Re UWOMBONYE

# Re UWOMBONYE

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2024-04-12 - Case/document no.: RS/INCONST/SPEC00002/2023/SC - Collection: Supreme Court

## Text

## Page 1

Re UWOMBONYE [Rwanda SUPREME COURT – RS/INCONST/SPEC00002/2023/SC (Mukamulisa, P.J, Cyanzayire, Hitiyaremye, Kalihangabo and Kazungu, J.) April 12, 2024] Constitution – Petition seeking to declare a provision of law unconstitutional– Jurisdiction to declare unconstitutional the provisions of internal rules and regulations – With reference to the jurisdiction of the Supreme Court, the legislator has not conferred on it the jurisdiction to review the unconstitutionality of internal rules and regulations. Constitution – The principle of equality before the law – Requiring an individual who wishes to practice as advocate to sit for a test prior to entering the profession, in order to assess his or her knowledge, cannot be considered a violation of the principle of equality before the law, even though such a requirement is not imposed on members of other professional associations or those engaged in ordinary commercial activities, since the nature of the work performed is not the same. Facts: Uwombonye petitioned the Supreme Court requesting to hold that Article 6, paragraph 5, and Article 82, paragraph 3, of Law Nº 83/2013 of 11/09/2013 establishing the Rwanda Bar Association and determining its organization and functioning, as well as certain provisions of the Bar Association’s Internal Rules and Regulations, namely their Article 79, paragraph 7, and

## Page 2

Article 83, paragraph 3, are inconsistent with Article 15 of the Constitution of the Republic of Rwanda, on the grounds that they violate the principle of equality before the law. The contested provisions relate to the requirements for admission to the Bar Association in Rwanda, particularly those concerning the diploma issued by the Institute of Legal Practice and Development (ILPD), as well as the test conducted by the Bar Association. The petitioner further argues that the fact that Judges and Prosecutors were not required to hold a diploma from ILPD, unlike those who were already registered on the list of Advocates and Judicial Defenders when the Law Nº 83/2013 of 11/09/2013 came into force, constitutes unequal treatment before the law. He also contends that an advocate, as a service provider similar to other professionals in liberal professions, should not be required to sit for a test in order to be admitted to the Bar Association. The petitioner submits that the Internal Rules and Regulations of the Bar Association in Rwanda stipulate that, to be registered as a practicing advocate, one must meet the requirements set out in Article 6 of the mentioned Law and it is prohibited to sit for the admission test more than twice within a period of five years, he realizes that this provision violates the Article 15 of the Constitution and therefore requests to the Court to repeal it. The representative of the Government of Rwanda in the hearing states that the profession of advocate is specialized and distinct from other professions, which is

## Page 3

governed by specific laws and principles to ensure the professionalism, it sets for practitioners the requirements to meet certain standards of knowledge and ethical behaviour. In this regard, he further contends that the petitioner has failed to demonstrate how Article 6(5) of the aforementioned Law violates the Constitution, since the Constitution does not prohibit tests or restrict admission to the profession without such requirements. He therefore requests to the Supreme Court to declare the petition unfounded. Held: 1. With reference to the jurisdiction of the Supreme Court, the legislator has not conferred on it the jurisdiction to review the unconstitutionality of internal rules and regulations. 2. Requiring an individual who wishes to become an Advocate to sit for a test prior to entering the profession, in order to assess his or her knowledge, cannot be considered a violation of the principle of equality before the law, even though such a requirement is not imposed on members of other professional associations or those engaged in ordinary commercial activities, since the nature of the work performed is not the same. 3. The legislator had full discretion to enact specific transitional provisions for those already registered as Advocates and Judicial Defenders, based on their years of professional experience, where deemed appropriate. The fact that such provisions do not extend to Judges and Prosecutors does not constitute a violation of the principle of equality before the law.

## Page 4

The petition seeking to declare unconstitutional a provision of law lacks merit. Statutes and statutory instruments referred to: The Constitution of the Republic of Rwanda 2003 revised to date, articles 3, 15. Law N° 30/2018 of 02/06/2018 determining the jurisdiction of courts, articles 62 and 69. Law Nº 83/2013 of 11/09/2013 establishing the Bar Association in Rwanda and determining its organization and functioning, articles 4, 6, 19, 81 and 82. Cases referred to: Re Ngendahayo Kabuye, RS/INCONST/SPEC00004/2021/SC, rendered by the Supreme Court on 10/02/2023. Re Murangwa, RS/INCONST/SPEC00001/2022/SC, rendered by the Supreme Court on 16/12/2022. Re Murangwa, RS/INCONST/SPEC00001/019/SC, rendered by the Supreme Court on 29/11/2019. Re Akagera Business Group, RS/SPEC/0001/16/CS, rendered by the Supreme Court on 23/09/2016. Judgment I. BACKGROUND OF THE CASE

## Page 5

[1] On 14/04/2023, Uwombonye Hirwa Sudi filed a petition before the Supreme Court requesting to declare that Article 6, paragraphs 30 and 50, and Article 82, paragraph 3, of Law Nº 83/2013 of 11/09/2013, establishing the Rwanda Bar Association and determining its organization and functioning, are inconsistent with Article 15 of the Constitution of the Republic of Rwanda (hereinafter referred to as the Constitution), as they constitute unequal treatment before the law. During the pre-trial conference held on 28/02/2024, the petitioner stated that he had withdrawn his challenge to paragraph 30 of Article 6 of the aforementioned law, and therefore, it would not be addressed further. [2] He also requested to the Court to hold that Article 79, paragraph 7, and Article 83, paragraph 3, of the Internal rules and Regulations of the Bar Association in Rwanda dated 16/09/2014, which is referred to Article 8, paragraph 3, of the aforementioned Law Nº 83/2013 of 11/09/2013, are contrary to the Article 15 of the Constitution. [3] Uwombonye Hirwa Sudi explains that Article 8 emphasizes on the Internal Rules and Regulations of the Bar Association in Rwanda, it reads that, in order to be admitted as a practicing advocate, one must fulfil the requirements set forth in Article 6 of the mentioned Law, and it is prohibited to sit for the test more than twice within a five-year period. He contends that these provisions violate Article 15 of the Constitution. [4] He states that, as a legal practitioner and an advocate for equal treatment and protection for all before

