in the finding of the Court that, before enacting such a Law, the Legislator first considered opinions from the public on the emerging issues that required a solution, and then enacted the law

pourquoi, par-delà le décès et la dissolution du mariage, on constate, non seulement la survie de certains effets du mariage ou de l’alliance créée par le marriage”, Buffelan-Lanore, Yvaine, and Virginie Larribau-Terneyre. Droit civil. Introduction Biens Personnes Famille. Sirey, 2013, p.737. 38 “Y-a-t-il une différence politique entre les droits des descendants et les droits du conjoint survivant? Oui, sans aucun doute. Les descendants, sans avoir un droit à l’héritage mais un droit sur l’héritage, ont vocation à se partager ce qui “reste” du patrimoine de leur auteur. Tandis que le droit contemporain a évolué pour faire des droits du conjoint un véritable droit à un maintien de son train et style de vie…Dès lors se profile une idée forte : les enfants n’héritent vraiment qu’au décès du dernier des conjoints”, Beignier, Bernard, and Sarah Torricelli-Chrifi. Libéralités et successions. Montchrestien, ed. Lextenso, 2015, p.223.

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for solving those issues and to settle family disputes in general.

The foregoing elucidations indicate the reason for awarding special attention to the surviving spouse compared to other heirs. The Court finds that by adopting article 8, paragraph 2 and article 76 (1º) of the aforementioned Law nº 27/2016, awarding special protection towards the surviving spouse, the State based on a reasonable and legitimate ground, and it did it in the manner which matches the set purpose, therefore, there was no discrimination towards other heirs.

It is also in the finding of the Court that the issues that raised or that may arise from the application of the aforementioned law nº 27/2016 of 08/07/2016, as alleged by Ngendahayo Kabuye, should not be confused with alleging that such law is inconsistent with the Constitution. Furthermore, in case it is found that after owning the property, the surviving spouse misuses the property or fails to perform his/her duties provided by the law, as alleged by Ngendahayo Kabuye, any person with interest on the matter may sue to the Court. Article 76 (6º) of the aforementioned Law nº 27/2016 came in for that purpose, since it provides that if the surviving spouse fails to fulfil his/her duties of raising some or all of the children left behind by the de cujus, the competent court strips him/her of such duties and of half (1/2) of the whole property and determines guardian of children and who is in charge of ensuring the management of the property until they attain the age of majority.

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In the same framework of avoiding disputes that may arise from the property owned by the surviving spouse following the death of his/her partner, article 49 of the Law nº 27/2016 of 08/07/2016 has provided the disposable portion that the surviving spouse cannot exceed as a donation or succession, since such a property is reserved for designated heirs39.

[75] Based on the foregoing elucidations, the Court finds that article 8, paragraph 2 and article 76 (1º) of the Law nº 27/2016 of 08/07/2016 governing matrimonial regimes, donations and successions are not inconsistent with article 15 of the Constitution of the Republic of Rwanda of 4/06/2003 revised in 2015.

[76] Even though the Court holds that the foregoing article 8, paragraph 2 and article 76 (1º) are not inconsistent with the Constitution, and though the State put in place for the strategies for the resolution of disputes that may arise from the property awarded to the surviving spouse, the Court recommends the State that, in order to

39 Such article reads that spouses have the right to make donations provided that they do not exceed the disposable portion. Notwithstanding the chosen matrimonial regime, the disposable portion cannot exceed one-fifth (1/5) of the property if the donor has children, and the remaining four-fifths (4/5) of property comprises the reserved portion of succession designated for the children and spouse. However, where the donor has no children but the spouse is alive, the disposable portion cannot exceed one third (1/3) of his/her property, and the remaining two thirds (2/3) are the spouse’s reserved portion of the estate. The reserved portion of a succession is comprised of the personal property of the donor less any debts the donor owes on the date of donation.

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improve the content of the impugned articles, more strategies for the protection and safeguarding of the 50%40 of the property awarded to the surviving spouse after the death of his/her partner until succession opens. 2. Whether article 8, paragraph 2 and article 76 (1º) of the Law nº 27/2016 of 08/07/2016 governing matrimonial regimes, donations and successions are inconsistent with article 18 of the Constitution of the Republic of Rwanda of 4/06/2003 revised in 2015

Ngendahayo Kabuye alleges that article 8, paragraph 2 and article 76 (1º) of the Law nº 27/2016 of 08/07/2016 governing matrimonial regimes, donations and successions are inconsistent with article 18 of the Constitution of the Republic of Rwanda of 4/06/2003 revised in 2015 since, instead of protecting the family, such articles have been the cause of instaneous disputes, because they entitle to the surviving spouse the right to own the entire property just because the latter was married to the de cujus under community of property regime, disregarding that he/she is not the only one who has the right to succeed the de cujus.

The petitioner further states that such provisions have been causing many disputes in various families, and such disputes may lead to the commission of other crimes such as murder, while article 18 of the Constitution of the Republic of Rwanda provides that the family, being the

40 Equals to the share on the property reserved for the de cujus.

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natural foundation of the Rwandan society, is protected by the State.

Counsel Umulisa Kayigamba Alice assisting the petitioner states that article 8, paragraph 2 and article 76 (1º) of the aforementioned Law nº 27/2016 of 08/07/2016 allows the surviving spouse to own the entire property, hence leading to family disputes. For her, it should be better if the said articles provided that when one of the spouses deceases, the entire property left by the de cujus is calculated and its management modalities are determined, though this does not guarantee freedom to all family members, since it was found that the children of the de cujus who are not born to both parents are deprived of the freedom entitled to them by article 18 of the Constitution. She then prays the Court to declare those articles as being inconsistent with article 18 of the Constitution of the Republic of Rwanda.

