Re. MUTSINDASHYAKA

Re. MUTSINDASHYAKA

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2010-03-26 - Case/document no.: RS/ INCONST/PEN 0001/10/CS - Collection: Supreme Court

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Re MUTSINDASHYAKA [Rwanda SUPREME COURT – RS/ INCONST/PEN 0001/10/CS (Mugenzi, P.J., Mutashya, Mukanyundo, Hatangimbabazi, Kanyange, Mukamulisa, Mukandamage, Munyangeri and Rugabirwa, J.) 26 March 2010] Constitution – Unconstitutional laws – A claim for abrogation of the provision – When the Law maker provides for the acts which are barred by the law in the articles preciding article 176 and he provides for their penalties in article 176 do not mean that its contravenues article 18 and 20 of the constitution – It is not anecessity that both the barred act and its penality be prescribed in the same article. Constitution – The obligation of the Judge to interprete the law – The Judge has the obligation to interprete the ambigious laws or articles. Fact: The primary Court of Kacyiru convicted Mutsindashyaka of the crime of contravening with the laws regulating the public procurement and sentenced him to 12 month of imprisonment and a fine of 500.000 Frw. Thereafter Mutsindashyaka moved the Supreme Court requesting for the repealing of article 176 of the Law n°12/2007 of 27/03/2007 on public procurement for it contravenues the provisions of article 18 and 20 of the Constitution as ameded up to date stating that it prejudices the principle of legalite of the infractions which is provided by article 18 and 20 of the Constitution as amended to date because it does not epecifically

state the act which is forbidden and it doesnot expressly demonstrate when the action of procurement commences and when it ends , and also to demonstrate the specific deeds regarding the public procurement , to the extent that it demonstrates the deeds that are interdicted and their penalties and also that the article only stipulates the penalties but does not provide the criminalised acts to the extent that it leaves the courts with the jurisdiction to determine what deed to be considered as an infraction during the procurement process which leads to the judge or the prosecution to estimate when qualfing the crimes in that Law, to the extent that he can qualify anything as a crime that is he concludes that the infractions are ambigious. Regarding the legality of the penalty the Government of Rwanda states that in the Public procurement law the penalty is demonstrated in article176 and concerning the legality of infraction it avers that the infraction is to surpass what is provided by the law regulating public procurement whether its one article or several articles ,and its not necessary that the infraction is committed on an individual but what is important is that the infraction has to be provided for, regarding the clarity and precision of the law it state that article 176 penalizes anybody who violates the law or the regulations regarding the public procurement , starting

at the commencement of the process up to its closure, and also the judge has the right to decide whether the commission of certain deed is qualified as an infraction. Regarding the interest of Mutsindashyaka in repealing this provision he adduces that due to the fact that he was penalised due to the infractions which are not provided for by the Law bestows him with the interest of requesting for repealing article 176 of the Law no 12/2007 of 27/03/2007regulating public procurement because it violates the fundamental rights provided by article 18 and 20 of the Constitution as amended to date and its the root cause for his prosecution. The court found that the petitioned was submitted in the lawfully procedure because he motioned the Court by himself and has interest in the case he is being prosecuted for because the offence is based on this provision his petition holds the date, his signature and it indicates the subject matter and its ground and more so on the petition he annexed the law which is petitioned for repealing and also he motioned the Supreme Court which is the competent Court. Held: 1. The fact that there are several acts prohibited by the law is not a ground for unconstitutionality of this law while the legislator found it necessary to punish them, as they found them to be infractions and moreover it is not a condition that the infraction and the penalty be combined in the same article2. For the provisions preceding that of 176 of the Law n°12/2007 of 27/03/2007 regulating the public procurement

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,the Lawmake provided in it various acts which are prohibited and he provided for their penalties in article 176 do not contravenue article article 18 and that of 20 of the Constitution.

3. For the Law to be confusing which leads the judge to interprete it in the way he deems does not render them unconstitutional because the judge has the obligation to interpret them.

