Re MUNYEMANA

# Re MUNYEMANA

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2024-02-16 - Case/document no.: RS/INCONST/SPEC 00001/2023/SC - Collection: Supreme Court

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Re MUNYEMANA [Rwanda SUPREME COURT – RS/INCONST/SPEC 00001/2023/SC (Ntezilyayo J.P., Hitiyaremye, Mukamulisa, Kalihangabo and Kazungu, J.) February 16, 2024] The Constitution – The principle of equal treatment before the law and of non-discrimination – No one can claim to have been discriminated against if the nature of his or her actions, the acts he or she is accused of and their impact on society are different from those of the person with whom he or she is comparing him/herself to, because such acts are not subject to the same penalties. Criminal procedure – The offence of child defilement – Determination of the penalty for the offence of child defilement – The seriousness of the offence of child defilement is one of the factors taken into account in determining the punishment that the offender should receive – Although the penalties for this offence are severe, they remain proportionate to the seriousness of the crime and the profound impact it has on both the defiled child and society as a whole. Facts: Munyemana was convicted of child defilement by the Intermediate Court of Karongi and sentenced to life imprisonment. Represented by Counsel Kayitana, Munyemana filed a petition before the Supreme Court, requesting the repeal of paragraphs 2, 3, and 4 of Article 14 of Law nº 059/2023 of 04/12/2023 amending Law nº 68/2018 of 30/08/2018 determining offences and

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penalties in general, arguing that these provisions violate fundamental principles and human rights. He claimed that they contradict the principles enshrined in Articles 15, 16, and 29 of the Constitution, as the prescribed penalties are disproportionate compared to those established in other legal provisions punishing more serious violent crimes than child defilement. He explained that he was sentenced to life imprisonment on the basis of article 133, paragraph 2, of Law No. 68/2018 of 30/08/2018, determining offenses and penalties in general, which was later amended by Article 4 of Law No. 69/2019 of 08/11/2019, amending Law No. 68/2018. He further argued that the penalties provided for in Article 4 are inconsistent with the principles and human rights enshrined in Articles 15, 16, and 29 of the Constitution. He concluded by stating that he was submitting this petition both in his personal interest and in the public interest as a Rwandan committed to comprehensive justice and the development of legal principles. The representative of the Government of Rwanda explained that, considering how the crime of child defilement is punished in many countries, the penalties provided for in paragraphs 2, 3, and 4 of Article 4 of Law No. 69/2019 mentioned above are not excessive. He argued that, aside from merely stating that these provisions violate Articles 15, 16, and 29 of the Constitution on the grounds that they impose severe penalties, the petitioner fails to demonstrate which specific rights are being violated. Among the issues examined in this case was the question of whether paragraphs 2, 3, and 4 of Article 14 of Law

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No. 059/2023 of December 4, 2023, amending Law No. 68/2018 of 30/08/2018, determining offenses and penalties in general, are inconsistent with Articles 15 and 16 of the Constitution of the Republic of Rwanda. The petitioner argues that this provision contradicts the principles set forth in these constitutional articles because the law in question prescribes harsher penalties for child defilement than for other, more serious crimes. Additionally, the petitioner contends that sentencing a person to life imprisonment merely for touching a child’s private parts of the body does not align with the principle that the severity of a penalty should be proportionate to the gravity of the offense. The representative of the Government of Rwanda argues that the crime of child defilement has severe consequences, affecting a child's mental health, social interactions, education, and brain development, with these effects persisting even into adulthood. Furthermore, this crime has a broader impact on the family and society as a whole. Therefore, it should not be trivialized or downplayed, as Munyemana seeks to do. The representative emphasizes that in many countries worldwide, this crime is punishable by severe penalties, including life imprisonment and even the death penalty. Certa Foundation, acting as amicus curiae in this case and represented by Counsel Kabasinga, argues that child defilement is a serious crime that violates the fundamental human rights of its victims. This argument is based on international conventions that protect human rights, safeguard children's rights and eliminate all forms of discrimination against women. It is also supported by

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Rwandan laws, national and international jurisprudence and various research studies on children's rights. The Foundation emphasises that severe penalties for child defilement have been increased because of the serious impact on the victim and society as a whole. It urges the Court to analyse whether the imposition of severe penalties for this crime is contrary to the principle of equality before the law. Finally, Certa Foundation cites Article 19 of the Constitution, which guarantees that every child has the right to special protection from his or her family, fellow citizens and the State, having regard to his or her age and circumstances, as determined by law. Given the need for special protection to eliminate violence against children and ensure justice through severe punishment of perpetrators, it argues that the law does not constitute discrimination compared to other crimes, such as grievous bodily harm. Regarding the issue of whether Article 14 of Law nº 059/2023 of 04/12/2023 amending Law nº 68/2018 of 30/08/2018 determining offences and penalties in general, is inconsistent with the principle of due process of law, the petitioner argues that due process is not served when a person who merely touches a child's genitals is sentenced to 20 years' imprisonment or life imprisonment, while a person who amputates another person's legs and arms is sentenced to a maximum of 15 years. According to the petitioner, this means that the punishment imposed is not proportionate to the gravity of the crime committed. With regard to this issue, the representative of the Government of Rwanda argues that the severity of the penalties does not mean that the convicted person is

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denied the right to due process of law or his or her rights under the Constitution. Furthermore, the petitioner has not demonstrated that the penalties provided for in the article whose repeal is sought are unreasonable or violate the rights of citizens, but only argues that they are severe. The amicus curiae argues that these ongoing debates could potentially diminish the seriousness of sexual violence compared to other forms of harm. They explain that in addressing the crime of rape, the focus should not be solely on the circumstances of the perpetrator, noting that an inappropriate punishment relative to the gravity of the crime could lead to unintended perceptions. These perceptions could prioritise the rights and views of the accused over the lives and well-being of the victims, which could undermine consideration of the profound impact on victims. Held: 1. No one can claim to have been discriminated against if the nature of his or her actions, the acts he or she is accused of and their impact on society are different from those of the person with whom he or she is comparing him/herself to, because such acts are not subject to the same penalties. 2. The seriousness of the offence of child defilement is one of the factors taken into account in determining the punishment that the offender should receive. Although the penalties for this offence are severe, they remain proportionate to the seriousness of the crime and the profound impact it has on both the defiled child and society as a whole. The petition lacks merit.

