Government of Rwanda Mifotra Minimum Wage Supreme Court 2022 6a3ea5233b1caa9129818db6

Volume Special 1

- Source: Amategeko - Section: Rwanda law reports - Date: 2022-06-30 - Collection: Supreme Court

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RWANDA LAW REPORTS 2022 Volume Special

ENGLISH VERSION

REPUBLIC OF RWANDA

SUPREME COURT P.O. Box. 2197 KIGALI www.judiciary.gov.rw

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RWANDA LAW REPORTS 2022

PETITIONS REGARDING THE AUTHENTIC INTERPRETATION OF LAWS,

PUBLIC INTEREST LITIGATION &

PETITIONS SEEKING TO DECLARE A LAW

UNCONSTITUTIONAL

Volume Special 1

ENGLISH VERSION

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TEAM OF EDITORS I. LAW REPORTING TEAM Kagabo U. Stephanie Kavutse M. Claude Kubwimana Jean Claude Mujabi K. Naphtal Uwinkindi Angelique

II. COMPOSITION OF THE MULTI-INSTITUTIONAL COMMITTEE Prof. Dr. Ngagi M. Alphonse President of the Committee, Judge of CoA Dr. Muhire G. Yves Vice President of the Committee Nsengiyumva Jean Claude Secretary of the Committee Rukundakuvuga F. Regis President of the Court of Appeal Dr. Karimunda M. Aimé Judge of the Supreme Court Ndahayo Xavier President of the High Court Rutazana Angeline Inspector General of Courts Kaliwabo Charles Judge of the Court of Appeal Dr. Kayihura Didas Rector of ILPD Umuzayire B: Bibiane Vice-Chairman of LRLC Bwiza N. Blanche Inspector of Courts Kibuka Jean Luc Judge of the Commercial High Court Habarurema Jean Pierre Prosecutor at National Level Bunyoye Grace Prosecutor at National Level Kabibi Specioza State Attorney iii

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iv Murererehe Saouda Judge of the High Court Lt. Col. Madudu A. Charles Judge of the Military Court Dr. Nshimiyimana Didace Judge of the Intermediate Court Giraneza Clémentine Judge of the Intermediate Court Tashobya Benon Judge of the Intermediate Court Bagabo Faustin Advocate at Rwanda Bar Association Gaparayi Idi Lecturer at the University of Kigali Dr. Shema Pierre Lecturer at UNILAK Karake Canisius Lecturer at ULK Habimana Pie Advocate at Rwanda Bar Association Rwigema Royck Judge of the Commercial Court Yankurije Dorothée Judge of the Primary Court

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PREFACE

This specialized volume of Rwanda Law Reports contains petitions regarding the authentic interpretation of laws, public interest litigation and petitions requsting to declare the law unconstitutional, which were published in various volumes of ordinary law reports up to the year 2022. These cases can be accessed on the website of the judiciary: http://decisia.lexum.com/rlr/en/nav.do.

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CASES REPORTED RS/PIL/SPEC 00001/2019/SC; Association des Assureurs du Rwanda (ASSAR) v. Government of Rwanda (MIFOTRA) 355 RS/INCONST/SPEC 00004/2020/SC; Re. Asiimwe 335 RS/SPEC/0001/16/CS; Re. Akagera Business Group 229 RS/Inconst/Pén.0003/10/CS Re. Gatera et al 203 RS/INCONST/SPEC 00002/2019/SC; Re. GLIHD 213 RS/INCONST/SPEC 00003/2019/SC Re. Kabasinga 95 RS/INCONST/SPEC 00003/2020/SC; Re Kabasinga 165 RS/INCONST/SPEC 00005/2020/CS - RS/INCONST /SPEC 00006/2020/CS Re. Kabasinga et al 117 RS/INCONST/SPEC00002/2018/SC; Re Mugisha (1) 33 RS/INCONST/SPEC00002/2018/SC; Re Mugisha (2) 49 RS/INCONST/SPEC 00001/ 2019/SC Re. Murangwa 247 RS/INCONST/SPEC 00001/2020/SC– Re Ndayisabye 311 RS/INCONST/SPEC 00004/2019/SC – Re. Nzafashwanayo 285 RS/SPEC/00001/2017/SC : Re Rwanda Bar Association (1) 1 RS/INTL/SPEC 00001/2020/SC; Re Rwanda Bar Association (2) 15

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SUBJECT INDEX Appeal Constitution – Jurisdiction of courts – Appeal – Second appeal – Due process of law – The inalienable right of appeal consists of the first appeal which may however have some limitations for legitimate reasons - The right to appeal may be limited on the second appeal but for legitimate reasons. RS/INCONST/SPEC 00004/2020/SC; Re. ASIIMWE 335 Constitution – Jurisdiction of courts – Unconstitutionality – Second appeal in criminal cases – Due process of law – The fact that the party pleading not guilty may be allowed a second appeal depending on the sentence imposed while the accused who pleaded guilty is barred from lodging a second appeal, amounts to unequal treatment of accused persons, which is inconsistent with the principle of equality before the law. RS/INCONST/SPEC 00004/2020/SC; Re. ASIIMWE 335 Authentic Interpretation of laws Constitution – Authentic Interpretation of laws – Admissibility – Condition for admissibility of the petition for the authentic interpretation of the law – The petitioner must beforehand demonstrate either his/her interest, the interest of the person declared legally incapacitated under his/her guardianship, to file it in the public interest, the existence of the judgments or administrative decisions related to a matter of public interest that diverge in the interpretation of the legal provision or that the law contains ambiguous texts likely to lead to conflicting interpretation and it is in the public interest to clarify them. RS/SPEC/00001/2017/SC; Re RWANDA BAR ASSOCIATION (1) 1 Constitution – Authentic interpretation of laws – Conditions for admissibility – The applicant must beforehand demonstrate in his/her submissions a private or public legitimate interest ix

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x pursued, the issue arising in the law and in respect of which he/she seeks interpretation, that there exist contradictory court or administrative decisions to the interpretation of the provision of the law, or the text of the law in respect of which the misinterpretation arises and likely to lead to equivocal and contradictory interpretations and being in the general interests to determine the right interpretation – The fact that there arises dissension from its interpretation should not be considered as a dispute in the event there exists a final court decision that sets the position about the issue pointed out by the parties to have given rise to the confusion. RS/INTL/SPEC 00001/2020/SC; Re RWANDA BAR ASSOCIATION (2) 21 Constitution – Authentic Interpretation of laws – Inadmissibility – The petition for the authentic interpretation is inadmissible if it relates to a case that is pending or that has not yet exhausted the ordinary remedies of appeal. RS/SPEC/00001/2017/SC; Re RWANDA BAR ASSOCIATION (1) 1 Constitution – Authentic Interpretation of laws – Issues which must be established in the authentic interpretation by the Court – While making the authentic interpretation of laws, the Court must establish whether the application of the law can lead to a conflict in its interpretation; there is a misapplication or misinterpretation of the law to the extent that it does not

reflect the purpose of its enactment or falls short of solving a social problem for which it was enacted, and it must interpret the law or its provisions in case its literal words are ambiguous and also provide an extensive interpretation of the law in case it is apparent that it is silent on some aspects leading to lacunae in its application. RS/SPEC/00001/2017/SC; Re RWANDA BAR ASSOCIATION (1) 1 Constitution – Authentic Interpretation of laws – Law applicable in the procedure of the hearing of the petitions relating to the authentic interpretation of laws – The provisions of the Organic Law N° 03/2012/OL of 13/06/2012

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xi determining the organization, functioning, and jurisdiction of the Supreme Court relating to petitions seeking to declare unconstitutional a treaty, an international agreement or a law apply. RS/SPEC/00001/2017/SC; Re RWANDA BAR ASSOCIATION (1) 1 Constitution – Authentic Interpretation of laws – Legal effect – The authentic interpretation does not only have a binding force on the petitioner, rather it even binds all persons and it can be referred to in the future without making another authentic interpretation of that same law. RS/SPEC/00001/2017/SC; Re RWANDA BAR ASSOCIATION (1) 1 Constitution – Authentic Interpretation of laws – Summoning of the Government in the petition for the authentic interpretation of laws – Whenever there is a petition for the authentic interpretation of laws, the Government should be summoned to submit its opinion. RS/SPEC/00001/2017/SC; Re RWANDA BAR ASSOCIATION (1) 1 Constitution – Authentic Interpretation of laws – The role of the Rwanda Bar Association – The Rwanda Bar Association has the power to examine the requests for the authentic interpretation of the laws it receives and decide whether the authentic interpretation is needed or not, and if necessary it can revise it before submitting it to the Supreme Court and its role continues until the Court has heard the petition. RS/SPEC/00001/2017/SC; Re RWANDA BAR ASSOCIATION (1) 1 Constitution – Authentic Interpretation of laws – The decision of the Rwanda Bar Association – The decision of the Bar Association regarding the admissibility of the request for the authentic interpretation submitted through it is not subject to appeal. RS/SPEC/00001/2017/SC; Re RWANDA BAR ASSOCIATION (1) 1

SUBJECT INDEX

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xii Adultery Constitution – Withdrawal of a claim of adultery – The offended spouse may at any stage of the proceedings request that the case be terminated when he/she withdraws the complaint – Stopping the proceedings or the execution of the judgement has effects on the co-offender. RS/INCONST/SPEC 00002/ 2018/SC; Re MUGISHA (2) 49 Criminal offence Constitution – Acts prejudicial to the general interests – A legislator may criminalize some acts and determine the penalty of imprisonment thereof, even though they are related to contracts, this does not impede the offended party to institute a civil claim seeking for damages or the execution of the contract. RS/INCONST/SPEC 00002/ 2018/SC; Re MUGISHA (2) 49 Constitution – Criminal law – The criminal law must be clear, plain and unambiguous – It is not the duty of the judge to determine punishable acts, rather, it is the duty of the legislator – The law must be written in such a way that everyone can know the limits of what is allowed and prohibited as well the consequences of penalties in order to refrain for committing a crime (predictability) – The punishable act and related penalty are determined by the law. RS/INCONST/SPEC00005/2020/CS-RS/INCONST/SPEC 00006/2020/CS; KABASINGA ET AL 117 Discrimination Constitution – Distinction between people – Distinction per se, is not discrimination, or treating people unequally before

the law, it can be done upon a reasonable ground to defend vulnerable persons, such ground must be objectively justifiable and legitimate and such distinction should be proportionate to the purpose to be achieved. RS/INCONST/SPEC 00002/ 2018/SC; Re MUGISHA (2) 49 Constitution – The principle of equality before the law – Distinction of individuals – All persons are equal before the law without any distinction or discrimination and the enacted law should treat people equally – This principle may be subject

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xiii to exception if there are reasonable grounds based on legitimate purpose of distinction of people but which, with consideration of their physiology, does not constitute a discrimination. RS/INCONST/SPEC 00003/2020/SC; Re KABASINGA 165 Constitution – Discrimination – Although people are equal before the law, the differentiation or categorisation thereof does not necessarily lead to discrimination because it may be necessary for legitimate or rational purpose. RS/INCONST/SPEC 00001/ 2019/SC; Re. MURANGWA 247 Constitution – Equality before the Law and non- discrimination – Equality before the Law and non- discrimination does not always mean that differentiation of persons itself entails discrimination. Differentiation or categorization of persons can be necessary for legitimate or rational purpose. RS/SPEC/0001/16/CS; Re. AKAGERA BUSINESS GROUP 229 Constitution – Equality before the Law and non- discrimination – A taxpayer who is a party to the case – Evidence production at the level of appeal – The fact that taxpayer litigants are not allowed to produce new evidences at the level of appeal cannot be regarded as treating them unequally towards other litigants since it is based on their particularity and responsibilities of keeping financial statements of which they are entrusted by the Law. RS/SPEC/0001/16/CS; Re. AKAGERA BUSINESS GROUP 229 Due process of law Constitution –

Due process of law – Due process of law consists of a series of requirements to be followed in the course of the proceedings based on procedural due process and fair justice that prevents the enactment of laws or other irrational measures that infringe on rights of the population (substantive due process) – The Constitution of the Republic of Rwanda of 2003 revised in 2015, article 29. RS/INCONST/SPEC 00003/2019/SC; Re. KABASINGA 95

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xiv Fair justice Constitution – Due process of law – Guarantees of due process of law – It consists with a course of legal proceedings based on the principles of law and fair justice preventing the adoption of unreasonable legislation or other measures violating the substantive due process of law for the people. RS/INCONST/SPEC 00003/2020/SC; Re KABASINGA 165 Family Constitution – Effects of imprisonment sentence on the family – The effects of imprisonment sentence on the family should not constitute a ground to repeal the provisions laying down that penalty, because the purpose of imprisonment sentence is the deterrence, punishment, rehabilitation and education of people. RS/INCONST/SPEC 00002/ 2018/SC; Re MUGISHA (2) 49 Constitution – Flourishment of the family – Flourishment of the family does not entail freedom to do as one wills, rather, it denotes liberty and security of the family members which cannot be achieved in a family characterized with adultery, concubinage and desertion of the marital home, therefore penalizing these crimes, is neither breaking the family nor encroaching on its flourishment, in lieu, it is preventing what might threaten it RS/INCONST/SPEC 00002/ 2018/SC; Re MUGISHA (2) 49 Constitution – Family – Marriage– A civil monogamous marriage between a man and a woman is the only recognised marital union RS/Inconst/Pén.0003/10/CS; Re. GATERA et. al.

203 Freedom and Independence of the judge Constitution – Freedom and Independence of the judge – Mandatory sentencing – In exercising their judicial functions, judges at all times do it in accordance with the law and are independent of any power or authority – The judge is not independent, if during sentencing s/he is obligated to impose a mandatory sentence which is not proportional to the gravity of the crime, the circumstances surrounding the commission of the offence and substantial mitigating circumstances that

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xv would have reduced his sentence in case there are any – The Constitution of the Republic of Rwanda of 2003 revised in 2015, article 151 RS/INCONST/SPEC 00003/2019/SC; Re. KABASINGA 95 Constitution – Freedom and independence of the judge – Life imprisonment – – In exercising their judicial functions, judges at all times do it in accordance with the law and are independent of any power or authority - – The judge is not independent, if during sentencing s/he is obligated to impose a mandatory sentence which is not proportional to the gravity of the crime, the circumstances surrounding the commission of the offence and substantial mitigating circumstances that would have reduced his sentence in case there are any. RS/INCONST/SPEC 00005/2020/CS - RS/INCONST/SPEC 00006/2020/CS; KABASINGA ET AL 117

Freedom of press and expression Constitution – Freedom of press and expression –The exercise of the freedom of expression entitles a person to express his/her opinion about religious rituals, symbols and religious items and the right to seek, receive and impart information and opinions in the public on religious rituals, symbols and religious items as long as he/she does not act contrary to the provisions of article 38 of the Constitution of the Republic of Rwanda. RS/INCONST/SPEC 00002/ 2018/SC; Re MUGISHA (2) 45 Constitution – Expression of views and opinions on the actions of the administration – Freedom of expression, and imparting information on activities of leaders, stresses the democratic principle of transparency and accountability of the leaders serving the people. RS/INCONST/SPEC 00002/ 2018/SC; Re MUGISHA (2) 49 Constitution – Freedom of press and expression – Information or opinions should not necessarily be gratifying leaders nor prejudicing some people, rather, the unpleasant opinion and views to leaders and to some citizens should be tolerated

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xvi because democracy is unattainable in the absence of diverse opinions, tolerance and broad minded views. RS/INCONST/SPEC 00002/ 2018/SC; Re MUGISHA (2) 68 Infanticide Law determining offences and penalties – Constitutive acts of infanticide – They are wilful acts or omission committed by a woman with intention to kill her biological child occasioned by postpartum depression or lactation problems – This depression is different from mental disturbance likely to result into incapacity of the person to perceive his/her acts RS/INCONST/SPEC 00003/2020/SC; Re KABASINGA 165 Law determining offences and penalties – Infanticide – It is a particular offense which cannot be committed by a male due to his physiology as a person unable to conceive and deliver, and therefore unlikely to undergo postnatal effects and lactation problems as it happens to female – It is committed by a female as a result of postnatal effect. RS/INCONST/SPEC 00003/2020/SC; Re KABASINGA 165 Interest of the petitioner Constitution – Unconstitutionality – Interest to petition – In cases of unconstitutionality, a party initiates a petition in general interest without necessitating to demonstrate personal interests. RS/INCONST/SPEC 00002/2018/SC; Re MUGISHA (1) 33 Constitution – Petition seeking to declare a provision of the Law or a Law unconstitutional – The petitioner challenging the constitutionality of the Law

or its provisions is required to prove that it is implicitly or explicitly unconstitutional. RS/INCONST/SPEC 00001/ 2019/SC; Re. MURANGWA 247 Mandatory sentencing Constitution – Fair trial – Mandatory sentencing – The mandatory sentencing is contrary to the principle of fair trial for the convict cannot appeal against the sentence for which the appellate judge cannot change since it is mandatory – In criminal cases, while sentencing the convict, the judge is obliged to take into account the circumstances surrounding the

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xvii commission of the offence, , the offender’s prior record and personal situation, the society wherein the offence was committed and the victim. RS/INCONST/SPEC 00003/2019/SC; Re. KABASINGA 95 Constitution – Fair trial – Mandatory sentencing – The ineffectiveness of the appeal remedy available for the convict in order to benefit the penalty reduction on ground of mitigating circumstances, undermines the principle of fair trial and of independence of the judge to determine an appropriate penalty RS/INCONST/SPEC00005/2020/CS-RS/INCONST/SPEC 00006/2020/CS; KABASINGA ET AL 117 Property right Constitution – Family – Unregistered cohabitation – Right to property – In the event one of the cohabitants decides to give up his/her asset with intention to co-own acquired asset, and his/her partner wilfully agrees to receive that asset being fully aware of such intention, when the receiver later decides to become the sole proprietor of the co-owned property, such decision is considered as categorically unjust towards the partner who gave up his/her asset. RS/Inconst/Pén.0003/10/CS; Re. GATERA et. al. 203 Constitution – Family – Unregistered cohabitation – Right to property – Assets distribution between cohabitants – The distribution of assets is premised on one of the cohabitants ‘right on the asset resulting from the fact that they either co- acquired or co-owned

it. RS/Inconst/Pén.0003/10/CS; Re. GATERA et. al. 203 Constitution – Right to property – Cohabitants ‘right to property – The rationale for assets distribution between cohabitants is based on co-acquisition and co-ownership of the concerned assets– In the event where cohabitants separate, though they were not legally married, they distribute among themselves immovable and movable property they co- acquired. RS/INCONST/SPEC 00002/2019/SC; Re. GLIHD 213

SUBJECT INDEX

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xviii Public interest litigation Procedure for special claims – Petition relating to the public interest –– A public interest litigation must be aimed at respecting the rights of others rather than that of the petitioner's issues, even if the petitioner also has an interest in the subject matter, that interest must be shared by other people RS/PIL/SPEC 00001/2019/SC; ASSAR v. GOVERNMENT OF RWANDA (MIFOTRA ) 355 Procedure for special claims – Petition relating to general interest – Justification for general interest – The general interest arises when an action or omission infringes on the rights of many persons or adversely affects them, which is remedied by petitioning a competent court. RS/PIL/SPEC 00001/2019/SC; ASSAR v. GOVERNMENT OF RWANDA (MIFOTRA) 355 Role of the State in the petition Constitution – Unconstitutionality – The role of the government in the petition seeking to declare a law unconstitutional – The government does not participate in the petition seeking to declare a law unconstitutional as a party, rather, it appears to express its opinion on the law which is sought to be repealed. Consequently, it cannot raise a preliminary objection for inadmissibility of the petition. RS/INCONST/SPEC 00002/2018/SC; Re MUGISHA (1) 33 Procedure for special claims – Petition relating to the general interest – The role of the Government in the petitions of general interest ––

In such petitions of general interest, the Government is summoned to present an opinion but not as a party that may claim or be charged costs RS/PIL/SPEC 00001/2019/SC; ASSAR v. GOVERNMENT OF RWANDA (MIFOTRA) 355 Stare decisis Court practice and procedures – The doctrine of precedent (stare decisis) – The Supreme Court as the highest court with its unique nature which makes it have jurisdiction on all types of cases that are heard by all courts so that it can set precedents

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xix for other courts to follow, this makes it a supreme source of precedents for other courts. RS/INCONST/SPEC 00002/2019/SC; Re. GLIHD 213 Court practice and procedures – The doctrine of precedent (stare decisis) requires each court to follow the precedent it set or set the one by a superior court when making a ruling on a case with similar facts. RS/INCONST/SPEC 00002/2019/SC; Re. GLIHD 99 Sub Judice Contempt Constitution – Due process of law – Limits to freedom of expression – Although a career judge may adjudicate the case disregarding the public opinions, the parties and the public may think that he/she was influenced by those premature publications and comments, which would discredit that decision whereas it is the principle that justice must not only be done, it must manifestly and undoubtedly be seen to be done RS/INCONST/SPEC00005/2020/CS-RS/INCONST/SPEC 00006/2020/CS; KABASINGA ET AL 120 Tax administration Tax law – Advance tax ruling – The ruling issued before tax payment – It is an administrative act to be honoured by the tax administration which issued it and implemented by the taxpayers in accordance with the principle of Good faith – A taxpayer may apply for the cancellation of such ruling through ordinary administrative procedure or seize a competent court in case he/she is not satisfied with the legal position provided. RS/INCONST/SPEC 00001/2020/SC; Re

NDAYISABYE 311 Constitution – Equality of people – The fact that the Commissioner General of the Revenue Authority is entrusted by the law the power to issue advance tax ruling, despite equality of people before the law, it does not place him in a superior with regard to other taxpayers because they belong to different categories and with different responsibilities before the law RS/INCONST/SPEC 00001/2020/SC; Re NDAYISABYE 311

SUBJECT INDEX

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xx Value Added Tax (VAT) Tax law – Value Added Tax (VAT) – Treating the taxpayers who buy services and goods which are not available in Rwanda differently from those who buy services and goods from abroad but which are available in Rwanda should not be considered as discrimination or unequal protection before the law because they are intended to promote service delivery and it was done for a legitimate purpose in order to adopt measures to bridge the the gap in trade and foreign exchange. RS/INCONST/SPEC 00004/2019/SC; Re. NZAFASHWANAYO 285 Tax law – Value Added Tax (VAT) – The Reverse Charge Principle – The Reverse Charge Principle mandates the buyer of goods or services from outside Rwanda to pay the value- added tax for those goods and services. RS/INCONST/SPEC 00004/2019/SC; Re. NZAFASHWANAYO 285 Tax law – Value Added Tax (VAT) – Destination principle of taxation – The Destination Principle mandates that VAT on goods be paid in the country of consumption and exempted from paying the VAT from the country of origin RS/INCONST/SPEC 00004/2019/SC; Re. NZAFASHWANAYO 285

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LEGAL INSTRUMENTS The Constitution of the Republic of Rwanda of 2003 revised in 2015 Universal declaration of human rights of 1948. Rwanda acceded upon admission as a member of the UN, 18th September 1962 International Covenant on civil and political. Ratified by Law no 8/75 of 6th Feb.1975 African Charter on human and peoples’rights. Ratified by Law no 10/1983 of 17th May 1983 Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, ratified by Peresidential Order nº 11/01 of 24/06/2004 International Convention on Elimination of all Forms of Discrimination against Women of May 1, 1980. Ratified by the Presidential Order n° 431/16 of 10/11/1981 Law nº 68/2018 of 30/08/2018 determining offences and penalties in general Law n° 66/2018 of 30/08/2018 regulating labour in Rwanda Law n°30/2018 of 02/06/2018 determining the jurisdiction of courts Law no 22/2018 of 29/04/2018, relating to the civil, commercial, labour and administrative procedure Law n° 48/2017 of 23/09/2017 governing the National Bank of rwanda Law n° 21/05/2016 of 20/05/2016 relating to human reproductive health Law n°37/2012 of 09/11/2012 establishing the value added Tax Law n° 05/2015 of 30/03/2015 governing the organization of pension schemes Law n° 05/2015 of 30/03/2015 governing the organization of pension schemes Law n° 15/2004 of 12/06/2004 relating to evidence and its production Law n° 08/2009 of 27/04/2009 determining the organisation, functioning and responsibilities of Rwanda Revenue Authority (RRA) xxi

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xxii Law n°83/2013 of 11/09/2013 establishing the Bar Association in Rwanda and determining it’s organization and functioning Law no 54/2011of 14/12/2011 relating to the rights and the protection of the child Presidential Order n˚ 069/01 of 13/04/2018 increasing pension and occupational hazards benefits granted by Rwanda Social Security Board Presidential Order nº 31/01 of 25/08/2003 on compensation for personal injury due to accidents caused by a motor vehicle. Legal instruments which were inforce but nolonger in existance : Constitution of the Republic of Rwanda of 04 June 2003 as amended to date Organic Law n°03/2012/OL of 13/06/2012 determining the organization, functioning and jurisdiction of the Supreme Court Organic Law n° 01/2012/OL of 02/05/2012 institution the penal code Law nº 09/2004 of 29/04/2004 relating to the code of ethics for the Judiciary Law no 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure Law no 02/2015 of 25/02/2015 modifying and complementing Law No 37/2012 establishing the value added tax Law n°74/2008 of 31/12/2008 modifying and complementing law nº 25/2005 of 04/12/2005 on tax Procedures Law n° 25/2005 of 04/12/2005 on tax procedure. Decree- Law nº 21/77 of 18 Kanama 1977 instituting the penal code. Legal instruments from foreign jurisdiction : European Convention on Human Rights, Protocol no 1. American Convention on Human Rights. Kenya's Constitution of 2010. Constitution of the Republic of South Africa no. 108 of 1996.

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xxiii Canadian Charter of Rights and Freedoms World Trade Organization General Agreement on Trade in services (GATS). World Trade Organization. Communication from Rwanda, Schedule of Specific Commitments under the General Agreement on Trade in Services, 30 August 1995 Protocol on establishment of East African Community Common Market. Protocol to the Agreement Establishing the African Continental Free Trade Area on Trade in Services. Decision on the African Continental Free Trade Area (AfCFTA), 33rd Ordinary Session of the Assembly of the Union, 9-10 February 2020, Addis Abeba, Ethiopia, Minimum wage-fixing machinery convention, 1928 n° 26. Criminal code of Canada. Criminal code of UK.

LEGAL INSTRUMENTS

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CAUSE OF LITIGATION Public interest litigation: To compel the removal of all barriers which hinder to put in place the Minimum Wage (SMIG) in Rwanda 355 Provisions of Laws requested to be declared unconstitutional: Law N° 026/2019 of 18/09/2019 on tax procedures Article 9 311 Law N° 75/2018 of 07/09/2018 determining the sources of revenue and property of decentralized entities Article 16, 17, 19 and 20 247 Law N°68/2018 of 30/08/2018 determining offences and penalties in general Article 136, 138, 139, 154, 233 and 236 33 Article 133 95 Article 84 par 4, 92, 133 par 3, 271 and 256 117 Article 108 165 Law N°30/2018 of 02/06/2018 determining the jurisdiction of Courts Article 52 par. 3 and 46 par 2 335 Law N°59/2008 of 10/09/2008 on Prevention and punishment of gender- based violence. Article 39 203 Paragraph two (2) of article 39 213 Law N°74/2008 of 31/12/2008 modifying and complementing law Nº 25/2005 of 04/12/2005 on tax Procedures Paragraph five (5 ) of article 1 229 Law N° 37/2012 of 09/11/2012 as modified and complemented by Law N° 02/2015 of 25/2/2015, establishing the Value Added Tax xxv

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xxvi Paragraph three 3 and 4 of article 12 285 Authentic Interpretation of laws: Law n°37/2012 of 09/11/2012 as modified and complemented by Law N° 02/2015 of 25/2/2015, establishing the Value Added Tax. Paragraph one (1) of article 5 15

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PETITIONS REQUESTING THE AUTHENTIC

INTERPRETATION OF LAWS

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1 Re RWANDA BAR ASSOCIATION (1) [Rwanda SUPREME COURT – RS/SPEC/00001/2017/SC – Vol [2017] 4 RLR – (Rugege, P.J., Mugenzi, Kayitesi R., Kanyange, Mukamulisa, Gatete, Ngagi, Karimunda and Muhumuza, J.) April 28, 2017] Constitution – Authentic Interpretation of laws – Admissibility – Requirements for admissibility of the petition for the authentic interpretation of the law – The petitioner must beforehand demonstrate either his/her interest, the interest of the person declared legally incapacitated under his/her guardianship, to file it in the public interest, the existence of the judgments or administrative decisions related to a matter of public interest that diverge in the interpretation of the legal provision or that the law contains ambiguous texts likely to lead to conflicting interpretation and it is in the public interest to clarify them. Constitution – Authentic Interpretation of laws – Inadmissibility – The petition for the authentic interpretation is inadmissible if it relates to a case that is pending or that has not yet exhausted the ordinary remedies of appeal. Constitution – Authentic Interpretation of laws – Summoning of the Government in the petition for the authentic interpretation of laws – Whenever there is a petition for the authentic interpretation of laws, the Government should be summoned to submit its opinion. Constitution – Authentic Interpretation of

laws – Law applicable in the procedure of the hearing of the petitions relating to the authentic interpretation of laws – The provisions of the Organic Law N° 03/2012/OL of 13/06/2012 determining the organization, functioning, and jurisdiction of the Supreme Court relating to petitions seeking to declare unconstitutional a treaty, an international agreement or a law apply. Constitution – Authentic Interpretation of laws – Legal effect – The authentic interpretation does not only have a binding force on the petitioner, rather it even binds all persons and it can be referred to in the future without making another authentic interpretation of that same law. Constitution – Authentic Interpretation of laws – The role of the Rwanda Bar Association – The Rwanda Bar Association has the power to examine the requests for the authentic interpretation of the laws it receives and decide 1

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2 whether the authentic interpretation is needed or not, and if necessary it can revise it before submitting it to the Supreme Court and its role continues until the Court has heard the petition – The Constitution of the Republic of Rwanda of 2003 revised in 2015, article 96(3). Constitution – Authentic Interpretation of laws – The decision of the Rwanda Bar Association – The decision of the Bar Association regarding the admissibility of the request for the authentic interpretation submitted through it is not subject to appeal. Constitution – Authentic Interpretation of laws – Issues which must be established in the authentic interpretation by the Court – While making the authentic interpretation of laws, the Court must establish whether the application of the law can lead to a conflict in its interpretation; there is a misapplication or misinterpretation of the law to the extent that it does not reflect the purpose of its enactment or falls short of solving a social problem for which it was enacted, and it must interpret the law or its provisions in case its literal words are ambiguous and also provide an extensive interpretation of the law in case it is apparent that it is silent on some aspects leading to lacunae in its application. Facts: The revision of the Constitution of Rwanda of 2003 in 2015 vested the Supreme Court with the authority to make authentic interpretations

of laws and also provided that any interested citizen can request the authentic interpretation of laws through the Rwanda Bar Association. Accordingly, the Bar Association on several occasions submitted to the Supreme Court the citizen's requests for the authentic interpretation of laws, and consequently, it was summoned to appear and enlighten the Court about those petitions. The Bar Association requested the Court to postpone the scheduled hearing so that the Supreme Court makes an authentic interpretation of article 96 paragraph 3 of the Constitution of the Republic of Rwanda of 2003 revised in 2015, in a bid to determine the role of the Rwanda Bar Association in the submission and hearing of the petition for the authentic interpretation of the law. The Supreme Court admitted the petition of the Bar Association and summoned the Government to that hearing. The Government of Rwanda requested the Court to first examine the basis of that summoning in the petitions regarding the authentic interpretation of laws because it is not provided for by the law.

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3 In its explanations regarding the provision requested to be authentically interpreted, the Bar Association states that it is ambiguous to the extent that it can be construed in two different ways. On one hand, it can be perceived as if Rwanda Bar Association is a channel a petition for the authentic interpretation of the laws goes through without any other formalities, and in that case, it would imply that the Bar cannot refuse to submit to the court the petition of the applicant. On the other hand, it is likely to be construed that the Bar Association has a role to play in the petition submitted through it, such that only the petitions concerning ambiguous provisions are submitted to the court, and if necessary, it provides advice to petitioners for the authentic interpretation of laws when it deems it unnecessary. The opinion of the Government is that the Supreme Court should interpret paragraph 3 of the above-mentioned article by declaring that the Bar Association is competent to reject, admit or revise the petitions it receives and be summoned to enlighten the court on those petitions. Held: 1. Whenever there is a petition for the authentic interpretation of laws, the Government should be summoned in order to submit its opinion, since it is in a better position to know the ratio legis for the enactment of that law and its summoning should not be considered as making it a party to the petition, rather it is in the spirit of providing useful opinions that may facilitate the Court in the authentic interpretation of the laws.

2. Due to the significance and prominence of the petition for the authentic interpretation, in the absence of a specific law governing its proceedings, the provisions of Organic Law n°03/2012/OL of 13/06/2012 determining the organization, functioning, and jurisdiction of the Supreme Court relating to petitions seeking to declare unconstitutional a treaty, an international agreement or a law shall apply because all these petitions are of public interest and adjudicated at first and last instance by the Supreme Court.

3. Authentic interpretation does not only bind the petitioner, rather it binds even the third party and it can be referred to in the future without making another one for that same law.

4. The Rwanda Bar Association is competent to examine the requests for the authentic interpretation of the laws it receives and decide whether or not it is needed. If necessary, it can revise it before submitting it to the Supreme Court Re RWANDA BAR ASSOCIATION (1)

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4 and its role remains until the Court has heard the petition and it appears to provide its opinion. The decision of the Bar Association regarding the admissibility of the request for the authentic interpretation submitted through it is not subject to appeal.

5. The petitioner must beforehand demonstrate either his/her personal interest, the interest of the person declared legally incapacitated under his/her guardianship, to file it in the public interest, the existence of the judgments or administrative decisions related to a matter of public interest that diverge in the interpretation of the legal provision or that the law contains ambiguous texts likely to lead to conflicting interpretation and it is in the public interest to clarify them.

6. The petition for the authentic interpretation is inadmissible if it relates to a case that is pending or that has not yet exhausted ordinary remedies of appeal.

7. While making the authentic interpretation of the law, the Court must establish whether the application of the law can lead to a conflict in its interpretation, there is a misapplication or misinterpretation of the law to the extent that it does not reflect the purpose of its enactment or falls short of solving a social problem for which it was enacted and it must interpret the law or its provisions in case its literal words are ambiguous and also give an extensive interpretation of the law in case it is apparent that it is silent on some aspects leading to lacunae in its application. The petition with merit. Statutes and statutory instruments referred to: The Constitution of the Republic of Rwanda of 2003 revised in 2015, article 96(3). Organic Law n°03/2012/OL of 13/06/2012 determining the organization, functioning and jurisdiction of the Supreme Court, articles 53, 54, 55, 56, 57, 58, 59, 60 and 61. Law n°83/2013 of 11/09/2013 establishing the Bar Association in Rwanda and determining its organization and functioning, article 2(1).