Counsel Kayitesi Petronille, representing the Government of Rwanda argues that article 18 of the Constitution provides that the family, being the natural foundation of the Rwandan society, is protected by the State, hence entrusting to both parents the duty to take care of their children and providing for the freedom of the family. She states that the provisions of article 8, paragraph 2 and article 76 (1º) of the Law nº 27/2016 of 08/07/2016 take into account the interests of both the surviving spouse and children, and this does not contradict the provisions of article 18 of the Constitution, rather, the impugned articles uphold the latter, for they

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took into consideration the right of the surviving spouse and of the children left by the de cujus.

To conclude, she states that the provisions that the succession of spouses is done when one of the spouses dies or when the surviving spouse remarries are not inconsistent with article 18 of the Constitution, rather, such provisions maintain the family freedom, which could be ended by the death of one of the spouses.

Counsel Kabibi Speciose, representing the Government of Rwanda adds that the Legislator has protected the whole family including children and the surviving spouse, because, the fact that the spouses agreed on that in case one of them dies, the surviving spouse will continue to own their property with the duty to take care of children, this is very lawful. To conclude, she states that article 8, paragraph 2 and article 76 (1º) of the aforementioned Law nº 27/2016 of 08/07/2016 are not inconsistent with the Constitution since they protect the family, especially by protecting the surviving spouse from being taken out of the property.

Uwineza Odette and Dr Turamwishimiye Marie Rose representing the School of Law of the University of Rwanda state that article 8, paragraph 2 and article 76 (1º) of the aforementioned Law nº 27/2016 of 08/07/2016 do not respect the principle of protecting the Rwandan society since they may lead to succession-related disputes because the property subject to succession is entirely owned by the surviving spouse, and this encroaches upon other heirs’ rights. They therefore find that the impugned articles are inconsistent with the purpose of article 18 of

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the Constitution of the Republic of Rwanda revised in 2015.

They conclude by requesting for the revision of the impugned articles for them to match with the principle of protecting the rights of all heirs, by also giving special consideration to the surviving spouse, for this is the only way to abide by the principle of protecting the family as provided under article 18 of the Constitution. DETERMINATION OF THE COURT The right to protection of the family

The right to the protection of the family provided under article 8 of the Constitution of the Republic of Rwanda of 2003 revised in 2015 reads that the family, being the natural foundation of the Rwandan society, is protected by the State. Both parents have the right and responsibility to raise their children. The State puts in place appropriate legislation and organs for the protection of the family, particularly the child and mother, in order to ensure that the family flourishes.

The foregoing article 18 contains four main points, namely : i) the family, being the natural foundation of the Rwandan society, has to be protected by the State ; ii) both parents have the right and responsibility to raise their children; iii) the State puts in place appropriate legislation and organs for the protection of the family, particularly

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the child and mother; iv) the State ensures that the family flourishes.

The very right to the protection of the family is also reiterated in international covenants ratified by Rwanda. Article 16 of the Universal Declaration of Human Rights stipulates that men and women have the right to marry and to create a family as the natural and fundamental group unit within society.

Article 23, subparagraph 1 of the International Covenant on Civil and Political Rights reads that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Article 18 (1,2) of African (Banjul) Charter On Human and Peoples' Rights also provides that Family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical health and moral. The State shall have the duty to assist the family which is the custodian of morals and traditional values recognized by the community.

The right to the protection of the family has also been explained by legal scholars. According to Lara Walker, the European Convention on Human Rights protects the right to respect for family life. This includes the rights of parents to have custody and contact with their children, and the rights of children to be with their parents. The European Court of Human Rights helps to protect families from being unlawfully separated – including

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protecting the rights of parents to recover abducted children41.

Matters relating to the right to the protection of the family as the responsibility of States and international organizations dealing with human rights matters, have also been elucidated by various courts as well as legal scholars.

In the case of John O. Miron and Jocelyne Valliere vs Richard Trudel and Economical Mutual Insurance Company, the Supreme Court of Canada upheld that “the Protection of family is, one of the most important interests imaginable in our society,…marriage is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress” 42.

Furthermore, in the case of Moore vs. City of East Cleveland, the Supreme Court of the USA upheld that “the Constitution protects the sanctity of the family

41 Walker, Lara, The impact of The Hague Abduction Convention on the rights of the family in the case-law of the European Court of Human Rights and the UN Human Rights Committee: the danger of Neulinger, Journal of private international law 6.3 (2010): 649-682. 42 See the case nº 22744, John O. Miron and Jocelyne Valliere v. Richard Trudel, William James Mc Isaac and the Economical Mutual Insurance Companye vs. The Attorney General of Canada, the Attorney General for Ontario, the Attorney General of Quebec and the Attorney General of Manitoba, decided by the Supreme Court of Canada, on 25/05/1995.

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precisely because the institution of the family is deeply rooted in Nation's history and tradition”43.

Ivana Roagna, a legal scholar, also explained that “when it comes to family life, the case-law indicates that two main types of obligations stem from Article 8 of the European Convention on Human Rights; the first is to give legal recognition to family ties; the second is to act to preserve family life. What follows is an overview of the positive obligations states bear in these two areas”44.

Based on the foregoing elucidations, it is in the finding of the Court that various legislations, case laws and legal scholars, all reiterated the importance of the family and the reason for its protection by the State, and this is in the line with the provisions of article 18 of the aforesaid Constitution of the Republic of Rwanda. ii. The right to the protection of the family and the right to succession

Article 17, subparagraph 1, of the Constitution of the Republic of Rwanda of 2003 revised in 2015, provides that the right to marry and found a family is guaranteed by the law.

The aforementioned article 18 of the said Constitution reads that The family, being the natural foundation of the Rwandan society, is protected by the

43 See the case nº 75-6289, Moore v. City of East Cleveland, U.S. Supreme Court, 431 U.S. 494 (1977), decided on May 31, 1977. 44 Roagna, Ivana, Protecting the right to respect for private and family life under the European Convention on Human Rights. (2012), p.6.

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State. Both parents have the right and responsibility to raise their children. The State puts in place appropriate legislation and organs for the protection of the family, particularly the child and mother, in order to ensure that the family flourishes.