## Page 6

the law, he has petitioned the Supreme Court to examine the aforementioned provisions and to repeal any that are inconsistent with the Constitution. [5] The case was registered under RS/INCONST/SPEC00002/2023/SC, and the hearing was scheduled for 04/03/2024. [6] On the hearing date, the parties appeared, and the hearing was held in public. Uwombonye Hirwa Sudi was represented by Counsel Nyamaswa Raphaël, while the Government of Rwanda was represented by Counsel Kabibi Spéciose. The Court first examined whether Uwombonye Hirwa Sudi had interest in the case and whether the Supreme Court had jurisdiction to hear a claim challenging the constitutionality of provisions of the Internal rules and Regulations. Determine whether Uwombonye Hirwa Sudi has interest in the case [7] After hearing the arguments presented by the petitioner and the Representative of the Government, the Court ruled as follows : a. In the interlocutory judgment RS/INCONST/SPEC00001/2022/SC rendered by the Supreme Court on 16/12/2022, whereby the petitioner was Murangwa Edward, the Court clarified that, in assessing the petitioner’s legal interest, the following factors must be considered, and the presence of any one of them suffices to establish such interest :

## Page 7

- If the contested law alleged to be unconstitutional directly affects the petitioner or the category to which he belongs, thereby granting them a personal interest in filing the petition. For example, laws specifically addressing journalists, doctors, teachers, and similar professions ; - If the contested law impacts the general public, potentially infringing upon their rights, thus allowing any person who might be affected to challenge its constitutionality ; - If the petitioner is an advocate, he or she may, in the interest of justice, file a petition to promote the law or protect the rights of those affected by the law, even if he or she has no direct personal interest in the case. b. Regarding the present case, the Court finds that the provisions challenged by Uwombonye Hirwa Sudi as unconstitutional pertain to any person seeking admission to the Bar Association to practice as advocate or legal advisor. In his petition, he states that he is a legal professional who formerly served as a Prosecutor at the national level and is now retired. c. c. The Court concludes that, as an individual with legal training and professional experience

## Page 8

in the field, Uwombonye Hirwa Sudi could personally be affected by these provisions, in case he seeks admission to the Bar Association ; therefore, he has a personal interest in this case. Determine whether the Supreme Court has jurisdiction to hear a claim challenging the constitutionality of provisions of the Internal rules and Regulations [8] After hearing the arguments presented by the petitioner and the Government Representative, the Court rendered the following decision on the bench : a. Article 69, 1o of the Law N° 30/2018 of 02/06/2018 determining the jurisdiction of courts reads that “The Supreme Court has jurisdiction over the following disputes at first and last instances : 1° take decision on petitions on the unconstitutionality of organic laws, international instruments, laws and decree-laws ; […]. b. This article indicates that, with reference to the jurisdiction of the Supreme Court, the Legislator did not include the jurisdiction to review whether organic laws or internal rules and regulations are inconsistent with the Constitution. c. The Court finds this interpretation logical, as internal rules and regulations or instructions in general must be based on a law that itself must not contradict the Constitution. When the underlying

## Page 9

law conflicts with the Constitution, it is the law that should be challenged, based on the jurisdiction provided under Article 69, paragraph 1, mentioned above. d. In case where the provisions within internal rules and regulations conflict either with the law on which they are based or with the Constitution itself, the aggrieved party has other legal alternatives to assert his/her rights, other than filing a claim before the judge responsible for safeguarding the integrity of the Constitution. These alternatives include the following : - He has the right to request any judge to disregard internal rules and regulations that conflict with the law or the Constitution in any case brought before them, based on Article 3 of the Constitution, which establishes the Constitution as the supreme law of the land and stipulates that any law, decision, or action contrary to it is null and void. The Court finds that this is not unique to Rwanda; for instance, in the Kingdom of Belgium, Article 159 of the Constitution grants to judges the power to disregard regulations that clearly violate the law or the Constitution but does not empower them to annul such regulations or their

## Page 10

provisions due to their unconstitutionality1. - He may also seek compensation before a competent judge if he/she can demonstrate that the internal rules and regulations conflicting with the law or the Constitution caused him harm2.

1 “L’article 159 de la Constitution “oblige en effet le pouvoir judiciaire à ne pas appliquer, dans un litige qui lui est soumis, l’acte réglementaire illégal. La non-conformité à la loi s’entend au sens large en ce qu’elle vise également la non-conformité à la Constitution. En d’autres termes, par le biais de l’exception de l’illégalité, tout juge peut refuser sans limite de temps d’appliquer un acte réglementaire, qui serait contraire à la Constitution”. “Cette prérogative constitutionnelle ne permet cependant au juge judiciaire de vérifier la constitutionnalité d’un acte réglementaire que de manière incidente, c’est-à-dire qu’à l’occasion d’un litige ayant pour objet un droit subjectif ou à l’occasion d’une poursuite répressive. En outre, elle n’a pas pour effet, contrairement à un arrêt d’annulation, de faire disparaître l’acte réglementaire jugé inconstitutionnel de l’ordonnancement juridique. Cette déclaration d’inconstitutionnalité n’a donc de valeur qu’inter partes. Elle est revêtue d’une autorité relative de chose jugée”; Professeur Pierre Nihoul, Juge à la Cour Constitutionnelle de Belgique, Le contrôle constitutionnel des règlements en Belgique, p.3, [consulté le 28/02/2024], https://www.const-court.be/public/stet/n/Le- Contr%C3%B4le-Constitutionnel-des-R%C3%A8glements-en- Belgique-oral.pdf 2 “[….] tout règlement inconstitutionnel peut être porté devant le juge judiciaire en vue d’obtenir, de l’auteur de ce règlement, réparation du dommage causé par un tel acte pour autant bien entendu que soient établis le dommage et le lien de causalité entre la faute et le dommage. Cette voie permet donc d’obtenir du juge judiciaire le même constat d’illégalité que celui opéré par le juge administratif et, en outre, la réparation en nature ou par équivalent du préjudice qui