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5 Cases referred to: Democratic Green Party of Rwanda (DGPR) v. Government of Rwanda, RS/SPEC/0002/15/CS, rendered by the Supreme Court on 8/10/2015. Authors cited: Reginald Parker, Administrative Interpretations, University of Miami Law School, 5U. Miami L. Rev.533 (1951). Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, Cuba 27 /8/- 7/9/1990. John M. Huels, Classifying Authentic Interpretations of Canon Laws, The Jurist 72 (2012). John F. McCarthy, The canonical meaning of the recent authentic interpretation of canon 230.2 regarding female altar servers, Organ of the Roman Theological Forum, January 1995. Judgment I. BRIEF BACKGROUND OF THE CASE

The Rwanda Bar Association on numerous occasions has been receiving petitions for the authentic interpretation of some of the provisions of laws from citizens and submitting them to the Supreme Court as outlined in article 96 paragraph 3 of the Constitution of the Republic of Rwanda of 2003 revised in 2015. Later on, the Bar Association was summoned by the Supreme Court to appear in the hearings of 31/01/2017 in order to enlighten the Court on those petitions.

In that regard, the Bar Association wrote to the Chief Justice requesting the adjournment of the hearing of the petition for the authentic interpretation submitted by the citizens that was scheduled on 31/01/2017 for the Supreme Court to first provide an authentic interpretation of article 96 paragraph 3 of the Constitution of the Republic of Rwanda of 2003 revised in 2015 in order to determine the role of the Rwanda Bar Association in that process. Re RWANDA BAR ASSOCIATION (1)

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6

The petition was examined in the hearing of 05/04/2017, whereby Counsel Bagabo Faustin and Basomingera Alberto represented the Rwanda Bar Association while the Government of Rwanda was represented by State attorney Rubango K. Epimaque. Before the commencement of the hearing, State Attorney Rubango requested the court to first examine the basis for summoning the Government in the hearings of the petitions for the authentic interpretation of the law. II. ANALYSIS OF LEGAL ISSUES Whether the Government of Rwanda should not have been summoned in this case

State Attorney Rubango Epimaque, submits that the summoning of the Government in petitions relating to the authentic interpretations of the law is not provided for by the laws. He further states that summoning the Government in matters falling under special jurisdiction of the Supreme Court is only exercised in the petitions regarding the constitutionality of the laws. He goes on to adduce that even when the authentic interpretation was done by the parliament, the Government was not required to give an opinion.

DETERMINATION OF THE COURT

As averred by the State Attorney, neither the Constitution of the Republic of Rwanda of 2003 revised in 2015 nor the Organic Law n°03/2012/OL of 13/06/2012 determining the organization, functioning and jurisdiction of the Supreme Court provides for the summoning of the Government in the hearing of the petition relating to the authentic interpretation. Nevertheless, the summoning of the Government in special cases is a usual trend albeit not being provided for by the law. One of the examples is in the hearings of the cases relating to the constitutionality of the laws. Before the revision of the Constitution in 2015, the summoning of the Government in such cases was not provided for. The Supreme Court decided to begin summoning the Government because of its role in drafting and

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7 enforcement of the law as well as its knowledge of the purpose of its enactment1.

Bearing in mind the role of the Government highlighted above, the Court finds that whenever it is seized by a petition for the authentic interpretation of the law, the Government should be summoned to appear to give its opinion on that petition, since it is the one in a better position to know the motive for the enactment of that law. Its summoning should not be viewed as turning it into a defendant, intervener, or a forced intervener, rather, it is in the context of giving an opinion that can facilitate the Court in the authentic interpretation of the law. The petition for the authentic interpretation is a special case, which is of public interest, thus the opinion of the State Attorney is of paramount importance.

The Court finds that it is not only the summoning of the Government in the petition for the authentic interpretation of the law which is not provided for by the laws but the procedure for their hearing is not provided for. In absence of the law governing the proceedings of these petitions and also considering their importance, the Court finds that the provisions relating to petitions seeking to declare unconstitutional a treaty, an international agreement, or the Organic Law n°03/2012/OL of 13/06/2012 determining the organization, functioning and jurisdiction of the Supreme Court should apply.

The similarity among all these petitions is that they are all of public interest and are heard at first and last instance by the Supreme Court. As is the case for the petitions relating to the unconstitutionality of the laws or provisions, when authentic interpretation is done, it does not only have a binding force on the petitioner but also binds all persons and it can be relied upon in future on a similar issue without making another authentic interpretation on the same law. This opinion concurs with that of Reginald Parker, whereby he states that "[…..] the court, in deciding a question of law which lends itself to several constructions, interprets the law with binding force, not only for the parties involved in the litigation that gave rise to the

1 See Judgment RS/SPEC/0002/15/CS regarding the interpretation of the constitutional provision rendered by this Court on 8/10/2015. Re RWANDA BAR ASSOCIATION (1)

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8 decision but also for the future”2. The authentic interpretation provides for a final interpretation and sets a binding position. Determining the role of Rwanda Bar Association in the filing of the petitions for authentic interpretation

Explaining about the provision for which the authentic interpretation is requested, Counsel Basomingera, representing the Rwanda Bar Association states that article 96 paragraph 3 of the Constitution of the Republic of Rwanda of 2003 revised in 2015 is ambiguous to the extent that it can be perceived in two ways. On one hand, it can be perceived as if Rwanda Bar Association is a channel through which petitions for the authentic interpretation of the law pass without any other formalities. In that case, it would imply that the Bar cannot refuse to submit to the court the petition it receives. That would mean that the Bar Association has no role in the examination of the requests for the authentic interpretation done by the Supreme Court.

On the other hand, he states that the provision can be construed that the Bar Association must have a hand in the requests submitted through it, in such a way that requests with ambiguous provisions are the only ones submitted to the Court, and if necessary it provides advice to those the petitioners when it finds the authentic interpretation is not necessary because the law on which that request is based is clear.

Counsel Basomingera gave an example of the request it received from Banque Populaire du Rwanda (BPR Ltd), whereby it drafted a summary of facts and it also demonstrated its analytical approach. He concludes by requesting the Supreme Court to explicitly clarify the role of the Rwanda Bar Association in the process of authentic interpretation.

Counsel Bagabo Faustin also representing the Rwanda Bar Association submits that the Bar was summoned to plead while a party litigates the facts s/he can defend. He goes on to state that the issue to determine is whether the Bar Association has the discretion to reject a request for authentic interpretation in case it finds the provision of the law in contention unambiguous and the ground on which it can rely its rejection. He wonders if

2 Reginald Parker, Administrative Interpretations, University of Miami Law School, 5U. Miami L.Rev.533(1951).

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9 there should be an available remedy for the petitioner whose request has been rejected by the Bar Association and not submitted to the Supreme Court on the ground that there is no ambiguity.

He further argues that among the requests received by the Rwanda Bar Association, most of the issues are related to cases in which the applicants were a party and the position of the Bar Association is that the authentic interpretation should not be requested in relation to a lawsuit since it is not a way of appeal, rather, it is a matter of general public.

He concludes by stating that in case the Court declares that the Bar Association has the competence to initially examine the requests it receives and decides whether to admit or reject it, that decision should be final lest it become a lawsuit and the procedure of submitting such requests through the Bar Association would lose rationale.

State Attorney Rubango avers that members of the Bar Association have different interpretations of the article requested to be authentically interpreted, whereby some argue that the Bar Association does not have the power to reject a matter submitted to it by the citizen whilst others argue that the motive for the lawmaker to provide for such matters to first go through the Bar Association was because as an organ with legal professionals it has to first assess whether it is necessary to submit them to the Supreme Court, dismiss or revise them.

He further adds that the opinion of the Government of Rwanda is that in making the authentic interpretation of article 96 paragraph 3 of the Constitution of the Republic of Rwanda of 2003 revised in 2015, the Supreme Court should declare that the Rwanda Bar Association has the competence to reject, admit or revise the requests it receives and to be served with the summons to appear and elaborate where necessary. Otherwise, if the Supreme Court declares that the Rwanda Bar Association lacks the competence to revise or reject the requests, it would not be conceivable how it would be served with summon to appear and give explanations on the matter it is not convinced of. He also affirmed that according to the analysis they made, they found that after the power to make an authentic interpretation of the law has been vested with the Supreme Court, there will arise a lot of issues because people would this process as a case delaying tactic. Re RWANDA BAR ASSOCIATION (1)

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10

DETERMINATION OF THE COURT

The authentic interpretation of laws is provided for in article 96 of the Constitution of the Republic of Rwanda of 2003 revised in 2015. That article provides that: "the authentic interpretation of laws is done by the Supreme Court. An authentic interpretation of laws may be requested by Cabinet or the Bar Association. Any interested person may request for an authentic interpretation of law through the Bar Association. In case of conflict between the languages in which a law was published in the Official Gazette, the language in which that law was adopted prevails".

The Bar Association argues that the article mentioned in the previous paragraph is ambiguous regarding the role of the Bar Association in the petitions requesting for the authentic interpretation of the laws submitted through it by any interested person. As indicated in article 96 of the Constitution mentioned above, any interested person can request for an authentic interpretation. Nonetheless, it has to be requested through the Bar Association. A person is not allowed to independently submit his or her request to the Supreme Court. The Bar Association seeks to get clarification on its role when the authentic interpretation is requested through it. The role of the Bar Association in the petition submitted to the Supreme Court must be viewed from the angle of the duties of its members as laid down in the law establishing the Bar Association and also emphasized by other principles governing the lawyering profession alongside with examining the rationale of entrusting the Bar Association with the obligation of receiving and submitting a petition of Citizen to the Supreme Court.

Article 2(1o) of Law no83/2013 of 11/09/2013 establishing the Bar Association in Rwanda and determining its organization and functioning, stipulates that an Advocate is a person in the legal profession charged with assisting and representing litigants before administrative entities, courts, and other decision-making organs. He/she may prepare and present his/her submissions before such institutions. He/she may also counsel, mediate litigants and draft private deeds; [……]. This corresponds with the statements of the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders held in Havana, Cuba which established the Basic Principles on the Role of Lawyers. Particularly, subparagraph 13 of those principles declared that Lawyers have a duty of advising their clients as to their

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11 legal rights and obligations, and as to the working of the legal system in so far as it is relevant to the legal rights and obligations of the clients.3

The request of any interested person is submitted through the Bar Association purposely because it is an institution with legal professionals. The role of the Bar Association in regard to that request must be consistent with the professionalism expected from its members to serve justice and also assist its clients. Therefore, the Bar Association cannot be regarded as an institution meant only for the transmission of correspondences like a post office while disregarding its fundamental duty of serving justice.

In accordance with the provisions of article 96 paragraph 3 of the Constitution of the Republic of Rwanda of 2003 revised in 2015, the Court notes that it would be meaningless for the requests to be submitted through the Bar Association whereas the latter does not make any assessment of them. This would be tantamount to allowing anybody who desires to request for the authentic interpretation in the Supreme Court to do so. If it happens to be the case, then it would conflict with the legislative intent of regulating the submission of petitions through the Bar Association and this would create a loophole that could be exploited by those who may want to request for unnecessary authentic interpretation with the intention of delaying cases, those who might use it as a tactic for indirectly lodging an appeal or requesting for that authentic interpretation in an unprofessional way likely to make it complicated for the Court to examine the matter.

The Supreme Court finds that in case a request for the authentic interpretation of the law has been submitted through the Bar Association, it must critically assess whether that authentic interpretation is undoubtedly necessary. When it finds the authentic interpretation not necessary because the law or the provision requested to be interpreted is clear, it notifies the applicant and if need be, it counsels him/her. In case the Bar Association decides to reject the request, that decision is final. As an organ of legal professionals, when it finds the petition with merit, if necessary, it can revise it before being

3 “[…] the duties of lawyers towards their clients shall include: Advising their clients as to their legal rights and obligations and as to the working of the legal system in so far as it is relevant to the legal rights and obligations of the clients”. Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, Cuba 27 /8/- 7/9/1990. Re RWANDA BAR ASSOCIATION (1)

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12 submitted to the Supreme Court so that the Court examines a clear and understandable issue relating to authentic interpretation. The role of the Bar Association does not end there, rather, it continues until the Court has heard the petition and it appears to give its opinion.

Pursuant to the reasons stated in the previous paragraphs, the Supreme Court finds that the Rwanda Bar Association has the competence to examine the requests for the authentic interpretation of the law and to decide whether or not that authentic interpretation is necessary and if it finds it so, then submits it to the Supreme Court. Conditions for the examination of the petition for the authentic interpretation

There is a difference between the authentic interpretation of the laws and the ordinary interpretation of the law. Authentic interpretation is carried out, especially by legally authorized persons who provide an interpretation for an ambiguous law. John M. Huels stated this as follows: “[….] there is a special form of interpretation that officially and authoritatively resolves the meaning of a doubtful law. This is called "authentic interpretation" and may only be made by the legislator or one to whom he has entrusted the power to interpret the law authentically […].”4 John F. McCarthy on his part states that “authentic interpretation is an interpretation that is imposed in an obligatory manner, or authoritatively, by a public person possessing this power”.5 Therefore this cannot be likened with the ordinary interpretation of laws that can be made by the Judge who has encountered an issue requiring interpretation in the case without necessitating the lodging of an independent claim.

Due to the nature of the authentic interpretation as explained in the two preceding paragraphs, the Supreme Court deems it necessary to establish

4 John M. Huels, Classifying Authentic Interpretations of Canon Laws, The Jurist 72 (2012), accessed on http://heinonline.org/HOL/LandingPage?handle=hein.journals/juristcu72&div=29&i d=&page 5 John F. McCarthy, The canonical meaning of the recent authentic interpretation of canon 230.2 regarding female altar servers, Organ of the Roman Theological Forum, January 1995.

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13 guidelines to facilitate those who wish to submit petitions for authentic interpretation and which can also be used by the Bar Association or the Court in examining those petitions. They are the following: The petitioner must initially demonstrate his/her personal interest or of those legally incapacitated under his/her guardianship in the requested authentic interpretation or if s/he filed the petition in the public interest. S/he must demonstrate the existence of judgments or administrative decisions related to a matter of public interests that diverge in the interpretation of the legal provision. A petition can also be admitted if the applicant demonstrates that the law contains ambiguous texts likely to lead to a conflict in interpretation, and it is in the public interest that those texts be clearly interpreted. However, a petition is inadmissible if it relates to a pending case or if that case has not yet exhausted the ordinary remedies of appeal.

Notably, depending on the issue at hand, in making the authentic interpretation of the law, the Court must determine: a) whether the application of the law can lead to divergence in its interpretation, b) whether sometimes there is a misapplication or misinterpretation of the law to the extent that it does not reflect the purpose for its enactment and falls short of solving a social problem it was meant to solve. The Court must also a) interpret the law or its provisions in a case there is ambiguity in its literal words, b) to provide an extensive definition of the law in case it is apparent that its silence on some aspects leads to lacunae in its application. III. THE DECISION OF THE COURT

The Supreme Court admits the petition submitted by the Rwanda Bar Association;

Declares that in accordance with article 96(3) of the Constitution of the Republic of Rwanda of 2003 revised in 2015, the Rwanda Bar Association is competent to admit, reject or revise the request it receives. It should also be summoned to appear in the Court to give clarifications on those petitions. Re RWANDA BAR ASSOCIATION (1)

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14

Declares that the Government of Rwanda must be served with summon to appear in the petitions relating to authentic interpretation.

Declares that in the screening of the petition relating to the authentic interpretation, the holdings in paragraphs 25 and 26 of this judgment shall apply.

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15 Re. RWANDA BAR ASSOCIATION (2) [Rwanda SUPREME COURT – RS/INTL/SPEC 00001/2020/SC–Vol [2021] 1 RLR – (Ntezilyayo, P.J., Hitiyaremye, Cyanzayire, Rukundakuvuga and Muhumuza, J.) October 23, 2020] Constitution – Authentic interpretation of laws – Conditions for admissibility – The applicant must beforehand demonstrate in his/her submissions a private or public legitimate interest pursued, the issue arising in the law and in respect of which he/she seeks interpretation, that there exist contradictory court or administrative decisions to the interpretation of the provision of the law, or the text of the law in respect of which the misinterpretation arises and likely to lead to equivocal and contradictory interpretations and being in the general interests to determine the right interpretation – The fact that there arises dissension from its interpretation should not be considered as a dispute in the event there exists a final court decision that sets the position about the issue pointed out by the parties to have given rise to the confusion. Facts: ENSafrica Rwanda Ltd (ENSafrica) requested in writing the Bar Association the endorsement to initiate a petition for the interpretation of article 5, paragraph 1(1°) of the Law n°37/2012 of 09/11/2012 as amended by article one of the Law n° 02/2015 of 25/2/2015 establishing the Value Added Tax. This application is closely related to

the case initially introduced to the Commercial Court between ENSafrica and Rwanda Revenue Authority (RRA), where ENSafrica requested the cancellation of the value-added tax it was imposed in contravention with the Law. ENSafrica lost the case and was ordered to pay the amount of tax that was determined by RRA during the amicable settlement. Following the admission and examination of the of ENSafrica’s motion, the Bar Association addressed the petition for the interpretation of article 5, paragraph 1 (1º) of the stated Law n° 37/2012 to the President of the Supreme Court. The Bar Association elucidates that while article 5 paragraph 1(1°) of the Law of 2012 provided for the list of the commodities and services regarded as exported, and therefore taxed at zero rate, especially exported services, article one, paragraph 1(1°) of the Law of 2015 does neither provide for the explanation nor the instances of exported goods or services. This implies that the legislator has never provided for the explanation for exported services 15

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16 while it was necessary in order to avoid confusion or divergent interpretation about the amendments that were made, especially in the instance the service is considered to have been exported. The Bar Association further states that the lack of explicit definition of the exported services amounts to a disputable issue because a service is not tangible, therefore different from tangible commodities exported, control of destination is easy. In addition, it states that considering the current world situation, services may be delivered to a person living abroad without necessitating the supplier to cross the border, this may lead to the divergent interpretation about this provision where some persons may construe exported services as those produced from abroad, while others may state that they are services produced and/or delivered to persons residing in foreign countries. Based on the Protocol on the establishment of the East African Community Common Market, the Bar Association adduces that the definition given to exported services by that protocol indicates clearly that they may be those produced from abroad or supplied to individuals residing abroad. It further argues that the dissent interpretations on this provision arose from different administrative and court decisions, where for instance, Rwanda Revenue Authority (RRA) at different occasions, has asserted that the

services produced in Rwanda and supplied to individuals living abroad are exported services, while at the same time, it disapproved other services produced under same conditions or similar services without a reliable ground, and that this same situation is present in court decisions in which ENSafrica was a party to. The Bar Association states that this petition for the interpretation intervenes in the context of one of the positions set by the Supreme Court, where it held that among the guiding principles to admit that a legal provision needs to be interpreted, includes the existence of the court or administrative decisions that diverge about the definitions of the legal provision, and thus, they find that the Supreme Court should provide its right interpretation because there have been different understandings during its application at RRA and court levels. The State Attorney states that the position of the Government of Rwanda should be perceived in the position adopted by the Supreme Court in the case delivered in 2017, where it was held that, in order for the interpretation of the legal provision to be requested, there should have been taken contradictory decisions, and it should be done in general interests. He alleges that the decisions would be considered as contradictory in the event the Commissioner

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17 General would take a decision about one particular taxpayer and take a contradictory decision for another taxpayer while they have similar issue. The State Attorney states again that the Bar Association does not demonstrate that the stated legal instrument is not clear with respect to its purpose of enactment because its diction is similar to that in previous instruments. They state that what this provision provides is that exported goods and services are taxed at zero rate, while those that are not, meaning the works and services supplied within the country are not concerned by this article. They further adduce that this provision is clearly understandable when it is read concurrently with other provisions, especially article 2(7) of the mentioned Law nº 37/2012 providing for the definition of services produced in Rwanda. Held: 1. The applicant must beforehand demonstrate in his/her submissions a private or public legitimate interest pursued, the issue arising in the law and in respect of which he/she seeks interpretation, that there exist contradictory court or administrative decisions to the interpretation of the provision of the law, or the text of the law in respect of which the misinterpretation arises and likely to lead to equivocal and contradictory interpretations, and being in the general interests to determine the right interpretation.

2. The fact that there arises dissension from its interpretation should not be regarded as dispute in the event there exists a final court decision that set the position about the issue pointed out by the parties to have given rise to the confusion. Petition for interpretation of the provision of the Law is dismissed. Statutes and statutory instruments referred to: Constitution of the Republic of Rwanda of 2003 revised in 2015, article 95. World Trade Organization General Agreement on Trade in services (GATS), article 1. Protocol on establishment of East African Community Common Market, article 16. Organisation for Economic Cooperation and Development (OECD). Law n° 30/2018 of 02/06/2018 determining the jurisdiction of courts, articles 65 and 79. Re RWANDA BAR ASSOCIATION (2)

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18 Law no 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure, article 9. Law n°37/2012 of 09/11/2012 as modified and complemented by Law n° 02/2015 of 25/2/2015, establishing the Value Added Tax, articles 5 and 1. Cases referred to: Re Bar Association, RS/SPEC/00001/2017/SC rendered by the Supreme Court on 28/04/2017. Judgment I.

BACKGROUND OF THE CASE

On 10th October 2019, ENSafrica Rwanda Ltd (hereby referred to as “ENSafrica”) wrote to the Bar Association requesting the latter to initiate a petition for the interpretation of article 5, paragraph 1-1°, of the Law n° 37/2012 of 09/11/2012 as modified by article 1 of the Law n° 02/2015 of 25/2/2015 establishing the Value Added Tax. ENSafrica is a law firm providing legal services to its clientele including non-residents individuals or legal entities.

This petition of ENSafrica is closely related to the case initiated for the first time to the Commercial Court, whereby ENSAfrica sued Rwanda Revenue Authority (RRA), requesting the cancellation of the Value Added Tax (TVA) amounting to 53,157,360Frw alleging that it was unlawful imposed.

After the submission of the claim, ENSAfrica and RRA expressed the intention to settle the issue amicably, which the Court endorsed, and RRA reduced the tax from 53,157,360Frw to 29,261,826Frw, but ENSafrica was not satisfied and pursued the case. In its submissions, ENSafrica explained that it is a legal entity registered in RDB, and providing legal services to various individuals especially those residing outside Rwanda. It indicated that the services it delivered from July to November 2017 were in the category of exported services, and should have taxed at zero tax rate basing on article 5,

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19 paragraph 1(1°) of the Law n°37/2012 of 09/11/2012 as modified by article 1 of the Law n°02/2015 of 25/2/2015 establishing the Value Added Tax.

On 20/03/2019, the Commercial Court tried the case RCOM 01492/2019/TC and held that the claim submitted by ENSafrica has merit in part, that the tax for which ENSafrica requested the cancellation should be maintained, but be reduced. The court ordered it to pay the valued added tax and related penalties amounting to 22,814,510Frw. It held that the counterclaim raised by RRA has merit and ordered ENSafrica to pay RRA judicial damages amounting to 600,000Frw.

The Court relied its decision on the invoices for which ENSafrica did not pay VAT while the services delivered to the clients were in their need and benefit in Rwanda according to article 2 sub-paragraph 7(d)1 of the Law n°37/2012 of 09/11/2012 establishing VAT. Therefore, those services should have been imposed. The Court also relied on the fact that there were invoices relating to services that were exported such that they should have been imposed at zero rate.

ENSafrica lodged an appeal to the Commercial High Court on ground that the Commercial Court disregarded its explanations because it took a decision on the basis of the provision of the law that is not relevant with appealable issues, the fact that it issued contradictory rulings and that ENSafrica was instructed to pay damages despite that the Court found its claim partially valid. RRA has also raised a cross-appeal demanding the Commercial High Court to reconsider the invoices that the previous Court has excluded from those taxable of VAT and requested judicial damages as well.

On 04/12/2019, the Commercial High Court tried the case RCOMA 00350/2019/HCC and found appeal lodged by ENSafrica without merit, and held rather that, the tax imposed to ENSafrica should not have been reduced by the Commercial Court, and ordered it to pay the VAT amounting to

1 The sub-paragraph 7(d) of this article provides about the services that are considered to be performed in Rwanda when the service provider does not have a headquarter in Rwanda and has it elsewhere instead and that the beneficiaries seek for or benefit them in Rwanda. Re RWANDA BAR ASSOCIATION (2)

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20 29,261,826Frw as it was determined by the RRA at the moment of the amicable settlement.

The Commercial High Court stated that the definition of exported services that should not be imposed VAT, must not rely on the fact that service beneficiary resides abroad, there should rather be considered the place where the services provided to the benefit of that person were produced. It therefore stated that ENSafrica had delivered services to foreigners who had to benefit them in Rwanda, and for this reason, the VAT should have been perceived, but which was not done. It also explains that damages ENSafrica was ordered to pay were based on its failure to withhold VAT on the delivered services to its clients, and of being the scapegoat for all those trials.

After the entertainment and analysis of the motion of ENSafrica, the Bar Association wrote to the President of the Supreme Court to request the interpretation of article 5, paragraph one (1º) of the stated Law N°37/2012, and the application was given the docket number RS/INTL/SPEC 00001/2020/SC.

The Bar Association explained that in the year 2015, the Parliament, Chamber of deputies, adopted the Law nº 02/2015 of 25/02/2015 modifying and complementing the Law n° 37/2012 of 09/11/2012 establishing the value added tax. Among the provisions amended by the law of 2015, the Bar Association emphasized on article 5, paragraph one (1º) of the Law n° 37/2012 of 09/11/2012 in order to indicate the merit of the interpretation sought by ENSafrica through the Bar Association to the Supreme Court.

Article 5, paragraph one of the law of 2012 provided that the following goods and services shall be zero-rated: 1º exported goods and services: a. exported goods bearing stamps recognized by the Commissioner General; b. transportation services and other related services with regard to export goods referred to in item a) of this Article; c. transportation services of goods in transit in Rwanda to other countries including related services; d. aircraft benzene;

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21 e. services rendered abroad; f. goods used in aircrafts from Rwanda to abroad; 2o goods sold in shops that are exempted from tax as provided for by the law governing customs;

The Bar Association indicates that the article 1, paragraph one(1º) of Law of 2015 has amended this provision as follows: the following goods and services shall be zero-rated: 1. exported goods and services; 2. minerals that are sold on the domestic market; 3. international transportation services of goods entering Rwanda and transportation services of goods in transit in Rwanda to other countries, including related services; 4. goods sold in shops that are exempted from tax as provided for by the law governing customs.

The Bar Association stated that while article 5, paragraph one (1°) of the Law of 2012 provided for the list of goods and services considered as exported, and therefore zero-rated, especially “services rendered abroad”; the article one, paragraph one (1°) of the Law of 2015 does not provide for instances of goods and services considered as exported.

The Bar Association continues adducing that the issue lies in the fact that at the time of modification of article 5 of the Law of 2012 establishing VAT where it was stated exported goods and services that are zero-rated, the legislator did not state the definition of an exported services, which was important in order to avoid the confusion, or disparate understandings of the amendments made, especially the instance of which a service should be regarded as exported. It states that it arises an issue in failing to provide for the definition of an exported service, given that the service is not tangible, which is different from tangible exported goods for which the control of the destination of export is easy. The Bar further added that according to the current trend, services can be delivered to a person residing abroad without necessitating to cross the border, and that this would result in equivocal understanding with regard to this provision whereby some people would allege Re RWANDA BAR ASSOCIATION (2)

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22 that the exported services are those rendered abroad while according to others they are those rendered/delivered to customers residing abroad.

The Bar Association alleges that, according to ENSafrica, there should be considered the International Agreements on cross-border trade in services signed and ratified by Rwanda, among others, the General Agreement on Trade in Services (GATS) of 1995 of the World Trade Organization in relation to international trade in services, and the Protocol on the establishment of the East African Community Common Market. They adduce that following article one of GATS agreement, internationally traded services mean services from the territory of one Member into the territory of any other Member or services in the territory of one Member to the service consumer of any other Member.

The Bar Association states that the text of the first article of GATS, which is similar to article 16.2 [a and b] of the East African Community Common Market, reads that the definition given to exported services in these both international agreements indicates clearly that the exported services could be those rendered abroad or those delivered to customers residing abroad.

In addition, they state that the divergent understanding on this article was also discovered in different administrative and court decisions, notably where Rwanda Revenue Authority (RRA) has, at different occasions, admitted that services rendered in Rwanda to consumers abroad are considered as exported services, but at the same time, by rejecting similar services or those rendered in the same circumstances without any legitimate reason, and this consists of a similar situation in the court decisions in which ENSafrica has been a litigant.

The Bar Association supports that the motion of ENSafrica has merit because the legislator did not provide for the definition of an exported service; consequently, there exists a manifest contradiction among different decisions taken at different occasions by RRA as well as those taken by courts in relation to the exported services (approval of exported services or not), whereby there has been adopted that the services rendered in Rwanda for foreign customers are regarded as exported services whereas other similar services or rendered in the same circumstances were rejected.

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23

The hearing of the case by this Court was held in public on 22/09/2020, the Rwanda Bar Association being represented by Counsel Basomingera Albert, Counsel Nzafashwanayo Dieudonné and Counsel Bizimana Emmanuel, and present was Counsel Kabibi Specioza Specioza, the State Attorney.

The legal counsel for the Bar Association indicated on the basis of Article 79 of the Law nº 30/2018 of 02/06/2018 determining the jurisdiction of courts, that ENSafrica has personal and general interests to petition for the authentic interpretation of article 5, paragraph one (1°) of the Law n°37/2012 of 09/11/2012 as modified and complemented by article one of Law n°02/2015 of 25/2/2015 establishing the Value Added Tax in order for service providers to individuals or corporate customers from abroad be spared of the confusion about the understanding of that provision be it on the side of the taxpayers, RRA and Courts.

Counsel Kabibi Specioza, the State Attorney did not raise an objection relating to the interests of parties, she rather focused on indicating that the stated Law does not cause uncertainty to the extent of necessitating authentic interpretation.

The first issue to be determined consists of whether the motion for the authentic interpretation of article 5, paragraph one (1°) of the above stated Law n°37/2012 introduced by the Bar Association complies with the admissibility requirements. II. ANALYSIS OF THE ISSUE FOR DETERMINATION Determining whether the petition for the authentic interpretation of article 5, paragraph one (1°) of the Law n°37/2012 of 09/11/2012 as amended by the first article of the Law n° 02/2015 of 25/2/2015 establishing the Value Added Tax complies with the admissibility requirements

The counsel for the Bar Association declares that the authentic interpretation they are seeking is based on the contradiction that is manifest in different decisions made on different occasions by RRA and courts in relation to the exportation of services, whereby it was decided that the services Re RWANDA BAR ASSOCIATION (2)

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24 delivered to foreigners but rendered in Rwanda are exported services, whereas other similar services or those rendered in the same circumstances were not considered as such. They state that in some dossiers of which they have even pointed out examples through the table of RRA's decisions, it adopted at Commissioner General level, that the services rendered by ENSafrica are exported services while other dossiers had to be put on hold for the amicable settlement after the case was already initiated to the Court. They add that aside from the contradiction at RRA level, the same case has also occurred between the Commercial Court and RRA as well as between that Court and the Commercial High Court on the right definition to that provision, whereby according to the interpretation of the Commercial High Court, exported services does not only entail services exported abroad as held by the Commercial Court with regards to some services, rather, services delivered to individuals abroad should not be regarded as exported services in the event they enjoyed them while in Rwanda.

Counsel for the Bar Association states that the present motion for authentic interpretation is in line with one of the positions set by the Supreme Court in the case RS/SPEC/00001/2017/SC delivered on 28/04/2017 on the claim that was initiated by the Bar Association, where it explained that among the guiding principles for determining if the provision needs the authentic interpretation, includes the existence of contradictory judgments or administrative decisions with regards to the definition of legal provisions, and for this reason, they find that the Supreme Court should provide the authentic interpretation of this provision because its application invoked divergent interpretations by RRA as well as court.

They also submit that the contradiction should not be perceived through the big number of cases as it could occur in a single case. They accordingly find that the Supreme Court should not declare itself incompetent to issue the authentic interpretation sought on the basis that the Commercial High Court has set the leading position, because the Supreme Court is superior to the Commercial High Court, whose decisions are not binding to other courts.

Concerning the definitions of exported services, the Bar Association adduces that they are based on internationally accepted principles relating to VAT as provided under Organisation for Economic Cooperation and Development (OECD) different documents, of which Rwanda is a member

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25 state, and therefore, the fact for the Supreme Court to rely on these documents for providing the interpretation of article 5, paragraph one of the Law establishing VAT is admissible. In addition, the OECD documents were referred to by Courts in other countries and upheld that the principles raised are internationally acknowledged and that it would be missing the opportunity for the Court to disregard them while they are not inconsistent with any internal legislation of any country.

Counsel Kabibi Specioza, the State Attorney rebuts that the opinion of the Government of Rwanda should be perceived in the position set by the Supreme Court in the judgment RS/INCONST/SPEC 00001/2017/SC rendered on 28/04/2017, where it held that in order for the authentic interpretation of the provision of the Law to be provided, contradictory decisions must have been taken, and the interpretation should be in general interests. She explains that the taxpayer who is not satisfied with the tax he/she is imposed submits his/her appeal to the Commissioner General of RRA. This is an ordinary administrative remedy with the purpose of allowing the Commissioner General to assess whether the tax officer who computed the tax did not err or misinterpret the law. She further declares that there exists another form of remedy known as amicable settlement and that the decisions reached at would not be considered inconsistent. She adduces that the decisions would be considered contradictory in the event the Commissioner General takes a particular decision with regards to a taxpayer and takes another divergent decision to the first one with respect to another taxpayer who nonetheless has a similar issue.

Counsel Kabibi Specioza adds that the Bar Association does not demonstrate that the above-stated law is not understandable as far as its purpose of enactment is concerned, given that it is articulated in the same manner as of the previous laws. She submits that, according to the content of this provision, exported goods and services are zero-rate taxed while those not exported, meaning the goods and services sold to the domestic market, are excluded. She adds that this provision becomes clearly understandable if read jointly with other provisions, especially article 2(7) of the Law nº 37/2012 above-stated, clarifying the services rendered in Rwanda. This article 2(7), subparagraph d, provides that services shall be regarded as provided in Rwanda if the service provider has no headquarters in Rwanda but it has it elsewhere and the recipients of the services need it or benefits from them in Rwanda. She states that this implies that the service provider, as well as the Re RWANDA BAR ASSOCIATION (2)

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26 recipient, would not reside in Rwanda, but the recipient needs or benefits from it in Rwanda, and in this case, the service is regarded as provided in Rwanda such that it is taxed at 18% rate since it is not an exported service.