Article 2 of the law nº 32/2016 of 28/08/2016 governing persons and family, in the section of definition of terms, reads that the family is a group of persons related by kinship, law or marriage; it may include parents, children, their descendants and in-laws.

Based on the foregoing, it is necessary to analyze the interpretation of the right to the protection of the family while examining issues relating to succession. In the case of Pla and Puncernau vs. Andorre, the European Court for Human Rights stated that it is accepted that the right of succession between children and parents, and between grandchildren and grandparents, was so closely related to family life that it came within the sphere of Article 8 of the European Convention on Human Rights. It has thus considered that matters of intestate succession and voluntary dispositions between near relatives prove to be intimately connected with family life45. The very Court further upheld that Family life does not include only social, moral or cultural relations, for example in the sphere of children’s education; it also comprises interests of a material kind, as is shown by, amongst other things, the obligations in respect of

45Application nº 69498/01, Pla et Puncernau c. Andorre (2004), Para 26.

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maintenance and the position occupied in the domestic legal systems of the majority of the Contracting States by the institution of the reserved portion of an estate46. In the case of Bourimi vs. Netherlands, the same Court added that although Article 8 of the European Convention on Human Rights does not as such guarantee a right to inherit, the Court has previously accepted that questions of intestate succession between close relatives fall within the scope of that provision, insofar as they represent an aspect of family life47. Based on the foregoing explanations, though the laws relating to human rights do not protect the right to succession as a right itself, the issues of succession can be linked to the right to the protection of the family since such issues concern the right to succession entitled to family members in case one of them dies. iii. About the instant case As reiterated above, in alleging that article 8, paragraph 2 and article 76 (1o) of the aforementioned Law

46 Ibidem 47 “Bien que l'article 8 de la Convention européenne de Droit de l’homme ne garantisse pas en tant que tel un droit à hériter, la Cour a admis précédemment que les questions de succession ab intestat entre proches parents entrent dans le champ d'application de cette disposition, dans la mesure où elles représentent un aspect de la vie familiale”, Application nº 28369/95, Bourimi v. the Netherlands, (2000), Para.35

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nº 27/2016 of 08/07/201648 are inconsistent with the Constitution, Ngendahayo Kabuye refers to the fact that the surviving spouse gets the entire property and manages it as he/she wishes; which he finds questionable since it causes conflicts and frequent disputes in the family, and it is for this reason he finds the impugned articles encroaching the right to the protection of the family. The purpose of adopting the articles alleged to be unconstitutional has been explained in paragraphs 61-68 of the present judgement. Additionally, in paragraphs 72- 73 of the instant judgment, it was reminded that, though the aforementioned Law nº 27/2016, article 8, paragraph 2 and article76 (1˚), provided that if one of the spouses dies, the surviving spouse is entitled to the entire property, but it did not end there. The same Law contains other various provisions indicating that other heirs’interests have also been taken into consideration. The example that can be given is the provision on the children’s right whereby the surviving spouse was given the duty to take care of their children and that of the legitimate children of the de cujus. In addition, the same Law provided that the succession opens when the surviving spouse remarries, and penalties have been provided for the surviving spouse who fails to fulfil his/her duties as per article 76 (6º) explained in paragraph 69. As also reiterated above, the very Law provided for the disposable portion of the property the surviving spouse cannot exceed for donations or

48 These articles have been analyzed in the section relating to the right to property.

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succession, as explained in the article 49 mentioned in the paragraph 70. The Court finds that the foregoing elucidations aim at preventing frequent family disputes resulting from succession, in order to protect the family unity and integrity and its members. It is also in the finding of the Court that, as mentioned above, the Law explains clearly the succession process for the heirs. The issue could have been raised if the surviving spouse was entitled to the entire property without entitling other heirs the right to succession of the family property. Based on all elucidations provided above, it is in the finding of the Court that article 8, paragraph 2 and articles 76 (1˚) of the Law nº 27/2016 of 08/07/201 governing matrimonial regimes, donations and successions, are not inconsistent with article 18 of the Constitution of the Republic of Rwanda of 4/06/2003 revised in 2015. 3. Whether article 8, paragraph 2 and articles 76 (1˚) of the Law nº 27/2016 of 08/07/2016 governing matrimonial regimes, donations and successions, are inconsistent with article 34 of the Constitution of the Republic of Rwanda of 4/06/2003 revised in 2015 Ngendahayo Kabuye avers that article 8, paragraph 2 and articles 76 (1˚) of the Law nº 27/2016 of 08/07/2016 governing matrimonial regimes, donations and successions, are inconsistent with article 34 of the

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Constitution of the Republic of Rwanda of 4/06/2003 revised in 2015, on ground that they entitle to the surviving spouse the entire property, based on marriage under community of property regime, and hence disregarding the rights of other heirs, especially children of the de cujus who are not born to both spouses. He further states that article 34 of the Constitution reads 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. He state that the succession means being entitled the right and obligations to the property and debts of the de cujus, that depriving some of the heirs of their rights to succession, is construed as depriving them of their right to property while the succession is one of the fundamental rights. He also states that the Preamble of the Constitution reads that Rwandans are committed to building a State governed by the rule of law, based on the respect for human rights, freedom and on the principle of equality of all Rwandans before the law as well as equality between men and women, and this cannot be achieved if some persons are deprived of their fundamental rights by certain provisions. Ngendahayo Kabuye further states that various international covenants ratified by Rwanda, protect the fundamental rights to property, including article 14 of African Charter on Human and People’s Rights, article 9