## Page 11

- Additionally, he may bring a case before an administrative court, requesting the annulment of decisions made based on internal rules and regulations that violate the law or the Constitution. This approach is also not unique to Rwanda, as a similar procedure exists in the Kingdom of Belgium3. e. There are other countries, such as Benin and Gabon, where it is possible to petition the Constitutional Court to rule on whether internal rules and regulations conflict with the Constitution4. However, this is not the approach adopted by Rwandan legislation.

en résulte, sans toutefois aboutir à la censure radicale du règlement incriminé”; Ibidem, p.4. 3 “Le Conseil d’Etat peut aussi, à l’occasion d’un recours en annulation dirigé contre un acte individuel ou contre un acte réglementaire, contrôler par voie incidente un règlement sur lequel est fondé l’acte directement contesté. Il faut évidemment qu’il y ait un lien entre l’acte qui fait l’objet du recours principal et le règlement contesté de manière incidente pour que l’exception d’illégalité soit admissible”; Ibidem, p.6 4 Article 84 of Gabon's Constitution of 1991 with Amendments through 2011: The Constitutional Court obligatorily rules over: […] “The Constitutionality of organic laws and other laws before their promulgation, of regulatory acts that directly affect the fundamental rights of the human person and public liberties”; Article 85 of the same Text: […] Other categories of law as well as regulatory acts may be deferred to the Constitutional Court either by the President of the Republic, the Prime Minister, the presidents of the Chambers of Parliament or a tenth of members from each Chamber, the presidents of the Supreme

## Page 12

f. Basing on the aforementioned explanations, the Court finds that it does not have the jurisdiction to determine whether the provisions of the Internal Rules and Regulations violate the Constitution. Consequently, it will not examine whether Article 79, paragraph 7, and Article 83, paragraph 3, of the Internal Rules and Regulations of the Rwanda Bar Association are inconsistent with Article 15 of the Constitution. [9] After the Court's decision regarding its jurisdiction, UWOMBONYE HIRWA Sudi stated that he withdrew from the case the issue concerning whether Article 8, paragraph 3, of Law Nº 83/2013 of 11/09/2013 is inconsistent with Article 15 of the Constitution, as it

Court, the Council of the State and the Court of Accountancy, or any citizen or moral person damaged by the law or act in dispute”; https://www.google.com/search?q=la+constitution+du+gabon+pdf& rlz=1C1GCEU_en- Art 117 de la Constitution de la République du Bénin. “La Cour Constitutionnelle - Statue obligatoirement sur: […] la constitutionnalité des lois et des actes réglementaires censés porter atteinte aux droits fondamentaux de la personne humaine et aux libertés publiques et en général, sur la violation des droits de la personne humaine”; […] Art 121 du même texte: “La Cour Constitutionnelle, à la demande du Président de la République ou de tout membre de l'Assemblée Nationale, se prononce sur la constitutionnalité des lois avant leur promulgation. Elle se prononce d'office sur la constitutionnalité des lois et de tout texte réglementaire censés porter atteinte aux droits fondamentaux de la personne humaine et aux libertés publiques […]”, https://cdn.accf- francophonie.org/2019/03/benin-constitution- 1990.pdf

## Page 13

was related to the matters concerning the Internal Rules and Regulations. [10] Regarding the merits of the case, the Court analysed the following issues: - Whether Article 82, paragraph 3, of Law No 83/2013 of 11/09/2013 establishing the Rwanda Bar Association and determining its organization and functioning, is inconsistent with Article 15 of the Constitution; - Whether Article 6, subparagraph 5, of Law No 83/2013 of 11/09/2013 establishing the Rwanda Bar Association and determining its organization and functioning, is inconsistent with Article 15 of the Constitution.

II. ANALYSIS OF LEGAL ISSUES OF THE CASE 1.Whether Article 82, paragraph 3, of Law No 83/2013 of 11/09/2013 establishing the Bar Association in Rwanda and determining its organization and functioning, is inconsistent with Article 15 of the Constitution [11] Uwombonye Hirwa Sudi and his counsel argue that paragraph 3 of Article 82 of Law No 83/2013 of 11/09/2013, establishing the Bar Association in Rwanda

## Page 14

and determining its organization and functioning, reading that any person applying for the admission to the Bar must hold a diploma from the Institute of Legal Practice and Development (ILPD) recognized by the State or equivalent, is in violation of Article 15 of the Constitution for the following reasons : a. In Article 19, paragraph 1 of the aforementioned Law No 83/2013 of 11/09/2013, the professional experience of the Prosecutors and Judges is recognized, but when it comes to applying for admission to the Bar Association, applicants are required to hold a qualification, whereas their counterparts in the Bar at the time of the revision of the law establishing the Rwanda Bar Association were not required to do so. b. Prosecutors and Judges are not treated on the same level as the individuals mentioned in Article 19, paragraph 1° previously referenced, despite all having received the same education and having equal experience in law, with both Lawyers and Prosecutors also having equal pleading skills. The requirement for some and not for others constitutes inequality before the law. c. In other countries, such distinctions have been overcome (in Burundi5 and the

5 Loi N°1/17 du 24 Juillet 2023 portant modification de la loi N°1/014 DU 29 Novembre 2002 portant réforme du statut de la profession