Therefore, she alleges that the analysis of article 5(1) and 2(7°, d) of the above-stated Law 37/2012 led to the answer to the issue of determination of the service regarded as exported without being necessary to refer to the international principles of OECD, foreign court decisions, or authentic interpretation.

DETERMINATION OF THE COURT

Article 79, paragraph 2 of the Law n°30/2018 of 02/06/2018 determining the jurisdiction of courts provides that the applicant must demonstrate in his/her submissions a private or public legitimate interest pursued, the subject of the dispute.

This provision implies that the petitioner must first indicate interest, which may be personal or public, he/she intends to protect. He/she must also demonstrate that the provision of the Law for which the authentic interpretation is sought is vague, which implies there should be inconsistent court and administrative decisions with regards to the interpretation of the provision of the law, or that there are some terms of the law that cause confusion such that they would be given contradictory interpretations while being in the general interests to determine the right interpretation. And this is similar to the holding of the judgment RS/SPEC/00001/2017/SC rendered by the Supreme Court on 28/04/20172.

As far as this case is concerned, the Court finds that there is no dispute with regards to interests because the petitioner has a particular interest in relation to his business activities, and for this reason, it is not necessary to make a determination thereto. It rather finds it necessary to determine whether article 5, paragraph one (1°) of the Law n°37/2012 of 09/11/2012 as amended by article one of the Law n° 02/2015 of 25/2/2015 establishing Value Added Tax, of which they petition for the authentic interpretation, causes dispute requiring authentic interpretation.

See paragraphs 25 and 26 of that judgment.

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27

The Court finds that in the event where the ambiguity is in the wording of the provision of the law, the interpretation guiding principles based on the hierarchy of norms and the time of enactment, court decisions as well as law scholars’ opinions apply in accordance with article 9 of the Law no 22/2018 of 29/04/2018 relating to civil, commercial, labour and administrative procedure.

Article 95 of the Constitution of the Republic of Rwanda of 2003, revised in 2015, provides the hierarchy of norms as follows: 1° Constitution; 2° organic law; 3° international treaties and agreements ratified by Rwanda; 4° ordinary law; 5° orders, and a law cannot contradict another law that is higher in the hierarchy. Based on these grounds, the Court notes that there are international agreements ratified by Rwanda that may provide for additional explanations of exported services as specified by article 5 of the aforementioned law of which the authentic interpretation is petitioned to enlighten someone who would miss its intended meaning.

In addition, It is also in the finding of the Court that the parties to the case indicated themselves that there is a way through which the provision on the definition given to exported services would be understandable, especially by referring to the principles of international agreements, of which GATS and the Protocol on the establishment of the East African Community Common Market, because such conventions are part of the legislation of Rwanda in accordance with the provision of the Constitution of Rwanda stated in the previous paragraph, and for these reasons, it is not necessary to resort to the authentic interpretation as long as the issue they raised is likely to be solved through the ordinary way of legal interpretation.

It further finds that the statements by the petitioners, according to which there have been contradictions among the decisions made, be they at RRA and courts levels, are groundless because what they allege to be the disputes about the definition of exported services was resolved by the Commercial High Court in the final judgment as they themselves admitted. The fact that there are explanations provided by the Court that are different from those provided by RRA, should not in itself be regarded as a contradiction because it is normal for the taxpayer who is not satisfied with the decision made by a given institution to submit the matter to the Court and the final decision becomes binding to all. Re RWANDA BAR ASSOCIATION (2)

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28

The Court finds also that the statements of the parties according to which there occurred the divergence with respect to the understanding of this provision between the Commercial Court and the Commercial High Court, are groundless because, in practice, the superior court can rectify the decision of the lower court, which is the reason of the ranking of Courts. It would be regarded as a contradiction in the event the last instance Court made divergent decisions on similar issues, which is not the situation in this case since the petitioners fail to demonstrate that there are contradictory decisions delivered by the Commercial High Court on similar issues.

The Court notes that if the last instance court has adopted the position with regard to a given issue, it is regarded as if it settles all disputes regarding that issue such that the interpretation is no longer needed. Thus, the statements according to which the petitioners allege that the Commercial High Court is not competent to set a leading position, are unfounded because according to the judicial system based on stare decisis, the position adopted by the court must be respected by the same court and lower courts3. The Law provides instead that the person who is not satisfied with the position adopted concerning a particular issue and wishes it to be changed in the interest of future cases seizes the Supreme Court according to article 65 of the Law n°30/2018 of 02/06/2018 determining the jurisdiction of courts.

Based on the explanations above, the Court is of the view that the provision of the Law of which the Bar Association demands the authentic interpretation does not cause ambiguity because it can be interpreted in accordance with the existent guiding principles of legal interpretation, and in addition to that, there is a position set by the Commercial High Court which has not yet been reversed. For all these reasons, the Court deems that the petition for authentic interpretation of article 5, paragraph one (1°) of the Law n°37/2012 of 09/11/2012, as amended by article one of the Law n°02/2015 of 25/2/2015 establishing the Value Added Tax, should not be admitted and examined because it does not comply with the law.

3See the case RS/INCONST/SPEC 00002/2019/SC, paragraphs 32 and 33.

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29 III. DECISION OF THE COURT

Holds that the petition for authentic interpretation of article 5, paragraph one (1°) of the Law n°37/2012 of 09/11/2012, as amended by article one of the Law n°02/2015 of 25/2/2015 establishing the Value Added Tax, submitted by the Bar Association is dismissed.

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PETITION SEEKING TO DECLARE A LAW

UNCONSTITUTIONAL

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33 Re MUGISHA (1) [Rwanda SUPREME COURT – RS/INCONST/SPEC 00002/2018/SC – Vol [2019] 2 RLR – (Rugege, P.J., Kayitesi Z, Mutashya, Kayitesi R, Cyanzayire, J.) January 18, 2019] Constitution – Unconstitutionality – The role of the government in the petition seeking to declare a law unconstitutional – The government does not participate in the petition seeking to declare a law unconstitutional as a party, rather, it appears to express its opinion on the law which is sought to be repealed. Consequently, it cannot raise a preliminary objection for inadmissibility of the petition. Constitution – Unconstitutionality – Interest to petition – In cases of unconstitutionality, a party initiates a petition in general interest without necessitating to demonstrate personal interests. Facts: Following the publication of the Law n°68/2018 of 30/08/2018 determining offences and penalties in general in the Official Gazette, Counsel Mugisha petitioned the Supreme Court requesting it to declare articles 233, 236, 136, 138, 154 and 139 are inconsistent with articles 15, 18 and 38 of the Constitution. He further stated that the articles against which he seeks to be repealed are in two categories. The first is made of three articles namely154, 233 and 236 and the second one has also three articles that are 136, 138 and 139. During the hearing, the State Attorney raises a preliminary objection

of inadmissibility of the petition on the ground that Counsel Mugisha does not demonstrate a personal interest he has in petitioning the court and in particular that he does not demonstrate how those provisions affected him. She further elaborates that pursuant to article 3 of the Law relating to civil, commercial, labour and administrative procedure providing that a claim cannot be admissible in court if the claimant does not have the interest and capacity to sue, that is the reason why the petitioner should establish the interest he has in the petition such as demonstrating how those provisions affected him, for instance if he has ever been punished based on them, rather than simply alleging that they prejudice the press or spouses. The State Attorney added that the counsel did not even demonstrate whether the affected persons were his 33

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34 clients. She further argues that pursuant to article 72 of the Law determining the jurisdiction of courts which provides that the Supreme Court may be petitioned by any person, institution or organization with legal personality seeking to have a law declared unconstitutional if they have any interest. She claimed that the interest must be apparent and not assumption and that his allegation that he petitioned the court for the general interest is misleading because the law provides for persons with interests. In his defense on the raised objection, the petitioner states that the Law determining the jurisdiction of courts provides that the Supreme Court is petitioned by any person, company or organisations with legal personality seeking to have a law declared unconstitutional. Thus basing on the fact that he is on the roll of advocates, he feels that he has a part to play in the establishment of fair laws which are consistent with the Constitution, and that any Rwandan who has the interest in defending the Constitution and also to ensure that the enacted laws guarantee fair justice, especially that his petition is in general interests and it affect every Rwandan. Before examining the objection of interest of the petitioner, the Court first examined whether the Government is allowed to raise the objection of inadmissibility in the trial relating to a petition seeking to declare a law unconstitutional. Held: 1. The Government does not participate in the petition seeking to declare a law unconstitutional as a party, rather it appears to express its opinion on the law which is sought to be repealed. Consequently, it cannot raise a preliminary objection for inadmissibility of the petition.

2. In cases of unconstitutionality, a party initiates a petition in general interest without necessitating to demonstrate personal interests. The petitioner has interest to petition the court seeking to declare a Law unconstitutional. The hearing shall resume. Statutes and Statutory instruments referred to: Law n°30/2018 of 02/06/2018 determining the jurisdiction of Courts, articles 72 and 80.

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35 Law no22/2018 of 29/04/2018 Law relating to the civil, commercial, labour and administrative procedure, article 3. Cases referred to: Zantsi v Council of State, Ciskei and Others (CCT24/94) [1995] ZACC 9; 1995 (4) SA 615 (CC); 1995 (10) BCLR 1424 (CC). European Court of Human Rights, Klass and others v Federal Republic of Germany, (Series A, NO 28) (1979-80) 2 EHRR 214. Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others (CCT5/95) [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR (6 December 1995). Minister of Home Affairs v Eisenberg & Associates, (CCT15/03) [2003] ZACC 10; 2003 (8) BCLR 838; 2003 (5) SA 281 rendered on 27 June 2003 by the Constitutional Court of South Africa Kruger v President of the Republic of South Africa and Others (CCT 57/07) [2008] ZACC 17; 2009 (1) SA 417 (CC); 2009 (3) BCLR 268 (CC) rendered on 2 October 2008 by the by the Constitutional Court of South Africa. Authors cited : Serge Guinchard et Thierry Debard, Lexique des termes juridiques 2015- 2016, 23e éd, Dalloz, 2015 Judgment I. BACKGROUND OF THE CASE

Counsel Mugisha Richard petitioned the Supreme Court arguing that after the publication of the Law nº68/2018 of 30/08/2018 determining offences and penalties in general in the Official Gazette, he found its articles 136, 138, 139, 154, 233 and 236 inconsistent with the Constitution of the Republic of Rwanda of 2003 revised in 2015.

The articles sought to be repealed for inconsistency with the Constitution are six (6) grouped into two categories: the first category consists of three (3) provisions namely articles 154, 233 and 236. Article 154 provides Re MUGISHA (1)

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36 that any person who publicly defames religious rituals, symbols and religious cult objects by use of actions, words, signs, writings, gestures or threats, whether carried out at the place where rituals are intended to be performed or where they are normally performed, commits an offence. Article 233 reads that any person who, verbally, by gestures or threats, in writings or cartoons, humiliates a member of Parliament when exercising his/her mandate, a member of the Cabinet, security officers or any other person in charge of a public service in the performance or in connection with the performance of his/her duties, commits an offence. Lastly, article 236 provides that any person who insults or defames the President of the Republic, commits an offence. They also provide penalties for each offence.

Counsel Mugisha Richard argues that those provisions contradict article 15 of the Constitution of the Republic of Rwanda because they protect the persons in particular classes depending on their positions whilst all persons are equal before the law.1 He also argues that those provisions infringe on the freedom of press, either print media, audio-visual, cartoons and even broadcasting which are guaranteed by article 38 of the Constitution,2 because pursuant to those provisions, the press is not allowed to publish anything criticizing those classes of public officials or religion while that article of the Constitution provides that the freedom of expression and that of access to information are recognized and guaranteed by the State.

The second category is made up of three provisions (3) notably article 136 providing that any spouse who has sexual intercourse with a person other than his/her spouse, commits an offence. Article 138 provides that a person who lives as a husband and wife with a person other than his/her spouse while one or both of them are married, commits an offence, while article 139 provides that a spouse who, without serious reasons, deserts his/her marital home for more than two (2) months and evades his/her obligations, commits

1 Article 15 provides that all persons are equal before the law. They are entitled to equal protection of the law. 2 Freedom of press, of expression and of access to information are recognized and guaranteed by the State. Freedom of expression and freedom of access to information shall not prejudice public order, good morals, the protection of the youth and children, the right of every citizen to honour and dignity and protection of personal and family privacy. Conditions for exercising and respect for these freedoms are determined by law.

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37 an offence. Counsel Mugisha Richard finds that those provisions violate article 18 of the Constitution of the Republic of Rwanda which provides that the State puts in place appropriate legislation and organs for the protection of the family, yet articles 136, 138 and 139 provide for an imprisonment sentence for one of the spouse, hindering the protection and flourishment of the family as long as one of them is incarcerated.

The hearing of the case took place on 4/12/2018, where Counsel Mugisha Richard was assited by Counsel Nkundabarashi Moïse and Counsel Kabasinga Florida, while the Government of Rwanda was represented by Kabibi Speciose, the State Attorney.

Counsel Kabibi Speciose raised a preliminary objection of the inadmissibility of the petition initiated by Counsel Mugisha Richard on the ground that he does not demonstrate his personal interest in that petition especially that he did not indicate how those provisions affected him. II. ANALYSIS OF LEGAL ISSUES Whether the petition initiated by Counsel Mugisha Richard is inadmissible for lack of interest

Counsel Kabibi Speciose requests that the petition should be rejected on the ground that Counsel Mugisha Richard lacks interest and failed to prove how those provisions he seeks to be repealed prejudiced him. She explains that article 3 of the Law relating to civil, commercial, labour and administrative procedure, provides that a claim is inadmissible in court if the claimant has no interest and capacity to sue, the reason why Counsel Mugisha Richard has to demonstrate the interest he has in petitioning, such as indicating how those provisions prejudiced him, whether he was sentenced basing on them instead of arguing that they prejudice the press or affected spouses, and he does not demonstrate that those prejudiced were his clients.

She argues that pursuant to article 72 of the Law determining the jurisdiction of courts providing that the Supreme Court can be petitioned by a person seeking to have a law declared unconstitutional if he/she has any interest, the fact that Mugisha Richard is an advocate who assists in the administration of justice, should not be considered as according him the Re MUGISHA (1)

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38 interest to initiate the petition especially that the interest must be apparent rather than presumable and in addition, claiming that it is in the general interest is untrue since the law precise that the it is done by an interested person. She adds that considering the nature of the petition, it was not initiated in the public interest, rather, in his own personal interest, the reason why he must prove his interest in petitioning.

She concludes that if Mugisha Richard, as an advocate, initiated a petition on behalf of his colleagues, he should demonstrate that he is representing them and how the execution of those provisions prejudiced them.

In his defense, Counsel Mugisha Richard states that basing on article 72 of the Law n° 30/2018 of 02/06/2018, determining the jurisdiction of courts reading that the Supreme Court is petitioned by any person or company and associations with legal personality for unconstitutionality if they have any interest, and being on the roll of advocates, contributing to fair justice, he believes that he has a role in the establishment of fair laws consistent with the Constitution, which is the basis of his interest to petition the Court. He also states that as a Rwandan citizen he has an interest in upholding the Constitution either in its text or purpose.

He argues that it is not necessary to wait for offences to be committed in order to initiate a petition, that he cannot pass over the issues which affect the family and having negative effects to the general public including him, which also applies to the press. Thus, he has the interest to petition the court in case of obstructions to to proper functioning of the press.

Counsel Nkundabarashi Moïse states that every Rwandan has a right to petition the Court on the matters concerning the Constitution and upholding it and even to make sure that the laws passed guarantee fair justice. He further argues that, in particular, Mugisha Richard has, as an advocate, the interest to show that some passed laws are inconsistent with the Constitution, and that his petition is in public interest because it affects every Rwandan, and thus, he finds the statements of the State Attorney according to which an advocate does not have interest to be groundless because it should not only be considered subsequent to the occurrence of the damage. Instead, it would be better to preemptively defend and uphold the Constitution.

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Counsel Kabasinga Florida argues that Mugisha Richard has both personal and public interest to initiate a petition because the impugned provisions concern everybody including her client, since any person can be prosecuted for the offences determined by those provisions, and therefore, Mugisha Richard has interest in initiating that petition to defend his personal interest and those of others who can be affected by those provisions.

DETERMINATION OF THE COURT Whether the Government has the capacity to raise a preliminary objection of inadmissibility of the petition

Before deciding whether the petitioner has the required interest, the Court deems necessary to first establish whether the government can raise an objection of inadmissibility in cases relating to the petitions of unconstitutionality.

Article 72 paragraph 3 of the Law n° 30/2018 of 02/06/2018, determining the jurisdiction of courts provides that the hearing of petitions seeking to declare a law unconstitutional is conducted in public and in the presence of a Government representative. It’s not provided that the government is the respondent in such petitions, instead, it appears in order to give its opinion on the understanding of the law which is sought to be repealed as the government represents the public interest and its institutions participate in drafting and passing of laws.

Since the appearance of the government in the case is to give its opinion on the law which the petitioner seeks to be repealed as motivated above, it also has the right to express its opinion on the issues of its admissibility. Therefore, the Court is of the view that the arguments of the State Attorney should be regarded as an opinion rather than an objection raised by a party to the case. Regarding the interest to initiate a petition

This Court is not yet seized with many petitions seeking to declare a law unconstitutional. In particular, it is the first time that the State Attorney has argued that the petitioner lacks interest. Accordingly, in motivating its Re MUGISHA (1)

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40 decision, the Court interprets Rwandan relevant laws and also refer to foreign jurisdiction case law where such petitions have been submitted over a time.

Article 3 paragraph one of the Law no 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure, provides that unless otherwise provided by law, a claim is admissible in court only if the claimant has standing, interest and capacity to sue. The law does not explain whether it is personal or public.

Usually, as explained by the legal scholars, for a claim to be admissible, the claimant must have interest manifested by his/her pretentions, which is legitimate, personal, and direct.3 The interest in a case aims at demonstrating that there is a right the claimant intends to be granted by a court decision or he wants the court to decide on the issues important to him. The claimant is required to have interest in the claim in order to prevent potential claims for grandstanding reasons or for third-party rights.

The interest is again put into consideration so that the meagre resources allocated to courts be utilized to resolve genuine issues on abstract issues. On this matter, the Constitutional Court of the Republic of South Africa in the case of Zantsi v Council of State,4 Ciskei and Other held that “it is not ordinarily desirable for a court to give rulings in the abstract on issues which are not the subject of controversy and are only of academic interest [...]”. Pursuant to the motivations given above, the Court finds that the arguments of the State Attorney regarding interest in the case are mostly raised in ordinary cases.

The Court is of the view that there is a difference with the constitutional petitions whereby the interest should be perceived in broad way, especially in a developing country like Rwanda where the citizens are unenlightened of their constitutional rights, and there is a need to assist them to realize them through courts. Article 72 paragraph of the Law n°30/2018 of

3 Serge Guinchard et Thierry Debard, Lexique des termes juridiques 2015-2016, 23e éd, Dalloz, 2015 p 58. Intérêt pour agir: condition de recevabilité de l’action consistant dans l’avantage que procurerait au demandeur la reconnaissance par le juge de sa prétention. L’intérêt doit être personnel, direct, né, et actuel 4 Zantsi v Council of State, Ciskei and Others (CCT24/94) [1995] ZACC 9; 1995 (4) SA 615 (CC); 1995 (10) BCLR 1424 (CC) (22 September 1995)

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41 02/06/2018 determining the jurisdiction of courts provides that the Supreme Court is petitioned by any person or company and associations with legal personality seeking to declare unconstitutional a law if they have any interest. The nature of the cases seeking to declare a law unconstitutional indicate that the interest lies in the seeking to declare a law unconstitutional because it violates the rights of the claimants or it renders it impossible to realize the objectives of the Constitution, which must be safeguarded.

In this petition, the interest is to have declared inconsistent with the Constitution of the Republic of Rwanda article 233 relating to the offence of humiliation of national authorities and persons in charge of public service, article 236 relating to the offence of insults or defamation against the President of the Republic, article 136 relating to the offence of adultery, article 138 relating to the offence of concubinage, article 154 relating to the offence of public defamation of religious rituals and article 139 relating to the offence of desertion of the marital home of the Law n° 68/2018 of 30/08/2018 determining offences and penalties in general, because they violate some rights including equality before the law, freedom of press, freedom of expression and that of access to information and even the flourishing of the family which has to be protected by the government.

The Law n°68/2018 of 30/08/2018 determining offences and penalties in general applies to potential suspects for the offences it provides and have to be respected by all including Counsel Mugisha Richard. This law does not only apply to offenders or those who may commit crimes, it also applies to everyone in its jurisdiction because it determines the conduct of people in certain circumstances and failure to comply constitutes an offence. This implies that in one way or another, that law applies to the petitioner, Mugisha Richard. Therefore, the Court finds that as a person who is concerned by and likely to be prosecuted for the offences mentioned above under that law, has interest to request that some of its provisions be declared unconstitutional.

In the event the petitioner believes that a certain law is unconstitutional, he does not need to wait until he is prosecuted of the offences provided by that law. He has the right to request for its repealing. The eventual existence of an unconstitutional law should be regarded as a crucial concern to be addressed and not merely an abstract issue. Re MUGISHA (1)

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the Court notes that the fact that the petitioner was never prosecuted or convicted based on the provisions he claims to be unconstitutional, it should not be interpreted as lack of interest because the mere existence of those provisions is enough for him to petition the court seeking their repealed without necessarily proving that they were used to prosecute him. This same position was adopted by some foreign courts like in the case of Klass and others v. Germany, whereby the European Court of Human Right was petitioned seeking the repeal of article 10 of Act of 13 August 1968 on Restrictions on the Secrecy of the Mail, Post and Telecommunications (Gesetz zur Beschränkung). The Court held that a person can seek the repeal of the law without first proving that it was applied on him. It motivated its decision in the following words: “[…] The Court therefore accepts that an individual may, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures, without having to allege that such measures were in fact applied to him.5 When these findings are considered together with the petition initiated by Mugisha Richard, despite that he has never been prosecuted based on the provisions he seeks to have repealed, they apply to him because in case he violates them, they will be relied on to prosecute him. Interest can be current or prospective.

Interest in the petition seeking to declare a law unconstitutional must be perceived in a broader sense since it concerns all subjects to the Law rather than confining it to the petitioner only as it is the case in ordinary cases. This is evident especially when the Court decides to repeal a law on grounds of unconstitutionality. Such a decision binds parties and non-parties to the case to the extent that nobody can again petition for unconstitutionality with respect to the same law or provision. It is on such backdrop that the last paragraph of article 72 of the Law n°30/2018 of 02/06/2018 determining the jurisdiction of courts provides that in the event the Supreme Court declares a law unconstitutional, such a declaration is published in the Official Gazette of the Republic of Rwanda to inform all the concerned people (petitioner or anyone else) that the law is no longer into force.

5 European Court of Human Rights, Klass and others v Federal Republic of Germany, (Series A, NO 28) (1979-80) 2 EHRR 214, 6 September 1978 available on http://hudoc.echr.coe.int

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The issue regarding the broad interpretation of interest in petitions seeking to declare a law unconstitutional was also emphasized by the Constitutional Court of South Africa in the case of Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others, whereby it held that “As the arm of government which is entrusted primarily with the interpretation and enforcement of constitutional rights, it carries a particular democratic responsibility to ensure that those rights are honored in our society. This role requires that access to the courts in constitutional matters should not be precluded by rules of standing developed in a different constitutional environment in which a different model of adjudication predominated. In particular, it is important that it is not only those with vested interests who should be afforded standing in constitutional challenges, where remedies may have a wide impact6.

The petition seeking to declare a law or some of its provisions unconstitutional can be initiated in the interest of the petitioner or in the public interest. Even though another article7 of the Law n°30/2018 of 02/06/2018 determining the jurisdiction of courts provides for the right of filing a petition in the general interest, it does not bar a petitioner seeking to declare a law unconstitutional from filing the petition with the aim of protecting the public interest. The same position was adopted by the Supreme Court of Canada in the case of Minister of Justice (Can.) v. Borowski,8 whereby the judge, after considering other similar cases delivered by that Court, stated that “I interpret these cases as deciding that to establish status as a plaintiff in a suit seeking a declaration that legislation is invalid, if there is a serious issue as to its invalidity, a person need only to show that he is affected by it directly or that he has a genuine interest as a citizen in the validity of the legislation and that there is no other reasonable and effective manner in which the issue may be brought before the Court. In my opinion, the respondent has met this test and should be permitted to proceed with his action.

6 Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others (CCT5/95) [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (6 December 1995). Paragraph 230 7 Article 80 of the Law no30/2018 of 02/06/2018 determining the jurisdiction of courts. 8 Minister of Justice (Can) v Borowski [1981] 2 SCR 575 at 598, per MARTLAND.J. for the majority. Re MUGISHA (1)

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Besides the fact that the provisions sought to be repealed concern him as a person who may write documents about the public officials likely to be regarded as defamatory and subsequently be prosecuted accordingly, Counsel Mugisha Richard as a citizen committed to ensuring respect for the rights to give and access information including the freedom of press and even the protection of the family as provided for by the Constitution, has the interest to petition the court seeking to repeal the provisions that violate those rights.

The interest of an Advocate who petitioned the court seeking to declare a law unconstitutional should be viewed in the perspective of his legal profession and his role in the development of laws which makes him eligible to initiate a petition even if he does not have a particular interest. In the case of Minister of Home Affairs v Eisenberg & Associates, the Constitutional Court of South Africa held that Advocates have a particular interest to seek for the repeal of laws that are inconsistent with the Constitution of that Country, and also have an interest as members of the public to initiate such a petition. That Court held as follows : “Respondent, [Eisenberg & Associates] had an interest as a member of the public in asserting the right that it claimed to have and had standing to raise that issue in its own interests9”. This concurs with the arguments of Counsel Mugisha Richard whereby he stated that as an advocate and a citizen, he has personal interest to petition the Court seeking to invalidate the provisions of a law affecting him, the general public and to ensure that the Constitution is upheld. He does not need to prove that he is representing other advocates or a particular group of the public as the State Attorney claims.

The Advocate as a professional who assists in the administration of justice, responsible for representation, assisting and pleading for people before the executive, judicial and other institutions can petition against laws that are inconsistent with the Constitution not in his personal interest but in the interest of the administration of justice. The legal knowledge an advocate is expected to have exceeds that of a lay person and by the virtue of his profession, he is placed in a better position to initiate a petition seeking to declare unconstitutional some provisions of the law given that he is more knowledgeable of such cases of unconstitutionality.

9 Constitutional Court of South Africa, Minister of Home Affairs v Eisenberg & Associates, (CCT15/03) [2003] ZACC 10; 2003 (8) BCLR 838 ; 2003 (5) SA 281

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The same approach was taken in the case of Kruger v President of the Republic of South Africa and Others. The Constitutional Court of South Africa held that a practitioner can base his claim on both direct and professional interest to petition in the interest of justice, whereby it held that : “Where the practitioner can establish both that a proclamation is of direct and central importance to the field in which he or she operates, and that it is in the interest of the administration of justice that the validity of that proclamation be determined by a court, that practitioner may approach a court to challenge the validity of such a proclamation. Legal practitioners must not assume that they will be allowed to bring applications to this Court for a declaration of invalidity based purely on financial self- interest or in circumstances where they cannot show that it will be in the interest of the administration of justice that they do so”.10. The Court finds the petition seeking the repeal of the mentioned unconstitutional articles by Mugisha Richard, an experienced legal practitioner, , to be in the interest of administration of justice because he is capable of giving guiding explanations to the Court and the resulting decision benefits the justice in general.

In light of the foregoing, the Court holds that Counsel Mugisha Richard has interest in different sense as explained above, to petition the court seeking to declare some provisions of the law unconstitutional.

Given the significance of the issues to be examined in the merits instant case and considering the lack of case law on similar matters by Rwandan courts, the Court invites persons, institutions and non-government organizations with expertise wishing to appear as Amicus Curiae, to submit requests to that effect through the Court registry of the Supreme Court not later than 8/02/2019, and submit written briefs to the court not later than 28/02/2019. III. DECISION OF THE COURT

Holds that Counsel Mugisha Richard has an interest to initiate a petition for unconstitutionality;

10 Kruger v President of the Republic of South Africa and Others (CCT 57/07) [2008] ZACC 17; 2009 (1) SA 417 (CC); 2009 (3) BCLR 268 (CC) (2 October 2008) Re MUGISHA (1)

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Declares that the hearing shall proceed on the merits on 18/03/2019.

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PETITIONS CHALLENGING PROVISIONS OF

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49 Re MUGISHA (2) [Rwanda SUPREME COURT –– RS/INCONST/SPEC 00002/ 2018/SC – Vol [2019] 3 RLR – (Rugege, P.J., Kayitesi Z, Mutashya, Kayitesi R, Cyanzayire, J.) April 24, 2019] Constitution – Acts prejudicial to the general interests – A legislator may criminalize some acts and determine the penalty of imprisonment thereof, even though they are related to contracts, this does not impede the offended party to institute a civil claim seeking for damages or the execution of the contract. Constitution – Effects of imprisonment sentence on the family – The effects of imprisonment sentence on the family should not constitute a ground to repeal the provisions laying down that penalty, because the purpose of imprisonment sentence is the deterrence, punishment, rehabilitation and education of people. Constitution – Flourishment of the family – Flourishment of the family does not entail freedom to do as one wills, rather, it denotes liberty and security of the family members which cannot be achieved in a family characterized with adultery, concubinage and desertion of the marital home, therefore penalizing these crimes, is neither breaking the family nor encroaching on its flourishment, in lieu, it is preventing what might threaten it – The Constitution of the Republic of Rwanda of 2003 revised in 2015, article 18. Constitution – Freedom of press and expression –The exercise of the

freedom of expression entitles a person to express his/her opinion about religious rituals, symbols and religious items and the right to seek, receive and impart information and opinions in the public on religious rituals, symbols and religious items as long as he/she does not act contrary to the provisions of Article 38 of the Constitution of the Republic of Rwanda. Constitution – Withdrawal of a claim of adultery – The offended spouse may at any stage of the proceedings request that the case be terminated when he/she withdraws the complaint – Stopping the proceedings or the execution of the judgement has effects on the co-offender. Constitution – Distinction between people – Distinction per se, is not discrimination, or treating people unequally before the law, it can be done upon a reasonable ground to defend vulnerable persons, such ground must be 49

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50 objectively justifiable and legitimate and such distinction should be proportionate to the purpose to be achieved. Constitution – Expression of views and opinions on the actions of the administration – Freedom of expression, and imparting information on activities of leaders, stresses the democratic principle of transparency and accountability of the leaders serving the people. Constitution – Freedom of press and expression – Information or opinions should not necessarily be gratifying leaders nor prejudicing some people, rather, the unpleasant opinion and views to leaders and to some citizens should be tolerated because democracy is unattainable in the absence of diverse opinions, tolerance and broad minded views. Facts: Following the publication of the Law n°68/2018 of 30/08/2018 determining offences and penalties in general in the Official Gazette, Mugisha Richard petitioned the Supreme Court seeking to declare that articles 233, 236, 136, 138, 154 and 139 of that law are inconsistent with articles 15, 18 and 38 of the constitution. He further stated that the articles which he seeks to be repealed are in two categories, one consisting of articles 154, 233 and 236, and the second of articles 136, 138 and 139. The State Attorney raised a preliminary objection of inadmissibility of the petition on the ground that the petitioner lacks no interest therein. On 18/03/2019, the

Court found that he has the interest to petition the court requesting to declare unconstitutional some of the provisions of the law and thus overruled that objection. Because of the significance of the issues in that case, the Court instructed individuals, institutions or Non-Governmental Organisations with expertise, who would like to appear as Amicus Curiae to apply. The Court examined applications and declared Association Rwandaise Des Journalistes or Rwanda Journalist Association (ARJ), The women’s umbrella Organisation- PRO-FEMMES / TWESE HAMWE; and The University of Rwanda -School of Law, eligible to appear as amicus curiae. The petitioner alleges that the provisions in the second category notably article 136 providing that any spouse who has sexual intercourse with a person other than his/her spouse, commits an offence,138 which provides that a person who lives as a husband and wife with a person other than his/her spouse while one or both of them are married, commits an offence and that of 139 providing that a spouse who, without serious reasons, deserts his/her marital home for

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51 more than two (2) months and evades his/her obligations, commits an offence, are inconsistent with on article 18 of the Constitution of the Republic of Rwanda because they provide for a penalty of imprisonment for one of the spouses convicted of the crime of adultery, concubinage or desertion of the marital home yet a family can neither be protected, nor flourish in the event one of the spouses is incarcerated, especially that article 18 of the Constitution of the Republic of Rwanda provides that the State puts in place appropriate legislation and organs for the protection of the family, thus, he is of the opinion that the criminalisation of adultery, concubinage and desertion of the marital home is not a fair approach to protect the family. He furthermore argues that the provisions of those articles should be part of civil laws because they are originally contractual. The State Attorney argues that there are various acts around the world that are criminalized yet they emanate from contracts moreover those offences of adultery, concubinage and desertion of marital home are prejudicial acts to the general public, to human dignity, to the national values adhered to by the nationals and such conduct is contrary to the good conduct and morals values which degrade a person, accordingly, the State should intervene in order to prevent and punish them. PRO-FEMMES/TWESE HAMWE argues

that such articles should not be repealed as it would result in the perception that adultery, concubinage and desertion of the marital home are lawful acts and this would adversely affect and ruin the Rwandan family, consequently, a stable and secure family will be a myth. In addition, article 18 of the Constitution of the Republic of Rwanda mandates the State to protect the family as a natural foundation of the Rwandan society. The University of Rwanda - School of Law argues that marriage is premised on the will emanating from love with the purpose to establish a marriage. In the event where such will or love is no more to the degree that one of the spouses decides to breach the commitment he/she had towards the other, it should not be a matter to refer to criminal courts rather to civil courts - the courts with jurisdiction to hear and resolve family cases and moreover, penalising adultery, concubinage and desertion of the marital home with imprisonment ensues into disputes between spouses, leading to the neglect of their duties of upbringing of their children and payment of their tuition fees, thus, compelling the offended spouse to pass over the charges. Re MUGISHA (2)

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52 With respect to the category comprising of articles 154, 233 and 236, article 154 provides that any person who publicly defames religious rituals, symbols and religious objects by use of actions, words, signs, writings, gestures or threats, whether carried out at the place where rituals are intended to be performed or where they are normally performed, commits an offence. The petitioner argues that the provisions of this article are not clear so much that they may be wrongly applied when prosecuting someone who commits such acts and that it encroaches on the freedom of press and of expression, and that of expressing opinions on religions and their functioning, on grounds that journalists fear to criticize religions for fear of prosecution. The State Attorney contends that, the fact that some of the provisions of that article are ambiguous, does not constitute a ground to repeal the entire law or provision, but rather it should be given proper interpretation. The Rwanda Journalist Association (ARJ) argues that this article disregards the people’s freedom of religion to the extent that what is provided therein, may deter people from expressing their views on beliefs. Instead, if a person or an organization with legal personality believes that they defamed by the press or a journalist, they should file a civil claim for justice to be served. On contrary, the University of

Rwanda -School of Law argued that the article is ambiguous since it does neither define what religion is, nor does it define where religious rituals are designated to be performed or where they are normally observed. Accordingly, people would suffer injustice if this article unchanged. Thus, there is a need for a clear definition of religion for a better understanding of its rituals. Regarding article 233 which provides for the offence of humiliating a member of Parliament, Cabinet, security officers or any other person in charge of a public service, the petitioner contends that it is inconsistent on article 15 and 38 of the Constitution of the Republic of Rwanda on ground that it is discriminative towards the people it is supposed to protect and prejudices the freedom of press, of expression and of access to information. The State Attorney argues that article 15 of the Constitution of the Republic provides for the equality before the law, and equal protection of the law, implying that people in similar circumstances should be treated equally, the reason why some people are protected by the law for the positions they occupy or organs they works in especially that it is the organ or the position that is protected and not the person per se, considering that if that person vacates the office, the successor is accorded the same treatment.