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of African Youth Charter, and article 5 of Pretoria Declaration on Economic, Social and Cultural Rights in Africa known as "Pretoria Declaration”. He further adds that not having the right to the property of the de cujus is a deprivation of the fundamental right since the person in that situation cannot enjoy good life since he/she cannot be entitled to the right to shelter, food, land, medical treatment, education, clean water and sanitation. Counsel Umulisa Kayigamba Alice assisting him argues that article 8, paragraph 2 and articles 76 (1˚) of the aforementioned Law nº 27/2016 of 08/07/2016 entitle to the surviving spouse the entire property, hence leaving aside other heirs especially when he/she does not have the duty to take care of them, additionally, the surviving spouse may have such a duty but fails to fulfil them as required, hence leading to family disputes as well as unnecessary lawsuits, and it is in this regard that they find these provisions inconsistent with article 34 of the Constitution of the Republic of Rwanda. Counsel Kayitesi Pétronille, representing the Government of Rwanda argues that article 8, paragraph 2 and articles 76 (1˚) of the Law nº 27/2016 of 08/07/2016 are not inconsistent with article 34 of the Constitution of the Republic of Rwanda on ground that they do not deprive the heirs of their right to the property and entitle it to the surviving spouse as alleged by Ngendahayo Kabuye, because, though the surviving property is entitled the entire property, he/she remains with the duty to take care of their children he/she had with the de cujus as well

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as those of the de cujus who are not born to both spouses, and the latter have the right to succession as per the law. Counsel Kabibi Speciose, representing the Government of Rwanda adds that the provision of the law that succession to spouses is done when one of them dies or when the surviving spouse remarries, does not contradict article 34 of the Constitution, since the property belongs to both spouses and not to their heirs. It is therefore in her finding that such a property should not in any case be encroached upon, especially since it was co- acquired by both spouses whether still alive or deceased. Uwineza Odette and Dr Turamwishimiye Rose representing the School of Law of the University of Rwanda, state that article 8, paragraph 2 and articles 76 (1˚) of the Law nº 27/2016 of 08/07/2016 encroach upon the rights to property of other heirs since such a property is entirely entitled to the surviving spouse, and this is in contradiction with article 34 of the Constitution of the Republic of Rwanda. They request that, while pending the revision of the impugned articles, the Supreme Court should set a position to be referred to in order to protect the right of all heirs. They thus find that, for instance instead of entitling the entire property to the surviving spouse, the latter should be entitled the duty to manage that property in a defined period of time while awaiting for all heirs to share it. DETERMINATION OF THE COURT

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i. The right to property The right to property provided under article 34 of the Constitution of the Republic of Rwanda of 2003 revised in 2015, stipulates 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. Such a right has also been provided by international covenants ratified by Rwanda. The example is article 17 of the Universal Declaration of Human Rights reading that everyone, whether alone or in community with others, has the right to own property. No one shall be arbitrarily deprived of his property49. Article 14 of African Charter of Human and People’s Rights reads that the right to property is guaranteed. It may not be infringed except by public necessity or in the general interest of the community, in accordance with the provisions of the appropriate laws50. The right to property has also been upheld by other covenants involving countries from other continents.

49 “Toute personne, aussi bien seule qu’en collectivité, a droit à la propriété. Nul ne peut être arbitrairement privé de sa propriété”, La Déclaration Universelle des Droits de l’Homme, article 17. 50 “Le droit de propriété est garanti. Il ne peut y être porté atteinte que par nécessité publique ou dans l'intérêt général de la collectivité, ce, conformément aux dispositions des lois appropriées”, La Charte Africaine des Droits de l'Homme et des Peuples, article 14.

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Article 1 of Protocol nº 1 of the European Convention on Human Rights provides that 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 provided for by law and by the general principles of international law51. The concept of property in the first paragraph of Article 1 of Protocol no. 1 is an autonomous concept, which may cover both actual property and assets, including claims in respect of which the applicant may claim to have at least one legitimate expectation. Property includes rights in rem and personal rights. This term covers immovable and movable property as well as other property interests52. American Convention on Human Rights, article 21 reads that everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society53…

51 Article 1 of Protocol nº 1 to the European Convention on Human Rights. 52 “La notion de « biens » figurant au premier alinéa de l’article 1 du Protocole Nº 1 est une notion autonome, qui peut recouvrir tant des «biens actuels» que des valeurs patrimoniales, y compris des créances en vertu desquelles le requérant peut prétendre avoir au moins une «espérance légitime». Les « biens » incluent les droits réels et les droits personnels. Ce terme englobe les immeubles et les biens meubles ainsi que les autres intérêts patrimoniaux”, Guide sur l’article 1 du Protocole nº 1 à la Convention Européenne des droits de l’homme: Protection de la propriété, 2022, P.7. 53 American Convention on Human Rights, article 21.

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In the case Ivcher-Bronstein v. Peru, Inter- American Court of Human Rights, property can be defined as those material things which can be possessed, as well as any right which may be part of a person’s patrimony; that concept includes all movables and immovables, corporeal and incorporeal elements and any other intangible object capable of having value54. In their decisions, the courts have been explaining the right to property. The example is the case of Marckx vs Belgium before the European Court for Human Right. Regarding Belgium legislations relating to legitimate children born to one of the spouses, the very Court stated that by recognizing that everyone has the right to respect for their property, Article 1 essentially guarantees the right to property, the right to dispose of one's property, which is a fundamental traditional element of the right to property55. In the case of Hutten-Czapska v Poland, the same Court reminded that the main principle to the right to property is that it cannot be encroached upon (peaceful enjoyment of property: usus, fructus, abusus); that any

54 Ivcher Bronstein case vs Perou, Inter-American Court of Human Rights of February 6, 2001 (Merits, Reparations and Costs) para. 122 55“En reconnaissant à chacun le droit au respect de ses biens, l’article 1 garantit en substance le droit de pro Marckx c. Belgique, arrêt du 13 juin 1979, Série A nº 31, op.cit, para 49. priété. …le droit de disposer de ses biens qui constitue un élément traditionnel fondamental du droit de propriété”,

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interference with the enjoyment of a right or freedom must pursue a legitimate aim56. International Courts such as American Court and African Court for Human Rights have on several occasions indicated that the right to property helps people protect their rights, by protecting natural families and people as well as other minority groups with history linking them to their property57. Legal scholars also provided some explanations for a better understanding of the right to property. In that regard, in their book entitled Property Examples and Explanations, Barlow Burke and Joseph Snoe stated that property law is not about one person’s relationship to a thing. Instead, it is about relationship between and among persons with regard to a thing. Such a right permits one person to exclude another from using a thing; to use it personally to gain rents, profits or income from it; to sell it; or to give it by will to one relative and not another. All

56 Application nº 35014/97, Hutten-Czapska v Poland [GC] ECHR 2006-VIII, para 165. 57 Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Series C Nº 79, Inter-American Court of Human Rights, August 31, 2001; judgment of Center for Minority Rights in Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, Communication No. 276/2003, African Commission on Human and Peoples’ Rights, February 4, 2010; African Commission on Human and Peoples’ Rights v. Kenya, Application No. 006/2012, African Court on Human and Peoples’ Rights, May 26, 2017.