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Statutes and statutory instruments referred to: The Constitution of the republic of Rwanda of 2003 revised in 2015, articles 15, 16, 19 and 29; Law nº 059/2023 of 04/12/2023 amending law nº 68/2018 of 30/08/2018 determining offences and penalties in general, articles 14 and 121; Law nº 69/2019 of 08/11/2019 amending law nº 68/2018 of 30/08/2018 determining offences and penalties in general, article 4; Law nº68/2018 of 30/08/2018 determining offences and penalties in general, articles 49 and 133. Act No 4 of 1998, Sexual Offences Special Provisions Act, 1998, section 131; The Sexual Offences Act, No 3 of 2006 of Kenya; The Penal Code (amendment) Act, 2007, section 129.

Cases referred to: RS/INCONST/SPEC00004/2021/SC, Re Ngendahayo Kabuye rendered by the Supreme Court on 10/02/2023. RS/INCONST/SPEC00005/2020/CS - RS/INCONST/SPEC00006/2020/CS rendered by the Supreme Court on 12/02/2021. RS/INCONST/SPEC00004/2019/SC, Counsel Nzafashwanayo Dieudonné rendered by the Supreme Court on 24/07/2020. RS/INCONST/SPEC00003/2019/SC, Kabasinga Florida rendered by the Supreme Court on 04/12/2019.

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RS/INCONST/SPEC00001/2019/SC, Counsel Murangwa Edward rendered by the Supreme Court on 29/11/2019. RS/INJUST/RP00003/2019/SC, Niyonsaba Eric v Prosecution rendered by the Supreme Court on 28/01/2022. Authors quoted: Barry C. Feld and Donna M. Bishop, The Oxford Handbook of Juvenile Crime and Juvenile Justice (Oxford University Press, USA, 12 Jan 2012). Judgment I. BACKGROUND OF THE CASE

Counsel Kayitana Evode, representing Munyemana Dionize, filed a petition before the Supreme Court requesting the repeal of paragraphs 2, 3, and 4 of Article 4 of Law No. 69/2019 of 08/11/2019, amending Law No. 68/2018 of August 30, 2018, determining offenses and penalties in general (published in the Special Gazette of 29/11/2019), arguing that they are inconsistent with the Constitution of the Republic of Rwanda (referred to as the Constitution in this case), specifically Articles 15, 16, and 29. He stated that Munyemana Dionize was convicted of child defilement by the Intermediate Court of Karongi in case RP 00335/2019/TGI/KNG, decided on May 26, 2020, and sentenced to life imprisonment based on Article 133 (2) of Law No. 68/2018 of 30/08/2018,

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determining offenses and penalties in general, which was later amended by Article 4 of the aforementioned Law No. 69/2019.

He states that the penalties provided for in article 4 of the above-mentioned Law No. 69/2019 are contrary to the principles and human rights enshrined in articles 15, 16 and 29 of the Constitution. He further argues that these penalties are excessive in comparison with those provided for in other legal provisions for crimes more serious than child defilement. He state that he has submitted this petition both in his personal interest and in the public interest as a Rwandan committed to full justice and the development of the legal system.

Counsel Karemera Georges, representing the Government of Rwanda, argues that the penalties provided for in paragraphs 2, 3 and 4 of Article 4 of the above-mentioned Act No. 69/2019 are not excessive, given how the crime of child defilement is punished in many countries. He claims that the petitioner, apart from merely stating that these provisions are inconsistent with articles 15, 16 and 29 of the Constitution because of the severity of the penalties, fails to demonstrate which specific rights have been violated.

The public hearing was held on 10/01/2024, with Counsel Kayitana Evode representing Munyemana Dionize and the Government of Rwanda represented by Counsel Karemera Georges. The Court first ruled that the request by Certa Foundation to intervene in the case as Amicus Curiae, for the purpose of providing insights, was granted. It also determined that the petitioner had a

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legitimate interest in filing the case, based on the directions established in previous judgments on similar claims.

After examining the parties' requests regarding the alignment of the contested legal provision with subsequent amendments made after the petition was filed, the Court found that the contested Article 4 of Law No. 69/2019 of 08/11/2019, amending Law No. 68/2018 of 30/08/2018, determining offenses and penalties in general, had already been amended by Law No. 059/2023 of 04/12/2023, amending Law No. 68/2018 of 30/08/2018 determining offenses and penalties, and the hearing then proceeded to examine the following issues of the case : a) Whether paragraphs 2, 3, and 4 of Article 14 of Law No. 059/2023 of 04/12/2023, amending Law No. 68/2018 of 30/08/2018 determining offenses and penalties in general, are inconsistent with Articles 15 and 16 of the Constitution of the Republic of Rwanda ; b) Whether paragraphs 2, 3, and 4 of Article 14 of Law No. 059/2023 of 04/12/2023, amending Law No. 68/2018 of 30/08/2018 determining offenses and penalties in general, are inconsistent with Article 29 of the Constitution of the Republic of Rwanda ; c) Whether the penalties provided for in paragraphs 2, 3, and 4 of Article 14 of Law No. 059/2023 of 04/12/2023, amending Law No. 68/2018 of 30/08/2018 determining offenses and penalties in general, should be reduced, and whether such

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reductions would apply to Munyemana Dionize and all individuals convicted of the same offense who have not yet completed their sentences. II. ANALYSIS OF LEGAL ISSUES 1. Whether paragraphs 2, 3, and 4 of Article 14 of Law No. 059/2023 of 04/12/2023, amending Law No. 68/2018 of 30/08/2018 determining offenses and penalties in general, are inconsistent with Articles 15 and 16 of the Constitution of the Republic of Rwanda