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53 Rwanda Journalist Association (ARJ) urges that the foregoing article violates the freedom of press and of expression as it criminalizes the act of publishing any information on the leader’s or a public servants’ poor leadership because a public servant cannot escape press scrutiny if they believe they are really innocent. It further argues that this would cover up public servants or other people in charge of public services who are suspects of misconduct from any comment or criticism by the press. The University of Rwanda, School of Law argues that the article does not distinguish between the instance where one of the concerned persons in this article is exercising his/her mandate and when the exercise is solely in connection with the performance of his/her duties, neither does it clarify if the protected persons in this article are any public servants. It also does not define what defamation really means. In addition, it states that this article protects only a group of public servants, which is inconsistent with the principle of equality before the law and equal protection of the Law. With regard to article 236 which provides that any person who insults or defames the President of the Republic, commits an offence, the applicant states that such offence could be used as a pretext to violate the freedom of press, especially considering that defamation is ambiguous, thus,

such article is inconsistent with article 15 of the Constitution since it does not equally protect people by punishing those who insult or defame only one person. The State Attorney states that the freedom of press should be limited to the honour and security of the leader, besides, such article does not prohibit anybody from publishing anything on the President of the Republic, rather, it prohibits insulting or defaming him/her. Rwanda Journalists Association (ARJ) also concurs that, given the nature of his/her responsibilities, the President of the Republic should exhibit the highest level of integrity. Nonetheless, the publication of information on him/her should not be criminalized. The University of Rwanda, School of Law argues that if those provisions are compared to those provided by article 161 which punishes the offence of Public insult, the offence is penalized when committed in public, whereas article 236 indicates that this offence is penalized wherever it may be committed, implying that, even if two people in private place insulting each other, one may falsely accuse another of that offence, and he/she may be prosecuted for the same. It concludes by remarking that the same grounds that led to the decriminalization of this offence with Re MUGISHA (2)

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54 regards to other people, should apply in decriminalising the crime of defamation towards the President of the Republic. Held: 1. Based on the intended purpose, a legislator may criminalize some acts and determine the penalty of imprisonment thereof, even though they are related to contracts, this does not impede the offended party to institute a civil claim seeking for damages or the execution of the contract, accordingly, for the offences of adultery, concubinage, and desertion of the marital home being related to the contract of marriage does not preclude such acts from being prosecuted as crimes.

2. The effects of imprisonment sentence on the family should not constitute a ground to repeal the provisions laying down that penalty, because the purpose of imprisonment sentence is the deterrence, punishment, rehabilitation and education of people. Moreover, such penalties are reasonable on ground that they are proportional to the crimes thereof.

3. Flourishment of the family does not entail freedom to do as one wishes, rather, it denotes liberty and security of the family members which cannot be achieved in a family characterized with adultery, concubinage and desertion of the marital home, therefore penalizing these crimes, is neither breaking the family nor encroaching on its flourishment, in lieu, it is preventing what might threaten it.

4. The offended spouse may at any stage of the case request that the proceedings be terminated when he/she withdraws the complaint, and stopping the proceedings or the execution of the judgement has effects on the co- offender.

5. The exercise of the freedom of expression entitles a person to express his/her opinion about religious rituals, symbols and religious items and the right to seek, receive and impart information and opinions in the public on religious rituals, symbols and religious items as long as he/she does not act contrary to the provisions of Article 38 of the Constitution of the Republic of Rwanda.

6. Distinction per se, is not discrimination, or treating people unequally before the law, it can be done upon a reasonable ground to defend vulnerable persons, such ground must be objectively justifiable and legitimate and such distinction should be proportionate to the purpose to be achieved.

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55 7. Freedom of expression, and imparting information on activities of leaders, stresses the democratic principle of transparency and accountability of the leaders serving the people.

8. Information or opinions should not necessarily be gratifying leaders nor prejudicing some people, rather, the unpleasant opinion and views to leaders and to some citizens should be tolerated because democracy is unattainable in the absence of diverse opinions, tolerance and broad minded views. Petition has merit in part; Paragraph 3 of article 136 is amended as follows: The offended spouse may at any stage of the case request that the proceedings be terminated when he/she withdraws the complaint, and stopping the proceedings or the execution of the judgement has effects on the co-offender; Paragraph one, two and three of article 136 of the Law n°68/2018 of 30/08/2018 determining offences and penalties in general is consistent with article 18 of the Constitution; Paragraph four and five of article 136 of the Law n°68/2018 of 30/08/2018 determining offences and penalties in general are repealed; Articles 138 and 139 of the Law n°68/2018 of 30/08/2018 determining offences and penalties in general are not inconsistent with article 18 of the Constitution; Article 154 of the Law n° 68/2018 of 30/08/2018 determining offences and penalties in general violates article 38 of the Constitution, thus it is repealed; Article 233 of the Lawn°68/2018 of the Law 30/08/2018 determining offences and penalties in general violates articles 15 and 38 of the Constitution, thus, it is repealed; Article 236 of the Law n°68/2018 of 30/08/2018 determining offences and penalties in general is not inconsistent with article 15 and 38 of the Constitution; Orders that the present judgment be published in the official gazette of the Republic of Rwanda. Statutes and statutory instruments referred to: Re MUGISHA (2)

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56 Constitution of the Republic of Rwanda of 2003 revised in 2015, articles 4, 10, 15, 17, 18, 38, 41, 97, 98, 108; Universal Declaration of Human Rights 1948, article 19; International Covenant on Civil and Political Rights, (ICCPR), article 19; Law n°54/2011 of 14/12/2011 relating to the rights and the protection of the child. Cases referred to: Re Uwinkindi, N°RS/INCONST/PEN0005/12/CS rendered by the Supreme Court on 22/02/2013; Joseph Shine v. Union of India 2018 SCC Online SC1676 delivered on 27 September, 2018; Joseph Burstyn, Inc. v. Wilson, U.S. Supreme Court ,343 U.S. 495 (1952); European Court of Human Rights, Handyside v. United Kingdom, Judgment of 7 Dec. 1976, Series A No 24. Authors cited: Bizimana Simon and Kayumba Charles, Inkoranyamagambo Iciriritse, 2010, p. 410; UN Working Group on Women’s Human Rights: Report (18 October, 2012; UN Human Rights Committee, General Comment 34 on the International Covenant on Civil and Political Rights, concerning freedoms of opinion and expression, July 2011; Human Rights Committee, General Comment XVIII, Non-discrimination (1989); United Nations (“UN”) Human Rights Committee, General Comment No. 34, Article 19: Freedoms of opinion and expression, CCPR/C/GC/34 (12 September 2011) (“General Comment No. 34”); UN Human Rights Committee, Communication No. 414/1990, Mika Miha v. Equatorial Guinea, Views adopted on 8 July 1994; Organization for Security and Cooperation in Europe “Defamation and Insult Laws in the OSCE Region: A comparative Study”, March 2017; Parliamentary Assembly of the Council of Europe, Recommendation 1805 (2007); T. Tridimas, The General principles of EC Law (OUP, 2nd edn, 206).

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57 Judgment I. BACKGROUND OF THE CASE

Mugisha Richard a petitioned the Supreme Court contending that following the publication of the Law no 68/2018 of 30/08/2018 determining offences and penalties in general in the Official Gazette, found that Articles 136, 138, 139, 154, 233 and 236 contravene the Constitution of the Republic of Rwanda of 2003 revised in 2015.

The impugned articles are in two (2) olds. The first y comprises Articles 154, 233 and 236 of Law no 68/2018. Article 154 states that any person who publicly defames religious rituals, symbols and religious cult objects by use of actions, words, signs, writings, gestures or threats, whether carried out at the place where rituals are intended to be performed or where they are normally performed, commits an offence. Article 233 provides that any person who, verbally, by gestures or threats, in writing or cartoons, humiliates a member of Parliament when exercising his or her mandate, a member of the Cabinet, security officers or any other person in charge of a public service in the performance of his or her duties or any other activity emanating from his or her duties, commits an offence. Article 236 provides that any person who insults or defames the President of the Republic commits an offence. These articles also set out the penalties for each offence.

Mugisha argues that these articles are inconsistent with Article 15 of the Constitution of the Republic of Rwanda on the grounds that they protect persons of given categories on the basis of their duties, even though all persons are equal before the law.1 He contends that these articles violates the freedom of press, whether print or audio-visual, as provided in Article 38 of the Constitution2, because based on the provisions of foregoing articles, the press

1 The article 15 states that “All persons are equal before the law. They are entitled to equal protection of the law.” 2 The article 38 states that “Freedom of press, of expression and access to information are recognized and guaranteed by the State. Freedom of expression and freedom of access to information shall not prejudice public order, good morals, the protection of the youth and children, the right of every citizen to honour and dignity and protection of personal and family privacy. Conditions for exercising and respect for these freedoms are determined by the law”. Re MUGISHA (2)

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58 is barred from spreading information concerning those categories of officials or religious organization when criticizing a given issue, whereas the Constitution protects the freedom of press, of expression and of access to information.

The second category is comprised of three (3) articles: Article 136 which provides that any person who has sexual intercourse with a person other than his or her spouse commits an offence. Article 138 reads that a person who lives as husband and wife with a person other than his or her spouse while one or both of them are married, commits an offence, Article 139 provides that a spouse who, without serious reasons, deserts his or her marital home for more than two (2) months and evades his or her obligations, commits an offence. Mugisha Richard contends that these articles are inconsistent with Article 18 of the Constitution of the Republic of Rwanda, requiring the State to put in place appropriate legislation and organs for the protection of the family in order to ensure that it flourishes whereas Articles 136, 138 and 139 sentence one of the spouses to imprisonment, and a family can neither be protected nor flourish in a situation of imprisonment of one of the spouses.

State Attorney Kabibi Specioza raised an objection arguing that Mugisha’s claim is inadmissible because he lacks interest initiate the petition. On March 18, 2018, the Court pronounced itself on that matter and declared that Mugisha Richard has interest to petition for unconstitutionality.

Considering the significance of legal issues to be examined on the merits of the instant case, the Court allowed all persons, institutions and non- governmental organizations with pertinent expertise and desire to apply and intervene as amici curiae through the Supreme Court registry not later than February 8, 2019, and also submit all all their briefs to the Court not later than February 28, 2019.

After receiving and examining different applications to intervene as amici curiae, the Court found the following entities eligible as amici curiae: Association Rwandaise des Journalistes or Rwanda Journalists Association (ARJ), the women’s umbrella organization Pro-Femmes/Twese Hamwe and University of Rwanda- School of Law. These entities submitted their opinions on Mugisha Richard’s petition.

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The trial was held on March 18, 2019, and Mugisha Richard was assisted by Counsel Kabasinga Florida and Counsel Nkundabarashi Moïse, whereas State Attorney Kabibi Specioza represented the Government of Rwanda, , PRO FEMME TWESE HAMWE represented by Kanakuze Jeanne d’Arc assisted by Counsel Munyankindi Monique. The Rwanda Journalists Association (ARJ) was represented by Counsel Gakunzi Musore Valery whereas University of Rwanda-School of Law was represented by Bikesha Denis, Murefu Alphonse, Sezirahiga Yves and Ruvebana Etienne. II. LEGAL ISSUES AND THEIR ANALYSIS A. Whether Articles 136, 138 and 139 of the Law no 68/2018 of 30/08/2018 determining offences and penalties in general are inconsistent with Article 18 of the Constitution of the Republic of Rwanda

Mugisha Richard petitions the Court to declare that Articles 136, 138 and 139 of Law no 68/2018 are inconsistent with Article 18 of the Constitution. These articles prescribe penalties for spouses convicted of adultery, concubinage or desertion of the marital home. He argues that a family can neither be protected nor flourish when one of the spouses is incarcerated. He states that he by no means commends the misconduct addressed in these articles. as he only requests the Court to examine whether in a bid to prevent such delinquency it is reasonable to criminalize it.

He contends that the provisions of Articles 136, 138 and 139 of Law no 68/2018 undermine the relationships of couples who have confessed their vows to be married out of mutual love resulting in procreation, and the primary obligation of maintaining and sustaining the family falls on both spouses. To create a peaceful spousal relationship, it is necessary for the offending partner to apologize to the offended, and thus the two can reconcile.

Mugisha Richard contends that articles penalizing the offences of adultery, concubinage and desertion of the marital home are inconsistent with Article 18 of Constitution of the Republic of Rwanda which provides that the family, being the natural foundation of the Rwandan society, is protected by the State. The impugned articles prescribe penalties of imprisonment for one of the spouses found guilty seeing that a family cannot be protected when one of the spouses is imprisoned. Re MUGISHA (2)

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He further contends that Article 18 of the Constitution of the Republic of Rwanda requires that the State put in place appropriate legislation and organs for the protection of the family. Accordingly, it is the petitioner’s stance that criminalizing acts of adultery, concubinage and desertion of the marital home offences under Penal Code is not an appropriate approach to protect the family given that it closes the door for forgiveness and reconciliation hence destabilizing and adversely affecting the family.

Counsel Kabasinga Florida argues that Articles 136, 138 and 139 of the foregoing law Law n° 68/2018 are not only inconsistent with the Constitution of the Republic of Rwanda but also with the international principles and precedents of international courts. She concedes that, certainly the conduct featured in these articles is not commendable; nonetheless, she argues that such conduct should be governed by other laws as some legal scholars have argued that it is not appropriate to apply criminal laws to every person who has committed a reprehensible act.

She proceeds to contend that, considering that adultery, concubinage and desertion of the marital home only affect one’s spouse and no one else is affected, especially that the law provides that such offence shall be prosecuted only when an offended spouse files a complaint against the offending spouse, that if he/she feels not offended, none else should feel offended, it is therefore not reasonable to criminalize these acts. She referred to a case that was decided by the Supreme Court of India3 where the Court expounded that, for an act to qualify to be an offence it should be prejudicing the public or society, and that penal sanctions should only be enacted if an act prejudices the public. She is therefore inclined to believe that the offences provided under Articles 136, 138 and 139 of the foregoing Law n° 68/2018 are not committed against the public constitutes a substantial ground for these acts not to be criminalized.

Counsel Nkundabarashi Moïse argues that the acts provided under articles 136, 138 and 139 of Law n° 68/2018 should be provided under civil laws, on ground that Article 2(1°) of the aforementioned law defines “offence” as an act or omission that breaches public order, whereas the provisions of the three (3) impugned articles are predicated on the agreement between two people and only one of them is eligible to file a complaint. Furthermore, Article 18 of the Constitution states that the freedom of the family shall be

3 Petition (Criminal) N° 194 OF 2017, Joseph Shine v. Union of India.

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61 protected, which is impractical if one of the spouses is incarcerated. He especially notes that no research has been conducted to establish that a discharged spouse who was convicted of one of the offences in question enjoys a good relationship with the offended spouse. Instead, it is evident that their relationship deteriorates.

He further emphasizes that, since such offences stem from the marriage contract, and a claim to that effect cannot be admitted unless it is files by the aggrieved spouse, the fact that and no other person other than the offended spouse who claims to have witnessed the commission of such offences is eligible to file the claim to that effect, and the fact that, the police on that matter are not allowed to intervene, is an indication that such actsare not committed against society, thus prosecuting them is not in the public interest.

State Attorney Kabibi Specioza contends that Mugisha and his counsels’ assertions that such offences stem from marriage contract and thus should not be criminalized is unfounded on grounds that there are various acts around the world that are criminalized though they emanate from contracts. She referred the Court to the offences of the non-payment of bills, breach of trust and many other examples, all of which result from contracts.

State Attorney Kabibi Specioza maintains that offences of adultery, concubinage and desertion of the marital home are harmful to the general public, human dignity, and Rwandan values. Such conduct is contrary to good conduct and good morals and degrades a person, hence the State should intervene to prevent and punish it.

Kanakuze Jeanne d’Arc representing the umbrella organization Pro- Femmes/Twese Hamwe argues that Articles 136, 138 and 139 of Law No 68/2018 of 30/08/2018 determining offences and penalties in general should not be repealed as this would result in the perception that adultery, concubinage and desertion of the marital home are lawful acts. This would adversely affect and ruin the Rwandan family, consequently, a stable and secure family would be a myth.

Counsel Munyankindi Monique, who assisted umbrella organization Pro-Femmes/Twese Hamwe, contends that Article 18 of the Constitution mandates the State to protect the family being the natural foundation of the Re MUGISHA (2)

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62 Rwandan society, in a way that the State has the duty to enact laws that penalize any person who commits acts that threaten the family in any way. This accounts for the reason behind the enactment of the impugned articles – to preserve the sovereignty and freedom of the family, since some of the acts punished by such articles can incite conflicts in the family, leading to its ruin and sporadic deaths.

Mr. Bikesha Denis, Mr. Murefu Alphonse and Mr. Sezirahiga Yves representing the University of Rwanda School of Law argue that an offence is an act or omission that breaches the public order, as Article 2:1o of Law No 68/2018 provides. Pre-emptive intervention of the State is only justified for acts that threaten the public order and undermine the general interest. Furthermore, they urge that the Legislature should be diligent not to over- criminalize some behaviors that does not fulfill constitutive elements of an offence; otherwise the law may harm the people it is supposed to protect.

They contend that marriage is premised on the will, emanating from love, to establish a marriage. If the will or love diminishes to the degree that one of the spouses decides to breach the commitment he or she has made towards the other, the matter should not be referred to criminal court, rather to civil courts which have the jurisdiction to hear family matters.

They further maintain that providing a penalty of imprisonment for adultery, concubinage and desertion of the marital home generates conflicts between spouses, thus neglecting their duties of upbringing of their children, and paying their tuition fees to the extent that the offended spouse is cornered to forgive the offending spouse. In that case, the family is in no way protected, seeing that there is no proof that a discharged spouse who was convicted of one of the offences in question enjoys a good relationship with the offended spouse. In India, England, South Korea, South Africa, Nigeria, Ghana and some other countries, adultery was once criminalized but today it is only an ordinary civil wrong that may be a basis for damages and/ or lead to a divorce.

DETERMINATION OF THE COURT

Article 18 of the Constitution provides that “The family, being the natural foundation of the Rwandan society, is protected by the State. Both parents have the right and responsibility to raise their children. The State puts

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63 in place appropriate legislation and organs for the protection of the family, particularly the child and mother, in order to ensure that the family flourishes.”

Article 18 mentioned in the preceding paragraph comprises three principles to wit: the family is the natural foundation of the Rwandan society, both parents have the rights and responsibilities to raise their children, and the State has the responsibility to protect family members.

Three articles of the Law no 68/2018 of 30/08/2018 determining offences and penalties in general for which Mugisha Richard petitions the Court to declare inconsistent with Article 18 of the Constitution of the Republic of Rwanda include Article 136 on adultery, Article 138 on concubinage and Article 139 on the desertion of the marital home.

Article 136 of Law no 68/2018 of 30/08/2018 determining offences and penalties in general provides that “Any spouse who has sexual intercourse with a person other than his/her spouse, commits an offence. Upon conviction, he/she is liable to imprisonment for a term of not less than six (6) months and not more than one (1) year. The prosecution of adultery is initiated only upon complaint of the offended spouse. In that case, the prosecution is initiated against the accused spouse and the co-offender. The offended spouse may at any stage of the procedure request that the proceedings be terminated when he/she retracts and withdraws the complaint. However, if the matter is already brought before court or if a decision thereon has been taken, retraction does not stop the consideration of the case or the execution of the judgement. The judge considers the case after which he/she can accept or refuse such a retraction upon justification. If a judge accepts the retraction of the offended spouse, stopping the proceedings or the execution of the judgement has effects on the co-offender.”

Article 138 of Law no 68/2018 of 30/08/2018 provides that: “A person who lives as a husband and wife with a person other than his/her spouse while one or both of them are married, commits an offence. Upon conviction, he/she is liable to imprisonment for a term of more than one (1) year and not more than two (2) years. Article 139 reads that: A spouse who, without serious reasons, deserts his/her marital home for more than two (2) months and evades his/her obligations, commits an offence. Upon conviction, he/she is liable to imprisonment for a term of not less than three (3) months and not more than six (6) months. Penalties referred to in Paragraph 2 of this Article also apply Re MUGISHA (2)

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64 to a husband who, willfully and without serious reasons, deserts his wife for more than one (1) month knowing that she is pregnant. However, separation following mistreatment of one of the spouses is not considered as desertion of the marital home when he/she has informed the nearest local administration and a record relating thereto has been drawn.”

Mugisha Richard argues the articles providing penalties for adultery, concubinage and desertion of the marital home are inconsistent with the Constitution of the Republic of Rwanda. He maintains that prosecuting and punishing these offences and imprisoning one of the spouses affects the flourishment of the family and break it down instead of building it up. He further argues that such offences emanate from marriage contract between two persons and they thus These articles therefore hamper reconciliation and forgiveness between the spouses. a. Whether the offences of adultery, concubinage and desertion of the marital home are premised on contracts and thus not qualified to be offences, rather civil torts

Mugisha Richard is petitioning the Court to repeal Article 136 on adultery, Article 138 on concubinage and Article 139 on desertion of the marital home, since they are premised on civil contracts and should thus be governed by civil laws.

Given the purpose, a legislator may criminalize some acts and subject them to imprisonment as a penalty thereof even if they are related to contracts. Adultery, concubinage and desertion of the marital home are offences on ground that the offending spouse is bound by a marriage contract, but such acts cannot constitute a ground of unconstitutionality as the law does not forbid criminalizing contractual acts. What these articles penalize is adultery, concubinage and desertion of the marital home, not the breaching of the marriage contract per se. Article 29:7o of the Constitution prohibits imprisoning a person on the grounds of inability to fulfil a contractual obligation, yet this is not the nature of the laws against adultery, concubinage and desertion of the marital home.

The law may criminalize certain contract related acts and determine imprisonment as a penalty thereof. For instance, Article 176 criminalizes breach of trust, Article 248 criminalizes intentional embezzlement of seized or

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65 confiscated property, and Article 178 criminalizes embezzlement or destruction of a mortgaged property. The law requires these acts be prosecuted, but the offended party can also institute a civil claim seeking damages or performance of the contract. The fundamental fact is that all these offences infringe on the public interest, which the law should protect.

The Court is convinced that the marriage contract is not an ordinary contract. It is a special contract calling for the state’s protection as provided in Article 18 of the Constitution of the Republic. It is on this ground that the law lays down the marriage celebration procedures in which the State is involved in officiating a marriage. The Court also believes that monitoring the relationship of married couples is in the public interest. Punishing adultery, concubinage and desertion of the marital home not only prevents threats that might jeopardize family members’ security and flourishing, but also protect children’s safety and wellbeing. As provided in Article 18 of the Constitution of the Republic, both parents have the responsibility to raise their children. Article 19 of the same law states that every child has the right to specific mechanisms of protection by his or her family, other Rwandans and the State. In the event a spouse is busy committing adultery or attending to a concubine, or if the spouse deserts the marital home, it would be practically difficult to fulfil the responsibility of raising his or her children as required.

The averment of the preceding paragraph concern also the issue of misusing family property by spending it on non-family interests including in sensual activities and concubinage with a paramour and satisfying their needs where necessary. Such does not guarantee freedom, security and prosperity of the family and, when the family is not stable, the development of the nation is automatically affected. The wasted property could have been invested in profitable activities for the family.

The Court finds baseless Mugisha Richard arguments that divorces due to adultery, concubinage and desertion of the marital home are steadily surging, which suggests that penalizing such acts does not deter couples from divorcing; therefore, the articles in dispute fall short of the purpose of protecting marriage. He also argues that the national budget allocated to the prosecution of these crimes can be channeled to other activities that could advance justice. The Court finds these arguments immaterial, because Mugisha Richard has failed to demonstrate how adultery, concubinage and desertion of the marital home are not reasonably deterred. Furthermore, Re MUGISHA (2)

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66 according to theories of punishment, deterrence is one but not the only purpose of punishment, since there are other purposes like discouraging revenge or retaliation and rehabilitating the offender. The best way forward is not repealing the law, but rather putting more effort in strategies for prevention.

The fact that many countries have either decriminalized adultery or have never criminalized, concubinage, and desertion of the marital home is not a ground to repeal such crimes from the Rwandan Penal Law. India, South Africa, Korea, Ghana and many other countries decriminalized adultery, but there are also many other countries that criminalizes it. Each country has unique culture and values it upholds or does not uphold. Adultery, concubinage and desertion of the marital home have never been Rwandan values. Even those who engage in such acts do it covertly because they know they are not supported by Rwandan society.

In Rwandan culture, women used to separate from their husbands and return to their parents’ home, as a sign of misunderstanding at their own home and mistreatment by their husbands. This would be remedied when the husband goes to her parents’ home, gives a cow to her family as a fine and brings back his wife. This is not construed as desertion of the marital home. Instead, it is a cultural mechanism of restoring a good relationship at home. This is the rationale behind the “exception” to the crime of desertion of the marital home provided in Article 139, Paragraph 4 that: “However, separation following mistreatment of one of the spouses is not considered as desertion of the marital home when he/she has informed the nearest local administration and a record relating thereto has been drawn.”

Another reason why Rwanda should not rush to amend the law on these offences is that the law does not contradict any international principles. In 2012, a U.N. Working Group on Human Rights recommended that countries decriminalize adultery because it believed that this infringed on women’s rights. The Working Group’s motivation is that in many countries, the offence of adultery is applicable to women only, and men cannot legally commit adultery. In some countries, only women are penalized, and men are excused. Some other countries provide different penalties for men and women. Such practice does not exist in Rwanda, since men and women may be equally prosecuted for adultery and the same penalty applies regardless of gender. There is no discrimination in the applicable laws in deterring and punishing adultery, concubinage and desertion of the marital home.

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67

The grounds advanced by the U.N. Working Group on Human Rights were echoed in Joseph Shine v. Union of India, a case rendered by the Supreme Court of India. MUGISHA asks this Court to repeal the articles in dispute as was done in Joseph Shine. Article 497 of the Indian Penal Code penalized only a man who had sexual intercourse with a married woman. A woman would not be penalized as either an offender or co-offender. Only the offended man could institute a claim, whereas an offended woman had no right to file a claim. The article was undeniably repealed in that case but on grounds different from those advanced by MUGISHA. The Indian Supreme Court found that the article in question did not offer equal protection of the law, manifested sexual discrimination, and encroached on the freedom of the people; hence, it contradicted Articles 14, 15 and 21 of the Constitution of India and international human rights principles. These grounds are totally different from those tendered by MUGISHA requesting to decriminalize the offence of adultery in Rwanda.

Based on the foregoing elucidations, the Court finds that the fact that offences of adultery, concubinage and desertion of the marital home emanate from contract does not justify waiving the prosecution and subsequent punishment thereof as crimes. b. Breaking down the family and encroaching on its freedom instead of protecting it

Article 23 of Law No 68/2018 of 30/08/2018 determining offences and penalties in general provides that: “Principal penalties applicable to natural persons are the following: imprisonment […]” This Article shows that imprisonment is one form of legal punishment under Rwandan law.

The spouse who is found guilty of adultery, concubinage or desertion of the marital home may be sentenced to imprisonment. As per Mugisha’s assertions to the effect that imprisoning one of the spouses may be detrimental to the family in various ways, however, the Court finds that imprisoning one of the spouses convicted of the foregoing offences should be envisaged as penalizing the committed crime itself, especially considering imprisonment as one of the penalties prescribed under Rwandan law as expounded in the preceding paragraph. Re MUGISHA (2)

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68

Imprisonment inevitably affects the offender and his or her family. However, the Court is convinced that the family of the offender convicted of adultery, concubinage or desertion of the marital home should not be given exceptional treatment to the degree that the laws in question be omitted from the penal code. The effects of imprisonment on the family are the same regardless of the offence that occasions it. Moreover, Mugisha has not advanced or proven that the consequences resulting from imprisonment for such crimes are different from those occasioned by imprisonment for other crimes like theft, murder, defilement and more.

If this Court were to hold that the laws on the offences of adultery, concubinage and desertion of the marital home are unconstitutional because the convicted spouse was sentenced to imprisonment, it would categorically suggest that other provisions providing for imprisonment sentence as penalty, regardless of the nature of the crime, should be repealed given that as alluded to herein above, imprisonment has diverse ramifications for the family of the offender (such as the fact that he/she was breadwinner, suffering humiliation and reproach on children and the offended spouse and so forth) and the consequences of imprisonment penalty on a family should not constitute grounds to repeal the provisions for such penalty given that imprisonment is imposed with the purpose of setting an example for deterrence , punishment, rehabilitation and education. It is the opinion of this Court that the penalties for the offences in question are reasonable and proportional.

The other controversy examined in instant case is the interpretation of the phrase “flourishment of the family” as provided under Article 18 of the Constitution. Mugisha and his counsel contend that a family cannot flourish if one of the spouses is incarcerated for adultery, concubinage or desertion of the marital home. However, flourishing does not entail freedom to do as one wills. Article 18 states that: “The State puts in place appropriate legislation and organs for the protection of the family, particularly the child and mother, in order to ensure that the family flourishes.” The phrase “in order to ensure that the family flourishes” conveys the importance of the flourishing and security of the family members. In the English version of this Article, the words used are “to flourish” which means to “succeed, to prosper or to grow”. A family cannot achieve any of these goals if it is always in conflict, especially if the family relationship is affected by adultery, concubinage, or desertion of the marital home. The Kinyarwanda Dictionary suggests the same. It defines “Kwisanzura”, which means “to flourish”, as to live in a comfortable

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69 environment with no obstacles. If a family has conflicts, fights and altercations caused by infidelity or desertion of the marital home, it cannot flourish.

As argued by Pro Femme/Twese Hamwe, adultery, concubinage and desertion of the marital home breed sour relationships in the family that might in extreme circumstances even resulting in sporadic deaths. Pro Femme/Twese Hamwe recounted instances of deaths precipitated by adultery, concubinage, and desertion of marital home which include examples involved people killing their spouses or committing suicide because they could not tolerate such unbecoming conduct that contravenes both the law and the Rwandan culture of family harmony. Therefore, this Court holds that penalizing such offences neither breaks up the family nor encroaches on its flourishing; rather it deters that which might threaten the family.

Adultery and concubinage may also result in the birth of children outside the marital union. This breeds conflict between married partners, the offended spouse and the paramours, and even between the legitimate children and illegitimate ones. This is contrary to the Rwandan policy of family planning and also inconsistent with article 17, paragraph 2 of the Constitution, which states that “A civil monogamous marriage between a man and a woman is the only recognized marital union.” Therefore, it is in the public interest that there be laws that prevent such extramarital births and the likely effects thereof.

As expounded in the preceding paragraphs, the fact that Law n°68/2018 of 30/08/2018 criminalizes adultery, concubinage and desertion of the marital home, and even lays down the penalties thereof, should not be construed as damaging the family given that imprisonment imposed on the foregoing offences and on others in general is a lawful penalty under Rwandan law, and it is imposed with the purpose to both punish and deter. There is no reason to construe the application of this legal penalty to the offences of adultery, concubinage and desertion of the marital home as infringing on the flourishing of the family, given that as motivated above, an imprisonment sentence for any offence reasonably encroaches on the flourishing of the convicted spouse since it aims at protecting the family.

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70 c. Impeding reconciliation and forgiveness between spouses

Another argument advanced by Mugisha Richard in petitioning the Court to repeal Article 136 providing for the offence of adultery, Article 138 providing for the offence of concubinage, and Article 139 providing for the offence of desertion of the marital home, is that such provisions impede reconciliation and forgiveness between spouses.

Article 136 of Law no 68/2018 of 30/08/2018 determining offences and penalties in general provides that the prosecution of the crimes mentioned in the preceding paragraph can only be initiated upon complaint of the offended spouse. Article 140 makes the same provision for concubinage and desertion of the marital home. It is the finding of this Court that, given that the prosecution of these three offences is inevitably preceded by the filing of a claim by an offended spouse, the law does not deprive the spouses of any wished-for time of reconciliation and forgiveness; thus resulting in no lieu of prosecution.

Aside from the fact that such offences are prosecuted only under the prior initiation of the complaint by the offended spouse, the law also allows the offended spouse to request the termination of the proceedings at any stage if he/she withdraws the complaint. This shows that the resort for reconciliation and forgiveness between spouses is broad, given that, in the event they fail to reconcile before the commencement of the prosecution, they are still allowed to do so during court hearings. The fact that the case could to proceed until conviction of the offending spouse implies that the parties were unable to reconcile because of other different reasons but the law did not prevent them of such resort.

For most crimes, the victim normally has no prerogative to initiate the prosecution or terminate it at any stage of procedure. Moreover, reconciliation and forgiveness between the offender and the victim does not halt the prosecution of the crime, for instance, a victim of rape or child sexual abuse. . It is therefore in the finding of the Court that the provisions of the law on the crime of adultery, concubinage and desertion of the marital home do not contradict the objective of forgiveness in the family. Nevertheless, the Court notes that some paragraphs of Articles 136, 138 and 139do impede reconciliation and forgiveness between spouses. It is again in the finding of this court that, regarding the prosecution of the crimes of adultery,

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71 concubinage and desertion of the marital home, there are two different paragraphs likely to contradict each other.