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this is possible only when one’s relationship to property is clear insofar as others are bound to respect it58. In his book entitled Understanding Property Law, John G. Sprankling also stated that it is common to describe property as a bundle of rights including the right to exclude the right to transfer, the right to possess and use and the right to destroy59. Based on the foregoing elucidations, it is clear that the right to property should be respected by everyone by allowing the property owner to have full rights on his/her property, and such a right should not be encroached upon except for public interest and for a legitimate aim. ii. Can a person ascertain that he/she has a right to the property basing on the expectation to own it in the future? The answer to this question is found in case laws and elucidations provided by legal scholars. In the case of Marckx vs Belgium, the European Court for Human Rights explained that Article 1 of Protocol No. 1 confines itself to enshrining the right of everyone to respect for “his” property, and consequently applies only to current

58 Burke, D. Barlow, and Joseph A. Snoe. Property: Examples & Explanations. Wolters Kluwer, 2008, p 5. 59 Sprankling, John G., Understanding property law, LexisNexis, 2012, p. 4.

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property and does not guarantee the right to acquire it by intestate succession or gifts60. The foregoing has also been reiterated by the same Court in the case of Van der Mussele, where the very Court stated that only present rights are guaranteed by article 1 of the Additional Protocol of the European Convention on Human Rights and such article does not protect the expectation to acquire certain assets61. Future income can be protected by the law, for example in instances it has already been earned or there is evidence that there is expected debt owed by others. The law can protect the legitimate expectation. For Courts to hold that a person has a right to property based on the foregoing, there must be tangible elements of evidence proving beyond reasonable doubt that his/her right on that property has to be protected by the law. Courts explained this as follows: “A future income can be considered as such when it has been earned or it is subject of the legitimate expectation”62. For the expectation to be legitimate, it must be more than simple expectation and

60 “L’article 1 du Protocole numéro 1 se borne à consacrer le droit de chacun au respect de "ses" biens, ne vaut par conséquent que pour des biens actuels et ne garantit pas le droit d’en acquérir par voie de succession ab intestat ou de libéralités”, Marckx c. Belgique, arrêt du 13 juin 1979, op.cit, par.50. 61 “La Cour estime que seuls les droits actuels sont garantis par l’art.1 du Protocole additionnel et que les espérances d’acquérir certains biens ne juissent pas de protection”, Requête nº 8919/80, Van der Mussele, (23 novembre 1983), para .48. 62 Requête nº 76639/11, Denisov c. Ukraine, (25 septembre 2018), para. 137

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based on the legal provision or act like the court decision concerning the patrimonial interest. In many cases, the Court held that the claimants did not have legitimate expectation when it was not possible to consider that they did not really have immediately due claim”63. Courts expounded that the legitimate expectation did not in itself constitute a property to be protected; it is protected because it is related to the way in which the claim qualified as a property value would be treated in domestic law64. Explanations provided by the foregoing caselaws are in line with the statements of legal scholars. According to Mariana Karadjova, what is considered to be property is what has already been acquired. She adds that the inheritance rights are potential. They are not yet acquired and depend on a future event that is not determined in time. The dependence of these rights on certain conditions places them in the category of non-fundamental rights65.

63 Requête nº 44912/98, Kopecky c. Slovaquie, (28 septembre 2004), para.49. 64 “L’espérance légitime n’était pas en elle-même constitutive d’un intérêt patrimonial; elle se rapportait à la manière dont la créance qualifiée de «valeur patrimoniale» serait traitée en droit interne”, Requête nº 1513/03, Draon c. France, (6 octobre 2005), para. 68. 65 “Est considéré comme bien ce qui est déjà acquis. Les droits d’héritage sont plutôt potentiels. Ils ne sont pas encore acquis et dépendent d’un événement futur qui n’est pas déterminé dans le temps. La dépendance de ces droits de certaines conditions les place dans l’ordre des droits non- fondamentaux”, Mariana Karadjova, La protection du droit de propriété au niveau européen et son inportance pour l’harmonisation des pratiques des cours constitutionnelles, Bulgarie, p.4, para 1.

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Monica Carss-Frisk also reiterates that the right to acquire property in the future is not guaranteed. The protection of Article 1 of Protocol no. 1 of the Convention applies only where it is possible to assert a right in the property concerned. She adds that Article 1 does not protect the right to acquire property66. The foregoing elucidations on the right to property and on the right that cannot be confused with the right to property can be summarized in the following points : a. Everyone has right to property ; b. Such a right can be encroached upon only for public interest and for a legitimate aim ; c. The right to property that is protected by the law is the right that is related to existing property one owns ; d. The law does not protect the right one expects to have in the future ; e. The right to succession cannot be considered as the fundamental right to property.

66 “Le droit d’acquérir une propriété à l’avenir n’est pas garanti. La protection de l’article 1 du Protocole nº 1 ne s’applique que lorsqu’il est possible de faire valoir un droit sur le bien concerné. L’article 1 ne protège pas le droit d’acquérir un bien”, Carss-Frisk, Monica. The right to property: A guide to the implementation of Article 1 of Protocol nº 1 to the European Convention on Human Rights. Council of Europe, 2001.