4. In criminal cases, when the Judge interprets the law analogously it cannot be considered unconstitutional, but that issue may be a ground for appeal so that to examine whether the judge made an analogous interpretation and have itreviewed. Admits the petition for it was instituted in accordance with the law; But it lacks merit; Article 176 of the law no 12/2007 relating to public procurement is by no means contraty to the Constitution of the Republic of Rwanda of 4/6/2003 as amended to date; MUTSINDASHYAKA looses the petition; Court fees on the petitioner. . . Statutes and statutory instruments referred to: The Constitution of the Republic of Rwanda of 04/06/2003 as amended to date, articles 18 and 20. Organic Law n° 01/2004 of 29/01/2004 establishing the organisation functioning and jurisdiction of the Supreme Court, article 89. Law n°12/2007 of 27/03/2007 regulating Public Procurement, 176. No cases referred to. Doctrines: Frédéric Desportes, Francis Le Gunehec, « Droit Péal Général, 14ème édition, Economica, 2007, p.9-10 G. Stefani, G. Levasseur na B. Bouloc mu gitabo cyabo “Droit Pénal général”, 12ème édition, Judgment Background of the case. [1] This case derives from the action instituted by the prosecution in the Primary of Kacyiru against MUTSINDASHYAKA Théoneste and others for different charges. MUTSINDASHYAKA on his own is charged the following offense

: “Contravention of laws relating to public procuremnent, the offense provided and punished under article 84 and 176 of the law No 12/2007 of 27=3/2007 relating to public procurement; article 31 of the ministerial order No 001/08/10/Min establishing regulations governing public procurement and books of instructions of bidding, articles 2 and 4 of the ministerial order No 002/08/Min of 09/05/2008 determining the power of Natioanal Public Procurement Authority and amount of money indicating the limits of powers of institutions awarding public procurement” [2] The judgement of the Primary Court was rendered on 10/11/2009 and the court held that MUTSINDASHYAKA Théoneste is guilty of the crime of “contravention of laws relating to public procurement” and sentenced him to 12 months of imprisonment and a fine of 500.000 Rwf. The court ordered that he and others mentioned in the case pay to the State of Rwanda 320.000.000 Frw of damages and 4% of proportional tax equal to 12.800.000 Frw and also pay to the State of Rwanda damages equal to 2.000.000 Rwf. It also ordered he be arrested and be put in custody even if he can loage an appeal.

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[3] After that judgment, on 02/02/2010, the Supreme Court received in its registry the letter of Me UMUBYEYI Béatrice instituting the claim of MUTSINDASHYAKA requesting the removal of article 176 of the law No 12/2007 of 27/03/2007 governing public procurement because it is against the provisions of article 18 and 20 of the Constitution as amended to date. [4] The Chief Justice enacted the rule n°0021/2010 of 09/02/2010 scheduled the hearing of this case on 22/02/2010. [5] On that date, MUTSINDASHYAKA Théoneste appeared assisited with Me UMUBYEYI Béatrice. Was also present the Deputy State Attorney, Me MBONERA Théophile.

PROCEEDINGS OF THE CASE A. The basis of the claim of MUTSINDASHYAKA: With regard to interest in removal of article 176 of the law No 12/2007 of the 27/03/2007 relating to public procurement [6] Me UMUBYEYI Béatrice asserted that MUTSINDASHYAKA was punished for the offenses not provided for by the law, yet article 20 of the Constitution states that “no one shall be liable for the act or omission that did not constitute an offense under national or international law by the time of their commission” [7] She went further asserting that the fact that MUTSINDASHYAKA was punished for the crimes not provided for by the law gives him the interest of requesting the removal of article 176 of the law No 12/2007 of 27/03/2007 relating to public procurement , since it is prejudicial to articles 18 and 20 of the Constitution as amended to date, due to the fact that that article 176 does not describe the offenses for which it provides penalties, yet this was the basis for the prosecution of MUTSINDASHYAKA With regard to grounds proving how article 176 violates and is contrary to the provisions of articles 18 and 20 of the Constitution [8] Counsel UMUBYEYI asserted that that article 176 is against the principle of legality of offenses due to the following reasons: It does not clearly the prohibited act and thus punishable by the law, yet article 20 of the Constitution provides for that the