As stressed by Articles 136 and 140 of Law no 68/2018 of 30/08/2018 determining offences and penalties in general, prosecution of the crimes of adultery, concubinage and desertion of the marital home can only be initiated upon complaint by the offended spouse. The same Articles give the offended spouse authority to terminate the proceedings at any stage of procedure if he or she retracts and withdraws the complaint. However, if the matter has already been brought before the court, or if a decision in the matter has been made, the offended spouse no longer has the prerogative to terminate the proceedings.

According to Article 136, paragraph 4, of Law no 68/2018 of 30/08/2018 determining offences and penalties in general, if the matter has already been brought before the court, or if a decision thereon has been made, retraction does not stop the consideration of the case or the execution of the judgement. The judge considers the case after which he or she can accept or refuse such a retraction with motivation. Similar reading is made in the last paragraph of Article 140, concerning the prosecution of the crimes of concubinage and desertion of the marital home. Such two paragraphs manifestly clarify that the judge may reject the request of termination of the proceedings by the offended spouse.

The first paragraphs of both Articles 136 and 140 give the offended spouse who wishes to terminate the proceedings the prerogative to do so, but the second paragraphs shift this discretion to the judge who may reject the termination. This Court therefore finds that the second paragraph encroaches on the right of the offended spouse wishing to terminate the proceedings for reasons of his or her own. Thus, paragraphs 4 and 5 of Article 136 of Law no 68/2018 of 30/08/2018 determining offences and penalties in general serve no purpose and should be repealed, because the offended spouse being given the authority to terminate the proceedings, he or she should exercise this right freely without any hindrance. With regard to the provisions about the termination of the proceedings or the execution of the judgement affecting the co-offender, they should be incorporated in paragraph 3 of the same Article in order to avoid the lacunae in the law.

For the reasons expounded herein, it is in the finding of the Supreme Court that Articles 136, 138 and 139 of Law no 68/2018 of 30/08/2018 Re MUGISHA (2)

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72 determining offences and penalties in general are not contrary to Article 18 of the Constitution of the Republic. They envisage adultery, concubinage and desertion of the marital home as crimes punishable by imprisonment, but they neither threaten the flourishment of the family nor lead to its break up. Furthermore, except the provisions of paragraphs 4 and 5 of Article 136, the prosecution modalities of such crimes do not impede reconciliation and forgiveness between the spouses. The Court finds that these Articles implement the state mandate of protecting the family. B. Whether Article 154 of Law determining offences and penalties in general, providing for the crime of public defamation of religious rituals, contravenes Article 38 of the Constitution on the freedom of press, of expression and of access to information

Mugisha Richard states that Article 154 provides that any person who publicly defames religious rituals, symbols and religious cult objects by use of actions, words, signs, writings, gestures or threats, whether carried out at the place where rituals are intended to be performed or where they are normally performed, commits an offence. Thus, the provisions of this Article are not explicit enough such that they may misapplied for theprosecution of the suspect of such an act, which encroaches on the freedom of press and of expression.

Counsel Nkundabarashi Moïse and Counsel Kabasinga Florida representing Mugisha Richard argue that Article 154 is likely to infringe on the press’s freedom of expression with regard to religions and their functioning, as, for fear of prosecution under this law, journalists will fear to criticize religions.

State Attorney Kabibi Specioza contends that, even if some of the provisions of Article 154 are ambiguous, this does not constitute ground to repeal the entire law or article. Rather, it should be interpreted, and that the crimes featured in this article do not concern journalists only, since the law points out: “Any person...”.

Counsel Musore Gakunzi Valery representing Rwanda Journalists Association (ARJ) argues that Article 154 disregards the people’s freedom of religion to the degree that its provisions may discourage people from airing their views on the beliefs of others. He presents to the Court two schools of

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73 thought: first, freedom of expression constitutes the backbone of democracy and should be fostered; and second, freedom of religion should be protected in an exceptional way, even from freedom of expression.

He proceeds to clarify that defamation of religious rituals targets the religion itself and its dogmas, but is distinct from defaming a religious leader him or herself. Thus, since rights and freedoms are entitled to a person and not to a religion per se, there is no need to criminalize public defamation of religious rituals as long as the freedom of expression is exercised in accordance with the law. He argues that enacting criminal laws against a journalist for his/her publications or constructive opinions would amount to interference with the functioning of the press in general and it is contrary to Article 38 of the Constitution. If a person or an organization with legal personnality believes that it has been defamed by the press or a journalist, they can initiate a civil claim damages.

Bikesha Denis, Ruvebana Etienne and Sezirahiga Yves representing University of Rwanda-School of Law, argue that Article 154 is ambiguous since it does not define what religion really is, nor does it define where religious rituals are designated to be performed or where they are normally observed. This suggests that people would face injustice in the event such Article is left unchanged, as there should a clear definition of religion and its rituals. If the constituent elements of a crime are vague, the principle of legal certainty holds that the act must be treated as not a crime, for no one shall be held guilty of any criminal offence on account of any act or omission which is not clearly defined by law as a crime.

Article 38 of the Constitution states that “Freedom of press, of expression and of access to information are recognized and guaranteed by the State. Freedom of expression and freedom of access to information shall not prejudice public order, good morals, the protection of the youth and children, the right of every citizen to honour and dignity and protection of personal and family privacy. Conditions for exercising and respect for these freedoms are determined by law.”

Article 154 of Law no 68/2018 of 30/08/2018 determining offences and penalties in general states that “Any person who publicly defames religious rituals, symbols and religious cult objects by use of actions, words, signs, writings, gestures or threats, whether carried out at the place where Re MUGISHA (2)

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74 rituals are intended to be performed or where they are normally performed, commits an offence. Upon conviction, he/she is liable to imprisonment for a term of not less than fifteen (15) days but less than three (3) months and a fine of not less than one hundred thousand Rwandan francs (100,000 Frw) and not more than two hundred thousand Rwandan francs (2,000,000 Frw) or only one of the penalties.”

Article 38 of the Constitution establishes the principle that the freedom of press, of expression and of access to information are recognized and guaranteed by the State. It also lays down another principle according to which there are some essential values that shall not be prejudiced by these freedoms. A clear definition of the freedom of press, of expression and of access to information is found in Article 19 of the Universal Declaration of Human Rights of 1948 providing that “This right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”4 It implies tahat the freedom of expression encompasses the freedom of opinion without interference, and the right to seek, access and impart information without restrictions. The same sentiment is expressed in Article 19 of the International Covenant on Civil and Political Rights (ICCPR),5 given that freedom of press, of expression and of access to information are recognized by the Constitution, and anything that prejudices these freedoms including laws is therefore contrary to the Constitution.

, a person may express his or her opinion about religious rituals, symbols and religious cult objects while exercising the foregoing freedoms. In addition, a person has the right to seek, receive and impart information and opinions in the public about religious rituals, symbols and religious cult objects and may criticize them without fear, even to the displeasure of those in power, as long as he or she does not act beyond the prohibitions under article 38 of the Constitution.

Article 154 of Law no 68/2018 of 30/08/2018 determining offences and penalties in general punishes the act of public defamation of religious

4 Rwanda ratified and adopted it on 18/09/1962 5 International Covenant on Civil and Political Rights, (ICCPR), entry into force on 23/03/1976. And Rwanda adopted it on 12/02/1975 (see the decree law No 8/75 of 12/02/1975, official gazette n° 5 of 01/03/1975

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75 rituals, symbols and religious cult objects. It also states that defamation may be in the form of actions, words, signs, writings or gestures. Based on the foregoing, the Court notes that this Article prejudices the right to seek, receive and impart information and opinions in the public concerning religious rituals, symbols and religious cult objects, because any person wishing to criticize any religion would fear to be prosecuted for defamation. As recalled, the freedom of press, of expression and of access to information are recognized by the Constitution and should not be prejudiced by any situation.

The freedom of press, of expression and of access to information regarding religious rituals, symbols and religious cult objects should not be impeded by the prosecution of any person who would like to comment on a religion. The importance of the freedom to criticize religion was articulated by the UN Human Rights Committee that stated in 2011 that it is not appropriate for any country to prohibit religious dissent or prosecute those who criticize religious leaders or beliefs of the religion.

The UN committee expressed its concern in as follows: “Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant. Such prohibitions must also comply with the strict requirements of article 19, paragraph 3, as well as such articles as 2, 5, 17, 18 and 26. Thus, for instance, it would be impermissible for any such laws to discriminate in favour of or against one or certain religions or belief systems, or their adherents over another, or religious believers over non-believers. Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith”. 6

In 2007, in order to preserve the freedom of press and of access to information, the Parliamentary Assembly of the Council of Europe adopted a resolution requesting the decriminalization of blasphemy in the domestic laws of the member states. The resolution reads: “The Assembly recommends that

6 UN Human Rights Committee, General Comment 34 on the International Covenant on Civil and Political Rights, concerning freedoms of opinion and expression. Paragraph 48. July 2011. Re MUGISHA (2)

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76 the Committee of Ministers ensure that national law and practice are reviewed in order to decriminalize blasphemy as an insult to a religion […]”7

Many member states of that organization have hitherto repealed from their laws the provision criminalising blasphemy.8 Numerous countries from other continents have done so as well. For instance, in North America, Canada officially repealed its blasphemy provision in December 2018, whereas in the United States of America, it has never been criminalized at all. In the view of this Court, Rwanda can and should follow the example of other countries by repealing the articles penalizing blasphemy in order to protect the freedom of expression, of the press and access to information. Criminalizing blasphemy constitutes a tool used by governments wishing to protect their state religion. But Rwanda, as provided in Article 4 of the Constitution of the Republic, is a secular state.9

It is not appropriate for the State to enact laws penalizing those who publicly defame religious rituals as it would not be in the public interest but only in the interest of a particular religion. Anyone offended by another person’s speech or expression on his or her religion should file a civil case on the matter. As was articulated in the case of Joseph Burstyn, Inc. v. Wilson decided by the Supreme Court of the United States of America, it is not for the government to protect religious beliefs from any attack, whether through publications, speeches or motion pictures. The court in Burstyn expressed its stance on this matter as such: “It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious’ doctrine, whether they appear in publications, speeches or motion pictures.”10

In light of the arguments expounded above, the Supreme Court deems that Article 154 of the law determining offences and penalties in general defining public defamation of religious rituals as a crime, is inconsistent with

7 Recommendation 1805 (2007) of the Parliamentary Assembly of the Council of Europe 8 Sweden in 1970, Norway in 2015, Netherlands in 2014, Iceland in 2015, Malta in 2016, and others. 9 That Article states: “Rwandan State is an independent, sovereign, democratic, social and secular Republic […]” 10 U.S. Supreme Court, Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952)

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77 Article 38 of the Constitution, since it prejudices the freedom of press, of expression and of access to information. C. Whether Article 233 of Law no68/2018 of 30/08/2018 determining offences and penalties in general is contrary to Articles 15 and 38 of the Constitution of the Republic of Rwanda

Mugisha Richard contends that Article 233 is contrary to Articles 15 and 38 of the Constitution because it discriminates people with respect to subjects it is meant to protect, and because it prejudices the freedom of press, of expression and of access to information. He further contends that, while he does not approve defamation or humiliation of anybody, his prayer to the Court is the decriminalize such acts, as there are other appropriate legal remedies for the victims of defamation or insults provided in the media law whereby the offended party may initiate a civil claim for damages.

Counsel Nkundabarashi Moïse and Counsel Kabasinga Florida, representing MUGISHA Richard, point out that there are multiple international conventions ratified by Rwanda that provide that all people have the right to express their views whatever they may be, as long as they do not prejudice the good reputations of others. While they concede that these international instruments provide limits on the freedom of expression in the service of other rights, they maintain that Article 233 has nothing to do with protecting these rights; rather, it generally prohibits both the press and the citizens from criticizing the leaders mentioned in the law.

State Attorney Kabibi Specioza retorts that the provisions of Article 233 do not prejudice the freedom and the rights of journalists, given that their freedoms are limited by respect for the freedom and the rights of fellow Rwandan. She contends that Article 15 of the Constitution of the Republic advances two relevant points, notably equality before the law and equal protection of the law, both of which imply that all people should be treated equally whenever they are in the same circumstances. By this reasoning, it is not the case that people are protected unequally, as the protection attaches not to a group of people per se, but to a certain set of offices. If a national leader or other covered person vacates his or her office, the legal protection passes on to his or her successor. Re MUGISHA (2)

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She clarifies that the unequal treatment of people based on the categories to which they belong does not entail violation of the principle of equality before the law. On the contrary, there would arise an issue in the event people belonging to the same category receive unequal treatment or protection. Thus, the fact that there are different categories of people or staff, there should also be different laws governing those categories, the organization for every category.

Counsel Musore Gakunzi Valery representing Rwanda Journalists Association (ARJ) argues that the media law already contains provisions determining modalities of exercise of rights and the monitoring of journalists, to ensure the protection of human dignity, and consequently, a defaulting journalist faces justice in civil court.

Advocate Musore Gakunzi Valery proceeds by arguing that Article 233 violates the freedom of press and of expression as it criminalizes the act of publishing information on the poor performance of leaders or public servants. A public servant should not fear to have information on their activities published if they are really innocent of wrongdoing. Moreover, there is no way to combat the mismanagement of government property without publishing legally procured information on the officials’ actions, even if it is detrimental to the officials whose information is published. He argues that Article 233 protects public servants and other people in charge of public services even when they manifest misconduct. At such time these officials should not be protected from any comment or criticism.

Next, Advocate Musore Gakunzi Valery addresses the issue of cartoons. He contends that drawing someone in cartoons is not itself injurious, that it is ordinarily done in the public interest, and that if anyone feels defamed, he or she should lodge a complaint seeking civil damages in the court. Imprisoning a person on grounds of defamation does not restore a victim’s dignity, and granting appropriate civil damages is better suited to the goal of making the victim whole.

Bikesha Denis, Ruvebana Etienne and Sezirahiga Yves further contend that Article 233 does not distinguish between the time at which one of the members featured in that article is “exercising his/her mandate” and when the exercise is solely “in connection with the performance of his/her duties”, nor does it elucidate whether the persons protected by this Article

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79 include all public servants. It also does not define what defamation really means. For these reasons, they argue that this article is contrary to the principle of legal certainty.

The attorneys proceed to contend that Article 233 is ambiguous on the grounds that among the people it protects, there is the category of “any other person in charge of a public service”. However, determining who is considered “any other person in charge of a public service” is problematic, given that not all public services are provided by public servants, since there are some private persons who provide services that are important to the general public. Furthermore, the law refers to a person “when exercising his/her mandate,” but what is the extent of such exercise? Would a public servant be protected if humiliated while en route to their workplace during a long commute? Would travelling to the workplace be in exercise of official duties, and thus within the ambit of what is penalized by the law? They further contend that the act of humiliation is itself difficult to define since it is subjectively determined and depends on the victim’s own perception of what is humiliating. Since this Article is ambiguous, yet laws should in principle be certain, the Article is fundamentally flawed and interferes with the freedom of expression.

They next contend that this Article is flawed in that it intends to protect one group of people—the public servants—and this is contrary to the principles of equal protection and equality before the law. According to their interpretation of the Article, public servants are hereby protected in the exercise of their mandate, but similar employees from private institutions are left out. They contend that the Article’s explicit mention of leaders, security officers and “any other person in charge of a public service”, insinuates that if any other person not featured in the article (for instance, a private entrepreneur) is defamed, the defamation shall not constitute a crime. This, they maintain, is contrary to the principle of equality before the law; the Article discriminates among groups of people based on their duties.

DETERMINATION OF THE COURT a). Whether Article 233 violates equal protection

Article 15 of the Constitution of the Republic states: “All persons are equal before the law. They are entitled to equal protection of the law.” Re MUGISHA (2)

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Article 233 of Law No 68/2018 of 30/08/2018 determining offences and penalties in general states: “Any person who, verbally, by gestures or threats, in writings or cartoons, humiliates a member of Parliament when exercising his/her mandate, a member of the Cabinet, security officers or any other person in charge of a public service in the performance or in connection with the performance of his/her duties, commits an offence […]”

Mugisha Richard asks the Court to repeal Article 233 on the grounds that it treats people unequally under the law by protecting only one category of people–public servants–and thus is contrary to Article 15 of the Constitution of the Republic of Rwanda. He is also of the view that Article 233 is contrary to Article 38 of the Constitution since it violates the freedom of press, of expression and of access to information.

The title of Article 233 is: “Humiliation of national authorities and persons in charge of public service". As made clear by this title, the Article’s intent is to punish persons who humiliate those in the category of national leaders and persons in charge of public service. However, the Article is silent on the humiliation of persons outside these categories. This connotes that any person who does not fall in the specified categories cannot be protected through the procedures laid down in the penal laws if they are humiliated, since under Rwanda law, humiliation is a crime only when the offended is a national authority or a person in charge of public service.

The scope of Article 233 is manifestly based on a category of people and the duties they perform. The Court believes that there is no justification for the enactment of a provision of this kind which criminalizes an act when committed against a certain category of people exercising certain duties, and permits the same act to be committed against others. Such a difference is unjustified, especially since there are people outside the group mentioned in Article 233, be they in the private sector or non-governmental organizations, whose positions might also make them targets of humiliation to the prejudice of their dignity. Yet, in such cases the offender would not be prosecuted under this law.

Laws that differentiate between groups of people are not discriminatory per se. Distinctions can be reasonably made to defend persons in a vulnerable category. That is the reason why many laws specifically protect

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81 women and children.11 Where such a distinction is drawn, the legitimate objective should be manifestly clear to everybody, and the method used to achieve the legitimate objective should be proportionate to its end.

The State Attorney argues that the meaning of Article 15 of the Constitution of the Republic of Rwanda is that people should be treated equally when they are in the same circumstances, but if they are not, there are reasons they might justly be treated unequally. True as this reasoning is, with regard to this case, no reasonable and indispensable argument has been tendered to justify the special protection of the categories of public servants in question. State Attorney KABIBI Speçiose argues that the national leaders and other public servants mentioned in Article 233 are exceptional persons such as vulnerable persons protected by other laws, but she does not demonstrate to the Court how they are vulnerable.

Another issue, raised by amicus curiae, the University of Rwanda School of Law, is that Article 233 does not sufficiently indicate who is protected by it, whether it refers to all public servants, or only the national leadership. The Article speaks of a member of Parliament, a member of the Cabinet, security officers or “any other person in charge of a public service”. It could be said that this protection covers all public servants against humiliation, a large group with no exceptionality to justify its special protection beyond that of others who do not work for the state. Furthermore, it is not clear in the law what it means to humiliate a person “in the exercise of his/her duty or in connection with the performance of his/her duties”. This may confuse people who might not know when they risk committing such a crime. Such laws are contrary to the principle of legal certainty. This is well expounded by the legal scholar Tridimas, who wrote “the principle of legal certainty and legitimate expectation provides an important assertion of the rule of law that those subject to the law must know what the law is so as to plan their action accordingly".12

11 Take the examples of Law N° 54/2011 Of 14/12/2011, Relating to The Rights and The Protection of the Child, and Article 10 part 4 of the Constitution of the Republic, which provides for “women occupying at least thirty percent (30%) of positions in decision-making organs.” 12 T. Tridimas, The General Principles of EC Law (OUP, 2nd ed., 206). Re MUGISHA (2)

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Upon considering the arguments tendered by the parties, the Court finds that Article 233 of Law No 68/2018 of 30/08/2018 determining offences and penalties in general is contrary to Article 15 of the Constitution of the Republic of Rwanda, which provides that all persons are equal before the law and are entitled to equal protection of the law. As elucidated above, Article 233 treats people differently and does not protect them equally. b) Whether Article 233 unjustly limits the freedom of press, of expression and of access to information

Article 38 of the Constitution of the Republic of Rwanda provides that “[f]reedom of press, of expression and of access to information are recognized and guaranteed by the State”. Article 233 of the of Law No 68/2018 of 30/08/2018 determining offences and penalties in general provides that any person who, “verbally, by gestures or threats, or in writings or cartoons”, humiliates a national leader or other person in charge of a public service, commits an offence.

Article 19 of the Universal Declaration of Human Rights13 defines freedom of expression and access to information in the following words: “[e]veryone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."

These rights are also provided in Article 19 of the International Covenant on Civil and Political Rights (ICCPR)14, in the following words: Everyone shall have the right to hold opinions without interference. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. The exercise of the rights provided for in paragraph 2 of this Article carries with it special duties and responsibilities. It may therefore be

13 Rwanda ratified this agreement on 18/09/1963. 14 International Covenant on Civil and Political Rights (ICCPR).

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83 subject to certain restrictions, but these shall only be such as are provided by law and are necessary: a) For respect of the rights or reputations of others; b) For the protection of national security or of public order (ordre public), or of public health or morals.

As stipulated in Article 19 of the international convention mentioned in the preceding paragraphs, all people have the right to express their opinions without interference or fear. Freedom of expression encompasses seeking and receiving information and expressing one’s opinions without interference, whether orally, in writing, or through any other medium of one’s choice. The International Covenant on Civil and Political Rights (ICCPR) stresses that these rights are restricted by the respect for the rights and reputations of others and by the exigencies of national security, public order (ordre public), and public health or morals.

This Court finds that the Article penalizing humiliation, either verbally, by gestures or threats, or in writings or cartoons, violates constitutionally protected freedoms, since someone may fear that if he or she expresses his or her opinion by publishing an article criticizing a member of Parliament, a member of the Cabinet, security officers or any other person in charge of a public service, he or she risks prosecution if the criticised leader is not pleased with the opinion or information. Freedom of press, of expression and of access to information about the activities of national leaders and any other person covered by Article 233 should not in any circumstance be prejudiced by the fear that an opinion critical of a leader shall be construed as humiliation.

Freedom of expression, and the freedom to impart information on the activities of national leaders, underscores the democratic principle of transparency and accountability by the leaders who serve the people. This was the sentiment expressed by the U.N. Human Rights Committee when it wrote: “freedom of expression is a necessary condition for the realization of the Re MUGISHA (2)

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84 principles of transparency and accountability that are, in turn, essential for the promotion and protection of human rights.”15

Article 4 of the Constitution of the Republic of Rwanda states: “The Rwandan State is an independent, sovereign, democratic, social and secular Republic.” The same Article proceeds: “The founding principle of the Republic of Rwanda is ‘Government of Rwandans, by Rwandans and for Rwandans’”. Freedom of expression is one of the principles of any democratic state and should not be restricted for certain people. A similar view was expressed by the European Court of Human Rights in the case Handyside v. United Kingdom in the following words: “Freedom of expression constitutes one of the essential foundations of such [democratic] society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 (art. 10-2), it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’”.16 This suggests that opinions or information need not gratify those in power to merit protection. On the contrary, ideas of those critical of both the administration and some of the citizens should be allowed to be brought to light. When there are no diverse opinions, tolerance, “thinking big”, and even democracy become unrealistic. That is the reason that the Article penalizing humiliation of national leaders and person in charge of a public service should be understood to violate the principle of freedom of expression in a democratic country.

Freedom of expression and the freedom to seek and impart information should be exercised without threats or harassment. The U.N. Human Rights Committee has adopted the position that “intimidation or stigmatization of a person, including arrest, detention, trial or imprisonment for reasons of the opinions they may hold, constitutes a violation of Article

15 United Nations (“UN”) Human Rights Committee, General Comment No. 34, Article 19: Freedoms of opinion and expression, CCPR/C/GC/34 (12 September 2011) (“General Comment No. 34”), par. 3. 16 European Court of Human Rights, Handyside v. United Kingdom, Judgement of 7 Dec. 1976, Series A no.

24.

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85 19”.17 Therefore, the Court finds that the fact that Article 233 provides for the imprisonment of anyone who humiliates national leaders, security officers and persons in charge of a public service would hamper people from expressing their views freely; therefore, the Article violates the right to critically examine and disseminate information on the conduct of those leaders.

The Court further finds that Article 233 of the Law No 68/2018 of 30/08/2018 determining offences and penalties in general, which provides that “[a]ny person who, verbally, by gestures or threats, in writings or cartoons, humiliates national authorities and persons in charge of public service mentioned in this Article”, is contrary to Article 38 of the Constitution of the Republic of Rwanda. This Article states: “Freedom of press, of expression and of access to information are recognized and guaranteed by the State.” As expounded above, Article 233 impedes people from exercising those freedoms, since people may fear that if they criticize or publish any information about the people protected under Article 233, they will be prosecuted for humiliating national leaders and persons in charge of public service. c) Whether Article 236 of the of Law No68/2018 of 30/08/2018 determining offences and penalties in general is contrary to Articles 15 and 38 of the Constitution of the Republic of Rwanda

Richard Mugisha avers that Article 236 which provides that any person who insults or defames the President of the Republic, commits an offence, may be used as a pretext for interfering with the freedom of press, considering that the crime of defamation is itself unclear. He further argues that Article 236 is contrary to Article 15 of the Constitution since it does not protect people equally because it punishes only those who insult or defame one particular person.

State Attorney Kabibi Speçiose’s position is that Article 236 does not cover the crimes likely to be committed by journalists only, but rather by all people, and that it is nowhere provided in the Article that it specifically concerns journalists. She contends that the freedom of press is limited by the honour and security of the leader. Besides, Article 236 does not prevent the

17 Communication No. 414/1990, Mika Miha v. Equatorial Guinea, Views adopted on 8 July 1994. Re MUGISHA (2)

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86 press from publishing anything on the President of the Republic; rather, it prohibits only insulting or defaming him or her.

Counsel Musore Gakunzi Valery, representing the Rwanda Journalists Association (ARJ) concedes that given the nature of his or her responsibilities, the President of the Republic should exhibit the highest level of integrity. Nonetheless, publication of information on him/her should not be criminalized, so as to uphold the principle of accountability. Accordingly, the fact that the crime of defamation was repealed from the penal code, it should not be maintained only in respect to the President of the Republic, especially that article 161 punishes whoever insults another person. Therefore, alleging that any criticizing article by a journalist about the President of the Republic is synonymous with defamation, would imply that no one is allowed to publish anything about the President of the Republic.

Bikesha Denis, Ruvebana Etienne and Sezirahiga Yves argue that Article 161 punishes the crime of insult only when committed in public whereas Article 236 punishes insults or defamation against the President of the Republic wherever they may occur, implying that one of two individuals in private place may falsely accuse him or her and that person may be prosecuted for the same.

They proceed to contend that Article 236 concerning defamation against the President of the Republic, an offence crime that was repealed from the penal code with respect to other people on the grounds that it was ambiguous, and the same grounds should be applied in repealing the crime of defamation against the President of the Republic so as to uphold the freedom of expression and of press. They argue that Article 236 is inconsistent with the principle set out in Article 15 of the Constitution of the Republic, which states that “[a]ll persons are equal before the law, and they are entitled to equal protection of the law”,

DETERMINATION OF THE COURT

Article 15 of the Constitution of the Republic of Rwanda states: “All persons are equal before the law. They are entitled to equal protection of the law.” Article 38 of the same law states: “Freedom of press, of expression and of access to information are recognized and guaranteed by the State. Freedom

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87 of expression and freedom of access to information shall not prejudice public order, good morals, the protection of the youth and children, the right of every citizen to honour and dignity and protection of personal and family privacy. Conditions for exercising and respect for these freedoms are determined by law.”

Article 236 of Law no 68/2018 of 30/08/2018 determining offences and penalties in general states: “Any person who insults or defames the President of the Republic, commits an offence. Upon conviction, he/she is liable to a term [of] imprisonment of not less than five (5) years and not more than seven (7) years and a fine of more than five million (Frw 5,000,000) Rwandan francs and not more than seven million (Frw 7,000,000) Rwandan francs.” a. Whether Article 236 violates equal protection

Article 236 provides that insulting or defaming the President of the Republic is a crime punishable by imprisonment up to five (5) years and a fine of up to seven million Rwandan francs (FRW 7,000,000). Much as this Article penalizes a person who insults the President of the Republic, there is another provision of Law No 68/2018 of 30/08/2018 which penalizes public insult of any person.

Article 161 of Law no 68/2018 of 30/08/2018 states: “Any person who publicly insults another person, commits an offence. Upon conviction, he/she is liable to imprisonment for a term of not less than fifteen (15) days and not more than two (2) months; a fine of not less than one hundred thousand Rwandan francs (100,000 Frw) and not more than two hundred thousand Rwandan francs (200,000 Frw); community service for a period of not more than fifteen (15) days or only one of these penalties. [….]”. Both Articles 161 and 236 envisage insulting as a crime. The Court is persuaded to believe that Mugisha Richard’s argument that Article 236 only protects the President of the Republic is immaterial, on the basis that, according to Article 161, any person who publicly insults another person commits an offence. Hence, insulting is a crime, regardless of who the victim is.

However, the Court finds that there is a disparity between the penalties imposed by the two Articles that criminalize insulting. He who publicly insults another person shall be liable to an imprisonment term of not Re MUGISHA (2)

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88 less than fifteen (15) days and not more than two (2) months; a fine of not less than one hundred thousand Rwandan francs (100,000 Frw) and not more than two hundred thousand Rwandan francs (200,000 Frw); whereas he who insults the President of the Republic shall be liable to a term of imprisonment of not less than five (5) years and not more than seven (7) years and a fine of more than five million (FRW 5,000,000) Rwandan francs and not more than seven million (7,000,000 Frw) Rwandan francs.

These foregoing penalties are clearly different. The penalty for the crime of insulting the President of the Republic is heavier compared to that for the crime of insulting other people. The Court cannot determine whether Article 236 should be repealed just because it provides for penalties different from those provided in Article 161, since such was not the subject matter of the case and thus it was not debated by the parties. Nonetheless, the Court is convinced that this difference in penalties should be narrowed so that the penalties for one who insults the president of the Republic is proportionate to the gravity of the crime. Therefore, the Court hereby requests the competent organs to attend to this matter.

Another difference between Article 236 and 161 is that Article 236 penalizes defamation against the President of the Republic. Defaming the President of the Republic, foreign heads of states or the representatives of foreign countries or international organizations while they are in Rwanda are the only acts of defamation penalized with criminal sanctions in Rwanda. Defamation against leaders other than those mentioned in this paragraph is not a crime; instead, a person who is defamed may file for civil damages. It is thus in the finding of the Court that, concerning the impugned Article 236, particularly the paragraph on the crime of defamation, a distinction is made between defaming the President of the Republic and any other person. The Court finds that this disparity is valid, as it is based on the unique position of the President of the Republic.

The Supreme Court held in the Uwinkindi case (No RS/INCONST/PEN0005/12/CS), which was decided on 22/02/2013, that legal distinctions between classes of people are not discriminatory when the differentiation intends to achieve a reasonable and legitimate goal and the rationale for the distinction serves the public interest. The Court recalls that a similar view was expressed by the U.N. Human Rights Committee in its resolution adopted at the Thirty-Seventh Session of the Human Rights

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89 Committee in the following words: “finally, the committee observes that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the covenant”.18 Following this reasoning, the Court shall examine whether there are grounds that may justify the criminalization of defamation against the President of the Republic while holding a different position with respect to other people.

The Constitution of the Republic of Rwanda grants the President of the Republic diverse responsibilities, chief among them being the following: - The President of the Republic is the Head of State. (Article 98); - The President of the Republic is the defender of the Constitution and the guarantor of national unity. (Article 98); - The President of the Republic ensures the continuity of the State, the independence and sovereignty of the country, and respect for international treaties. (Article 98); - Executive Power is vested in the President of the Republic and in the Cabinet. (Article 97); - The President of the Republic is the Commander-in-Chief of the Rwanda Defence Force. (Article 108); - The President of the Republic represents Rwanda in its foreign relations. He or she may also designate his or her representative. (Article 111); - The president also has a legislative role as he or she adopts laws and is vested with the authority to enact presidential decrees.

As the head of state, the President of the Republic ensures, preserves and represents the unity of the nation. Defaming the president would adversely affect this unity if people give credence to disparaging and untrue publications about him or her. Thus, any person who would like to publish anything about the President of the Republic should meticulously and diligently ensure the

18 Human Rights Committee, General Comment XVIII, Non-discrimination (1989), www.unhcr.org/refworld/type. Re MUGISHA (2)

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90 truth of any statements so as not to publish allegations that would mislead the public.

The procedures for election, removal from office, prosecution in case of he/she commits a crime and immunity of the President of the Republic as provided by the Constitution of the Republic are manifestly different from other national appointed or elected leaders. Considering all such procedures in addition to above-stated responsibilities. It is in the finding of this Court that the President of the Republic is so special that establishing special laws protecting or governing him or her is reasonable and material. Therefore, the Court deems the fact for Article 236 to envisages defamation as a crime when perpetrated against the President of the Republic and not against other persons, to be based on the uniqueness of the President’s responsibilities, and it is valid and material. b. Whether Article 236 violates the freedom of press, expression and access to information

As analyzed in the foregoing paragraphs whether punishing defamation of the national authorities and persons in charge of public service violates the freedom of press, expression and access to information; the rights to express, seek and impart information are important rights that should not be prejudiced unduly. such freedoms are provided in Article 19 of the International Covenant on Civil and Political Rights (ICCPR). In its General Comment Number 34 which expounds more on this topic, the Human Rights Committee (the Committee) requested that the state parties to the Convention decriminalize defamation, and declared that any sentence of imprisonment is not proportional to the crime: “States parties should consider the decriminalization of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty. It is impermissible for a State party to indict a person for criminal defamation but then not to proceed to trial expeditiously – such a practice has a chilling effect that may unduly restrict the exercise of freedom of expression of the person concerned and others.”19 The second part of this provision denotes that decriminalization of defamation

19 U.N. Human Rights Committee, General Comment 34, on the International Covenant on Civil and Political Rights, concerning freedoms of opinion and expression, Paragraph 47, July 2011.

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91 of the President of the Republic has not yet become an international principle. As requested by the U.N. Committee, laws criminalizing defamation should be abolished but while they are still in application, they should be applied diligently and only in serious cases.

The Court finds that there is a difference between defaming the President of the Republic and defaming other people. Even the effects of defamation on the two categories of people are different. When defamation is committed against other people, the offended can file for civil damages. The number and the gravity of presidential responsibilities attract many opinions and much coverage in the press while insulting or defaming the President of the Republic were not prosecuted as a crime, he or she would be forced to resort to civil procedures to obtain redress for every instance of defamation. The Court is of the stance that if the president were forced to divert attention from his or her heavy responsibilities and seeking justice, it would impede the president’s responsibilities and the respect due to his or her office.