## Page 15

Democratic Republic of Congo6), where no additional qualification is required for those coming from the Judiciary or the Public Prosecution. [12] Uwombonye Hirwa Sudi and his counsel further state that this issue concerns only judges and prosecutors with professional experience and does not apply to newly qualified lawyers. [13] With regard to the issue of Article 82(3), which they have challenged as relating to transitional provisions, Uwombonye Hirwa Sudi and his counsel contend that it is the matter, but they challenge the fact that they did not clearly define the transitional period. They also add that, in response to the Government representative's statement about lawyers with special training or knowledge, they find this exception unfounded. They argue that no distinction should be made on the basis of knowledge, as

d’Avocat, article 7, https://senat.bi/wp- content/uploads/2023/06/Gouvernement- Statut-de-La-Profession- d’Avocat.pdf. 6 Ordonnance-Loi No 79-028 du 28 septembre 1979 portant organisation du barreau, du corps des défenseurs judiciaires et du corps des mandataires de l’État, https://www.leganet.cd/Legislation/Droit%20Judiciaire/OL79.28.28. 09.79.htm (article 21 does not any way provide that those seeking admission to the Bar must sit for a test). N.B: The law appears to have been drafted when the country was called Zaire. What indicates that it is still in effect is the regulatory framework of the Bar Association Law. See link https://legalrdc.com/wp-content/uploads/2020/05/RIC- Barreau_LegalRDC.pdf and https://legalrdc.com/wp- content/uploads/2020/05/RIC-Barreau_LegalRDC.pdf.

## Page 16

the training and conduct (deontology) requirements for prosecutors and judges are the same as for lawyers. [14] Finally, they request to the Court to declare that Article 82, paragraph 3 of Law No. 83/2013 of 11/09/2013 establishing the Bar Association in Rwanda and determining its organisation and functioning should be repealed, as it discriminates between persons with similar experience (judges, prosecutors and lawyers), which is contrary to Article 15 of the Constitution. [15] The representative of the Government of Rwanda argues that the claims made by the petitioner should not be considered for the following reasons: a. The profession of advocate, like other liberal professions, has regulations and principles that govern it to ensure professionalism, and practitioners are required to meet certain standards of knowledge. b. Being a liberal profession does not imply a lack of regulation, but rather means that the practitioner is not considered an employee working under the authority of another person. The profession of an advocate is special and should not be equated with or compared to other professions like business or carpentry, on grounds that beyond its role in representing and advising individuals in legal matters, it also assists the justice system in achieving the desired justice (the advocate is an auxiliary of the justice system).

## Page 17

c. The Bar Association is the guardian of the laws, the dignity, and the honor of the profession of advocate, and that is why it is responsible for verifying the qualifications of its members and monitoring their conduct, as provided for in Article 4 of the Law establishing the Bar Association in Rwanda. d. Every liberal profession has its own specific functioning, this is why there are national councils for professions such as National Council of Nurses and Midwives7; Rwanda Allied Health Professions Council8, Council of Pharmacists9; Council of Veterinary Doctors10; the Office of the Notary11; the Council of Professional Bailiffs12 among others. These bodies are tasked with ensuring that each profession operates in accordance

7 Law N°25/2008 of 25/07/2008 establishing the National Council of Nurses and Midwives and determining its organisation, functioning and competence; Official Gazette (IG.L.R.R.) no 21bis of 01/11/2008. 8 Law N°46/2012 of 14/01/2013 establishing the Rwanda Allied Health Professions Council and determining its organisation, functioning and competence; IG.L.R.R. n° Special of 17/01/2013. 9 Law No 45/2012 of 14/01/2013 on organisation, functioning and competence of the Council of Pharmacists; IG.L.R.R. n° Special of 17/01/2013. 10 law n° 56/2013 of 09/08/2013 establishing Rwanda Council of Veterinary Doctors and determining its mission, organization and functioning; IG.L.R.R. n° Special of 21/10/2013. 11 Law No 13bis/2014 of 21/05/2014 governing the Office of Notary as amended to date; IG.L.R.R. n° Special of 29/05/2014. 12 Law N° 12/2013 of 22/03/2013 governing the Bailiff Function; IG.L.R.R. n° Special of 08/04/2013.

## Page 18

with its respective laws and professional ethics. e. The principle of equality before the law, as outlined in Article 15 of the Constitution, means that among equals the law should be equal and should be equally administered, that like should be treated alike. Article 15 would be violated if certain people seeking to enter the legal profession are required to have the ILPD diploma while others are not, without a legitimate and rational justification. f. The fact that Article 82, paragraph 313 of the Law establishing the Bar Association exempts individuals with at least six years of experience in the legal field and those who were former judicial defenders from the ILPD qualification requirement is based on the recognition of their unique status. They had acquired practical knowledge through years of practice and training, particularly through the CNFJ14's extensive programs. Therefore, there was no need for them to repeat their studies at ILPD. Since that particular consideration was taken into account, it cannot be regarded as discrimination or inequality.

13 [...] However, the provisions of Paragraph 2 of this Article shall not apply to Advocates that are already enrolled on the roll of the Bar Association with six (6) years of experience working as Advocates or to the Judicial Defenders enrolled on the roll of the Board of Judicial Defenders with six (6) years of experience working as Judicial Defenders. 14 Centre National de Formation Judiciaire.