offense may either be an cat or omission; It does not expalain when the act of awarding a public tender starts and ends and describe particular acts relating to awarding public tender to the extent that it describes the prohibited acts and their respective penalties; That article provides for penalties but it does not provide for prohibited acts that are subjected to those penalties, in that it leaves the room for courts to determine the criminalized acts in awarding public tender. [9] Counsel UMUBYEYI went further and expalained that the law relating to public procurement has 181 articles, and instructions have the like number of articles and she therefore wonders if all those articles are 181 offenses, and he therefore finds that the fact that the law is formulated that way leads judges or investigators to appreciation seeking criminalized acts and thus forge any act as an offense, and that is why she finds that these offenses are not certain and therefore there are contrary to article 20 of the Constitution providing for that each offense has to be provided for by the law, and they are also contrary to the freedom provided under article 18 of the same Constitution, due to the fact that any person concerned with public tenders can be prosecuted and be punished for crimes not provided for by penal laws.

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[10] Counsel UMUBYEYI concluded requesting the court that, since that law is not certain, that article 176 be removed since it prejudices fundamental human rights provided for under articles 18 and 20 of the Constitution especially that there are other laws providing for offenses that can be committed in awarding public tendersm, exemplifyinf it by conflicts of laws, traffic of influence and so on, she asserts that instead of providing for a remedy creates further problems. She added that in case this article 176 may be repealed, there cannot be the legal vacuum in laws, because offenses provided for by the law relating to public procurement are provided for by other laws. [11] For the issue of determing whether the criminalization of an act and the determination of penalties for those offenses should be provided in the same article, failing which, it amounts to unconstitutionality, Me UMUBYEYI reverted that that is not her point of view, that instead the unconstitutionality exists when there are penalities yet there no punishable acts. She added that the facts there is an article providing for acts and another providing for penalties is not an issue, for her what matters is the prior provision of punishable acts. [12] She was asked whether there are prohibited acts in the law relating to public procurement and she replied affirmatively and asserted that there are no criminal

penalties for those acts, giving the following examples: Conflicts of interests provided under article 16, where the person who awards the tender while she/he has interest therein, the sanction is the dissolution of concluded contract and civil servants involved in that tenders shall be inflicted to disciplinary sanctions. The offense of trafficking of influence in public tenders provided under 178 has its own penalty in the sense that it is certain, since it provides for the acts and the penalty for that act. Anti-Corruption measures provided for under article 15 B. The State’s view on arguments of MUTSINDASHYAKA  [13] Me MBONERA Théophile representing the State was given time so that he can put forward what the State thinks of the repeal of article 176 requested by MUTSINDASHYAKA and his counsel and he put that he does not concede at all to their arguments, because he finds that article 176 of the law relating to public procurement has instead respected the provisions of article 18 that every penalty is provided for by the law (legality of penalty) as well as the provisions of article 20 that each offense has to provided for the law (legality of offenses). [14] With regard to the legality of penalty, he asserted that in the law relating to public procurement the penalty is certain enough under article 176, in the sense that asserting article 18 is violated is not

founded, and for the legality of offenses, he first explained that the offense is the contravention of the provisions of the law relating to public procurement, be it in violation of one or several articles. Therefore, the assertion that that law has 181 articles or the fact that article 176 provides for penalties and offenses provided for by other laws like trafficking of influence is by no means prejudicial to the Constitution, since there may the use of concurrence of offenses. [15] Me MBONERA Théophile went further asserting that it is not necessary that the offense be committed for a single act, but instead what matters is that the offense is provided, and thus it is assed whether the acts falls under the article providing for that offense. [16] With regard to certainty and precision of the law, MBONERA Théophile asserted that to him article 176 punishes the person who committed the acts that is contrary to the law andregualtions on public procurement, from the time the tender is announced until its execution, and he therefore finds that there is nothing uncertain when one reads that law, and the judge is allowed to examine whether the person who undertake this or that act commits an offense.