The consideration of insulting or defaming the President of the Republic as a crime should be perceived as the protection of his or her responsibilities and the people he or she represents, rather than as the violation of the freedom of press, expression and access to information. For this reason, everyone should be diligent when sharing opinions and imparting information, without insulting defaming anyone, because as stated by Mugisha Richard, insulting and defaming any person, let alone the President of the Republic, is not appropriate. Nevertheless, prosecuting a person for insulting and defaming the President of the Republic should not be a hasty matter. It must be examined and determined with care that the matter is manifestly a serious case before the prosecution initiates a case to the Court. In case the accused is before the court, the prosecution should prove beyond reasonable doubt that all the constitutive elements of the crime are present, as is the case in other criminal cases.20

20This serves to remind us that the burden of proof in criminal cases is different from the one in civil ones. In criminal matters, the standard of the burden of proof is high, as there should be no reasonable doubt. In civil matters, by contrast, only a preponderance of the evidence is required, or what one may call” the balance of probabilities”. Re MUGISHA (2)

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Article 41 of the Constitution of the Republic states: “In exercising rights and freedoms, everyone is subject only to limitations provided for by the law aimed at ensuring recognition and respect of other people’s rights and freedoms, as well as public morals, public order and social welfare which generally characterize a democratic society.” According to this Article, in exercising his or her rights and freedoms, every person is restricted by the law intending to preserve a certain purpose like morals values and public order. The Court notes that the existence of an article that penalizes whoever defames the President of the Republic serves to protect the public order, given that the president represents the public.

The criminalization of insult or defamation of the President of the Republic is not exclusive to Rwanda. Various states that adhere to democratic principles have, in their laws, provisions that penalize whoever insults the nation’s head of state. These countries include, inter alia, Germany, Greece, Iceland, Italy, Netherlands, Portugal, Spain and Sweden. Nonetheless, in all these countries, as reported by the Organization for Security and Cooperation in Europe, both the minimum and maximum penalties for such an offense are less heavier than those provided in Article 236.21

Following the reasons expounded in the preceding paragraphs, the Court finds that, considering he uniqueness of the President’s responsibilities, the criminalization of defamation and insult against the President of the Republic does not in any way violate the freedom of press, expression and access to information. General Conclusion

In light of the findings above on each legal issue in this case, this Court finds that paragraphs 1 and 2 of Article 136 of Law no 68/2018 of 30/08/2018 determining offences and penalties in general are not contrary to Article 18 of the Constitution of the Republic of Rwanda. As expounded, penalizing adultery does not violate the flourishing of the family. Rather, the law intends to protect the family.

21 Organization for Security and Cooperation in Europe “Defamation and Insult Laws in the OSCE Region: A Comparative Study” March 2017.

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As elucidated above, the last two paragraphs of the same Article do not grant full discretion to the offended spouse to terminate the proceedings at any stage. The Court finds that such paragraphs should be repealed and the third paragraph should be amended as follows: “[….] The offended spouse may at any stage of the procedure request that the proceedings be terminated when he/she retracts and withdraws the complaint. Stopping the proceedings or the execution of the judgement carries effects on the co-offender."

The Court finds that Articles 138 and 139 of Law no 68/2018 of 30/08/2018 determining offences and penalties in general is not inconsistent with article 18 of the Constitution. As expounded, penalizing those crimes does not impede the flourishing of the family.

The Court finds that Article 154 of Law no 68/2018 of 30/08/2018 determining offences and penalties in general is contrary to Article 38 of the Constitution since it violates the freedom of press, expression and access to information.

The Court finds that Article 233 of Law no 68/2018 of 30/08/2018 determining offences and penalties in general is contrary to Articles 15 and 38 of the Constitution of the Republic of Rwanda and it does not equally protect the people, and it violates the freedom of press, expression and access to information.

The Court finds that Article 236 of Law no 68/2018 of 30/08/2018 determining offences and penalties in general is not contrary to Articles 15 and 38 of the Constitution of the Republic of Rwanda as alleged because of the unique presidential responsibilities that accord him or her the prerogative of being protected by the laws in an exclusive manner. Nonetheless, the penalties provided therein are heavier and should be addressed by competent organs. III. DECISION OF THE COURT

Finds admissible in part the petition initiated by MUGISHA Richard seeking to declare Articles 136, 138, 139, 154 and 233 of Law no 68/2018 of 30/08/2018 determining offences and penalties in general inconsistent with the Constitution of the Republic, especially its Articles 15, 18, and 38. . Re MUGISHA (2)

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Declares that paragraphs 1, 2 and 3 of Article 136 of Law no 68/2018 of 30/08/2018 determining offences and penalties in general are not contrary to Article 18 of the Constitution.

Declares that paragraph 3 of Article 136 is hereby reframed in the following manner: “The offended spouse may at any stage of the procedure request that the proceedings be terminated when he/she retracts and withdraws the complaint. Stopping the proceedings or the execution of the judgement carries effects on the co-offender.”

Declares that paragraphs 4 and 5 of Article 136 of Law no 68/2018 of 30/08/2018 determining offences and penalties in general are hereby repealed.

Declares that Articles 138 and 139 of Law no 68/2018 of 30/08/2018 determining offences and penalties in general are not contrary to Article 18 of the Constitution.

Declares that Article 154 of Law no 68/2018 of 30/08/2018 determining offences and penalties in general is contrary to Article 38 of the Constitution and thus hereby repealed.

Declares that Article 233 of Law no 68/2018 of 30/08/2018 determining offences and penalties in general is contrary to Articles 15 and 38 of the Constitution and thus hereby repealed. Declares that Article 236 of Law no 68/2018 of 30/08/2018 determining offences and penalties in general is not contrary to Articles 15 and 38 of the Constitution. Orders this judgment to be published in the official gazette of the Republic of Rwanda.

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Re. KABASINGA [Rwanda SUPREME COURT – RS/INCONST/SPEC 00003/2019/SC l – Vol [2020] 2 RLR – (Rugege, P.J., Nyirinkwaya, Cyanzayire Rukundakuvuga and Hitiyaremye, J.) December 04, 2019] Constitution – Due process of law – Due process of law consists of a series of requirements to be followed in the course of the proceedings based on procedural due process and fair justice that prevents the enactment of laws or other irrational measures that infringe on rights of the population (substantive due process) – The Constitution of the Republic of Rwanda of 2003 revised in 2015, article 29. Constitution – Fair trial – Mandatory sentencing – The mandatory sentencing is contrary to the principle of fair trial for the convict cannot appeal against the sentence for which the appellate judge cannot change since it is mandatory – In criminal cases, while sentencing the convict, the judge is obliged to take into account the circumstances surrounding the commission of the offence, , the offender’s prior record and personal situation, the society wherein the offence was committed and the victim. Constitution – Freedom and Independence of the judge – Mandatory sentencing – In exercising their judicial functions, judges at all times do it in accordance with the law and are independent of any power or authority – The judge is not independent, if during sentencing s/he is obligated to impose

a mandatory sentence which is not proportional to the gravity of the crime, the circumstances surrounding the commission of the offence and substantial mitigating circumstances that would have reduced his sentence in case there are any – The Constitution of the Republic of Rwanda of 2003 revised in 2015, article 151. Facts: Kabasinga Florida petitioned the Supreme Court seeking to declare unconstitutional article 133, paragraph five of the Law nº 68/2018 of 30/08/2018 determining offences and penalties in general which provides that: "[….] If child defilement is followed by cohabitation as husband and wife, the penalty is life imprisonment that cannot be mitigated by any circumstances. It is inconsistent with articles 29 and 151 of the Constitution of the Republic of Rwanda because it violates the right to a fair trial and undermines the independence of the judge in sentencing. 95

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Accordingly, in the event where there exists a provision of the law prohibiting the consideration of a mitigating circumstance, the defendant who would benefit the penalty reduction is deprived of the right to a fair trial because while sentencing, a Judge must take into account the mitigating circumstance if there is any as part of the right to fair justice provided for by the Constitution. She explains that the subsection of the foregoing article relating to child defilement followed by cohabitation as husband and wife poses a problem because the penalty of life imprisonment that cannot be mitigated affects some offenders considering the circumstances surrounding the commission of the offence, and as a result, some are subjected to severe punishment than others while it should not be the case. Regarding the issue that the impugned article contradicts the provisions of article 151(5º) of the Constitution which provides that in exercising their judicial functions, judges at all times do it in accordance with the law and are independent of any power or authority, she states that when the legislature enacts a law which does not give the judge the independence and liberty to exercise reasonable judgment, it precludes him or her from exercising the right to a fair trial provided for in Article 29 of the Constitution. Therefore, they pray that article 133, paragraph five of the

Penal Code prohibiting a judge from considering on mitigating circumstances to render fair justice, be repealed on ground that it violates the independence of the judge in his work, as he/she is only required to give a life sentence which is contrary to article 151 of the Constitution. The Government of Rwanda argues that article 133 of Law nº 68/2018 of 30/08/2018 determining offences and penalties in general does not violate the Constitution, it does not violate the right to a fair trial and it does not prejudice the independence of the judge because nothing indicates that people are deprived of the right to fair justice, that the allegations of the petitioner are emotionally driven. It further argues that article 29 of the Constitution lays down a person's rights which must be respected to enjoy fair justice, but the petitioner does not demonstrate how the provisions of the impugned article violate any of those rights. With respect to the fact that the foregoing article is contrary to article 151 of the Constitution, the Government states that no State organ violated the judge ‘s freedom and independence for in executing his duties he/she abides by the existent law, therefore it finds that the foregoing article is not inconsistent with article 151 of the Constitution.

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Held: 1. Due process of law consists of a series of requirements to be followed in the course of the proceedings based on procedural due process and fair justice that prevents the enactment of laws or other irrational measures that infringe on the rights of the population (substantive due process).

2. The mandatory sentencing is inconsistent with the principle of due process of law for the convict cannot appeal against the sentence for which the appellate judge cannot change since it is mandatory.

3. In criminal cases, while sentencing the convict, the judge is obliged to take into account the circumstances surrounding the commission of the offence, the offender’s prior record, the society wherein the offence was committed and on the victim. Therefore, the fact that a judge is unable to examine and consider the available mitigating circumstances, to reduce the sentence of the convict of child defilement followed by cohabitation as husband and wife, is inconsistent with the provisions of article 29 of the Constitution which provides that everyone has the right to a fair trial because the convict is given an un-proportional sentence.

4. In exercising their judicial functions, judges at all times do it in accordance with the law and are independent of any power or authority.

5. The judge is not independent, if during sentencing s/he is obligated to impose a mandatory and un-proportional sentence to the gravity of the offence, the circumstance surrounding its commission, and available mitigating circumstances that would have reduced his/her sentence. Therefore, article 133 of paragraph 5 of the Law nº 68/2018 of 30/08/2018 determining offences and penalties in general providing that: "[….] If child defilement is followed by cohabitation as husband and wife, the penalty is life imprisonment that cannot be mitigated by any circumstances”, and this is inconsistent with article 151 paragraph 5 of the Constitution which provides that in exercising their judicial functions, judges at all times do it in accordance with the law and are independent of any power or authority as they are forbidden to rely on mitigating circumstances to impose proportional sentence. Article 133, paragraph five of the Law nº 68/2018 of 30/08/2018 determining offences and penalties, in general, is inconsistent with article 29 and 151 of the Constitution of the Republic of Rwanda of 2003 revised in 2015. Re KABASINGA

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That paragraph is without effect as provided by article 3 of the Constitution of the Republic of Rwanda of 2003 revised in 2015. Statutes and statutory instruments referred to: The Constitution of the Republic of Rwanda of 2003 revised in 2015, articles 29 and 61; Law nº 68/2018 of 30/08/2018 determining offences and penalties in general, articles 49, 58, 60 and 151; Organic Law n° 01/2012/OL of 02/05/2012 establishing the penal code, article 78 (repealed); Law n° 09/2004 of 29/04/2004 relating to the code of ethics for the Judiciary, articles 4 and 5; International Covenant on Civil and Political Rights, (ICCPR), article 14. Cases referred to: RP00062/2019/TGI/HYE, Prosecution v. Barakagwira Gilbert, rendered by the Intermediate Court of Huye on 18/02/2019 RP00357/2018/TGI/NGOMA, Prosecution v. Barimenya Venant, rendered by the Intermediate Court of Ngoma on 14/06/2019 RP00499/2018/TGI/MUS, Prosecution v. Ntahorutaba Wellars, rendered by the Intermediate Court of Musanze, Cases from foreign courts: United States Supreme Court, Jurek v. Texas, 428 U.S. 262 (1976), July 2, 1976; United States Supreme Court, ROBERTS v. LOUISIANA (1977), No. 76- 5206, June 6, 1977; Supreme Court of the United States, Lockett v. Ohio, 438 U.S. 586 (1978); Supreme Court of Canada, R. v. Beauregard, [1987] LRC (Const.); Supreme Court of Canada, R v Smith, [1987] 1 S.C.R. 1045; South Africa: Supreme

Court of Appeal, S v Toms; S v Bruce (139/89, 289/89) [1990] ZASCA 38; 1990 (2) SA 802(A D); [1990] 2 All SA 248 (A) (30 March 1990); Supreme Court of the United States, Graham v. Florida, 560 U.S. 48 (2010); Supreme Court of India, Mithu v. State of Punjab [1983] 2 SCR 690. Authors cited: Dato’ Param Cumaraswamy ‘Mandatory Sentencing: the individual and Social Costs’ (2001) 7(2) Australian Journal of Human Rights at

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http://www.austlii.edu.au/au/other/ahric/ajhr/ajhrindex.html/2001/1 4.html#Heading140 The label of life imprisonment in Australia: A principled or Populist approach to an ultimate sentence. John L Andeson. P. 748 available at http://www.austlii.edu.au/au/journals/UNSWLJ/2012/30.html accessed on 27 November 2019 Definition of due process, available at; https://dictionary.findlaw.com/legal- terms/d.html accessed on 2nd December 2019 2 John N. Ferdico. Criminal Procedure for the Criminal Justice Professional. Thomson, wads worth 9th Edition, P.22 The label of life imprisonment in Australia: A principled or Populist approach to an ultimate sentence. John L Anderson. P. 748 available at http://www.austlii.edu.au/au/journals/UNSWLJ/2012/30.html accessed on 27 November 2019 Mandatory Sentencing & the Independence of the Judiciary, available at: https://www.ruleoflaw.org.au/wp- content/uploads/2015/11/MandatorySentencing.pdf visited on November 30, 2019 Judgment I. BACKGROUND OF THE CASE

Kabasinga Florida petitioned the Supreme Court seeking to declare article 133 paragraph5 of the Law nº68/2018 of 30/08/2018 determining offences and penalties in general unconstitutional because it is inconsistent with articles 29 and 151 of the Constitution of the Republic of Rwanda in so far as they violate the right to due process of law and the independence of the judge to determine penalties.

Article 133 paragraph5 of the Law nº68/2018 of 30/08/2018 mentioned above states that “[...] If child defilement is followed by cohabitation as husband and wife, the penalty is life imprisonment that cannot be mitigated by any circumstances. [...]”.

The Government of Rwanda submits that article 133 of the Law nº68/2018 of 30/08/2018 determining offences and penalties in general is not Re KABASINGA

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unconstitutional, and does violate neither the right to due process of law nor the independence of the judge.

The hearing was heard in public by the Supreme Court on 06/11/2019 whereby the petitioner was represented by Counsel Rwagitare Fred Fiston and Counsel Mugabonabandi Jean Maurice, whereas the Government of Rwanda was represented by Counsel Batsinda Aline. II. ANALYSIS OF LEGAL ISSUES Whether paragraph 5 of article 133 of the Law nº68/2018 of 30/08/2018 determining offences and penalties in general is inconsistent with article 29 of the Constitution of the Republic of Rwanda of 2003 revised in 2015

Kabasinga Florida and her counsels aver that article 133 of the Law nº68/2018 of 30/08/2018 determining offences and penalties in general contravenes article 29 of the Constitution of the Republic of Rwanda of 2003 revised in 2015 which provides that everyone has the right to due process of law. They further contend that the paragraph of article 133 which is inconsistent with the Constitution is the one providing that if child defilement is followed by cohabitation as husband and wife, the penalty is life imprisonment that cannot be mitigated by any circumstances.

The petitioner and her counsel submit that when the sentence is determined in consideration of the available mitigating circumstances, the due process of law guaranteed by the Constitution is respected. Thus, in case there is a provision that obstructs the examination of mitigating circumstances that would have led to a reduced sentence, the defendant is deprived of the right to due process of law. They further argue that the construct of article 133, specifically the paragraph concerning "child defilement followed by cohabitation as husband and wife..." is unconstitutional given that the penalty of life imprisonment cannot be reduced and thus detrimental to some, considering the circumstances surrounding the commission of the offence, and it leads to severe punishment against some offenders than others, which should not be the case.

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They give an example of a person above fifty years of age who may be convicted of defilement against a child aged between 14 and 18 years, such a person may be subjected to a reduced sentence of up to 25 years of imprisonment. Yet a person of 19 years of age convicted of defiling a seventeen years old child followed by a consented cohabitation as husband and wife is sentenced to a penalty of life imprisonment which cannot be mitigated. They find this inconsistent with article 29 of the Constitution of Rwanda, consequently, they pray that the impugned article 133 be repealed.

State Attorney Batsinda Aline representing the government of Rwanda argues that the provision of article 133 of the Law determining offences and penalties in general is not inconsistent with the Constitution because it does not obstruct the right to due process of law, and that the petitioner’s submissions are emotionally driven.

She further submits that article 29 of the Constitution of the Republic of Rwanda lays down the rights vested in a person, which must be respected so as to access due process of law, nevertheless, the petitioner does not prove how article 133 of the law determining offences and penalties in general violates some of those rights. She does not demonstrate whether the impugned article violates the rights provided under article 29 which are the right to be informed of the nature and cause of charges, the right to defense and legal representation, the right to be presumed innocent until proved guilty by a competent Court, the right to appear before a competent Court, the right not to be subjected to prosecution, arrest, detention or punishment on account of any act or omission which did not constitute an offence under national or international law at the time it was committed.

She concludes by submitting that the Legislator was attentive of the matters regarding the right to due process of law, thus, article 133 does not in any way contravene article 29 of the Constitution, rather, both articles are harmonious based on the provisions of paragraph 4 of article 29 where it is provided that offences and their penalties are determined by law. It is in her view that based on the petitioner’s arguments, she finds that the petitioner is confusing the social majority age with the legal majority age. She concludes by praying to this Court to declare article 133 consistent with article 29 of the Constitution. Re KABASINGA

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DETERMINATION OF THE COURT

Article 29 of the Constitution of the Republic of Rwanda states that “Everyone has the right to due process of law, […]”. The same article furthermore enumerates some elements of this right.

Article 29 of the Constitution provides some elements constituting the right to due process of law. According to the text of such article, it is obvious that not all elements were listed. The legislator used the term “includes”. This implies that apart from the elements listed in article 29, there are other elements constituting the right to due process of law.

The due process of law is defined in different ways, there is procedural due process: a course of formal proceedings (such as legal proceedings) carried out regularly and in accordance with established rules and principles1. There is also substantive due process: protection against the enactment of arbitrary and unreasonable legislation or other measures that would violate peoples ‘rights.2

The remaining issue is determining whether the matter regarding mitigating circumstances and appropriate sentencing constitute elements of the right to due process of law. As far as this issue is concerned, the court finds that in criminal matters, the right to due process of law starts with the investigation phase, proceeds to the prosecution phase, to the trial and sentencing for the offences provided by criminal laws. This implies that even the examination of the mitigating circumstances and sentencing belong to the trial phase, and they should also respect the principles that constitute the right to due process of law on those aspects.

Article 49 paragraph one of the Law nº68/2018 of 30/08/2018 determining offences and penalties in general provides the grounds upon which a judge bases to give a sentence. That article provides 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

1 Definition of due process, available at; https://dictionary.findlaw.com/legal- terms/d.html accessed on 2nd December 2019 2 John N. Ferdico. Criminal Procedure for the Criminal Justice Professional. Thomson, Wadsworth 9th Edition, P.22

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and the circumstances surrounding the commission of the offence. [...]”. The Court finds that the provisions of this article forms the ground upon which a judge determines a penalty, and acting contrary to it, tantamount to acting contrary to the right to due process of law in the determination of the penalty.

Article 133 of the Law nº 68/2018 provides for life imprisonment for a person convicted of child defilement if it was followed by cohabitation as husband and wife. That article does not allow mitigating circumstances. This contradicts the fact that a judge determines the penalty based on 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 as provided under article 49 mentioned in the preceding paragraph. Based on the article 133, paragraph 5 relating to a person convicted of the crime of child defilement followed by cohabitation as husband and wife, it is evident that the discretion of a judge over the convict of such a crime is limited only to declare the suspect guilty, while he/she has no discretion or powers to consider the factors for the determination of the penalty, since life imprisonment penalty provided by this article is mandatory. This is contrary to article 49 providing for the factors taken into account by a judge in determining a penalty.

The mandatory sentence is also contrary to the principle of fair trial provided under article 14 (5) of the International Covenant on Civil and Political Rights,3 (ICCPR), which states that "Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal and according to the law". Regarding the mandatory penalty provided for a given offence, a person convicted of such an offence cannot appeal against the imposed penalty since the appellate judge cannot change it given that it is mandatory. The same is emphasized by the United Nations Special Rapporteur on the Independence of the Judiciary where he stated that: …[…] the right of appeal contained in Article 14(5) : […] is negated when the trial judge imposes the prescribed minimum sentence since there is nothing in the sentencing process for an appellate court to review. Hence, legislation prescribing mandatory minimum sentences may be perceived as restricting the requirements of the fair trial principle and may not be supported under

3 International Covenant on Civil and Political Rights, (ICCPR), entry into force on 23/03/1976. Ratified by Rwanda on 12/02/1975 (See decree law No 8/75 of 12/02/1975, Official gazette n° 5 of 01/03/1975). Re KABASINGA

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international standards"4 . in a similar manner, a person convicted of the crime of child defilement followed by cohabitation as husband and wife benefits nothing from appealing against the penalty of life imprisonment given that such punishment is mandatory and as such it is inconsistent with article 14 (5) mentioned in this paragraph.

Article 49 paragraph 2 of this law provides for the possibility of the concurrence of both aggravating and mitigating circumstances in the same case and it goes further to demonstrate how such circumstances are considered in deciding a case in the following way: In the event of the concurrence of grounds for judgment, the judge must consider the following while imposing a penalty: 1º aggravating circumstances; 2º mitigating circumstances. The fact that the law allows a judge to consider both aggravating and mitigating circumstances at the same time, the Court finds that is an element that constitutes due process of law. The fact that the law construes cohabitation as husband and wife as an aggravating circumstance and forbids a judge to consider the available mitigating circumstances to reduce penalties, is inconsistent with the principle of the right to due process of law as far as sentencing is concerned.

The provisions of article 49 to the effect that a judge considers both aggravating and mitigating circumstances simultaneously is a principle acceptable even in other jurisdictions and any law which is inconsistent with it has to be repealed. A case in a point is the case of Jurek v. Texas that was tried by the Supreme Court of the United States of America based on other cases it had decided and it held that in sentencing, mitigating circumstances should be considered, and therefore any law providing otherwise contravenes the Constitution. The court held that: "But a sentencing system that allowed the jury to consider only aggravating circumstances would almost certainly fall short of providing the individualized sentencing determination that we today have held in Woodson v. North Carolina, [428 U.S.,] at 303-305, to be required by the Eighth and Fourteenth Amendments. For such a system would approach the mandatory laws that we today hold unconstitutional in Woodson and Roberts v. Louisiana [ 428 U.S. 325 (1976)]. A jury must be allowed to

4 Dato’ Param Cumaraswamy ‘Mandatory Sentencing: the individual and Social Costs’ (2001) 7(2) Australian Journal of Human Rights at http://www.austlii.edu.au/au/other/ahric/ajhr/ajhrindex.html/2001/14.html#Heading14 0.

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consider based on all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed. "Thus, in order to meet the requirement of the Eighth and Fourteenth Amendments, a capital-sentencing system must allow the sentencing authority to consider mitigating circumstances."5

Article 58 of the Law nº68/2018 of 30/08/2018 determining offences and penalties in general provides that: "the judge assesses whether mitigating circumstances decided by a judge are admissible. The reasons for the acceptance of mitigating circumstances must be stated in the judgment. Article 59 lays down some of the mitigating circumstances that may be considered by a judge. The provisions of these articles are based on the obligation vested in a judge in criminal matters of imposing a penalty based on the circumstances surrounding the commission of the crime, on the offender's prior record and personal situation, on the society against which the offence was perpetrated and the victim. Thus, they constitute the right to due process of law and any law or one of its articles providing otherwise is deemed inconsistent with the Constitution. As held by the Supreme Court of the United States of America in the case of Roberts v. Louisiana, that a judge should consider mitigating circumstances relevant to the offender or the offence, and any law hampering the consideration thereof, is construed contradictory to the Constitution. The court pronounced itself thus: "As we emphasized […], the capital sentencing decision must allow for consideration of whatever mitigating circumstances may be relevant to either the particular offender or the particular offense. Because the [Louisiana] statute does not allow for consideration of particularized mitigating factors, it is unconstitutional6”.

The Law nº68/2018 of 30/08/2018 determining offences and penalties in general qualifies different acts as child defilement if the victim is under eighteen (18) years of age. The penalty thereof ranges between twenty (20) to twenty-five years of imprisonment. If child defilement is followed by cohabitation as husband and wife, it is construed to be an aggravating circumstance, thus the penalty is life imprisonment that cannot be mitigated by any circumstances since the law prohibits such mitigation. On the contrary,

5 U 6 United States Supreme Court, Roberts v. Louisiana (1977), No. 76-5206, June 6, 1977.United States Supreme Court, Jurek v. Texas, 428 U.S. 262 (1976), July 2, 1976 6 United States Supreme Court, Roberts v. Louisiana (1977), No. 76-5206, June 6, 1977. Re KABASINGA

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the law does not consider child defilement that was done for a long period as an aggravating circumstance as long as it does not result in cohabitation as husband and wife, which is not conceivable.

In consideration of what could be considered as mitigating circumstances, the Court finds that there are reasonable grounds that may lead to a convict of child defilement followed by cohabitation as husband and wife to be given a lesser sentence than a person convicted of the same crime without cohabiting as husband and wife. It is inconceivable how a much older person convicted of forcefully defiling and damaging a child, maybe given a reduced sentence based on mitigating circumstances, yet a person of 19 years’ old who cohabited with a 17-year-old victim of the same offence as husband and wife upon their mutual consent, with a possibility of having children together, with the intent of establishing a family, is sentenced to life imprisonment that cannot be mitigated. Sometimes, some cohabit as the only convenient way to survive, like in the event where both or one of them is an orphan without any other support.

The foregoing is not just a possibility, rather, a reality in some decided cases for instance the judgment RP 00062/2019/TGI/HYE rendered on 18/02/2019 by the Intermediate Court of Huye, whereby the Prosecution accused Barakagwira Gilbert of 19 years of age of the offence of defiling and impregnating a child of 16 years’ old who mutually decided to cohabit as husband and wife. Nevertheless, the girl’s parents brought her back after one night. In that particular case, the accused pleaded guilty and revealed that he is in a relationship with the impregnated girl, in the same way, the girl confessed that she was in love with the person who impregnated her and that they consented to cohabit after impregnating her. The Court convicted Barakagwira Gilbert of the offence of child defilement and sentenced him to life imprisonment as provided by the law, given that after defiling her, they cohabited as husband and wife for one day as the defendant admitted. The defendant in that particular case is 19 years old, and as per the Rwandan law, he also lacks the capacity to contract a civil marriage.

In another judgment rendered by the Intermediate Court of Ngoma, Barimenya Venant 66 years old, who knew he was HIV positive, was found guilty of defiling two girls of whom one was 10 years and the other was 5 years of age respectively. He was sentenced to life imprisonment. Whereas in the judgment RP 00499/2018/TGI/MUS that was decided by Musanze

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Intermediate court, Ntahorutaba Wellars between 18-19 years old, was convicted of defiling a 16-year-old girl following their mutual consent to do so, he impregnated her and they subsequently cohabited as husband and wife. The Prosecution had prayed to the Court to sentence the defendant to 20 years of imprisonment, but the Court, based on article 133 paragraph 5, sentenced him to life imprisonment. It is obvious the circumstance surrounding the commission of the crime between these people is different and the effects on the victims are also different. Had it not been for the mandatory penalty, the judge might have sentenced them to different penalties considering each and everyone’s distinctive circumstances. One would wonder whether justice was served in both Barakagwira Gilbert and Ntahorutaba Wellars case.

The nature of the Law nº 68/2018 of 30/08/2018 determining offences and penalties in general with respect to punishing child defilement, it seems that it evidently intended to severely punish offenders of such offence given its consequences. The Court undoubtedly concurs that child defilement is both unacceptable and should be punishable. However, punishing such an offence does not preclude the right to due process of law which the accused is entitled to, including being given a reduced penalty in case there are mitigating circumstances.

In general, the fact that a judge cannot examine and consider available mitigating circumstances, to sentence the convict of child defilement followed by cohabitation as husband and wife to a mitigated penalty, the Court finds it inconsistent with the provisions of article 29 of the Constitution, which provides that everyone has the right to due process of law because it subjects a convict of such a crime to a disproportionate sentence. A provision of the law that provides such should be repealed as it was held in the case Lockett v. Ohio "A statute that prevents the sentence in capital cases from giving independent mitigating weight to aspects of the defendant's character and record and the circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed despite factors that may call for a less severe penalty, and, when the choice is between life and death, such risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments7”. Even though this case was about the death penalty which is not provided under Rwandan law but its contents can be applied to life imprisonment which is the heaviest penalty in Rwanda.

7 Supreme Court of the United States, Lockett v. Ohio, 438 U.S. 586 (1978) Re KABASINGA

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Even scholars have divided opinions on the sentence of life imprisonment, as some argue that "mandatory sentence of life imprisonment arguably undermines several established common law and internationally recognized sentencing principles, including proportionality, equality before the law and respect for human dignity.”8

Pursuant to elucidations in the preceding paragraphs, the Court finds that the provisions of article 133 of the Law nº 68/2018 of 30/08/2018 determining offences and penalties in general which provides that if child defilement is followed by cohabitation as husband and wife, the penalty is life imprisonment that cannot be mitigated by any circumstances inconsistent with one of the principles that constitute the right to due process of law which states that a judge determines a penalty putting into consideration the gravity of the offence, consequences thereof, and the motive for committing the offence, the offender’s prior record and personal situation and the circumstances surrounding the commission of the offence. Therefore, it is inconsistent with article 29 of the Constitution. Whether paragraph 5 of article 133 of the Law nº 68/2018 of 30/08/2018 determining offences and penalties in general is inconsistent with article 151 of the Constitution of the Republic of Rwanda of 2003 revised in 2015

Kabasinga Florida and her counsel state that article 133 of the aforementioned is inconsistent with article 151(5o) of the Constitution providing that in exercising their judicial functions, judges at all times do it in accordance with the law and are independent of any power or authority. They furthermore submit that a judge should execute his/her duties in accordance with the laws, without government or private institutions prejudicing his/her independence, be it the legislature.

They furthermore argue that when the legislator enacts a law that confines a judge to the extent of deprived him/her of the discretion to exercise equity, it amounts to deprivation of independence of serving due process of

8 The label of life imprisonment in Australia: A principled or Populist approach to an ultimate sentence. John L Andeson. P. 748 available at http://www.austlii.edu.au/au/journals/UNSWLJ/2012/30.html, accessed on 27 November 2019

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law that is guaranteed under article 29 of the Constitution. They conclude by submitting that article 133, subparagraph 4o of the law determining offences and penalties in general barring a judge from delivering fair justice by considering mitigating circumstances, should be repealed because it encroaches on the independence of the judge since he/she is obliged to impose the sentence of life imprisonment only, which is inconsistent with article 151 of the Constitution.

The State attorney, Batsinda Aline contends that article 151 of the Constitution lays down principles governing the judicial system, nonetheless, the petitioner does not point out exactly which principle(s) is violated by article 133, and he does not explain how the impugned article violates the principle that justice is rendered in the name of the people and nobody may be a judge in his or her cause, court proceedings are conducted in public unless or the proceedings are held in camera in circumstances provided for by law; every judgment must indicate its basis, be written in its entirety, and delivered in public together with the grounds and the decision taken; respect of the Court rulings by all and that which states that in exercising their judicial functions, judges at all times do it in accordance with the law and are independent of any power or authority.

She further submits that considering the explanations of the petitioner, she finds that the latter demonstrated her point of view on the severity of the penalties provided by the law determining offences and penalties in general in its article 133. She contends that no organ encroached on the liberty and independence of a judge since he/she executes his/her duties in accordance with the law and which law is in place. She finds that article 133 is not inconsistent with article 151 of the Constitution.

DETERMINATION OF THE COURT

Article 61 of the Constitution of the Republic of Rwanda of 2003 revised in 2015 states that Branches of Government are the following: “[...] the Legislature, the Executive, and the Judiciary. The three branches are separate and independent from each other [..]” the independence of the judiciary derives from this article which stipulates the three branches of the government are separate and independent (Separation of powers). Re KABASINGA

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Article 151(5o) of the Constitution of the Republic of Rwanda of 2003 revised in 2015 states that “[…] in exercising their judicial functions, judges at all times do it in accordance with the law and are independent of any power or authority” whereas article s4 and 5 of the Law n° 09/2004 of 29/04/2004 relating to the code of ethics for the Judiciary provide that: “a judge shall be independent in the exercise of his or her judicial functions. A judge shall independently examine matters before him/her and take decisions without any external pressure. In cases before him, a judge shall guard against any attempt to influence his or her decisions other than those made through the ordinary procedure provided for by the law. A judge is bound to decide cases in accordance with the law”. The articles cited in this paragraph establish the principle of independence of a judge in exercising his/he judicial functions and they go further to demonstrate the constitutive elements of that independence which includes not being influenced by any power or authority, independently examine matters before him/her, refrain from anything which might influence him/her to make illegal decisions and to follow the laws relating to the case at hand.

The principle of the independence of the judge in exercising judicial functions goes hand in hand with the principle of the independence of the judiciary. In the case of R. v. Beauregard regarding the matter of the independence of the judiciary, the Supreme Court of Canada held that “the core of the principle of judicial independence is the complete liberty of the judge to hear and decide the cases that come before the court; no outsider—be it Government, pressure group, individual or even another judge — should interfere, or attempt to interfere, with how a judge conducts a case and makes a decision”9. Any obstacle obstructing a judge to decide a case with complete liberty would automatically contravene the principle of the independence of the judiciary. As regards to the case at hand, the issue is whether the provisions of the law that a penalty cannot be mitigated by any circumstances would be infringing on the independence of the judiciary.