Counsel Kayitana Evode, representing Munyemana Dionize, argues that Article 15 of the Constitution stipulates that All persons are equal before the law, and that they are entitled to equal protection of the law. This article is further reinforced by the International Covenant on Civil and Political Rights, to which Rwanda is a signatory, which provides that all individuals are equal before the law and have the right to equal protection without discrimination. He contends that the provisions in paragraphs 2, 3, and 4 of Article 14 of Law No. 059/2023 of 04/12/2023, referred to above, are inconsistent with Articles 15 and 16 of the Constitution for the following reasons : a) It imposes harsher penalties on those convicted of child defilement than on individuals who commit more severe crimes. For instance, if Munyemana Dionize had amputated the arms or legs of the child he is accused of defiling, he would have

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faced a maximum sentence of 15 years' imprisonment under Article 121(3) of the aforementioned law determining offenses and penalties. b) Sentencing a person to life imprisonment merely for touching a child's genitals does not uphold the principle that the severity of a penalty should correspond to the gravity of the offense. This principle is also emphasized by scholar Gregory S. Schneider in his article "Sentencing Proportionality in the States" and is further supported by Australia's Sentencing Advisory Council. c) In some foreign countries, this crime carries significantly lighter penalties than those stipulated in this provision. For example, in the state of California, USA, the penalty for child defilement does not exceed four (4) years, whereas the penalty for amputating a person’s arms or legs is life imprisonment.

Counsel Karemera Georges, representing the Government of Rwanda, submits that Article 15 of the Constitution states that all persons are equal before the law and that they are entitled to equal protection of the law. Furthermore, Article 16 addresses protection against discrimination, affirming that all Rwandans have equal rights and freedoms and that any form of discrimination is prohibited and punishable by law. He argues that paragraphs 2, 3, and 4 of Article 14 of Law No. 059/2023 of 04/12/2023, mentioned above, is not inconsistent with

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Articles 15 and 16 of the Constitution for the following reasons: a. Every country establishes criminal laws that determine offenses and their corresponding penalties, taking into account the gravity of the crime and its impact on the victim as well as society at large. The objective is to punish the offender, deter crime, and rehabilitate offenders. b. Through competent institutions, particularly the legislature (Parliament), each country determines the severity of crimes and appropriate punishments to achieve the goals of punishment, deterrence, and rehabilitation. c. The crime of child defilement has severe consequences on a child's psychological well- being, social interactions, education, and brain development, with effects persisting into adulthood. This crime damages and undermines the child's life and has repercussions on the family as a whole. Therefore, it warrants a severe punishment to both punish perpetrators and deter potential offenders from committing such acts in fear of potential penalties. d. A comparative analysis of legal systems in various countries shows that the prescribed penalties for child defilement are not excessive. Examples from three East African Community (EAC) member states—Kenya, Uganda, and Tanzania—alongside other jurisdictions, indicate that this offense carries severe penalties :

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i. In Kenya, a person convicted of defiling a child aged 11 years or younger is sentenced to life imprisonment, while defilement of a child aged between 12 and 15 years carries a minimum sentence of 20 years in prison. ii. In Uganda, defilement of a child under 18 years is punishable by life imprisonment, whereas defiling a child under 14 years may result in the death penalty. iii. In Tanzania, defiling a child under 14 years carries a mandatory life sentence. iv. In California, USA, an adult (18 years or older) convicted of defiling a child aged 10 or younger faces a sentence ranging from 25 years to life imprisonment. v. In Nigeria, defilement of a child under 13 years is punishable by life imprisonment. vi. In Northern Ireland, defiling a child under 13 years is punishable by life imprisonment. e. Based on these examples, it is evident that child defilement is a serious offense that should neither be underestimated nor downplayed, as Munyemana Dionize attempts to do. In many countries worldwide, this crime carries severe penalties, including life imprisonment and, in some cases, the death penalty. f. In case RS/INCONST/SPEC 00001/2019/SC, the Supreme Court provided an interpretation of Articles 15 and 16 of the Constitution. Based on

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that ruling, paragraphs 2, 3, and 4 of Article 14 of Law No. 059/2023 of 04/12/2023, as mentioned above, do not violate the principles enshrined in Articles 15 and 16 of the Constitution. Moreover, whether in Rwanda or other jurisdictions, child defilement of a minor is considered more severe than the offense of assault and battery, which the petitioner, Munyemana Dionize, attempts to use as a point of comparison. g. The fact that a penalty is severe for an offender should not be considered excessive or unconstitutional. The gravity of a punishment cannot be determined or measured solely by an individual, especially the convicted person, as Munyemana Dionize attempts to argue.

Acting as Amicus Curiae, Counsel Kabasinga Florida, representing Certa Foundation, bases her arguments on the Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child, the Banjul Charter on Human and Peoples' Rights, the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), various Rwandan laws, international and Rwandan case law, numerous research studies, and UNICEF's interpretations on the rights of children and adolescents, she argues that: a. Child defilement is a serious crime that violates the human rights of the victims. It infringes upon

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the fundamental human rights of the child subjected to such abuse, including their safety and health, as they may contract HIV/AIDS or other sexually transmitted infections and face complications during pregnancy and childbirth. b. A report by the Rwanda Investigation Bureau (RIB) indicates a 27.9% increase in cases investigated, comparing data from the 2018/2019 fiscal year (3,215 cases) to 2019/2020 (4,013 cases). Another report states that the number of child victims slightly increased from 3,215 in 2019 to 4,265 in 2020. The statistics show that in 2020, 1,239 children (29.1%) who suffered sexual abuse were under 10 years old, and that 98% of the victims in these cases were girls. c. A report by the National Public Prosecution Authority highlighted that cases of child defilement increased from 1,819 in 2013 to 3,793 in 2020. This report clearly demonstrates that this crime is a serious challenge for the Government of Rwanda, requiring strict measures. Therefore, child defilement and other forms of gender-based violence should be recognized as violations of human rights. d. Girls are the primary victims of such crimes, and they continue to be silenced, unable to access their rights and protection after enduring these atrocities. e. Child defilement is a serious crime with multiple consequences, including trauma and suffering for