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iii. About the instant case As reiterated above, by alleging that article 8, paragraph 2, and article 76 (1o) of the aforementioned Law nº 27/2016 of 08/07/2016, Ngendahayo Kabuye bases his allegation on the fact that such provisions entitle to the surviving spouse the right to own the entire property, hence depriving other heirs of their right to succession. The provisions of the impugned articles are to be analysed in order to link them to some articles of the aforementioned Law nº 27/2016 of 08/07/2016, by examining the time the heirs have to start enjoy their right to the property under succession, in order to determine whether the impugned articles are really inconsistent with article 34 of the Constitution. Both Article 8, paragraph 2, and article 76 (1o) of the aforementioned Law nº 27/2016 of 08/07/2016, denote that when one of the spouses under community of property regime dies, the surviving spouse acquires the co-owned property. Article 76 (1º) provides more explanations that are not given in article 8, paragraph 2, where that article provides that the surviving spouse who is entitled the right to own the entire property, has the duty to take care of the children born to both spouses and children of the de cujus who are not born to both spouses. Article 51 reads that succession is the transfer of rights and obligations on the assets and liabilities of

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the de cujus. Article 5267 of the same law includes in its provisions that succession opens upon the death of a person. However, the same article provides that succession for spouses opens when they both decease or in case one of them remarries, unless otherwise provided by law. Article 55 provides that starting from the day of the opening of succession, a person entitled to succeed by way of a will or under law is called a heir as long as he/she accepts it, while articles 5668 and 5769

67 More details on this article will be provided later. 68 Article 56 provides that “An heir is automatically deprived of succession rights if he/she: 1° is convicted of intentionally killing the de cujus or of attempting to kill him/her; 2° is convicted of a false accusation or perjury that could have resulted in the de cujus being sentenced to at least six (6) months imprisonment; 3° has deliberately abandoned his/her child whose succession is opened, committed an indecent assault, sexual abuse, exposed him/her to sexual exploitation or sexually abused him/her. A court judgment convicting the legitimate heir of one of the offences referred to under the previous Paragraph is sufficient to deprive him/her of the right to be among heirs 69 While article 57 provides that Any legitimate heir or legatee may be debarred from succession if: 1°during the lifetime of the de cujus, he/she broke off parental relationships with the de cujus; 2°he/she deliberately failed to take care of the de cujus in time of need; 3° he/she took advantage of the physical or mental inability of the de cujus to take over the whole or part of inheritance; 4° intentionally disposed of, destroyed or altered the last will of the de cujus without his/her consent or took advantage of a revoked or voided will. Any person entitled to succession, within a period not exceeding one (1) year from the day of the opening of succession or the day he/she became aware of one of those reasons, may petition the competent court to debar the heir or legatee responsible for one of

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provide for reasons for ultimate debarment from succession. Effects of debarment from succession and how a person debarred from succession is excluded from succession of the estate of de cujus are provided under 59 of the same law. Article 7370 provides for the order of regular heirs, while article 75 entitles to the surviving spouse the right to the succession of the deceased spouse. The aforementioned article 76 (1º) entitles the surviving spouse to the entire property and the duty to take care of their children and that of the legitimate children of the de cujus. The next paragraphs explain modalities for the succession in case both spouses die, leaving children or not. They also provide explanations on succession modalities when the surviving spouse remarries, having children with the de cujus or not, and in case of existence of the children of the de cujus. Articles 83-87 provide for liquidation and inventory of the estate, responsibilities of the succession

the acts provided under the Paragraph One of this Article from succession. The claim is filed in the form of summary procedure. 70 Such article reads that heirs are entitled to inherit in the following order: 1°children of the de cujus; 2°father and mother of the de cujus; 3° full-blood brothers and sisters of the de cujus; 4° half-brothers and half-sisters of the de cujus; 5° grandparents of the de cujus; 6°paternal and maternal uncles and aunts of the de cujus. Subject to provisions of Article 41 of this Law, each category of successors excludes others in the order of succession. Full-blood children of the de cujus inherit from both the paternal and maternal sides, while consanguineous and uterine children inherit only from the side of the parent to whom they are related.

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council, liquidator and payment of debts attaching to the estate. After all heirs are found and the estate subject to succession is determined, articles 94-99 provide for the partition of the property. The Court finds that the content of the foregoing articles indicates that even though generally starts after the death of the de cujus, at that time, the real property for succession is not yet determined, the heirs and their respective portions are also not yet determined for them to enjoy full right to it (usus, fructus and abusus). This means that once the succession is not yet open, the heirs only remain with expectation to have in the future the right to succession of the property left by the de cujus, which is different from having such a right in the present. Furthermore, for spouses under community of property regime, the law has reserved particularity compared to other spouses with a different matrimonial regime, because, as reiterated above, when one of the spouses dies, the surviving spouse is entitled to the entire property, and succession opens when both spouses die or when the surviving spouse remarries. According to the submissions provided by Ngendahayo Kabuye, it is evident that the right to property alleged to be encroached upon consists of the right of the heirs of the de cujus, and not the surviving spouse, they expect to enjoy by the time of succession. However, as explained in the previous paragraphs, the right to property consists of the right one has on the thing or estates one owns, and the law does not protect the right one expects to have in the future. The foregoing means

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that the rights of heirs are only determined after the opening of succession, and it is by then that regular heirs and their orders are determined. Regarding spouses under community of property regime in particular, as reiterated above, succession starts when both spouses die or when the surviving spouse remarries. This means that in case one of the spouses dies, and the surviving spouse is still alive or has not remarried yet, none of the heirs can claim to have the right protected under article 34 of the Constitution. [149] Apart from the foregoing elucidations, it is in the finding of the Court that there is no indication that articles alleged to be inconsistent with the Constitution deprive the heirs of their rights to succession, as alleged by Ngendahayo Kabuye, because, as explained above, article 75 of the aforementioned Law nº 27/2016 of 08/07/2016 provides for the order of regular heirs during succession. Based on the foregoing elucidations, the Court finds that article 8, paragraph 2 and article 76 (1º) of the Law nº 27/2016 of 08/07/2016 governing matrimonial regimes, donations and successions are not inconsistent with article 34 of the Constitution of the Republic of Rwanda of 2003 revised in 2015. 4. Whether article 52, paragraph 3 and article 75 of the Law nº 27/2016 of 08/07/2016 governing matrimonial regimes, donations and successions are inconsistent with articles