Article 133 provides for a mandatory sentence; it forbids a judge to impose a penalty based on his/her discretion and in the assessment of the mitigating circumstances available. This deprives a judge of the independence to determine a penalty based on the gravity, consequences thereof, and the motive for committing the offence, the offender’s prior record and personal

9 Supreme Court of Canada, R. v. Beauregard, [1987] LRC (Const.)

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situation and the circumstances surrounding the commission of the offence, the offender’s behaviour and its consequences on the victim and the Rwandan society in general. On the same issue, in the cases of S v. Toms; S v. Bruce, the Supreme Court of South Africa held that "the first principle is that the infliction of punishment is pre-eminently a matter for the discretion of the trial court. That courts should, as far as possible, have unfettered discretion in relation to the sentence is a cherished principle which calls for constant recognition. Such a discretion permits of balanced and fair sentencing, which is a hallmark of enlightened criminal justice. The second, and somewhat related principle, is that of the individualization of punishment, which requires proper consideration of the individual circumstances of each accused person”10.

As it was held by the Supreme Court of the United States of America in the case of Graham v. Florida11 that: “the judicial exercise of independent judgment requires consideration of the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question"”. This Court finds that in case a judge has no other option other than imposing a mandatory sentence, and is barred from imposing a penalty that is proportionate to the offence, it deprives the judge of liberty and independence to render judgment taking into consideration the severity of the penalty in relation to the offence.

In India, in the case of Mithu v. State of Punjab, the Supreme Court repealed article 303 of the penal code which provided for a mandatory penalty on the basis that it infringes on the independence of a judge of imposing a sentence in consideration of diverse circumstances surrounding the case. It held that “a provision of law which deprives the court of the use of its wise

10 South Africa: Supreme Court of Appeal, S v Toms; S v Bruce (139/89, 289/89) [1990] ZASCA 38; 1990 (2) SA 802 (AD); [1990] 2 All SA 248 (A) (30 March 1990) 11 11Supreme Court of the United States, Graham v. Florida, 560 U.S. 48 (2010), “holding that a life imprisonment without parole sentence on a juvenile offender convicted of armed burglary with assault, and attempted robbery, was offensive to the Eighth Amendment. [The Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide. A State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term. The judgment of the First District Court of Appeal of Florida is reversed, and the case is remanded for further proceedings not inconsistent with this opinion] Re KABASINGA

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and beneficent discretion in a matter of life and death, without regard to the circumstances in which the offence was committed and, therefore, without regard to the gravity of the offence, cannot but be regarded as harsh, unjust and unfair”12 No one would advance that there is independence of a judge of imposing penalties when he/she is obliged to only impose a mandatory sentence that is un-proportional to the severity of the offence, the circumstances surrounding the commission of the crime, and the mitigating circumstances that would have led to a reduced sentence if there are any.

Basing on the motivations in the preceding paragraphs, the provisions of article 133 of the Law nº 68/2018 of 30/08/2018 stating that if child defilement is followed by cohabitation as husband and wife, the penalty is life imprisonment that cannot be mitigated by any circumstances, are inconsistent with article 151(5o) of the Constitution providing that in exercising their judicial functions, judges at all times do it in independence, given that they are barred from considering extenuating circumstances in inflicting a fair penalty.

The Court notes that there are other articles that also provide for mandatory penalties, however, the court cannot pronounce itself on the same given that they were not petitioned before this Court. The Government would examine them and envisage their amendment so that they conform with this ruling.

In the course of examining this petition, the Court found out that there is another issue in sentencing which concerns the range between the minimum and maximum penalty, upon which the Court deems necessary to give its opinion since it is in the same line with the issue for which it was seized. The issue concerning the penalties provided by the Law nº68/2018 of 30/08/2018 determining offences and penalties in general in case there are mitigating circumstances

Article 60 of the Law nº68/2018 of 30/08/2018 determining offences and penalties in general states that if there are mitigating circumstances, penalties may be reduced as follows: 1º subject to the provisions of Article 107 life imprisonment may be reduced but it cannot be less than twenty-five (25)

12 Supreme Court of India, Mithu v. State of Punjab [1983] 2 SCR 690

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years; 2º a fixed-term imprisonment or a fine may be reduced but it cannot be less than the minimum sentence provided for the offence committed.

Before the commencement of the Law cited in the preceding paragraph, the applicable law was the Organic Law n° 01/2012/OL of 02/05/2012 establishing the penal code. The modality of penalty reduction in case of mitigating circumstances is provided by article 78 of the said law as follow: “1° life imprisonment or life imprisonment with special provisions is replaced by a penalty of imprisonment of not less than ten (10) years; 2° a penalty of imprisonment of ten (10) years to twenty five (25) years may be reduced up to a term of imprisonment of five (5) years; 3° a penalty of imprisonment of more than five (5) years, but less than ten (10) years may be reduced up to a 4° a penalty of imprisonment of six (6) months to five (5) years may be reduced up to a term of imprisonment of two (2) months; 5° a penalty of imprisonment of less than six (6) months may be suspended.”

Law nº 68/2018 establishes that if there are mitigating circumstances, a penalty may be reduced but shall not be less than the minimum penalty provided by the law. Whereas Organic Law n° 01/2012/OL of 02/05/2012 provided that if there are mitigating circumstances, a penalty can be reduced to less than the minimum penalty in the modality provided under article 78 mentioned in the preceding paragraph. In comparison with those two laws, for many offences the minimum penalty did not change and for some offences the minimum penalty was raised. This makes it impossible for the convict to benefit from available mitigating circumstances and in some instances, he might be subjected to similar penalty as for the offender with no mitigating circumstances.

The fact that the legislator intended that in the event of mitigating circumstances, the penalties may be reduced but shall not be less than the minimum penalty provided for the offence committed, it is the finding of this Court that it would be reasonable if the range between the minimum and the maximum penalty were large, putting more emphasis on reducing the minimum penalty. This would enable the provisions of article 49 paragraph 1 of the Law nº 68/2018 of 30/08/2018 which provides 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, to be correctly applied. Relying on the mitigating circumstances to impose minimum penalty Re KABASINGA

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provided for an offense which is itself heavy, does neither benefit the defendant nor serve justice in general.

Research has established that when the law provides for the penalties that a judge cannot reduce, he/she may choose to acquit the suspect because the judge finds that the circumstances surrounding the defendant's commission of the crime and his/her behaviors in general are disproportionate with the severity of the penalty likely to be imposed13. In such a case, the purpose of the law is not realized.

Generally, the determination and imposition of the penalty should be based on its purpose and objective, such as the retribution of the offender, deterrence, rehabilitation and protection of the public through incarceration of the offender. In the case R v Smith14 the Supreme Court of Canada held that : “[T]he court must first consider the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case in order to determine what range of sentences would have been appropriate to punish, rehabilitate or deter this particular offender or to protect the public from this particular offender. The other purposes which may be pursued by the imposition of punishment, in particular the deterrence of other potential offenders, are thus not relevant at this stage of the inquiry. This does not mean that the judge or the legislator can no longer consider general deterrence or other penological purposes that go beyond the particular offender in determining a sentence, but only that the resulting sentence must not be grossly disproportionate to what the offender deserves”. Likewise, the penal provisions in Rwanda ought to provide for penalties with a large range between minimum and maximum penalty which permits a judge to determine a sentence in consideration of its purpose as mentioned hereinabove.

For these reasons, the Court finds it an urgent matter to adopt a punitive policy that is based on thorough research harmonizing international sentencing principles with special issues in the Rwandan society and also a judge be left a latitude sentencing in consideration of the severity of the offence, its consequences, the motive of the commission of the offence, the

13 Mandatory Sentencing & the Independence of the Judiciary, available at: https://www.ruleoflaw.org.au/wp content/uploads/2015/11/MandatorySentencing.pdf, visited on November 30, 2019. 14 Supreme Court of Canada, R v Smith, [1987] 1 S.C.R. 1045

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offender's prior record and personal situation and the circumstances surrounding the commission of the offence. III. DECISION OF THE COURT

Finds the petition initiated by Kabasinga Florida with merit;

Declares article 133 paragraph five of the Law nº 68/2018 of 30/08/2018 determining offences and penalties in general, stating that “if child defilement is followed by cohabitation as husband and wife, the penalty is life imprisonment that cannot be mitigated by any circumstances”, inconsistent with articles 29 and 151 of the Constitution of the Republic of Rwanda of 2003 revised in 2015. The present paragraph is therefore without effect as provided for by article 3 of the Constitution;

Orders the publication of the present ruling in the Official Gazette.

Re KABASINGA

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KABASINGA ET AL [Rwanda SUPREME COURT – RS/INCONST/SPEC 00005/2020/CS - RS/INCONST/SPEC 00006/2020/CS – Vol [2021] 4 RLR – (Mukamulisa, P.J., Cyanzayire, Hitiyaremye, Muhumuza and Rukundakuvuga, J.) February 12, 2021] Constitution – Criminal law – The criminal law must be clear, plain and unambiguous – It is not the duty of the judge to determine punishable acts, rather, it is the duty of the legislator – The law must be written in such a way that everyone can know the limits of what is allowed and prohibited as well the consequences of penalties in order to refrain for committing a crime (predictability) – The punishable act and related penalty are determined by the law. Constitution – Fair trial – Mandatory sentencing – The ineffectiveness of the appeal remedy available for the convict in order to benefit the penalty reduction on ground of mitigating circumstances, undermines the principle of fair trial and of independence of the judge to determine an appropriate penalty. Constitution – Freedom and independence of the judge – Life imprisonment – – In exercising their judicial functions, judges at all times do it in accordance with the law and are independent of any power or authority - – The judge is not independent, if during sentencing s/he is obligated to impose a mandatory sentence which is not proportional to the gravity of the crime, the circumstances surrounding the

commission of the offence and substantial mitigating circumstances that would have reduced his sentence in case there are any. Constitution – Due process of law – Limits to freedom of expression – Although a career judge may adjudicate the case disregarding the public opinions, the parties and the public may think that he/she was influenced by those premature publications and comments, which would discredit that decision whereas it is the principle that justice must not only be done, it must manifestly and undoubtedly be seen to be done. 117

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Facts: Kabasinga and Niyomugabo, each petitioned the Supreme Court stating that some articles of Law nº 68/2018 of 08/30/2018 determining offences and penalties in general are contrary to the Constitution of the Republic of Rwanda of 2003 revised in 2015. Their petitions were joined as they manifest common issues. The petitioners argue that article 92 and paragraph 3 of article 133 of the Law determining offences and penalties in general which they both raised in their petitions, forbidding the judge from reducing the penalty o ground of mitigating circumstances, violate the principle of the right to due process of law and the principle of independence of the judge provided under articles 29 and 151 of the Constitution respectively. Kabasinga also states that the aforementioned paragraph 4 of article 84 of the Law no 68/2018 of 08/30/2018, does not indicate the circumstances in which the judge may or may not exempt the penalty to the accomplice when it implicates the offender’s spouse or relative up to the fourth (4th) degree, which violates the principle of the right to due process of law. She also stated that the provisions of the Article 271 of Law no 68/2018 of 08/30/2018 stipulating that any person who counterfeits, uses or circulates, by any means, negotiable instruments, commits an offence, violates also the principle of right to due process of law. Another Article that

she identified as contrary to the Constitution is the article 256 of the Law no 68/2018 of 08/30/2018 determining offenses and penalties in general of which she states to be infringing the freedom of expression. Therefore, it is contrary to article 38 of the Constitution. Concerning the fact that paragraph 4 of article 84 of the above- stated Law no 68/2018 of 30/08/2018 does not specify when a judge may or may not exempt a penalty to the accomplice who is the offender’s spouse or relative up to the fourth (4th) degree, is inconsistent with the right to due process of law referred to in article 29 of the Constitution. Kabasinga stated that the Legislator did not specify whether these persons would be punished as accomplices or not, this is due to the fact that it provides that the judge may not punish them, implying that he/she may also punish them, and it is not in his/her discretion to determine it. In addition, the way this article was drafted contradicts the principle that criminal laws must be clear, plain and unambiguous. In case such provisions are confusing, the persons concerned do not know whether they should not aid

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or abet their spouses or relative up to the fourth (4th) degree. She concluded that it is contrary to article 2, subparagraph one of the aforementioned law, as it offers the judge the room to make a decision that may be arbitrary or in favor of the defendant due to the nature of the Law. For these reasons, she requested the Court to repeal this article or order its amendment by drafting it clearly. The Government of Rwanda states that article 2, paragraph one, subparagraph 5 of the Law determining offences and penalties in general defines an accomplice as a person having aided the offender in the means of preparing the offence before its commission. This means that the offender ‘spouse, who becomes his /her accomplice, as well as relatives up to the fourth (4th) degree, may be punished under article 84 of the aforementioned law. The legislator indicated that the court could exempt accomplices from penalties on basis of circumstances surrounding the commission of the offence. The discretion to determine whether they would be exempted or punished is left to the judge, which is not contrary to Article 29, subparagraph 4 of the Constitution. Regarding whether the prohibition of penalty reduction based on mitigating circumstances, as provided for under article 92 and paragraph 3 of article 133 of Law no 68/2018 of 30/08/2018 determining offences and penalties in general, is contrary

to articles 29 and 151 of the Constitution, Kabasinga explained that these provisions prevent an offender from enjoying due process of law as he/she may not benefit from penalty reduction even if there are mitigating circumstances. It even deprives him/her of the right to appeal against the sentence when convicted. Therefore, it infringes the defendant's right to due process of law. She went on stating that in those articles the judge's power is limited to determining whether the defendant is convicted because the sentence is provided for by law, which is contrary to article 49 of the Law determining offences and penalties in general that provides the factors taken into account by a judge in determining a penalty. Moreover, it undermines the judge’s right to be objective during penalty determination. It also undermines his/her independence for fair trial as it prevents him/her from comparing what would lead him/her to impose less or more serious penalty. Therefore, due to the above grounds, she requests the Supreme Court to declare that both articles are unconstitutional, and order their repeal. Niyomugabo also states that article 133, paragraph 3 of the aforementioned law provides for mandatory sentencing for the convict of defilement committed against a child under fourteen years of age, regardless of mitigating circumstances, and this deprives the accused the right to due process of law as Re KABASINGA ET AL

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it bars the judge to exercise his/her independence of reducing the penalty, which is contrary to the principle that all persons are equal before the law and they are entitled to equal treatment. Therefore, he requested the Court to repeal it. The Government of Rwanda finds that there is no need to submit on it since the Supreme Court has already set its position in the petition RS/INCONST/SPEC 00003/2019/SC and has given its advisory opinion on other similar issues not included in the petition. In addition, it was examined whether the provisions of article 271 of Law no 68/2018 of 30/08/2018 determining offences and penalties in general are contrary to Article 29 of the Constitution. Kabasinga explained that this article includes three acts and each of them constitutes a distinct offense, namely counterfeiting, use and circulation of negotiable instruments. The formulation of the text of this article is likely to prevent the use of negotiable instruments as well as their circulation in Rwanda. It is necessary to make a distinction between the person who circulates them illegally and the one who does so on behalf of his/her company. Among constitutive elements of this offence, the intentional element is lacking. The Government of Rwanda explained that the text of article 271 is not ambiguous because the counterfeit of negotiable instruments, their use and circulation in any form

constitute an offence. This means that the use of negotiable instruments is regulated by law and it is the non-compliance that constitutes the offence provided for under this article. Maintaining that this provision is contrary to Article 29 of the Constitution is not true, because the elements of an offence namely mens rea, actus reus and its being punishable by law, must be met in order for a person to be considered as an offender. Regarding the issue whether article 256 of Law no 68/2018 of 30/08/2018 determining offences and penalties in general is contrary to Article 38 of the Constitution, Kabasinga stated that the constitutive elements of the offence referred to in this Article consists of publication of opinions with intention to mislead a judge or witnesses; but it does not specify the medium of their publication. It is not clear whether they must be published in the course of trial as the judge does not rely his or her ruling on public, individual or press opinions, rather, he/she relies on elements of evidence and other documents in case file. This means that the judge may not be misled by publications in any form made outside court hearing.

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She further states that this article prevents everyone from any declaration or comment on an incident that occurred while pending trial, so that it would not be deemed that he/she intended to mislead the judge while the latter should avoid being misled or relying upon statements from elsewhere other than from the hearing or case file. This Article infringes the media because many criminal acts or offences under prosecution are often covered by the media. This Article would also prevent officials and security agencies from holding media programs to acts likely to be prosecuted in courts, and could even prevent activist groups from publishing and expressing their views for fear of being regard as misleading the judge or witnesses. The Government of Rwanda avers that Article 256 is not a matter of concern, since an individual who makes a statement about a pending case is not regarded as trying to mislead, unless it is established through prosecution. Consequently, it is not contrary to Article 38 of the Constitution as it does not mention journalists, who normally express their views on pending cases without facing prosecution for trying to mislead a witness or a judge since it not their intent. Held: 1. The criminal law must be clear, plain, umambiguous and must be written in such a way that everyone can know the limits of what is allowed and prohibited as well the consequences of penalties in order to refrain for committing a crime (predictability), therefore, paragraph 4 of article 84 of Law no 68/2018 of 30/08/2018 determining offences and penalties in general infringes the principle that offenses and penalties should be determined by law, and thus, it violates the principle of the right to a fair trial provided for under article 29, subparagraph 4 of the Constitution.

2. The ineffectiveness of the appeal remedy available for the convict in order to benefit the penalty reduction on ground of mitigating circumstances, undermines the principle of fair trial and of independence of the judge to determine an appropriate penalty because in criminal matters the judge is obliged to consider the circumstances surrounding the commission of the offence, the prior record of the offender, on the affected family and on the victim. Therefore, article 133 of the above mentioned law is inconsistent with article 151(5) of the Constitution.

3. The judge is not independent, if during sentencing s/he is obligated to impose a mandatory sentence which is not proportional to the gravity of the crime, the circumstances surrounding the commission of the offence and Re KABASINGA ET AL

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substantial mitigating circumstances that would have reduced his sentence in case there are any.

4. Although a career judge may adjudicate the case disregarding the public opinions, the parties and the public may think that he/she was influenced by those premature publications and comments, which would discredit that decision whereas it is the principle that justice must not only be done, it must manifestly and undoubtedly be seen to be done. Paragraph 4 of the article 84 of the Law no 68/2018 of 30/08/2018 determining offenses and penalties in general is inconsistent with article 29, paragraph 4 of the Constitution and has no effect based on the provisions of the article 3 of the Constitution. The part of the text of article 92 of the Law no 68/2018 of 08/30/2018 determining offenses and penalties in general reading that: “that cannot be mitigated by any circumstances”, is contrary to articles 29 and 151 of the Constitution, and has no effect. Paragraph 3 of article 133 of the Law no 68/2018 of 30/08/2018 determining offenses and penalties in general with regard to the part of the text reading that “if child defilement is committed on a child under fourteen years, the penalty is life imprisonment that cannot be mitigated by any circumstances”, is contrary to articles 29 and 151 of the Constitution, and has no effect. Article 257 of the Law no 68/2018 of 30/08/2018 determining offences and penalties in general is not inconsistent with the Constitution; Article 256 of the

Law no 68/2018 of 30/08/2018 determining offences and penalties in general is not inconsistent with the Constitution. Statutes and statutory instruments referred to: Constitution of the Republic of Rwanda of 2003 Revised in 2015, in Articles 3, 29, 38 and 151. Organic Law no 01/2012/OL of 02/05/2012 instituting the penal code in its articles 257, 326, 477 and 478 Decree- law no 21/77 of 18 August 1977 Instituting the Penal Code. Law no 68/2018 of 30/08/2018 determining offences and penalties in general, in Articles 2, 3, 49, 84, 92, 133, 256 and 271.

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Law no 48/2017 of 23/09/2017 governing the National Bank of Rwanda, article 48. Law no 15/2004 of 12/6/2004 relating to Evidence and its Production, article 62. Law no 09/2004 of 29/04/2004 relating to the Code of Ethics for the Judiciary, Articles 4 and 5. Article 7 of the African Charter on Human and Peoples' Rights of 27/06/1981 as ratified by Law no10/1983 of 01/07/1983 and published in the Official Gazette of the Republic of Rwanda of 01/07/1983. Articles 10, 15 and 19 of the International Covenant on Civil and Political Rights as ratified by Decree-Law no 8/75 of 12/02/1975, published in the Official Gazette of the Republic of Rwanda of 1975; Article 11 of the Universal Declaration of Human Rights as ratified by Rwanda on 18/09/1962. Cases referred to: Re Kabasinga, RS/INCONST/SPEC 00003/2019/SC tried by the Supreme Court on 04/12/2019. R. v. Beauregard, tried by the Supreme Court of Canada. Cullen v. Toibin tried by the Supreme Court of Ireland. Kelly v O’Neill41 tried by the Supreme Court of Ireland. DPP v Independent Newspapers (Irl) Ltd, 42 tried by the Supreme Court of Ireland. Attorney-General for England and Wales v Times Newspapers Ltd tried by Supreme Court of England. Worm v. Austria, 29 August 1997, Application 22714/93, 25 EHRR 454, par.50. The Sunday Times v. United Kingdom, 26 April 1979, Series A No. 30, 14 EHRR 229, par.

63. Dagenais v. Canadian Broadcasting Corp., No 23403, 1994: January 24, 1994, December 8, p.5. Bridges v. California, 314 US 252 (1941); Pennekamp v. Florida, 328 US 331 (1946); Craig v. Harney 331 US 367 (1946); Wood v. Georgia 370 US 375 (1962). South Africa Supreme Court of Appeal: The NDPP v Media 24 Limited & others and HC Van Breda v Media 24 Limited & others (425/2017) [2017] ZASCA 97 (21 June 2017), at para.37. Re KABASINGA ET AL

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South Africa Supreme Court of Appeal: Midi Television v Director of Public Prosecutions (Western Cape) 2007 (3) SA 318 (SCA) at para 19. Nebraska Press Association v. Hugh Stuart: (1976) 427 US 539. Reliance Petrochemicals v Proprietor of Indian Express56 tried by Supreme Court of India. John D. Pennekamp v. State of Florida57 tried by Supreme Court of United States of America. Notes of legal scholars referred to: Santerre Christine, Étude franco-canadienne du principe légaliste : le processus qualitatif et interprétatif du texte pénal. In : Revue internationale de droit comparé. Vol. 68 N°4, 2016, p.4. Canadian Fondation for Children, Youth and the Law c. Canada (Procureur Général), [2004] 1 S.C.R. 76, 2004 SCC 4, Note 14, Par.

16. R. c. Nova Scotia Pharmaceutical Society, 9 Juillet 1992, no 22473, p.3-4. Déc. n° 96-377 DC du 16 juillet 1996, cons. No 3 et s., citée par Bertrand de Lamy (Professeur de Droit à L’Université de Toulouse I), Cahiers du Conseil Constitutionnel No 26 (Dossier la Constitution et le droit Pénal) - Aout 2009, p.

12. See Mukong v. Cameroon, views adopted by the UN Human Rights Committee on 21 July 1994, No .458/1991, para. 9.7. SIRACUSA Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, Annex, UN Doc E/CN.4/1984/4 (1984). Background Paper on Freedom of Expression and Contempt of Court for the International Seminar Promoting Freedom of Expression with three specialized international mandates, op. cit., p.

3. Cited by Law Commission of India, 20 Report on trial by media, Free speech and Fair trial under Criminal procedure code 1973, August 2006, p. 12 & 13. Judgment I. BRIEF BACKGROUND OF THE CASE

Kabasinga Florida petitioned the Supreme Court to declare that:

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a. Paragraph 4 of Article 84, Article 92, paragraph 3 of Article 133 and the Article 271 of Law no 68/2018 of 30/08/2018 determining offenses and penalties in general are contrary to the Article 29 of the Constitution; b. Article 92 and paragraph 3 of Article 133 of the Law no 68/2018 of 30/08/2018 determining offenses and penalties in general are contrary to the Article 151 of the Constitution; c. Article 256 of the Law no 68/2018 of 30/08/2018 determining offenses and penalties in general are contrary to the Article 38 of the Constitution; Her petition was given the docket number RS/INCONST/SPEC 00006/2020/SC.

Niyomugabo Ntakirutimana also petitioned the Supreme Court to declare that paragraph 3 of Article 133 of the Law no 68/2018 of 30/08/2018 determining offenses and penalties in general is contrary to Articles 29 and 151 of the Constitution. His petition was given the docket number RS/INCONST/SPEC 00006/2020/SC.

Both petitions were joined because of connexity and given the docket number RS/INCONST/SPEC 00005/2020/SC - RS/INCONST/SPEC 00006/2020/SC. The hearing was scheduled on 12/01/2021.

On the foregoing date, a public hearing was heldwhereby Kabasinga Florida appeared and assisted by Counsel Mugabonabandi Jean Maurice, Niyomugabo Ntakirutimana represented by Counsel Kayirangwa Marie Grâce and Counsel Gabiro David. The Government of Rwanda was represented by Counsel Cyubahiro Fiat together with Counsel Batsinda Aline.

Issues raised by petitioners may be classified into two main categories: a. The articles challenged by the petitioners that they violate the right to due process of law and the independence of the judge to impose the penalty provided under Articles 9 and 151 of the Constitution respectively; Re KABASINGA ET AL

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b. The article challenged by one petitioner contending that it violates the principle of freedom of press and expression provided for by Article 38 of the Constitution.

The first category consists of the following articles: a. Paragraph 4 of Article 84 of the Law no 68/2018 of 08/30/2018 determining offenses and penalties in general of which Kabasinga Florida statedto be contrary to Article 29 of the1 Constitution. Such article relates to the penalty imposed to an accomplice who is the offender’s spouse or relative up to fourth (4th) degree. b. Article 92 and Article 133, paragraph 3 of the aforementioned Law no 68/2018 of 08/30/2018 of which the petitioners claim to be contrary to Article 29 of the Constitution with respect to deprivation of the right to penalty reduction for any person who commits one of the offenses provided for under these articles, despite mitigating circumstances. They also stated that these Articles are contrary to Article 151 2of the Constitution with respect to the independence of the judge to determine the penalty. Both Florida and Niyomugabo Ntakirutimana have the petition relating to paragraph 3 of Article 133 in common. c. Regarding Article 271, Kabasinga Florida stated that it is contrary to Article 29 of the Constitution because it does not indicate the elements constituting the offense of counterfeit, use or circulation of negotiable instruments.

1 “Everyone has the right to due process of law, which includes the right: 1° ………………………………………………………………………………………… ……………………; 4° not to be subjected to prosecution, arrest, detention or punishment on account of any act or omission which did not constitute an offence under national or international law at the time it was committed. Offences and their penalties are determined by law; 5°.…………….………………………………………………………………………… ……………………. 2The judicial system is governed by the following principles: …………. in exercising their judicial functions, judges at all times do it in accordance with the law and are independent from any power or authority

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The second category includes the Article 256 of the Law no 68/2018 of 08/30/2018 determining offenses and penalties in general, which punishes any person who declares his/her opinions with intention to mislead a decision of a judge or witness. Kabasinga Florida stated that this Article is contrary to Article 38 of the Constitution on freedom of press, of expression and of access to information.

The foregoing issues have been examined in this case, according to the respective categories. II. ANALYSIS OF LEGAL ISSUES A. The articles impugned by the petitioners on ground of violating the principle of the right to due process of law and the independence of the judge to determine a penalty A.1. Determination of whether the fact that the paragraph 4 of Article 84 of the Law no 68/2018 of 08/30/2018 determining offenses and penalties in general, does not indicate the circumstances in which the judge may or may not punish the accomplice who is the offender’s spouse or relative up to the fourth (4th) degree, infringes the right to due process of law provided for under Article 29 of the Constitution a. Kabasinga Florida's arguments

Kabasinga Florida and her Counsel state that the paragraph 4 of Article 843is contrary to the subparagraph 4 of Article 29 of the Constitution,

3 The Article 84 of the Law no 68/2018 OF 08/30/2018 determining offenses and penalties in general stipulates that: The co-offender incurs the same penalties as the offender. The accomplice does not incur the same penalties as the offender except where: the law provides otherwise; 2 º the judge, in his/her discretion, finds that the accomplice’s responsibility in the commission of the offence is the same as or greater than that of the principal offender. The accomplice may be prosecuted even if the criminal action cannot be instituted against the offender due to reasons particularly specific to the offender such as death, insanity or his/her being unidentified. Re KABASINGA ET AL

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providing that the offences and their penalties are determined by law. This is based on the following reasons: a. This paragraph 4 does not indicate when the offender's spouse, who is an accomplice, as well as a relative up to the fourth (4th) degree are punished. The legislator has not indicated whether these people will be punished as accomplices or not. This is because he/she indicated that the judge may exempt them from penalties, which means he/she may also punish them. b. This option of punishing them or not is the cause issue because it is contrary to the guiding principles of criminal cases to determine a punishable act by the law. This is likely to affect the administration of justice because paragraph 4 of Article 84 does not indicate in which circumstances the judge must punish or not the persons referred to in this paragraph, as it is not in his/her competence to determine it. c. The text of this article contradicts the principle that criminal laws must be clear, plain and unambiguous. While they are confusing or ambiguous, they prevent people from accessing due process of law as stated by the Article 84 above, the people involved do not know whether they should avoid being accomplice of their spouses or relatives up to the fourth (4th) degree while they do not know if they can be exempted from penalties or not. d. The formulation of the text of Article 84, paragraph 4 of the Law no 68/2018 of 08/30/2018 determining offenses and penalties in general is also contrary to

However, when a person referred to in items 5 d), 5 e) and 5 f) of Article 2 of this Law is the offender’s spouse or relative up to the fourth (4th) degree, the court may exempt him/her from the penalties prescribed for the accomplice.

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the paragraph one of Article 2 of this Law4 because it gives latitude of appreciation to the judge, whose decision may be unjust or in favor of the offender.

Kabasinga Florida and her counsel further pray the Court to repeal this Article for being contrary to the Constitution; and if necessary, the Court may order its amendment to make it clear. b. Opinions of State attorneys

The State attorneys state that the statement by petitioner lacks merits for the following reasons: a. The Article 2, paragraph one, subparagraph 5o of the Law no 68/2018 of 08/30/2018 determining offenses and penalties in general describes an5 accomplice. In view of this article, a person is considered as an accomplice when there exists an offender and an act punishable by the law. Whoever having aided the offender in the means of preparing the offence is an accomplice.

4 offence: an act or omission that breaches public order and which is punishable by law; 5Accomplice: a person having aided the offender in the means of preparing the offence through any of the following acts; a) a person who, by means of remuneration, promise, threat, abuse of authority or power has caused an offence or given instructions for the commission thereof; b) a person who knowingly aids or abets the offender in the means of preparing, facilitating or committing the offence or incites the offender; c) a person who causes another to commit an offence by uttering speeches, inciting cries or threats in a place where more than two (2) persons gather, or by means of writings, books or other printed texts that are purchased or distributed free of charge or displayed in public places, posters or notices visible to the public; d) a person who harbours an offender or a co-offender or an accomplice to make it impossible to find or arrest him/her, helps him/her hide or escape or provides him/her with a hiding place or facilitates him/her to conceal objects used or intended for use in the commission of an offence; e) a person, who knowingly, conceals an object or other equipment used or intended for use in the commission of an offence; f) a person who steals, conceals or deliberately destroys in any way objects that may be used in offence investigation, discovery of evidence or punishment of offenders; Re KABASINGA ET AL

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b. According to this definition, the offender’s spouse as well as relatives up to the fourth (4th) degree who becomes his /her accomplice, may be punished as provided for under the Article 84 of the above law. The legislator indicated that the court could exempt accomplices from penalties depending on the circumstances surrounding the commission of the offence. The discretion to determine whether they will be exempted or punished is left to the judge, and this is not contrary to Article 29, subparagraph 4 of the Constitution.

DETERMINATION OF THE COURT

The Article 84 of the aforementioned Law no 68/2018 of 08/30/2018 provides for the punishment modality of the accomplice; it provides the exception in the event of the offender’s spouse or relative up to the fourth (4th) degree. The paragraph states that: However, when a person referred to in items 5 d), 5 e) and 5 f) of Article 2 of this Law is the offender’s spouse or relative up to the fourth (4th) degree, the court may exempt him/her from the penalties prescribed for the accomplice.

Persons referred to in items 5 d), 5 e) and 5 f) of Article 2 of this Law are the following: d. A person who harbours an offender or a co-offender or an accomplice to make it impossible to find or arrest him/her, helps him/her hide or escape or provides him/her with a hiding place or facilitates him/her to conceal objects used or intended for use in the commission of an offence; e. A person, who knowingly, conceals an object or other equipment used or intended for use in the commission of an offence; f. A person who steals, conceals or deliberately destroys in any way objects that may be used in offence investigation, discovery of evidence or punishment of offenders;

The provisions of paragraph 4 of the Article 84 implies that a person who commits one of the acts referred to in points 5 d), 5 e) and 5 f) of aforementioned Article 2 is the offender’s spouse or relative up to the fourth

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(4th) degree may be punished or exempted from the penalties. Kabasinga Florida's petition to the Court is that the legislator has not clearly enlightened the judge about under what circumstances he/she must or must not punish the accomplice provided for under paragraph 4 of Article 84. She indicates that it infringes the principle that criminal law provisions must be clear, plain and unambiguous. It is likely to violate the right to due process of law provided for under Article 29 of the Constitution, especially in paragraph 4.

For addressing this petition initiated to the Court by Kabasinga Florida, it is necessary to examine whether the provisions of paragraph 4 of Article 84 mentioned above are not clear in such a way that they infringe the right to due process of law provided for under paragraph 4 of the Article 29 of the Constitution.

The statement “the court may exempt him/her from the penalties” prescribed for the accomplice, used in paragraph 4 of Article 84, are interpreted as granting the judge the competence to punish and exempt them from penalties. However, the article does not indicate under which circumstances such power should be exercised. This situation can lead to different penalties for two offenders of the same offences before two different judges, whereby one may be punished while the other may not because the judge has the discretion to determine his/her standard of appreciation whether the act constituting the offence is punishable or exemptible from penalty. Is this amounting to the contravention of the principle according to which no punishment without law provided for under paragraph 4 of the Article 29 of the Constitution?