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the victims. These effects extend to their future, affecting their aspirations, health, education, economic opportunities, and relationships. f. Survivors of sexual violence often experience psychological distress, and feel incomplete as women, having been degraded to the point of losing their dignity. This is why the Government of Rwanda has taken significant steps to prevent and eradicate gender-based violence by establishing institutions dedicated to enforcing laws and policies against such crimes. g. Legal and policy advancements have significantly contributed to gender equality and the establishment of effective mechanisms for preventing and combating gender-based violence, making it a heavily sanctioned crime. It is crucial to recognize the dangers of gender bias in judicial reasoning, as gender-based stereotypes in the justice system can significantly impact fundamental rights, including equality before the law, fair trials, and due process of law. h. Strict penalties for child defilement have seriously been reinforced due to the severe consequences on the victim and society at large. The court must assess whether the legal provisions imposing rigorous penalties for child defilement violate the principle of equality before the law. i. Preventing child defilement requires substantial government effort to ensure that perpetrators never reoffend. One of Rwanda’s key measures

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has been recognizing child defilement as an extremely serious and imprescriptible crime. Anyone who harms a child’s future lacks moral conscience, making it imperative for families, society, and the government to unite in combating such violations and protecting victims. j. The principle of equality before the law means that in the prosecution of a criminal offence, the accused must be given the right to a public trial by a competent and independent court established by the law. This principle guarantees that laws protect all individuals equally, without discrimination based on social status, wealth, age, gender, race, culture, religion, or any other characteristic. k. Regarding child protection, since children are the most affected, Article 19 of the Constitution states that every child has the right to specific mechanisms of protection by his or her family, other Rwandans and the State, depending on his or her age and living conditions, as provided for by the law. Therefore, children require special protection to eliminate violence against them and ensure that justice is served through the effective prosecution of perpetrators. Thus, the law cannot be said to be discriminatory compared to other crimes against children, such as aggravated battery.

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DETERMINATION OF THE COURT

Article 15 of the Constitution of the Republic of Rwanda reads that: “All persons are equal before the law. They are entitled to equal protection of the law”. And article 16 of the same Constitution stipulates that: (1) “All Rwandans are born and remain equal in rights and freedoms. (2) Discrimination of any kind or its propaganda based on, inter alia, ethnic origin, family or ancestry, clan, skin colour 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.

Article 4 of Law No. 69/2019 of 08/11/2019 amending Law No. 68/2018 of 30/08/2018 determining offences and penalties in general was modified by Article 14 of Law No. 059/2023 of 04/12/2023 amending Law No. 68/2018 of 30/08/2018 determining offences and penalties in general. Its first paragraph, which outlines the punishable acts referenced in the second, third, and fourth paragraphs of the contested provision, states that: (1) “A person who commits one of the following sexual acts on a child, commits an offence: (a) to insert a sexual organ of a person into the sexual organ, anus or mouth of a child; (b) to insert any organ of the human body into a sexual organ or anus of a child; (c) to perform any other act on the body of a child for the purpose of sexual arousal. Paragraph 2, 3 and 4, provide that: (2) A person convicted of committing any of the acts referred to in Paragraph (1)

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of this Article is liable to imprisonment for a term of not less than 20 years but not more than 25 years. (3) If child defilement is committed on a child under 14 years of age, the penalty is life imprisonment. (4) When child defilement is committed on a child of 14 years of age or older and caused him or her an incurable disease or a disability, the penalty is life imprisonment.

The Court finds that in order to analyse and provide an answer to the issue raised above, it is necessary to consider the following three key principles: a. The principle of equality before the law and of non-discrimination; b. The consequences of the crime of child defilement, both against children and non- children in general; c. The principle of proportionality between the seriousness of the offence and the punishment. a. The principle of equality before the law and of non-discrimination

The principle of equality before the law and the principle of non-discrimination have been analyzed by this Court in various cases, including case RS/INCONST/SPEC00004/2021/SC, decided on 10/02/2023, Ngendahayo Kabuye, in which a direction thereof has been established. In that case, the Court explained that the principle of equality before the law is closely linked to the principle of non-discrimination, and both should be considered together. These principles

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emphasize that no one should be unfairly or unlawfully denied rights granted by law. The Court further stated that equality before the law and non-discrimination do not imply that all distinctions between individuals are inherently discriminatory. Differentiating between individuals or groups can be necessary if it serves a legitimate or rational purpose1.

In that case, the Court emphasized that individuals in similar situations or categories must be treated equally and that failure to do so without a legitimate and reasonable justification constitutes discrimination. It further stated that the Government may differentiate between individuals or groups without violating the principle of equality before the law or the principle of non-discrimination, provided that such differentiation is based on a reasonable and legitimate justification, complies with the law, and serves the public interest2.

In the case RS/INCONST/SPEC00004/2019/SC, decided on 24/07/2020, for Counsel Nzafashwanayo Dieudonné, paragraph 31, it was explained that the principle of equality before the law means that the law must treat individuals within the same category equally and be applied uniformly. In other words, similar cases must be treated alike, meaning that no discrimination should exist among individuals in similar situations. It

1 Judgment RS/INCONST/SPEC 00004/2021/SC, rendered by the Supreme Court on 10/02/2023, Ngendahayo Kabuye v the Government of Rwanda, paragraphs 36 and 39. 2 Idem, paragraph 57.

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follows that individuals who do not belong to the same category cannot be treated the same way.

The Court also elaborated on these principles in case RS/INCONST/SPEC 00001/2019/SC involving Me Murangwa Edward, emphasising that the principle of equality before the law means that individuals must be treated equally before the law, without discrimination or favour, and that any law enacted must apply equally to those it governs. The Court also stated that similar cases must be treated alike, while different cases should be treated differently according to their differences. Moreover, although individuals should be equal before the law, differentiation or categorisation does not always constitute discrimination. b. The consequences of the crime of child defilement, both against children and non- children in general

A review published by the United Nations, which compiles judgments rendered by International Courts on gender-based violence—including the International Criminal Tribunal for Rwanda, the International Criminal Tribunal for the former Yugoslavia, and the Special Court for Sierra Leone—reveals that gender-based violence causes severe physical and psychological suffering. The psychological trauma experienced by victims of such violence can be exacerbated by societal and cultural factors, making it particularly severe and long-lasting3.