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[17] He further put forward that even if there is where a law does not explain to the extent that any person can understand what is meant and the court faces controversies relating to understanding, it is up to the judge to interpret, since they have been mandated to determine whether a given act constitute an offense as explained by legal scholars among others Jean Pradel and Herald Renout.1 [18] He concluded putting forward that an article of the law cannot be repealed simply because there is a person who does not understand it, or people understands it differently, because each and every person cannot read an article of the law and understands in the same way as their counterparts, but instead each person understands it in their favour and that is why the last word is made by the judge wh has to interpret it. [19] With regard this issue of the interpretation of the law, Me UMUBYEYI asserted that the argument that the last word is made by the judge should be taken into consideration junctively with the provisions of article 3 of the Penal Code that penal laws has to be interpreted restrictively, courts do not have the power to render judgments in appreciation and she therefore finds that no interpretation is allowed in criminal cases, as long as what is not provided for by the law cannot be qualified as an offense, the judge is not permited to qualify as offenses all acts that the legislator has not qualified as such and she finds that even that power of interpretation is granted to the legislator. [20] After explanation put forward by both parties in this case, the hearing was closed and the court announced that the judgement will be pronounced on 26/03/2010 and later deliberated and ruled on it as follow:

ANALYSIS OF LEGAL ISSUES AND THE VIEW OF THE COURT Admissibility of the Claim [21] Article 89 of the organic law No 01/2004 of 29/01/2009 determining the organization, functioning and jurisdiction of the Supreme Court as modified and complemented to date provides for that “the Supreme Court is competent to hear cases relating to the repeal of organic law, ordinary law, decree law or the law ratifying an international treaty, be it their entire repeal or some of their articles contrary to the Constitution. It is seized by any natural person any institution or association with legal person with interests.” [22] The Supreme Court was seized with the claim requesting the repeal of the article of the law that is unconstituttional, the aforementioned article 89 is met and therefore the claim instituted falls within the jurisdiction of the Supreme of Court. [23] Mutsindashyaka has also complied with that article since he instituted the claim on his own and he has interest in the case in which he charged of the crime based on article 176of the law No12/2007 of 27/03/2007 relating to public procurement. He also complied with the provisions of article 90 of the law No 01/2004 of 29/01/2004 determing organization and functioning of the Supreme Court as modified and complemented to date, since his complaints bears his name and his signature, it also indicates it object and its cause and he submitted on the appendix of the court submission the law with the article for which he requests that it be repealed, therefor the complaint is admissible and be examined. Merits of the case

1 Pradel: “une infraction doit être clairement définie par la loi, cette condition se trouvant remplie lorsque le

justiciable peut savoir à partir du libellé de la disposition pertinente, et au besoin de son interprétation par les tribunaux, quels actes et omissions engagent sa responsabilité”; Herald Renout:” Il résulte du principe de la légalité des délits et des peines qu’une infraction doit être clairement définie par la loi, condition qui se trouve remplie lorsque l’individu peut savoir à partir du libellé de la clause pertinente, et au besoin à l’aide de son interprétation par les tribunaux, quels actes et omissions engagent sa responsabilité pénale”.

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[24] The issue to be examined in this case in to whether the penalty provided for under article 176 of the law No12/200 of 27/03/2007 relating to public procurement has no criminalized fact that is was provided for to the extent that it contrary to the provisions of article 18 and 20 of the Constitution. [25] Article 18 of the Constitution provides for that the human liberty is guaranteed by the State, “no one shall be prosecuted, arrested, imprisoned or be punished for the offense when it was not provided for by the laws in force when the alleged crime…”, and article 20 provides for that “no one shall be liable for an act or omission, whenit was not an offense either under national or international law by the time it was committed.” [26] In explaining his complainmt, MUTSINDASHYAKA asserts that penalties he was sentenced to are provided for under article 176 of the No 12/2012 relating to public procurement, yet this law provides several provsions in 181 articles, it does not indicated prohiobited acts that are punishable by penalties provided under that article, and thus that multitude brings about confusion in the law, yet the criminal has to be certain and precise, and that is in violation of the right provided under the Constitution that no one shall be liable for the acts that are not criminal as provided under articles 18 and 20 of the Constitution