## Page 19

g. Article 82, paragraph 3 falls under the section on transitional provisions, which are intended to fill gaps created by the new law. Prior to the entry into force of the 2013 Law, there were already practicing advocates and judicial defenders, and this provision was introduced to protect the acquired rights of those who were to be merged into a single Bar Association. Therefore, the law did not refer to judges and prosecutors as they were not part of these existing associations and none of their rights were infringed. h. It is inappropriate to argue that the transitional provisions are invalid because they did not specify the duration of their application. Not all transitional provisions have a fixed period. i. If the petitioner’s request to repeal Article 82, paragraph 3 is granted, it could create a problem for the individuals it concerns, and undermine the personal interest of the petitioner he had by filing the claim, as the ILPD diploma would then be required for everyone. DETERMINATION OF THE COURT [16] Article 82 of Law No 83/2013 of 11/09/2013 establishing the Bar Association in Rwanda and determining its organisation and functioning provides that within a period not exceeding three (3) years from the date of publication of this Law in Official Gazette of the

## Page 20

Republic of Rwanda, access to the advocate’s profession shall be allowed without considering a precondition of having a certificate from the Institute of Legal Practice and Development referred to in Article 6 of this Law. [17] The second paragraph of the very article reads that Advocates enrolled on the new roll of the Bar Association and on the list of interns as provided for in Article 81 of this Law shall have three (3) years to comply with the provisions of Article 6 of this Law as far as the Institute of Legal Practice and Development is concerned. [18] The third paragraph of the aforementioned article 82 provides that the provisions of Paragraph 2 of this Article shall not apply to Advocates that are already enrolled on the roll of the Bar Association with six (6) years of experience working as Advocates or to the Judicial Defenders enrolled on the roll of the Board of Judicial Defenders with six (6) years of experience working as Judicial Defenders. This is the paragraph which the petitioner alleges to be inconsistent with article 15 of the Constitution, on ground that it refers to advocates and judicial defenders but does not mention judges and prosecutors, even though they all underwent the same studies and have the same experience in legal practice. [19] This Article 82 of Law No 83/2013 of 11/09/2013 mentioned above appears under the transitional provisions. Transitional provisions are articles that help to fill gaps or resolve issues that may arise due to the new

## Page 21

law introducing measures that were not previously provided for in the repealed law15. [20] The legal scholar Bernhard Pulver states that the legislator has full discretion to establish transitional provisions as deemed appropriate, and that such provisions fall into different categories. Among these categories, he highlights the case of individuals who were already subject to the previous law and had made preparations in accordance with its requirements. He explains that, for such individuals, transitional provisions may stipulate that the former law continues to apply or that special arrangements are made for them. He provides an example where, under a new law, practicing a certain profession requires a university degree, whereas the previous law only required vocational training. In such a case, transitional provisions may allow individuals who have been practicing the profession for a certain period to continue without the university degree or offer them facilitated means to obtain it16.

15 “Une disposition transitoire est une règle de droit qui régit la transition entre l’ancien droit et le nouveau droit”; Bernhard PULVER, Le droit transitoire – parent pauvre de la législation? p.2, [consulté le 21/03/2024], https://leges.weblaw.ch/fr/dam/publicationsystem_leges/2005/3/LeG es_2005_3_91-103.pdf 16 “En principe, le législateur dispose d’une grande liberté d’appréciation pour fixer le régime transitoire qui lui semble équitable. Plusieurs types de dispositions transitoires s’offrent (sans prétention d’exhaustivité): […] – Adoption de règles particulières pour les situations préexistantes. Il peut se révéler judicieux de prévoir des règles matérielles particulières pour régler la situation des justiciables qui ont déjà pris des dispositions en fonction de l’ancien droit. On peut soit continuer

## Page 22

[21] The types of transitional provisions described by the legal scholar Bernhard Pulver align with those set forth in Article 82 of Law No 83/2013 of 11/09/2013 referenced above. In this context, individuals entering the legal profession, as well as those already practicing, were granted a period to meet the new legal requirements concerning the ILPD certificate, which had not been mandated under the previous law17. Furthermore, an exemption was provided for those with six years of professional experience who were already registered on the lists of advocates and judicial defenders, as they were not required to provide the ILPD certificate. [22] The Court finds that the exception provided under the transitional provision in Article 82, paragraph 3, of Law No 83/2013 of 11/09/2013, referenced above, could not be applied to Judges and Prosecutors, as they were not among those with six years of experience registered on the lists of Advocates and Defenders at the time the Law came into force. Although they studied law and perform duties related to legal representation in court, it is clear that the

à leur appliquer tel quel l’ancien droit ou bien prévoir pour eux un régime intermédiaire, particulier. Cas classique: si, pour l’exercice d’une profession, on exige dorénavant une formation universitaire (alors que, dans l’ancien droit, on n’exigeait qu’une formation professionnelle), le droit transitoire peut prévoir que les personnes qui exerçaient cette profession depuis un certain temps avant l’entrée en vigueur peuvent continuer à l’exercer même sans titre universitaire; on peut également donner à ces personnes la possibilité d’acquérir, à des conditions facilitées, le titre universitaire requis”; Ibidem, p. 5. 17 Law nº 03/97 of 19/03/1997 establishing the Bar Association in Rwanda as modified and complemented to date.

## Page 23

legislator, in establishing the exception within the transitional provision, intended to address the situation of those who had long been practicing as legal representatives but did not have the certificate required under the new law. [23] The following sections will examine whether the exclusion of Judges and Prosecutors from the same category as those already listed as Advocates and Judicial Defenders—thereby denying them the benefit of the exception provided under Article 82, paragraph 3, of Law No 83/2013 of 11/09/2013—constitutes a violation of Article 15 of the Constitution. [24] Article 15 of the Constitution reads that all human beings are equal before the law. They enjoy equal protection of the law. The provisions of this Article have been interpreted in various cases decided by this Court, including the case of Murangwa Edward decided on 29/11/2019. In that case, the Court provided a detailed interpretation of the principle of equality before the law, drawing upon international treaties, various judicial decisions, and expert commentaries. The Court explained that “Things that are alike should be treated alike, and things that are unalike should be treated unalike in proportion to their unlikeness”18. [25] The Court further explained that although individuals must be treated equally before the law, distinguishing between people or categorizing them does