3 United Nations, Department of Peacekeeping Operations, Review of the Sexual Violence Elements of the Judgments of the International

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Forced sexual intercourse inflicts extreme physical and mental pain, and the psychological suffering of survivors may be intensified by social and cultural circumstances, leading to profound and enduring consequences.

The judgment R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, rendered by the Supreme Court of Canada, emphasized that in order to effectively combat the crime of child defilement, judges must first fully understand the gravity and harm caused by such offenses when determining sentences. The ruling highlighted that failing to recognize or align with the legislator’s intent behind laws against such crimes can lead to an improper undervaluation of their severity. This, in turn, can allow flawed reasoning to influence sentencing practices, resulting in the misapplication of aggravating or mitigating factors. A thorough understanding of the harm caused by these offenses ensures that sentences reflect contemporary societal awareness of the nature and gravity of gender-based violence against children, preventing misconceptions and biases from affecting sentencing decisions4.

Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, and the Special Court for Sierra Leone in the Light of Security Council Resolution 1820, (United Nations, 2010), p. 34. States that “Rape causes severe pain and suffering, both physical and psychological. The psychological suffering of persons upon whom rape is inflicted may be exacerbated by social and cultural conditions and can be particularly acute and long lasting.” 4 R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, para 50, accessible on https://decisions.scc-csc.ca/scc- csc/scc- csc/en/item/18238/index.do? q=R.+v.+Friesen states that “To

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The aforementioned judgment further emphasized that the fundamental interests protected by sentencing laws for child defilement offenses include personal autonomy, bodily integrity, sexual integrity, dignity, and the equality of children. It underscored that sexual violence against children infringes upon their autonomy in a distinct manner compared to adults, as children lack the legal capacity to consent to sexual activity with adults. This means they require protection to ensure their development is free from exploitation and coercion into sexual acts by older individuals5.

effectively respond to sexual violence against children, sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm that they cause. Getting the wrongfulness and harmfulness right is important…. failure to recognize or appreciate the interests that the legislative scheme of offences protects can result in unreasonable underestimations of the gravity of the offence. Similarly, it can result in stereotypical reasoning filtering into the sentencing process and the consequent misidentification and misapplication of aggravating and mitigating factors. Properly understanding the harmfulness will help bring sentencing law into line with society’s contemporary understanding of the nature and gravity of sexual violence against children and will ensure that past biases and myths do not filter into the sentencing process.” 5 Ibid., para 54 – 59. States that “This emphasis on personal autonomy, bodily integrity, sexual integrity, dignity, and equality requires courts to focus their attention on emotional and psychological harm, not simply physical harm. Sexual violence against children can cause serious emotional and psychological harm that may often be more pervasive and permanent in its effect than any physical harm…... These forms of harm are particularly pronounced for children. Sexual violence can interfere with children’s self- fulfillment and healthy and autonomous development to adulthood precisely because children are still developing and learning the skills

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The judgment also stated, in paragraphs 76 to 80, that child defilement is inherently evil and causes severe harm, always placing the child at significant risk of serious injury. The ruling emphasized that the harm inflicted is inherent to the nature of each offense. Such abuse invariably involves the use of force inherent in the act of sexual penetration against a child. Additionally, the court highlighted that aggravating factors stem from the compounded violation of the child’s sexual autonomy alongside physical harm. The ruling affirmed that when an offender engages in sexual acts with a child, it results in both psychological and physical trauma. Furthermore, it established that physical and psychological harm are deeply intertwined, with the effects of such abuse leaving lifelong scars on the child’s well-being6.

and qualities to overcome adversity. For this reason, even a single instance of sexual violence can permanently alter the course of a child’s life.” 6 Idem., para 77. States that “…violence is always inherent in the act of applying force of a sexual nature to a child. Far from removing the violence, the sexual dimension instead aggravates the wrongfulness of the violence by adding interference with the child’s sexual integrity to the interference with the child’s bodily integrity. Physical contact of a sexual nature with a child always means that the offender has interfered with both the child’s security of the person from any non- consensual contact or threats of force and the child’s bodily integrity, which lies at the core of human dignity and autonomy. Such physical sexual contact is also a form of psychological violence precisely because bodily and psychological integrity are closely linked. The degree of physical interference and the intensity of physical and psychological violence vary depending on the facts of individual cases. However, any physical contact of a sexual nature with a child always constitutes a wrongful act of physical and psychological violence even if it is not accompanied by additional physical violence and does not result in physical or psychological injury. Courts must

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c. The principle of proportionality between the seriousness of the offence and the punishment

In the aforementioned judgment, R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, the Supreme Court of Canada elaborated on the principle that the severity of a sentence must correspond to the gravity of the offense. The court explained that all sentencing aligns with the principle that punishment should be proportionate to the seriousness of the crime and the degree of responsibility of the offender (principle of proportionality). A judge determining a sentence also considers the principle that offenders who commit the same crime under similar circumstances should receive similar punishments (principle of parity). These two principles are not contradictory; rather, adherence to one ensures the fulfilment of the other. Conversely, imposing identical sentences for offenses that are not identical would violate both the principle of proportionality and the principle of parity. This principle ultimately illustrates how sentencing must be based on the gravity of the offense7.

always give effect to this inherent violence since it forms an integral component of the normative character of the offender’s conduct.” 7 R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, para 30-33, available at https://decisions.scc-csc.ca/scc- csc/scc- csc/en/item/18238/index.do? q=R.+v.+Friesen. states that “Parity and proportionality do not exist in tension; rather, parity is an expression of proportionality. A consistent application of proportionality will lead to parity. Conversely, an approach that assigns the same sentence to unlike cases can achieve neither parity nor proportionality. In practice, parity gives meaning to proportionality.”