read junctively. [27] Article 176 of the law No 176 of 27/03/2007 relating to public procurement provides the following: “Without prejudice to the provisions of the penal code, leaders or civil servants while they are involved in awarding public tenders, violates this law and regualtions determining its implementation, shall be liable of imprisonment 6 months to 12 months and a fine not exceeding 500,000 Rwf of one of these penalties.” [28] Article 1 of the penal code that defines what an offense is, provides: “an offense is the commission of what is prohibited by the law or the abstention from doing what is commanded by the law, in the manner that contravenes social order and when the law provides for a penalty for that.” [29] When the provisons of article 176 of the Law No12/2007 of 27/03/2007 relating to public procurement are examined from its article 1 to the last article, it is clear that there are several prohibited acts and in the hearng of this case MUTSINDASHYAKA and his counsel concedes those prohibited acts are included therein. [30] What is also obvious in that law is that the legislator intended that those prohibited acts be punishable, and provided penalty for them enshrined under article 176 of that law. The fact the legislator provided penalties for them, after noticing that they are prohibited, meets the threshold provided under article 1 of the penal code

that “an offense the commission of a prohibited act…yet there is a law providing a penalty for it.” [31] The fact those acts are prohibited in a large number under the law No 12/2007 of 27/03/2007 relating to public procurement, the court finds that this is the ground for unconstitutionality of this law while the legislator found it necessary to punish them, as they found to be offenses. [32] Neither is it necessary that the prohibited act and its penalty be provided under a single article, and this in conformity with of the views of legal scholars like Frédéric Desportes and Francis Le Gunehec that the determination of an offense and that of a penalty must not necessarily be pararrel in the same article of the law (...il n’est pas nécessaire qu’incrimination et sanction pénale soient formellement réunies dans un même texte.....Il se peut même que le texte d’incrimination et le texte de pénalité ne soient pas au même niveau dans la hiérarchie des normes).2

2 Frédéric Desportes, Francis Le Gunehec, « Droit Péal Général, 14ème édition, Economica, 2007, p.9-10

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[33] While under articles preceding 176 of the law No 12/2007 of 27/03/2007 relating to public procurement the legialtor has provided several prohibited acts therein, and thus provided their penalties under article 176, the Court is of the view that it is by no means contrary to articles 18 and 20 of the Constitution. [34] With regard to the argument that that law relating to public procurement might be confusing because it provides for several provisons under articles 181, which lead the judge to interpret it in his own way, the court is of the view finds, as legal scholars elucidates, when there is confusion that makes the law ununderstandable, the duty of the judge is to have it interpreted to the extent that he/she indicates what it meant, since he/she cannot defy to render a judgement because the law is not clear. Therefore, the fact that there may be articles of the law that needs to be interpreted cannot the ground for their unconstitutionality. [35] In criminal cases, when it becomes necessary to interpret the law, the judge interprets it restrictively. Eevn if he/she interprets it analogously, the court finds there cannot be unconstitutionality, but that issue may be a ground for appeal and thus be submitted to the appellate judge so that he/she examine that judge has made an analogous interpretation and have it corrected. [36] Basing on the foregoing explanations, the

Court finds that article 176 of the law No 12/2007 of 27/03/2007 relating to public procurement is by no means contrary to articles 18 and 20 of the Constitution in the sense that law qualified as offenses various acts (actions and omissions) provided therein, therefore the claim of MUTSINDASHYAKA Théoneste for the repeal of that law is not founded. IV. COURT RULING [37] It admits the petition lodged by MUTSINDASHYAKA Théoneste, since it was instituted in accordance with the law [38] I hold that it is not founded [39] It holds that article 176 of the law No12/2007 relating to public procurement is by no means contraty to the Constitution of the Republic of Rwanda of 4/6/2003 as amended to date. [40] It resolves that MUTSINDASHYAKA Théoneste looses the case. [41] It orders MUTSINDASHYAKA Théoneste to pay the court fee equal to 8.900Frw, the failure of which within 30 days would lead to forceful recovery from his assets.