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15, 18 and 34 of the Constitution of the Republic of Rwanda of 2003 revised in 2015 Ngendahayo Kabuye allege that article 52, paragraph 3 and article 75 of the Law nº 27/2016 of 08/07/2016 governing matrimonial regimes, donations and successions are inconsistent with articles 15, 18 and 34 of the Constitution of the Republic of Rwanda of 2003 revised in 2015. He further states that a family is made up of many members including the husband, wife and their children, children who are born to one spouse, as well as other relatives of the de cujus, however, the law does not protect them equally. He avers that entitling to the surviving spouse the entire property after the death of his/her partner and allow him/her to manage it as he/she wishes, while there are other heirs in need of that property, and entitle him/her the right to inherit the de cujus, it is an indication that he/she is entitled excessive right compared to other heirs, and this is the cause of frequent family disputes, while the principle is that the State has duty to avoid family disputes and protect the family. To conclude, he states that the State should entitle to all heirs the right to the property left by their late parent, instead of entitling the entire property to the surviving spouse only. Counsel Umulisa Kayigamba Alice criticizes the succession law to provide that when one of the spouses dies, the entire property goes to the surviving spouse, who has the right to sell or use it as she/he wishes, hence depriving other heirs of their right to that property. She avers that the fact that the husband and wife each owns

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50% of the property, but that once one of them dies, the surviving spouse is added to those who have to inherit the 50% of the property, which is the share of the de cujus, it is construed as entitling to the surviving spouse an excessive right to property compared to other heirs, and this leads to frequent family disputes. Based on all those reasons, she confirms that article 53, paragraph 3 and article 75 of the aforementioned Law nº 27/2016 of 08/07/2016 are inconsistent with articles 15, 18 and 34 of the Constitution of the Republic of Rwanda of 4/06/2003 revised in 2015. Counsel Kayitesi Petronille states that article 53, paragraph 3 and article 75 of the aforementioned Law nº 27/2016 of 08/07/2016 are not inconsistent with articles 15, 18 and 34 of the Constitution since they do not discriminate heirs, nor do they lead to family disputes, rather, they protect the surviving spouse from experiencing bad life in comparison to the life he/she was enjoying before the death of his/her partner, especially since he/she remains with the duty to take care of their children including legitimate children of the de cujus who are not born to both spouses, who are allowed to inherit when succession opens. She further adds that the fact that article 75 of the aforementioned law entitles to the surviving spouse the right to inherit the property of the de cujus, his/her former partner, does not cause any problem, rather, this provision was so necessary especially since it is not understandable how the surviving spouse had no right to succession of the property his/her partner whom they co-acquired the said

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property. Therefore, this provision does not contain any discrimination and no one should worry about it since the property is already co-owned by both spouses. Counsel Kabibi Speciose adds that no one should worry about the right to inherit the 50% of the property, which is the share of the de cujus, and this does not contain any discrimination for the surviving spouse is among those who deserves to be aided by the de cujus, and he/she should not be deprived of that right. Uwineza Odette and Dr Turamwishimiye Rose, representing the School of Law of the University of Rwanda, state that article 52, paragraph 3, of the aforementioned Law no 27/2016 entitles to the surviving spouse more opportunities compared to other heirs since he/she is entitled the entire property which is subject to succession while the law did not provide for modalities of managing such property, and this can encroach upon other heirs in case the surviving spouse sells or donates it. They thus find that as being inconsistent with articles 15, 18 and 34 of the Constitution of the Republic of Rwanda of 04/06/2003 revised in 2015. They further add that the fact that article 75 of the aforementioned law entitled to the surviving spouse the right to inherit his/her partner, that does not in no way violate the aforementioned articles of the Constitution. DETERMINATION OF THE COURT

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Before examining whether the impugned article 52, paragraph 3 and article 75 are unconstitutional, it is important to note that explanations provided for some principles indicated in this petition, meaning the principle of equality before the law provided under article 15, the principle of protection of the family provided under article 18, and the right to property provided under article 34 of the Constitution of the Republic of Rwanda, have been referred to in the following paragraphs. As elucidated above, article 52, paragraph 3 of the said law, provides for the time by when succession opens, meaning after the death of one of the spouses or when the surviving spouse remarries, while article 75 provides for the right to succession entitled to the surviving spouse, and modalities thereof. The concern of Ngendahayo Kabuye is that the impugned articles entitle excessive right to the surviving spouse in comparison to other heirs. The foregoing articles concur with article 8, paragraph 2 and article 76 (1º) discussed above, of the aforementioned Law nº 27/2016 of 08/07/2016. In the paragraphs 37- 58 of the instant petition, the present Court explained that the State, through its decisions or legislations, may adopt specific strategies or policies for particular groups of people, with an aim to protect them, provided that it is done for a reasonable and legitimate purpose, and this cannot be regarded as discrimination. According to the Court, the purpose of entitling to the surviving spouse the right to inherit his/her partner as per article 75 of the aforementioned nº 27/2016 of 08/07/2016, is reasonable and legitimate, because, as per