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Law scholars further state that basic principles of proportionality dictate that criminal punishment should be meted out not only based on the nature of the perpetrator’s criminal actions, but also by his blameworthiness. Included among the factors that the courts have traditionally considered when determining the degree to which a person is held responsible or blameworthy for criminal actions are the individual’s decision- making capacity, the circumstances under which the crime was committed, and the individual’s character8.

On the basis of the explanations and precedents established in the above-mentioned cases decided by this Court with regard to the principles of equality and non-discrimination before the law, the Court finds that the petitioner has not demonstrated how the penalties for the crime of child defilement are inconsistent with Articles 15 and 16 of the Constitution. The petitioner merely compares the sentences imposed on those convicted of this crime with those imposed on persons found guilty of assault and battery resulting in visible bodily harm, such as the amputation of an arm.

Based on the above analysis and various cases interpreting the principles enshrined in Articles 15 and 16 of the Constitution, the Court finds that these two crimes are distinct. Consequently, those who commit them cannot be subjected to the same punishment, as they

8 Barry C. Feld and Donna M. Bishop, The Oxford Handbook of Juvenile Crime and Juvenile Justice (Oxford University Press, USA, 12 Jan 2012), p. 539

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are punished for different offenses. Therefore, it cannot be claimed that there was discrimination when the nature of the acts committed and their impact on society differ from those of the person with whom the petitioner seeks comparison.

For all the reasons outlined above, the Court finds that Article 14, paragraphs 2, 3, and 4, of Law No. 059/2023 of 04/12/2023, amending Law No. 68/2018 of 30/08/2018, which provides for crimes and penalties in general, does not contradict Articles 15 and 16 of the Constitution. 2. Whether paragraphs 2, 3, and 4 of Article 14 of Law No. 059/2023 of 04/12/2023, amending Law No. 68/2018 of 30/08/2018 determining offenses and penalties in general, are inconsistent with Article 29 of the Constitution of the Republic of Rwanda

Counsel Kayitana Evode, representing Munyemana Dionize, argues that Article 29 of the Constitution provides that everyone has the right to due process of law [...]; and that in interpreting due process of law and its components, the Supreme Court, in judgment RS/INCONST/SPEC00003/2019/SC rendered on 04/10/2019, stated that “due process of law consists of a set of requirements that must be observed in the conduct of a trial based on the principles established by law (procedural due process) and due process of law that prevents the enactment of laws or other unreasonable measures that infringe on citizens' rights (substantive due process)." He contends that the penalties provided in paragraphs 2, 3, and 4 of Article 14 of Law No. 059/2023

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of 04/12/2023, amending Law No. 68/2018 of 30/08/2018, mentioned above, are excessively severe in comparison to the gravity of the crime, thus being inconsistent with Article 29 of the Constitution for the following reasons: a. A person who amputates a child's legs or arms is sentenced to no more than 15 years in prison, which raises concerns about the disproportionate severity of a 20-year or life imprisonment sentence for merely touching a child's genitals, sometimes without even committing the full act of sexual assault, as stated by the Prosecution in the case of Munyemana Dionize. b. No due process of law can be claimed when a person receives a sentence whose severity is not proportionate to the gravity of the crime committed. c. There are many people who have experienced child defilement who now have stable families, children and successful careers without significant life difficulties. One example of someone who faced child defilement and gone on to become an influential global figure is Pastor Joyce Meyer, who has publicly testified that her father defiled her around 200 times. However, this did not stop her from building a strong family and becoming one of the world's most prominent pastors. d. Some of the acts punishable under this law do not involve actual "sexual penetration", such as touching a child's genitals or breasts, or kissing a

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child for the purpose of sexual arousal. The argument is that this provision does not ensure due process of law, as a person convicted of merely kissing a child could face 20 years or life imprisonment, while someone who amputates a child's limbs would receive no more than 15 years. This, he argues, constitutes an injustice prohibited by the principle of "substantive due process" enshrined in Article 29 of the Constitution. e. The Supreme Court, in case RS/INCONST/SPEC00003/2019/SC involving Kabasinga Florida, explained that Rwandan laws contain sentencing disparities. Consequently, the Court recommended the establishment of a sentencing policy that grants judges the discretion to impose penalties based on the severity of the crime and its impact.

Counsel Karemera Georges, representing the Government of Rwanda, argues that Article 29 of the Constitution pertains to the right to due process of law ("droit à la garantie judiciaire"). He argues that paragraphs 2, 3, and 4 of Article 14 of Law No. 059/2023 of 04/12/2023, amending Law No. 68/2018 of 30/08/2018, do not contradict Article 29 of the Constitution for the following reasons: a. The severity of a sentence does not imply that the convicted person has been denied the right to due process or that they have not been granted the rights guaranteed under Article 29 of the Constitution.

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b. Regarding substantive due process, the petitioner fails to demonstrate that the penalties provided for in paragraphs 2, 3, and 4 of Article 14 of Law No. 059/2023 of 04/12/2023, mentioned above, are unreasonable or infringe on the rights of citizens. The petitioner merely argues that the penalties are severe, which does not align with the interpretation given by the Supreme Court in the judgment cited in his submissions. c. The petitioner referenced Pastor Joyce Meyer as an example to suggest that the crime of child defilement does not have severe consequences. However, this assertion is fundamentally incorrect, as Pastor Joyce Meyer herself has stated that being defiled by her father from a young age had a profoundly negative impact on her development. It is difficult to fully grasp the extent of the harm caused to a child who is subjected to such abuse9. d. The penalties imposed on individuals convicted of child defilement aim to protect the rights of children and society at large. They serve to safeguard children from individuals like Munyemana Dionize and act as a deterrent to potential offenders who might contemplate

9 Pastor Joyce Meyer states this in the following words: “I was so profoundly ashamed because of this. I was ashamed of me, and I was ashamed of my father and what he did. I was also constantly afraid. There was no place I ever felt safe growing up. I don't think we can even begin to imagine what kind of damage this does to a child. At school I pretended I had a normal life, but I felt lonely all the time and different from everyone else. I never felt like I fit in….”