18 Judgment RS/INCONST/SPEC 00001/ 2019/SC, rendered on 29/11/2019, Murangwa Edward, paragraph 34.

## Page 24

not always amount to discrimination. It emphasized that differentiating between individuals or groups may be necessary depending on the intended purpose, provided there are reasonable grounds based on a legitimate or rational objective19. This interpretation was also reiterated in the case of Ngendahayo Kabuye, likewise decided by this Court20. [26] In a case decided by the Swiss Federal Tribunal21, the Association Suisse des Psychothérapeutes challenged a new law regulating their profession. The law introduced new requirements for entry into the profession, including university qualifications, but also provided a transitional provision allowing those who had been practicing for some time prior to the enactment of the new law to continue working without meeting the new requirements. The Association argued that this provision violated the constitutional principle of equality before the law. However, the Court held that allowing practitioners who had been working in compliance with the previous legal framework to continue practicing under the transitional provision, without having to fulfil the new legal

19 Ibidem, para 35. 20 Judgment RS/INCONST/SPEC 00004/2021/SC, rendered on 10/02/2023, Ngendahayo Kabuye, paragraph 39 (this judgment reiterated on what was stated in the judgment RS/SPEC/0001/16/CS, rendered on 23/09/2016, Akagera Business Group, paragraph 18). 21 Judgment ATF 128 I 92, Schweizer Psychotherapeuten Verband SPV, considérant 4 (extrait traduite), [consulté le 21/03/2024], https://relevancy.bger.ch/php/clir/http/index.php?highlight_docid=at f%3A%2F%2F128-I- 92%3Ade&lang=de&type=show_document.

## Page 25

requirements, is not in any case inconsistent with the Constitution22. [27] Regarding the issue under consideration— whether the exclusion of Judges and Prosecutors from the transitional provision set forth in Article 82, paragraph 3, of Law No 83/2013 of 11/09/2013, unlike those already enrolled as Advocates and Judicial Defenders, violates the principle of equality before the law—the Court finds that the two categories are distinct. Those already on the list of Advocates and Judicial Defenders belonged to a category of individuals who were previously governed by the repealed law23 and had met its requirements. The legislator, therefore, had full discretion to establish specific transitional provisions for that category, as deemed appropriate, based on the duration of their professional practice. As previously explained, this does not violate the principle of equality before the law, as it is based on reasonable grounds and serves a legitimate purpose.

22 “Le cas des psychothérapeutes zurichois: une nouvelle loi cantonale exige, pour l’exercice indépendant de cette profession, dorénavant des études universitaires, une formation spéciale ainsi que des experiences professionnelles d’au moins deux ans. Pour les personnes ayant exercé cette profession depuis plusieurs années avant l’entrée en vigueur de ces nouvelles règles, des exigences moins élevées ont été fixées dans les dispositions transitoires. Ces dispositions transitoires ont été jugées comme conformes à la Constitution fédérale par le Tribunal federal”; Bernhard Pulver, op.cit., p.6-7. 23 Law nº 03/97 of 19/03/1997 establishing the Bar Association in Rwanda as modified and complemented to date.

## Page 26

[28] In light of all the foregoing elucidations, the Court finds that paragraph 3 of Article 82 of Law No. 83/2013 of 11/09/2013, establishing the Bar Association in Rwanda and determining its organization and functioning, is not inconsistent with Article 15 of the Constitution. 2. Determine whether Article 6, subparagraph 5, of Law No 83/2013 of 11/09/2013 establishing the Bar Association in Rwanda and determining its organization and functioning, is inconsistent with Article 15 of the Constitution [29] Uwombonye Hirwa Sudi and his legal counsel claim that Article 6, subparagraph 5, of the aforementioned Law No 83/2013 of 11/09/2013, is inconsistent with Article 15 of the Constitution, based on the following grounds: a. Article 6, paragraph 5, as mentioned above, stipulates that anyone seeking to be admitted to the Bar Association in Rwanda must have passed a test conducted by the Bar Association. A lawyer, as a service provider, like others practicing liberal professions, should not be required to sit for a test to be authorized to practice this profession. b. Those wishing to be admitted to the Bar Association in Rwanda must register only once a year and must first compete through a selection process. It is well known that an advocate practices a liberal profession aimed at providing legal services, meaning that they are not an employee of the Bar Association; rather, they

## Page 27

are responsible for all aspects such as paying their employees, renting their office space, purchasing equipment, and other daily needs. c. In consideration of the nature of an advocate's work, it is evident that he/she is an employee of the clients to whom he/she provides services, meaning that those clients should be the ones evaluating the advocate’s ability to assess whether they are competent or not. The Bar Association is not responsible for evaluating their competence since it is not a client of an advocate. d. The purpose of the test is not to enroll qualified individuals (skilled persons) into the Bar Association, rather it serves as a direct path to exclude and limit access to the Bar Association, which also creates inequality among lawyers. e. When referring to individuals practicing liberal professions, they also include those engaged in business activities. However, it is not provided under the laws of Rwanda that a person seeking to be a businessperson must firstly undergo any kind of test in order for the relevant authorities (Rwanda Development Board, Rwanda Revenue Authority, among others) to grant them the permission to practice their profession. f. In other councils such as the one for medical doctors, nurses and midwives, among others, no admission test is required. Thus, it raises the question of why the Bar Association in Rwanda

## Page 28

would be an exception, which could also be seen as a violation of Article 15 of the Constitution, as people are not equally treated before the law. g. The argument made by the representative of the Government of Rwanda that tests are required in other countries prior admission to the Bar Association is not accurate. For example, in France24, no admission test is required for nationals; however, the test is only for foreigners who do not demonstrate possession of a professional certificate in legal representation (titulaire du certificat d'aptitude à la profession d'Avocat). In our neighboring countries with similar legal systems, like Burundi25, no test is

24 Décret N° 91-1197 du 27 novembre 1991 organisant la profession d'avocat, article 11 provides for this in the following statements “Sans préjudice des dispositions du titre VI, l'avocat ressortissant d'un Etat ou d'une unité territoriale n'appartenant pas à l'Union européenne ou à l'Espace économique européen, s'il n'est pas titulaire du certificat d'aptitude à la profession d'avocat, doit subir, pour pouvoir s'inscrire à un barreau français, les épreuves d'un examen de contrôle des connaissances en droit français selon des modalités fixées par décret en Conseil d'Etat”, [accessed on