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the explanatory note of the said Law, the Legislator’s purpose was to cover the gap existing in the law N° 22/99 of November 12, 1999 to Supplement Book I of the Civil Code and to Institute Part Five Regarding Matrimonial Regimes, Liberalities and Successions. In the very Law, the surviving spouse was not among the heirs of the de cujus, who used to be his/her partner. For the Legislator, nothing was preventing the surviving spouse to inherit his/her partner (de cujus), while they both contributed to the acquisition of the family property they co-owned. Protecting the surviving spouse and entitling to him/her the right to inherit his/her partner is not a specialty of Rwanda legislations. In Roman history, Ilie Urs stated that legislations have been undergoing revisions so that nowadays the surviving spouse is entitled the right to succession of the property left by his/her partner as per the amendments of succession laws: “Nowadays, the surviving spouse has three distinctive succession rights: i) a general inheritance right, in competition with any of the classes of heirs ii) a special inheritance right over the movable goods and objects belonging to the household and over the wedding gifts; and iii) a temporary right of occupancy of the house.” 71 In Nepal, it is provided that the surviving spouse who was still living with the de cujus takes the first place in the order of heirs of the de cujus (The order of preference of nearest heirs for succession shall be as

71 Urs, Ilie, The inheritance rights of the surviving spouse provided by the Romanian law, Revista de derecho (Valparaíso) XXXII (2009): 209-220

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follows :(a) Husband or wife living in the undivided family...)72. In Sweden, the surviving spouse is to be regarded as a preliminary heir, the children as reversionary heirs. Only a child of the deceased who is not a child of the surviving spouse, may claim his or her share after the death of the first spouse. The spouses inherit the entire estate even where Children exist. However, he or she may not dispose of it by will as it should be passed to the heirs of the previously deceased on his or her own death73. Legal scholars further state that the children74 are only entitled to a Pecuniary claim. This Claim is only enforceable after the death of surviving spouse75. Based the foregoing elucidations, it is evident that, even though every country has its own way of addressing its issues, as legal instruments have been improving, the right to property entitled to the surviving spouse has been taken into account in order to protect his/her usual life he/she used to enjoy when his/her partner was still alive, while he/she contributed to the acquisition of the co- owned property. It should also be taken into account the

72 Article 239, the National Civil (Code) Act, 2017 (2074). 73 Miriam Anderson and Esther Arroyo i Amayuelas, The Law of Succession: Testamentary Freedom: European Perspectives (Editorial CSIC - CSIC Press, 2011), p.11. link: https://books.google.rw/books 74 Born to both spouses. 75 Miriam Anderson and Esther Arroyo i Amayuelas, The Law of Succession: Testamentary Freedom: European Perspectives, op.cit, p.11.

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fact that the surviving spouse remains alone with the household obligations which he/she shared with the de cujus. Following the above motivations, it is in the finding of the Court that: a. With regard to the principle of equality before the Law  The fact that the Legislator granted a special attention to the surviving spouse by entitling the latter the entire property, and that he/she has to be inherited only when he/she remarries or dies, this does not contain any discrimination. Additionally, the fact that the Legislator entitled to the surviving spouse the right to inherit the de cujus, this also does not in no way violate the principle to equality before the Law, because, as reiterated above, there should be a discrimination if other heirs were deprived of the right to succession, and it is not the case in the aforementioned Law nº 27/2016 of 08/07/2016. b. Regarding the principle of protecting the family  The Court finds that, as explained in paragraphs 99-101 of the instant case, the fact that the Law nº 27/2016 of 08/07/2016 provided that: i) the surviving spouse is entitled to the entire property and succession opens when the surviving spouse remarries or dies; ii) there is a

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portion of property that a person is not allowed to dispose of by donation or testament because it is reserved for rightful heirs; iii) there are penalties reserved to the surviving spouse who fails to fulfil the duties of educating the children left by the de cujus, and others, all this aims at reducing succession-related family disputes, in order to protect unity and integrity of the family and its members. Therefore, the allegations of Ngendahayo Kabuye that the impugned articles violate the principle of the protection of the family, are unfounded. c. With regard to the right to property  As elucidated above in paragraphs 140 and 145, the Court finds that the law does not protect the right that is not yet determined, and no one cannot claim the right to property that is not entitled to him/her yet, since such a right is about the property one owns and not he/she expects to own in the future. Following the above elucidations, the Court finds that the allegations of Ngendahayo Kabuye that the entire property for succession is solely entitled to the surviving spouse since succession opens when both spouse die or when the surviving spouse remarries, and his allegation that the entitling the surviving spouse the right to inherit the de cujus violates the right to property, are unfounded,

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because, as explained above, the right of the heirs is clearly determined after the opening of succession, the time when the regular heirs and their order of succession is determined as per article 75 of the law nº 27/2016 of 08/07/2016 governing matrimonial regimes, donations and successions. Based on all the foregoing motivations, the Court finds that article 52, paragraph 3 and article 75 of the law nº 27/2016 of 08/07/2016 governing matrimonial regimes, donations and successions are not inconsistent with articles 15, 18, and 34 of the Constitution of the Republic of Rwanda of 4/06/2003 revised in 2015. III. DECISION OF THE COURT Holds that the petition initiated by Ngendahayo Kabuye seeking declaration that article 8, paragraph 2, article 52, paragraph 3, article 75 and article 76 (1o) of the Law nº 27/2016 of 08/07/2016 governing matrimonial regimes, donations and successions are inconsistent with articles 15, 18, and 34 of the Constitution of the Republic of Rwanda of 4/06/2003 revised in 2015, lacks merit ; Holds that article 8, paragraph 2, and article 76 (1o) of the Law nº 27/2016 of 08/07/2016 governing matrimonial regimes, donations and successions are not inconsistent with article 15 of the Constitution ; Holds that article 8, paragraph 2, and article 76 (1o) of the Law nº 27/2016 of 08/07/2016 governing

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matrimonial regimes, donations and successions are not inconsistent with article 18 of the Constitution ; Declares that that article 8, paragraph 2, and article 76 (1o) of the Law nº 27/2016 of 08/07/2016 governing matrimonial regimes, donations and successions are not inconsistent with article 34 of the Constitution ; Declares that article 52, paragraph 3, and article 75 of the Law nº 27/2016 of 08/07/2016 governing matrimonial regimes, donations and successions are not inconsistent with articles 15, 18, and 34 of the Constitution.