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committing such crimes but refrain due to fear of the punishment they could face.

On behalf of the Amicus Curiae (Certa Foundation), Counsel Kabasinga Florida, its representative, states that: a. The ongoing debates may downplay the severity of gender-based violence compared to other forms of harm. This minimization could unintentionally reinforce attitudes that diminish the gravity of child defilement and manipulate perceptions of victims. b. Focusing solely on the physical acts constituting the crime may hinder a full understanding of the broader negative consequences of any form of gender-based violence, especially when it involves children. This could lead to a perception that the penalties for such crimes are inadequate. c. The justice system should not limit itself to assessing only the physical consequences of rape. While such consequences—such as disabilities, organ dysfunction, pregnancies, or even deaths due to unsafe abortions—are severe, the psychological effects on victims of rape or defilement are equally significant yet often overlooked. d. The notion that survivors of rape can lead fulfilling lives, work, and establish families, as highlighted in Joyce Meyer’s story, may hold true for some. However, this does not negate the deep trauma many survivors often endure. Joyce

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Meyer herself never claimed to be unaffected by the abuse she suffered. e. A study conducted between June 2015 and July 2016 at Kenyatta National Hospital and Nairobi Women’s Hospital, involving 40 individuals who had been raped by family members, revealed that child survivors suffered from poor academic performance, low self-esteem, depression, and difficulty maintaining healthy relationships. f. When analysing cases of rape, consideration must also be given to the impact on the survivor’s family. For example, due to the sexual abuse inflicted by their father, Joyce Meyer’s younger brother developed substance abuse issues and ultimately died by suicide. This highlights how rape can have devastating ripple effects on the survivor’s family. g. When addressing the crime of rape, it is essential not to focus solely on the potential unfairness of punishment for perpetrators, who may argue that sentences are disproportionate. Prioritizing the rights and perspectives of offenders over the well-being of survivors risks fostering a dangerous narrative that places greater emphasis on the accused rather than the harmed individuals. h. In the case of Linda Loaiza v. Venezuela, the Inter-American Court of Human Rights ruled that the sexual violence inflicted on Linda Loaiza constituted a violation of her right to sexual

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autonomy. It deprived her of the freedom to choose her sexual partner and stripped her of the right to make decisions regarding the fundamental functioning of her own body. i. Discussions on serious issues such as child defilement must be conducted with sensitivity, avoiding language that could reinforce harmful perceptions or negatively impact victims' well- being. j. The punishment of offenders serves a necessary retributive purpose, but other forms of justice— such as incapacitation (restricting an offender’s ability to reoffend), deterrence (preventing future crimes), rehabilitation (reintegration into society), and reparation (compensating for harm done)—should also be considered. k. Sexual violence against children can take various forms and does not always involve penetration or damage to the hymen. Abuse can also be perpetrated against boys and may include acts beyond vaginal penetration, such as oral sexual assault or other forms of sexual arousal. The Court of Appeal in Uganda has ruled that establishing child sexual abuse does not necessarily require evidence of full penetration. Even partial penetration is sufficient to constitute the offense, and the absence of a hymen should not be used as the sole criterion for determining whether a child has been sexually assaulted.

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DETERMINATION OF THE COURT

Article 29, paragraph one, of the Constitution stipulates that everyone has the right to due process of law, […].

Article 49 of the Law Nº 68/2018 of 30/08/2018 determining offences and penalties in general highlights factors taken into account by a judge in determining a penalty. This article reads that A judge determines a penalty according to the gravity, consequences of, and the motive for committing the offence, the offender’s prior record and personal situation and the circumstances surrounding the commission of the offence. […].

In the case RS/INCONST/SPEC00003/2019/SC, decided on 04/12/2019, Kabasinga Florida, the Supreme Court explained that the concept of due process can be interpreted in different ways. There is procedural due process, which refers to a course of formal proceedings (such as legal proceedings) carried out regularly and in accordance with established rules and principles, meaning a sequence of steps that must be followed in the conduct of a case based on the legal principles established by law. There is also substantive due process, which refers to protection against the enactment of arbitrary and unreasonable legislation or other measures that would violate people's rights. This form of due process prevents the adoption of laws or measures that lack reasonableness and infringe on the rights of citizens.

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In the case RS/INCONST/SPEC00005/2020/CS - RS/INCONST/SPEC00006/2020/CS, decided on 12/02/2021, the Supreme Court ruled that the provision mandating a life sentence for a person convicted of child defilement, without the possibility of reduction due to mitigating circumstances, is unconstitutional. This means that when mitigating circumstances are present, the life sentence prescribed by that provision can be reduced. Furthermore, in the case RS/INJUST/RP 00003/2019/SC, decided on 28/01/2022, Niyonsaba Eric v the Prosecution, the Supreme Court reduced the life sentence initially imposed on Niyonsaba Eric by the Court of Appeal for child defilement. Based on mitigating circumstances, the Court sentenced him to fifteen (15) years of imprisonment.

The Court finds that the above discussion demonstrates that a judge is not prohibited from reducing the sentence of a person convicted of child defilement if he finds mitigating circumstances, contrary to the assertions of Counsel Kayitana Evode.

Regarding the gravity of the crime of child defilement as one of the factors considered in determining the appropriate sentence for the accused, in the case of Botha v The State (546/2021) [2022] ZASCA 87 (08 June 2022)10, decided by the Supreme Court of Appeal of

10 Accessible on https://www.supremecourtofappeal.org.za/index.php/component/jdo wnloads/summary/38- judgments-2022/3845-botha-v-the-state-546- 2021-2022-zasca-87-08-june-2022, or on https://www.saflii.org/za/cases/ZASCA/2022/87.html., paragraph

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South Africa, the issue under review was whether the 36- year prison sentence imposed by the Gauteng High Court, Pretoria, due to the concurrence of multiple sexual offenses, was excessive or inappropriate, and whether the Supreme Court of Appeal should intervene through other legal mechanisms. In its analysis in paragraph 18, the Court explained that aggravating factors outweighed mitigating circumstances, emphasizing that the gravity of the offense and the stigma associated with child defilement could not be taken lightly, given its profound impact on the structure of the family and society, as well as the well-documented psychological and emotional trauma inflicted on the child […]. The Court acknowledged that a 36-year sentence was severe but not disproportionate to the seriousness of the offenses for which it was imposed. It concluded that the High Court had not exercised its sentencing discretion in an unreasonable manner.