30/10/2023], https://www.legifrance.gouv.fr/loda/id/JORFTEXT000000356568. Loi N° 71-1130 du 31 décembre 1971 portant réforme de certaines professions judiciaires et juridiques, [accessed on 23/10/2023] from the website, https://www.legifrance.gouv.fr/loda/article_lc/LEGIARTI00003685 0720 25 Loi N°1/17 du 24 Juillet 2023 portant modification de la loi N°1/014 du 29 Novembre 2002 portant réforme du statut de la profession d’avocat, article 7, [accessed on 23/10/2002], https://senat.bi/wp- content/uploads/2023/06/GOUVERNEMENT- STATUT-DE-LA-PROFESSION-DAVOCAT, pdf.

## Page 29

required for admission to the Bar Association, except for those transitioning from what they call the “petit tableau” to the “grand tableau,” and even then, they must have had two years of experience, after six months of training. In the Democratic Republic of Congo26, their laws do not require a test prior admission to the Bar Association. h. The argument made by the representative of the Government that although judges and prosecutors work in legal matters, they cannot be considered as having experience and knowledge in the practice of the profession of advocate, but rather in the profession of judiciary and prosecution, is incorrect, on grounds that the pleading techniques used by an advocate in court are similar to those employed

26 Ordonnance-Loi 79-028 du 28 septembre 1979 portant organisation du barreau, du corps des défenseurs judiciaires et du corps des mandataires de l’État, article 21, no test is provided for admission to the Bar, [accessed on 23/10/2023], https://www.leganet.cd/Legislation/Droit%20Judiciaire/OL79..28.28 .09.79.htm N.B. This law appears to have been enacted when the country was still called Zaire, and the applicable provisions seem to be those of the Regulatory Law of the Bar Association. For reference, see the following links: https://legalrdc.com/wp-content/uploads/2020/05/RIC- Barreau_LegalRDC.pdf https://legalrdc.com/wp-content/uploads/2020/05/RIC- Barreau_LegalRDC.pdf

## Page 30

by prosecutors during their cases, while judges derive their rulings from both. i. The requirement for a test for individuals seeking to be admitted to the Bar Association in Rwanda, along with the prohibition of re-taking the test within five (5) years if they fail more than twice, infringes upon human rights, as it prevents them from having the same rights or being equally treated as others practicing the same legal profession. [30] Uwombonye Hirwa Sudi and his legal counsel conclude by requesting the Court to declare that the provisions of paragraph 5° of Article 6 of Law No 83/2013 of 11/09/2013 establishing the Bar Association in Rwanda and determining its organization and functioning, are inconsistent with Article 15 of the Constitution and should therefore be repealed. [31] Regarding this issue, the Representative of the Government of Rwanda generally provided the same explanations as those given for the first issue, emphasizing that the legal profession, like other liberal professions, is governed by laws and principles to ensure its professional practice. Furthermore, practitioners are required to meet certain standards related to adequate knowledge and ethical conduct to uphold professionalism. [32] The Representative of the Government of Rwanda further explains that the legal profession is a distinct profession that should not be equated or compared with other professions such as commerce or carpentry. She

## Page 31

clarifies that the requirement for those seeking to practice the legal profession to sit for a test prior admission to the Bar Association is not unique to Rwanda but is a common practice in other countries. She cites the example of France, where an individual aspiring to become an advocate must sit for a test, except for those holding an advanced law degree (PhD)27. [33] She also argues that Uwombonye Hirwa Sudi has failed to demonstrate how Article 6, subparagraph 5 of the aforementioned law is inconsistent with the Constitution, as the Constitution does not prohibit sitting for tests prior admission to any profession or stipulate that certain individuals are entitled to enter the profession without sitting for a test while others are required to do so. [34] In conclusion, she states that, based on her explanations, the requirement that every person wishing to practice a professional of an advocate must take and pass an examination does not contravene Article 15 of the Constitution. DETERMINATION OF THE COURT [35] Article 6, subparagraph 5 of the aforementioned Law Nº 83/2013 of 11/09/2013 outlines the requirements

27 Décret N° 91-1197 du 27 Novembre 1991 organisant la profession d’Avocat. https://www.legifrance.gouv.fr/loda/id/JORFTEXT000000356568 , [accessed on 07/06/2023].

## Page 32

for those wishing to practice the profession of advocate or the necessary experience related to this profession, including the passing of the test conducted by the Bar Association. [36] Uwombonye Hirwa Sudi argues that this provision is inconsistent with the principle of equality before the law as enshrined in Article 15 of the Constitution. He bases his argument on the fact that individuals seeking to practice the profession of advocate are required to sit for a test, whereas this requirement does not apply to other professionals in liberal practices, such as businesspersons or members of professional associations for medical doctors, nurses, and midwives. [37] As previously discussed in the analysis of the first issue, the principle of equality before the law has been extensively analysed in various cases adjudicated by this Court. It has been explained that similar situations must be treated alike, while different situations may be treated unalike based on their distinctions. Furthermore, it has been clarified that differentiating between individuals or categorizing them does not necessarily constitute unequal treatment, provided there are reasonable justifications grounded in a legitimate purpose. [38] This Court finds that those practicing the profession of advocate cannot be classified in the same category as those in commercial activities, as it requires specialized knowledge to provide legal advice, represent and assist clients in court, and assist the judiciary in delivering fair, credible, and high-quality justice. Therefore, requiring an aspiring advocate to sit for a test