The Court finds that, as demonstrated in the analysis of the first issue examined above, as well as in

18. “The aggravating factors far outweigh the mitigating factors in this case. The individual sentences were not severe. The gravity of the offences and the scourge of such offences on helpless and vulnerable children cannot be downplayed and the effect of these crimes cannot be understated. The impact on the family structure and community, as well as the psychological harm and adverse emotional impact on the child, are well known. A concurrence of the sentences was not possible on account of the abominable conduct of the appellant. 13 We accept that a sentence of 36 years’ imprisonment is severe, but the facts of this case are such that a sentence of 36 years’ imprisonment is not shockingly disproportionate to the crime. The high court did not exercise its discretion unreasonably. There is no reason to interfere with the sentences imposed.”

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the assessment of the issue under review in this section, the gravity of the crime of child defilement and its impact on both the victim and society, although the penalties imposed for this crime are severe, they do not outweigh its consequences and seriousness. The Court also notes that the severity of this crime has been highlighted in reports conducted by the Rwanda Investigation Bureau (RIB)11 and the National Public Prosecution Authority (NPPA)12, which indicate a significant increase in cases of child defilement.

The Court further finds, as highlighted by the Amicus Curiae, that in addressing the crime of child defilement, the focus should not be solely on the alleged injustice faced by offenders who claim that the punishment is disproportionate to the severity of the crime. Sufficient attention must also be given to the impact on the victims. Otherwise, there is a risk of unintentionally fostering a perception that prioritizes the rights and perspectives of sexual offenders over the well-

11 Report by Rwanda Investigation Bureau (RIB), Statistical Analysis of Child Defilement - From July 2018 to June 2021, at page 4 states that “…. in three fiscal years a total of 12,840 cases were recorded indicating an increase of 1,897 representing the rate of 55%. A total number of 13,646 victims and 13,485 suspects were recorded. The number of victims increased by 2,334 (66%) while suspects increased with margin of 2,096 (59%).” 12 The report on the activities carried out by the National Public Prosecution Authority for the year 2019–2020, on page 25, highlights the increasing trend in casse of sexual violence over the past seven years (July 2013 – June 2020). It shows that the number of child defilement case increased from 1,819 in 2013–2014 to 3,793 in 2019– 2020.

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being of the victims. All these factors must be taken into account when imposing a sentence.

Sentencing the crime of child defilement with severe penalties, based on its serious and long-term impact on the victim in particular and on society in general, is not unique to Rwanda, as evidenced by the criminal laws of countries such as Uganda13, Kenya14, and Tanzania15.

13 The Penal Code (amendment) Act, 2007, section 129 states that “(1) Any person who performs a sexual act with another person who is below the age of eighteen years, commits a felony known as defilement and is on conviction liable to life imprisonment. (2) Any person who attempts to perform a sexual act with another person who is below the age of eighteen years commits an offence and is on conviction, liable to imprisonment not exceeding eighteen years. (3) Any person who performs a sexual act with another person who is below the age of eighteen years in any of the circumstances specified in subsection (4) commits a felony called aggravated defilement and is, on conviction by the High Court, liable to suffer death.” 14 The Sexual Offences Act, no 3 of 2006 of Kenya, states that “(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. (3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. (4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.” 15 Tanzania: Act No. 4 of 1998, Sexual Offences Special Provisions Act, 1998, section 131, states that “(1) Any person who commits rape is except in the cases provided for in the renumbered subsection (2), liable to be punished with imprisonment for life, and in any case for imprisonment of not less than thirty years with corporal punishment,

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The Court finds that Counsel Kayitana Evode, representing Munyemana Dionize, does not demonstrate how Article 14, paragraphs 2, 3, and 4 of Law No. 059/2023 of 04/12/2023 amending Law No. 68/2018 of 30/08/2018 determining offenses and penalties in general, which he is challenging, infringes on the petitioner’s right to due process as provided for in Article 29 of the Constitution.

In the light of the explanations provided, the Court finds that the request by Munyemana Dionize that the penalties provided for in Article 14, paragraphs 2, 3 and 4, of Law No. 059/2023 of 04/12/2023 to be reduced and immediately to him and to all persons convicted of the same offence who have not yet fully served their sentences, does not require any further examination. III. DECISION OF THE COURT

and with fine, and shall in addition be ordered to pay compensation of an amount determined by the court, to the person in respect of whom the offence was committed for the injuries caused to such person. (2) Notwithstanding the provision of any law, where the offence is committed by a boy who is of the age of eighteen years or less, he shall- (A)if a first offender, be sentenced to corporal punishment only; (B)if a second time offender, be sentenced to imprisonment for a term of twelve months with corporal punishment; (C)if a third time and recidivist offender he shall be sentenced to life imprisonment pursuant to subsection (1). (3) Notwithstanding the preceding provisions of this section whoever commits an offence of rape to a girl under the age of ten years shall on conviction be sentenced to life imprisonment.”

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Holds that the petition lodged by Munyemana Dionize, represented by Counsel Kayitana Evode, to declare that Article 14, paragraphs 2, 3, and 4 of Law No. 059/2023 of 04/12/2023, amending Law No. 68/2018 of 30/08/2018 determining offences and penalties in general, is inconsistent with Articles 15, 16, and 29 of the Constitution of the Republic of Rwanda, is without merit.

Declares that Article 14, paragraphs 2, 3, and 4 of Law No. 059/2023 of 04/12/2023, amending Law No. 68/2018 of 30/08/2018 determining offences and penalties in general, is not inconsistent with Articles 15, 16, and 29 of the Constitution of the Republic of Rwanda.