## Page 33

prior admission to the profession, in order to assess their competence, while such a requirement does not apply to those engaged in general commercial activities, cannot be considered a violation of the principle of equality before the law, as these professions are not the same. Likewise, it cannot be compared to associations of medical doctors, nurses, or midwives, as each professional body is governed by its own specific regulations, which determine the unique requirements for entry into the respective profession. [39] In many countries, passing an examination is a prerequisite for admission to the Bar Association (examples include the United States, Canada, Singapore, Kenya, Tanzania, India, …)28. In other countries, such as the Kingdom of Belgium, the Bar admission examination

28 American University, Washington College of Law, State-by-State Bar Exam Requirements, https://www.wcl.american.edu/academics/academicservices/academ ic-excellence/bar-exam/survey/ - Careerinlaw.net, How to Become a Lawyer in Canada- Official Guidelines, https://careerinlaw.net/ca/ - The Law Society of Singapore, Becoming a Lawyer, https://www.lawsociety.org.sg/our-community/becoming- a- lawyer/ - Council of Legal Education, students guide to the Bar examination, https://cle.or.ke/wp- content/uploads/2019/06/Students-Guide-to-the-Bar- Examination.pdf. - MDM Law Group, 5 steps to becoming a Lawyer in Tanzania, https://mdmlaw.co.tz/5-steps-to-becoming-a- lawyer- in-tanzania/ Bar Council of India, All India Bar Examination(AIBE), https://www.barcouncilofindia.org/info/aibe

## Page 34

applies to individuals from European Union member states29. In France, the Bar admission test is required for foreign nationals who did not study at the country's School of Lawyers, as well as for others who must first pass an entrance examination to gain admission to that

29 Other foreign nationals are required to first obtain a recognized law degree equivalency (équivalence) through universities that offer legal education.

## Page 35

school30 (except for those for whom the legislator has provided an exemption)31.

30 Article 12, al. 1, de la loi No 71-1130 du 31 décembre 1971 portant réforme de certaines professions judiciaires et juridiques, tel modifiée par (Modifié par loi n° 2023-1059 du 20 novembre 2023 - art. 49 (V): “Sous réserve du dernier alinéa de l'article 11, des dispositions réglementaires prises pour l'application de la directive 2005/36/CE du 7 septembre 2005 modifiée précitée et de celles concernant les personnes justifiant de certains titres ou ayant exercé certaines activités, la formation professionnelle exigée pour l'exercice de la profession d'avocat est subordonnée à la réussite à un examen d'accès à un centre régional de formation professionnelle et comprend une formation théorique et pratique d'une durée d'au moins dix-huit mois, sanctionnée par le certificat d'aptitude à la profession d'avocat. Pour être admis à se présenter à l'examen d'accès au centre régional de formation professionnelle, les candidats doivent justifier de l'obtention des soixante premiers crédits d'un master en droit ou de l'un des titres ou diplômes reconnus comme équivalents par arrêté conjoint du ministre de la justice et du ministre chargé des universités”; https://www.legifrance.gouv.fr/loda/id/LEGITEXT000006068396#: ~:text=Nul%20ne%20peut%2C%20s'il,%C3%A0% 20la%20Cour%20de%20cassation Article 51, al. 1, du Décret N° 91-1197 du 27 novembre 1991 organisant la profession d'avocat, tel que modifié par le Décret No 2023-1125 du 1er décembre 2023(art.13): “Pour être inscrits dans un centre régional de formation professionnelle, les candidats doivent avoir subi avec succès l'examen d'accès au centre, dont le programme et les modalités sont fixés par arrêté conjoint du garde des sceaux, ministre de la justice, et du ministre chargé de l'enseignement supérieur, après avis du Conseil national des barreaux”; https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000000356568. 31 Article 97 du Décret N° 91-1197 du 27 novembre 1991 précité: “Sont dispensés de la condition de diplôme prévue à l'article 11 (2°) de la loi du 31 décembre 1971 précitée, de la formation théorique et pratique, du certificat d'aptitude à la profession d'avocat:

## Page 36

[40] There are other countries that do not require candidates to sit for a test prior admission to the Bar Association, including those mentioned by the petitioner. It is evident that different countries follow different approaches ; however, in most cases, a test is conducted to assess the competence of individuals seeking admission to the profession of advocate, which plays a crucial role in the administration of justice. The requirement to pass an examination before becoming an advocate is not inconsistent with the Constitution, as above explained. The issue would arise only if some applicants were required to sit for a test while others were not, without a legitimate and rational justification. [41] In light of all the foregoing elucidations provided, the Court finds that subparagraph 5 of Article 6 of Law No 83/2013 of 11/09/2013 establishing the Bar Association in Rwanda and determining its organization and functioning, is not inconsistent with Article 15 of the Constitution.

1° Les membres et anciens membres du Conseil d'Etat et les membres et anciens membres du corps des tribunaux administratifs et des cours administratives d'appel; 2° Les magistrats et anciens magistrats de la Cour des comptes, des chambres régionales des comptes et des chambres territoriales des comptes de la Polynésie française et de la Nouvelle-Calédonie; 3° Les magistrats et anciens magistrats de l'ordre judiciaire régis par l'ordonnance n° 58-1270 du 22 décembre 1958; 4° Les professeurs d'université chargés d'un enseignement juridique; 5° Les avocats au Conseil d'Etat et à la Cour de cassation”.

## Page 37

III. DECISION OF THE COURT [42] Decides that the petition filed by Uwombonye Hirwa Sudi, seeking to declare that paragraph 3 of Article 82 and subparagraph 5 of Article 6 of Law No 83/2013 of 11/09/2013, establishing the Bar Association in Rwanda and determining its organization and functioning, are inconsistent with Article 15 of the Constitution of the Republic of Rwanda, is unfounded ; [43] Declares that paragraph 3 of Article 82 and subparagraph 5 of Article 6 of Law No 83/2013 of 11/09/2013 establishing the Bar Association in Rwanda and determining its organization and functioning, are not inconsistent with Article 15 of the Constitution of the Republic of Rwanda.