The first paragraph of Article 3 of the Law no 68/2018 of 08/30/2018 determining offenses and penalties in general reads that no one can be held guilty of an offence because of any act or omission, which did not constitute an offence under national or international law at the time when it was committed. The provisions of this paragraph are in accordance with the general principle of law which provides that there must be no crime or punishment except in accordance with fixed, predetermined law (Nullum crimen, nulla poena, sine lege = principe de la légalité des infractions et des peines). This principle is found in various international conventions, especially those ratified by Rwanda. Re KABASINGA ET AL

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Article 11(2) of the Universal Declaration of Human Rights, ratified by Rwanda on 09/18/1962 is similar to Article 3 of Law no 68/2018 of 08/30/2018 mentioned in previous paragraph6. It is also similar to Article 15(1) of the International Covenant on Civil and Political Rights ratified by Rwanda under Law no 8/75 of February 6, 1975 and published in the Official Gazette of the Republic in the same year7, as well as Article 7(2) of the 8 (African Charter on Human and Peoples' Rights) ratified by Rwanda under Law no 10/1983 of 01/07/1983 and published in the Official Gazette of the Republic on 01/07/1983.

The principle provided for under Article 3 of Law no 68/2018 of 30/08/2018, as well as in the aforementioned international conventions, is similar to that provided for under paragraph 4 of article 29 of the Constitution; and constitutes one of the elements of the right to due process of law. This principle, which prohibits the conviction of any person for acts that are not provided for as offenses under the law, has been clarified by Legal scholars and various courts.

Legal scholar Bertrand de Lamy explains that the principle that offenses and penalties should be determined by law rests on two particularly solid foundations: the law is the only one that has the legitimacy to establish the right to punish, and to avoid arbitrariness and to guarantee equality in the face of repression by warning everyone of the limits of what is permitted and prohibited (Le principe légaliste, ainsi affirmé, repose sur deux fondements particulièrement solides: l’un, politique, tenant à la souveraineté de la loi, expression de la volonté générale, et qui, seule, a la légitimité permettant d’asseoir le droit de punir; l’autre, plus philosophique, fait de la légalité criminelle le moyen d’assurer la mise en œuvre du libre arbitre, d’éviter

6No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. 7 No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.……. 8 No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed.

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l’arbitraire et de garantir l’égalité devant la répression en avertissant chacun des frontières du permis et de l’interdit)9.

Legal scholar Christine Santerre explains that, the principle of legality of offenses and penalties requires the law to determine offense and its all elements, which means an act constituting an offence and related penalty. (Ce principe de la légalité des délits et des peines suborne l’existence d’une infraction à un texte de loi, lequel doit prévoir l’ensemble des composantes de celle-ci, c’est-à-dire la conduite prohibée et la peine)10. She also explains the said principle lies on two foundations: the first aims to provide citizens with a reasonable warning about prohibited acts and of the penal consequences in the event of non-compliance with the law. The second is to limit the discretionary power of law enforcement officials and to prevent vague texts from leaving the courts with wide room of interpretation. (Deux fondements de ce principe : le premier vise à formuler au citoyen un avertissement raisonnable afin qu’il soit avisé des conduites proscrites et des conséquences pénales en cas du non- respect de la loi. La clarté et la précision du texte de loi exigées par le principe légaliste assurent ainsi au justiciable une juste connaissance des interdits pénaux. Le second fondement vise à limiter le pouvoir discrétionnaire des personnes chargées de l’application de la loi. Il s’agit d’éviter que des textes flous laissent aux tribunaux un vaste pouvoir d’interprétation)11.

In the same context, the Supreme Court of Canada has ruled that an unclear provision of Law prevents the citizen from realizing that he/she is venturing into an area where he/she may be subject to criminal sanctions. Moreover, it prevents law enforcement officials and judges from determining whether an offence has been committed. It also raises concerns that law enforcement officials shall have unlimited power (Une règle de droit imprécise empêche le citoyen de se rendre compte qu’il s’aventure sur un terrain où il s’expose à des sanctions pénales. De même, elle complique la tâche des responsables de son application et des juges lorsqu’ils sont appelés

9 Bertrand de Lamy (Professeur de Droit à L’Université de Toulouse I), Dérives et évolution du principe de la légalité en droit pénal français : contribution à l’étude des sources du droit pénal français par Diffusion numérique: 4 mars 2010, no2 (https://id.erudit.org/iderudit/039334ar) 10 Santerre Christine, Étude franco-canadienne du principe légaliste : le processus qualitatif et interprétatif du texte pénal. In : Revue internationale de droit comparé. Vol. 68 N°4, 2016, p.4. 11 Ibid., p.6-7. Re KABASINGA ET AL

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à déterminer si un crime a été commis. Elle suscite également la crainte que les responsables de son application disposent d’un pouvoir discrétionnaire trop grand)12.

The Court also clarified that the fact that the criminal laws must be clear is based on the principle that the public must know in advance what is prohibited, and that the discretionary power of law enforcement officials has its limits. The law is determined to be unconstitutional if it is not clear enough that no one can understand what it means based on the principles of legal interpretation. (La théorie de l’imprécision repose sur la primauté du droit, en particulier sur les principes voulant que les citoyens soient raisonnablement prévenus et que le pouvoir discrétionnaire en matière d’application de la loi soit limité. L’avertissement raisonnable aux citoyens comporte un aspect formel - la connaissance même du texte – et un aspect de fond - la conscience qu’une certaine conduite est assujettie à des restrictions légales. … La théorie de l’imprécision peut donc se résumer par la proposition suivante: une loi sera jugée d’une imprécision inconstitutionnelle si elle manque de précision au point de ne pas constituer un guide suffisant pour un débat judiciaire, c’est-à- dire pour trancher quant à sa signification à la suite d’une analyse raisonnée appliquant des critères juridiques)13.

The Constitutional Court of France has also ruled that the legislator must explain the offences in a clear and plain manner, so that no unfounded decisions are made (…. qu’il en résulte la nécessité pour le législateur de définir les infractions en termes suffisamment clairs et précis pour exclure l’arbitraire)14.

It also explained that the legislator should draft the law in such a way as to enable the judge, to whom the principle of legality imposes a strict interpretation of the criminal law, to give a ruling free from any criticism of being arbitrary. (Le législateur doit rédiger la loi « dans des conditions qui permettent au juge, auquel le principe de légalité impose d'interpréter

12 Canadian Fondation for Children, Youth and the Law c. Canada (Procureur Général), [2004] 1 S.C.R. 76, 2004 SCC 4, Note 14, Par. 16. 13 R. c. Nova Scotia Pharmaceutical Society, 9 Juillet 1992, no 22473, p.3-4. 14 Cons. Const., 20 janv. 1981, n° 80-127 DC. Lire en ligne: (https://www.doctrine.fr/d/CONSTIT/1981/CONSTEXT000017665953).

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strictement la loi pénale, de se prononcer sans que son appréciation puisse encourir la critique d'arbitraire)15.

According to the explanations provided by the Legal scholars and decisions of the various courts on the principle of legality of offenses and penalties, provided under Article 29, paragraph 4 of the Constitution, the following main concepts are highlighted: a. Offences and their penalties are determined by law; b. It is not the responsibility of the judge to determine the punishable acts, but it is the responsibility of the legislator; c. The criminal law must be drafted in a clear and unambiguous manner to avoid blatantly baseless decisions, and to avoid arbitrariness; d. The law must be drafted in such a way to warn everyone of what is permitted and prohibited as well as the penalties in the event he/she commits a prohibited act for predictability.

After a comparative analysis of the foregoing explanations and the provisions of paragraph 4 of Article 84 of the Law no 68/2018 of 30/08/2018 determining offenses and penalties in general, the Court notes that: a. This article provides that the judge may decide to exempt the accomplice who is the offender’s spouse or relative up to the fourth (4th) degree without specifying their punishable actions that may lead to their punishment and actions that may lead to their exemption from penalty. b. The fact that the law does not determine punishable acts, gives the judge the latitude to determine the reasons to punish or exempt any person whereas it is not in his/her responsibilities but of the legislator. c. This situation can also lead different judges to impose different penalty to offenders of the same offense because the law did not explicitly and unambiguously explain the person who will be punished or exempted from penalty.

15 Déc. n° 96-377 DC du 16 juillet 1996, cons. No 3 et s., citée par Bertrand de Lamy (Professeur de Droit à L’Université de Toulouse I), Cahiers du Conseil Constitutionnel No 26 (Dossier la Constitution et le droit Pénal) - Aout 2009, p.

12. Re KABASINGA ET AL

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d. the persons referred to in paragraph 4 of article 84 cannot know in advance the prohibited act as provided under the law because it is left in the discretion of the judge.

In view of the foregoing elucidations, the Court notes that paragraph 4 of the Article 84 of Law no 68/2018 of 30/08/2018 determining offenses and penalties in general is contrary to the principle of legality of offences and their penalties. Therefore, it infringes the principle of right to due process of law provided for under paragraph 4 of Article 29 of the Constitution. The Court finds this paragraph without effects according to the provisions of Article 3 of the Constitution.

Considering the background of this Article, it is obvious that the Decree-Law no 21/77 of August 18, 1977 Instituting the Penal Code that was amended by the Organic Law no 01/2012/OL of 05/02/2012 instituting the Penal Code, Article 257 provided that whoever will have knowingly concealed a person whom he/she knew to have committed a felony or a misdemeanor or whom he/she knew is wanted by prosecution or who will have obstructed his/her arrest or search or will have helped him/her to hide or flee, shall be punished as an accomplice to the offense being prosecuted. This Article also provided that the spouse, relatives or in-laws of the offender, up to the fourth (4th) degree, are exempt from these provisions. This Article was later modified by the Organic Law no 01/2012/OL of 02/05/2012 instituting the Penal Code, in its Article 478. This Article read that: In the cases provided under Article 47716 of this Organic Law, the Court may discharge from punishment a spouse, parents or relatives of the offender up to the fourth degree of relationship.

In the course of the amendment of 2018 of the Penal Code, this Article has not changed much. According to the copy, in the possession of the Court, of the Broadcast Program by the staff member of the Rwandan Law

16 Any person, other than the offender or accomplice who: 1° knowingly conceals objects or tools that are used or intended to be used to commit a felony or a misdemeanor related to public security, or objects, materials or documents obtained through such felony or misdemeanor; 2° destroys, withdraws, conceals or knowingly alters any documents used in the investigation of a felony or a misdemeanor, proof gathering or punishing those who commit offences against public security; shall be liable to the penalty applicable to the offence of concealment provided under Article 326 of this Organic Law.

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Reform Commission on the draft law of 2018 determining offenses and penalties in general amending Organic Law no 01/2012/OL of 02/05/2012 Instituting the Penal Code, it was explained that the new element in this draft law was that the offender's spouse is not always exempted from penalty if he/she has been an accomplice of his/her spouse. This document says that he/she is only exempted from penalty when the offender did not reveal it to him/her (perhaps he/she meant "he/she hid it from him/her"), he/she concealed stolen goods or destroyed the necessary evidence to serve in the prosecution of an offence committed by his/her spouse. In other instances, (a person who, by means of remuneration, has caused an offence, provides equipment intended for use in the commission of an offence, incites the commission of offence, causes another to commit an offence by uttering speeches), the offender's spouse who is an accomplice is not exempted. The acts described by this document subjected to exemption are also found in paragraphs 5 d), 5 e) and 5 f) referred to in paragraph 2 of this Case, Article 2 of the Law no 68/2018 of 30/08/2018 stated above; but the provisions of that Article in the amended law remained unchanged. The content of this document is also Re KABASINGA ET AL

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similar to the provisions of the penal codes of different countries such as Vanuatu17, State of Nevada18, Cameroon among others19.

The Court notes that, if the content of this document corroborate the provisions of paragraph 4 of the Article 84, it should have been clearly drafted.

The Court advises that paragraph 4 of Article 84 be well drafted to clearly indicate the purpose of the legislator and be aligned with the provisions of paragraph 4 of the Article 29 of the Constitution.

17 Art.34. Accessory after the fact: (1) An accessory after the fact shall mean a person who, knowing or having reasonable cause to suspect that another person has committed a criminal offence, shelters such person or his accomplice from arrest or investigation, or has possession of or disposes of anything taken, misappropriated or otherwise obtained by means of the offence or used for the purpose of committing the offence.

(2) Subsection (1) shall have no application to any ascendant, descendant, sibling or the spouse of the person sheltered. (3) An accessory after the fact shall be punished as a principal offender. 18 NRS 195.030 Accessories: 1. Every person who is not the spouse or domestic partner of the offender and who, after the commission of a felony, destroys or conceals, or aids in the destruction or concealment of, material evidence, or harbors or conceals such offender with intent that the offender may avoid or escape from arrest, trial, conviction or punishment, having knowledge that such offender has committed a felony or is liable to arrest, is an accessory to the felony.

2. Every person who is not the spouse, domestic partner, brother or sister, parent or grandparent, child or grandchild of the offender, who, after the commission of a gross misdemeanor, harbors, conceals or aids such offender with intent that the offender may avoid or escape from arrest, trial, conviction or punishment, having knowledge that such offender has committed a gross misdemeanor or is liable to arrest, is an accessory to the gross misdemeanor………... 19 SECTION 100: Accessory after the Fact: (1) An accessory after the fact shall mean a person who after the commission of a felony or misdemeanour shelters an offender or his accessories from arrest or from Investigation, or who has custody of or disposes of anything taken, misappropriated or otherwise obtained by means of the offence. (2) This Section shall not apply as between husband and wife.

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A.2. Whether the prohibition of penalty reduction according to mitigating circumstances as provided under Articles 92 and 133, paragraph 3 of the Law no 68/2018 of 30/08/2018 determining offenses and penalties in general, is contrary to Articles 29 and 151 of the Constitution. a. Kabasinga Florida's arguments

Kabasinga Florida and her counsel state that Article 92 of the Law no 68/2018 of 30/08/2018 determining offenses and penalties in general20, and paragraph 3 of Article 133 of this Law21 are contrary to Articles 29 and 151 of the Constitution for the following reasons: a. These two articles are contrary to Article 29 because they violate the right to due process of law for a person convicted of the crime of genocide or defilement against a child under the age of fourteen (14) in the event that he/she cannot benefit from penalty reduction, despite the mitigating circumstances. b. The person convicted of an offense provided under one of these articles is deprived of the right to penalty reduction despite mitigating circumstances, as well as the right to appeal against the decision. Accordingly, it violates the right of the defendant to due process of law which starts from the investigation until the conviction and penalty imposition. c. The fact that a person is denied one of the aforementioned procedures, he/she is denied justice by the law that should have protected him/her. This was upheld by the Supreme Court after having considered opinions legal scholars and precedents from other jurisdictions which have ruled on the same issue by stating that: “It is the finding of the Court notes that in criminal matters, the right to due process of law begins with investigation and prosecution stages, hearing and penalty imposition for the offenses provided for under criminal laws. It means that the matters relating to the examination of

20Any person who commits any of the acts referred to under Article 91 of this Law (definition of crime of genocide) commits an offense. Upon conviction, he/she is liable to the penalty of life imprisonment that cannot be mitigated by any circumstances. 21 If child defilement is committed on a child under fourteen (14) years, the penalty is life imprisonment that cannot be mitigated by any circumstances. Re KABASINGA ET AL

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mitigating circumstances and penalties for the hearing stage must also respect the principles of right to due process of law”. d. The reading of the first paragraph, article 49 of the Law no 68/2018 of 08/08/2018 determining the offenses and the penalties in general indicates the factors taken into account by a judge in determining the penalty22, to the extent that any contradiction with them implies contradiction with the elements of right to due process of law with respect to imposition of penalty. e. The analysis of Articles 92 and 133, reveals that the judge's power is limited to determining whether the defendant is guilty because the penalty is determined by law, which is contrary to Article 49 of the Law determining offences and penalties in general providing the factors taken into account by a judge in determining a penalty much as these offenses provided for under both articles are grave and deserve severe penalties, there are often mitigating Circumstances likely to lead to penalty reduction in favor of offender, f. Although the country is committed to the prevention and the fight against genocide, in the event where the offence is committed either by a Rwandan or foreigner and surrenders himself/herself to justice or undertakes to facilitate investigation to identify unknown conspirators, he/she can benefit the penalty reduction for his/her contribution to justice.

The genocide crime is committed in dissimulation such a way that it is difficult to find witnesses, which is easy for the judge to discover the truth. g. Although it is obviously inexcusable for many people about the offense of defilement committed against a child under fourteen (14) years, even the judge responsible for the ruling on such cases understands their gravity. Thus, it is not appropriate to ignore that there may be circumstances surrounding the commission of the offense which may reduce its gravity such that the offender benefits penalty reduction in the court's discretion.

22 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.

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h. Moreover, these provisions undermine the judge’s independence to be objective in imposing the penalty. They also undermine his/her independence for fair trial as they prevent him/her from comparing what would lead him/her to impose less or more severe penalty. Giving the judge the discretion over the conviction or acquittal of the accused and at the same time preventing him/her from imposing the appropriate penalty for the acts committed amounts to depriving him/her of the independence and denying the parties of their right to due process of law. i. The forgoing articles also impede the independence of the judge provided under Articles 4 and 5 of the Law no 09/2004 of 04/29/2004 relating to the Code of Ethics for the Judiciary23. This was underlined by the Supreme Court in judgement no RS/INCONST/SPEC 00003/2019/SC, paragraph 35, stating that: “The principle of the independence of judge in the exercise of his/her functions is related to the independence of the judiciary. It's considered as the judge's freedom to hear and adjudicate according to the procedure and manner prescribed by law and do so independently without any external pressure from public institutions or from others”. j. The independence of the judge was also explained in the judgement R. v. Beauregard, rendered by the Supreme Court of Canada as follows: « The core of the principle of judicial independence is the complete liberty of the judge to hear and decide the cases that come before the court; no outsider, be it Government, pressure group, individual or even another judge should interfere, or attempt to interfere, with the way in which a judge conducts a case and makes a decision”.

Based on the above reasons, Kabasinga Florida requests the Supreme Court to declare Article 92 and Article 133, paragraph 3 contrary to the Constitution and order their repeal.

23 A judge shall be independent in the exercise of his or her judicial functions. A judge shall independently examine matters before him or her and take decisions without any external pressure. In cases before court, a judge shall guard against any attempts to influence his or her decisions other than those made through the ordinary procedure provided for by the law. A judge is bound to decide cases in accordance with the law. Re KABASINGA ET AL

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b. Niyomugabo Ntakirutimana's arguments

Niyomugabo Ntakirutimana and his legal counsel contend that the fact that Article 133, paragraph 3 of the above law that provides for mandatory sentence for defilement committed against a child under fourteen (14) years, despite the existence of mitigating circumstances, deprives the offender of the right to due process of law provided for by Article 29 of the Constitution in connection to his case at the Court of Appeal. They allege that courts cannot reduce his/her penalty in connection to his case relating to defilement committed on a child under fourteen (14) years, because the judge is barred by paragraph 3 of Article 133.

Niyomugabo Ntakirutimana and his legal counsel further state that this Article should be repealed because it does not grant to the judge the latitude to reduce the penalty and it is contrary to the principle of equality before and protection of the law. Their additional statements are similar to those reiterated by Kabasinga Florida. c. Opinions of State attorneys

The State attorneys find that there is no need for comment because the Supreme Court has set its position in the case RS/INCONST/SPEC 00003/2019/SC paragraphs 3924 and 4025, and has given its advisory opinion with respect to other similar issues not included in the petition.

DETERMINATION OF THE COURT

24 Paragraph 39: “According to the explanations mentioned in the precedent paragraph, the provisions of article 133 of the Law no 68/2018 of 30/08/2018 stipulating that if child defilement is followed by cohabitation as husband and wife, the penalty is life imprisonment that cannot be mitigated by any circumstances, are contrary to article 151.5 of the Constitution which provides that in exercising their judicial functions, judges are independent because they are not allowed to be motivated by mitigating circumstances in determining appropriate penalty ”. Paragraph 40: “There are other articles which determine the penalties which are not subject to reduction, but the Court has not yet given its position because they are not seized. The State may examine these articles if their rectification is necessary to be harmonized with the content of this judgement”.

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The Court notes that the same legal issue was examined in the judgement RS/INCONST/SPEC00003/2019/SC tried on 04/12/2019, from the petition initiated to the Court by Kabasinga Florida requesting for a declaration that paragraph 4 of the Article 133 relating to child defilement followed by cohabitation as husband and wife is contrary to articles 29 and 151 of the Constitution. The only difference is that Kabasinga Florida and Niyomugabo Ntakirutimana seized the Court against paragraph 3 of Article 133, and Article 92 with respect to Kabasinga Florida. However, both petitions are similar and consist of the fact that such provisions are contrary to the principle of the right to due process of law and the independence of judge in determining the penalty.

In regard to that case, the Court found out t the provisions of Article 133 of the Law no 68/2018 of 30/08/2018 providing that if child defilement is followed by cohabitation as husband and wife, the penalty is life imprisonment that cannot be mitigated by any circumstances to be contrary to one of the principles of the right to due process of law reading 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. Therefore, it declares that it is contrary to Article 29 of the Constitution.

The Court also found the provisions of Article 133 of the Law no 68/2018 of 30/08/2018 stipulating that if child defilement is followed by cohabitation as husband and wife, the penalty is life imprisonment that cannot be mitigated by any circumstances, to be contrary to article 151(5) of the Constitution which provides that in exercising their judicial functions, judges are independent because they are not allowed to be motivated by mitigating circumstances in determining appropriate penalty”.

The Court motivated in paragraph 40 of that case that there are other articles which determine mandatory sentences of which the Court cannot pronounce itself over them given that they have not been part of the subject matter of the case It issued an advisory opinion that the government would consider if their rectification is necessary to harmonize them with the ruling of the said judgement. The Court finds that Article 92 of Law no 68/2018 of 30/08/2018, its text reading that: “that cannot be mitigated by any circumstances”; and paragraph 3 of Article 133providing that if defilement is committed against a child under fourteen (14) years, the penalty is life Re KABASINGA ET AL

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imprisonment that cannot be mitigated by any circumstances, are part of the provisions mentioned in paragraph 40 of judgement RS/INCONST/SPEC00003/2019/SC. Accordingly, the Court finds that the parts of such provisions are also contrary to the principles of the right to due process of law and the independence of judge in determining penalty on the basis of the holdings set out in the judgement RS/INCONST/SPEC 00003/2019/SC which should not be reexamined due to their similarities. Therefore, they are contrary to Articles 29 and 151 of the Constitution.

The Court recalls the advisory opinion given in the judgement RS/INCONST/SPEC00003/2019/SC delivery on 04/12/2019 according to which the government would consider other articles determining mandatory penalties over which the court did not pronounce itself because they have not been part of the subject matter of the case in order to be harmonized with the position set by that judgment. A.3. Whether the provisions of article 271 of Law no 68/2018 of 08/30/2018 determining offenses and penalties in general reading that “any person who counterfeits, uses or circulates, by any means, negotiable instruments, commits an offence”, are contrary to Article 29 of the Constitution a. Kabasinga Florida's arguments

Kabasinga Florida and her Counsel tabled the following arguments: a. Article 27126 of the Law no 68/2018 of 08/30/2018 determining offenses and penalties in general includes three acts and each of them constitutes a distinct offense. These include the counterfeiting, use and circulation of negotiable instruments. b. The first act of counterfeit is undisputable on ground that counterfeiting of any form of document constitutes an offence. Only the remain o acts are drafted in such a manner as to contravene the constitution given that the only use of negotiable instruments does not constitute an offence. The legislator should have therefore made

26 “Any person who counterfeits, uses or circulates, by any means, negotiable instruments, commits an offence. Upon conviction, he/she is liable to imprisonment for a term of not less than three (3) years and not more than five (5) years and a fine of two (2) to ten (10) times of the value of the counterfeited amount”.

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distinction between users of counterfeited negotiable instruments willingly and those who use them lawfully. c. The formulation of the text of this article seems to forbid the use of negotiable instruments as well as their circulation in Rwanda. It is necessary to make a distinction between the person who circulates them illegally and the one who do so on behalf of his/her company. In addition, among the elements constituting the offense, the intentional element is lacking (intention to harm). The different opinions of legal scholars indicate that for there to be qualified as an offense, the offender must act with intention to harm or to do the illegal acts with the aim of breaching public order with the knowledge that his/her act harms the victim, which is qualified as specific intent. d. In accordance with the first paragraph of article 2 of the above Law no 68/2018 of 08/30/2018, the legislator must, during the classification of the offense, indicate the act constituting the offense. This article provides that the offense is an act or omission that breaches public order; e. Article 271 of the Law no 68/2018 of 08/30/2018 violates Article 29 of the Constitution because the court cannot render a fair trial as long as it is not indicating how such acts constituting the offense breach public order.

In respect of the foregoing reasons, Kabasinga Florida requests the Court to declare Article 271 of the Law no 68/2018 of 08/30/2018 determining offences and penalties in general inconsistent with article 29 of the constitution and consider its repeal from Rwanda legislation or its rectification. b. Opinions of State attorneys

The State attorneys contend that there is no drafting flaw in Article 271 of Law no 68/2018 of 08/30/2018 for the following reasons: a. Counterfeit, use or circulation of negotiable instruments, by any means, constitute an offence. The use of negotiable instruments is regulated by law and it is the non-compliance that constitutes the offense provided for under Article 271 of the above law. The lawful use and circulation of negotiable instruments should not be criminalized. Re KABASINGA ET AL

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b. Article 48 of the Law no 48/2017 of 23/09/2017 governing the National Bank of Rwanda, stipulates that National Bank of Rwanda participates in the issuing and distribution of Treasury securities, which is not done by a natural person. The person who allows himself to do so commits an offense against the public under Article 271 of the Law no 68/2018 of 08/30/2018 determining offenses and penalties in general. c. The allegation that this provision is contrary to Article 29 of the Constitution is unfounded, because the elements constituting the offense, in particular the premeditation and the commission of the act, which is punishable by law, must be met in order to consider the suspect as the offender. Thus, the allegation that the offense provided for by article 271 lacks intentional element is unfounded because the person who counterfeits, uses or circulates negotiable instruments, does it intentionally.

DETERMINATION OF THE COURT

The first sentence of Article 271 of the Law no 68/2018 of 08/30/2018 reads that: any person who counterfeits, uses or circulates, by any means, negotiable instruments, commits an offence.

Kabasinga Florida states that the reading of this provision, suggests that the legislator did not make distinction between users of counterfeited negotiable instruments with full knowledge and those who use them in accordance with the law.

This article is placed in the section one of the fourth Chapter of the Law no 68/2018 of 08/30/2018, entitled “counterfeit and falsification of monetary symbols”. The title of the Chapter IV is “offences against public credibility” whereas the title of the Article 271 is “counterfeit, use or circulation of negotiable instruments”. The comparative analysis these titles and the text of the first sentence of the Article 271 implies that the legislator intended to criminalize the counterfeit, use or circulation of negotiable instruments. Therefore, the legislator should not include in the punishable acts, the lawful use and circulation of negotiable instruments.

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The Court considered the formulation of the provisions punishing similar offense in other countries and found that there are legal instruments clearly indicating that the punishable act consists of the counterfeiting, use and circulation of negotiable instruments. These countries are Burkina Faso27, Gabon28, Senegal29, Ivory Coast 30(in all these countries, there is a provision that punishes any person who counterfeits, and another distinct provision punishing the use or circulation of negotiable instruments, and the latter provision is concern in this case).

The Court notes that the issue raised by Kabasiga Florida in relation to the Article 271 of the law no 68/2018 of 30/08/2018 determining offenses and penalties in general should not be considered in the context of unconstitutionality, on the contrary, it would be a formulation related issue which could be rectified to make it more clear. Therefore, the Court finds that this Article is not contrary to Article 29 of the Constitution. Rather, the Court recommends in the event of law revision, this provision should be articulated in a way that is clear enough for readers. B. With regard to article alleged by Kabasinga Florida to violate the freedom of press, of expression and of access to information.

27 Article 253, al 1 code pénal de 1996 : Est puni des peines prévues aux articles 250, 251 et 252, selon les distinctions qui y sont portées, quiconque participe à l'émission, l'utilisation, l'exposition, la distribution, l'importation de signes monétaires contrefaits, falsifiés, altérés ou colorés ». 28 Art. 230 code pénal de 2019: « Quiconque aura contrefait, falsifié, altéré ou détruit des billets de banque ou pièces de monnaie ayant cours légal au Gabon, ou participé à l’émission ou à l’exposition desdites pièces ou billets contrefaits, falsifiés ou altérés ou à leur introduction sur le territoire gabonais, sera puni de la réclusion criminelle à perpétuité ». 29 Article 120, al. 1 code penal de 1965 : « Quiconque aura participé à l'émission, l'utilisation, l'exposition, la distribution, l'importation ou l'exportation de signes monétaires contrefaits, falsifiés, altérés ou colorés sera puni des peines prévues aux articles ci-dessus, selon les distinctions qui y sont portées ». 30 Article 293-2, al. 1 code penal de 1981 : Est passible des peines prévues ci-dessus selon les distinctions susvisées, celui qui participe à l'émission, l'utilisation, l'exposition, la distribution, l'importation ou l'exportation des signes monétaires contrefaits, falsifiés, altérés ou colorés ». Re KABASINGA ET AL

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a. Whether article 256 of the Law no 68/2018 of 30/08/2018 determining offenses and penalties in general is contrary to Article 38 of the Constitution; a. Kabasinga Florida's arguments

Kabasinga Florida and her counsel state that Article 256 of the Law no 68/2018 of 08/30/2018 determining offenses and penalties in general is unconstitutional for the following reasons: a. The acts constituting an offense provided for by article 256 consist of the publication of opinions with intention to mislead a judge or witnesses, but it does not specify the medium of their publication. It is not clear whether they must be published in the course of trial as the judge does not rely his/her ruling on public individual or press opinions, rather, he/she relies on elements of evidence and other documents in the case file. As a matter of principle, the judge cannot rule the cases on the basis of his/her personal knowledge it; be it the information he/she learned from reading or heard from the media, which entails that he/she cannot be misled by opinions published by any means outside court hearing. b. Article 151, 5 of the Constitution provides that in exercising their judicial functions, judges at all times do it in accordance with the law and are independent from any power or authority, thus, even the citizen cannot exercise influence over him/her. c. Regarding the fact that the publication of opinions may mislead the witness, it is impossible considering the definition of testimonial evidence provided for by Article 62 of the Law no 15/2004 of 12/06/2004 relating to Evidence

and its Production. This article reads that testimonial evidence consists of statements made in court by an individual regarding what he/she personally saw or heard that is relevant to the subject matter of the trial. Thus, the legislator has no reason to fear that a person would consider and produce the statements from the public or radio broadcasts as testimonial evidence in the trial. d. Preventing people from expressing their opinions in media or broadcasts about what happened would be violating freedom of press,

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of expression and of access to information provided under the Article 38 of the Constitution. e. Article 256 of the aforementioned law prevents everyone from any declaration or comment on an incident that occurred while pending trial, so that it would not be deemed that he/she intended to mislead the judge while the latter should avoid being misled or religion statements from elsewhere other than from the hearing or case file. f. This article impedes the media because many acts constituting an offence or prosecuted in courts are often covered by the media. The journalist who publishes an article on an issue pending trial may have limited freedom to do so as long as he/she is not in a position to determine which information is likely to mislead the judge or witness. g. This Article would also prevent officials and security agencies from holding media programs related to acts likely to be prosecuted in courts, and could even prevent activist’s groups from publishing and expressing their views for fear of being regarded as misleading the judge or witnesses. h. The fact that a citizen may express his/her opinion on matters pending trial or the media stance thereon which ever form it may take cannot influence the judge or the witness’s position; and the statements of third parties should not necessarily corroborate the court's decision or the witness statements. The petitioner gives as an example of the case that was aired in media and of which people expressed different opinions, whereby the press reported that a group of girls assault their colleague with intent to kill her and mutilate her genitals. However, nowhere in the trial was it found that this girl had undergone genital mutilation.

Based on the foregoing reasons, Kabasinga Florida and her counsel note that Article 256 of the Law no 68/2018 of 08/30/2018 determining offenses and penalties in general is contrary to Article 38 of the Constitution and they request that it be repealed from Rwanda penal code. b. Opinions of State attorneys

The State attorneys state that Article 256 of the Law no 68/2018 of 30/08/2018 is not a matter of concern, since an individual who makes a Re KABASINGA ET AL

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statement about a pending case is not regarded as trying to mislead, unless it is established through prosecution.

They allege that there is no contradiction with Article 38 of the Constitution as it does not mention journalists, who normally express their views on pending cases without facing prosecution for trying to mislead a witness or a judge since it is not their intent. The example of the trial relating to the group of girls who assaulted their colleague for which various speculations were broadcast, shows that the aforementioned Article 256 does not contradict Article 38 of the Constitution since the false information disseminated by journalists was not considered to mislead the judge or witnesses, especially that it was not the purpose.

DETERMINATION OF THE COURT

The Article 256 of the Law no 68/2018 of 08/30/2018 determining offenses and penalties in general provides that Any person who declares his/her opinions with intention to mislead witnesses or a decision of a judge before the case is determined, commits an offence. Upon conviction, is liable to imprisonment for a term of one (1) year to two (2) years and a fine of one million Rwandan francs (1,000,000 Frw) to two million Rwandan francs (2,000,000 Frw).

The offense provided for under this article mentioned above is one of the offenses listed in Section 5 of Chapter 3 of the Law no 68/2018 of 08/30/2018 on obstruction to good administration of justice. Offenses relating to obstruction to good administration of justice are qualified differently depending on the country. In common law system countries 31, there is a

31 In common law jurisdictions, contempt of court has traditionally been classified as either in facie curiae (in front of the court) or ex facie curiae (outside the court). Examples include yelling in the court room, publishing matters which may prejudice the right to a fair trial (“trial by media”), or criticisms of courts or judges which may undermine public confidence in the judicial system (“scandalizing the court”) ……… The common law doctrine of contempt of court does not exist in civil law jurisdictions in such a broad, encompassing sense, but there are undoubtedly functional equivalents, particularly in matters relating to freedom of expression; Background Paper on Freedom of Expression and Contempt of Court for the International Seminar Promoting Freedom of Expression with three specialized international mandates, London, United Kingdom, 29-30 November 2000, p 1-2

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concept known as contempt of court present in Rwandan legislation even though it has a different term. It is described in three categories: a. Contempt of court, including behavior that hinders the good conduct of the hearing, obstruct good administration of justice. [contempt in the face of the court (contempt in facie curiae), which comprises conduct that deliberately disrupts or obstructs court proceedings and is prejudicial to the course of justice)]32. These can be considered as contempt of court offenses set out in the Article 80 of the Law no 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure. b. Offenses relating to scandalizing the court, making or publishing untrue allegations about a court or judge that would undermine public confidence in the judiciary33. Such offenses are found in the Law no 68/2018 of 08/30/2018, in subsection titled: discrediting Judiciary and committing violence against personnel in judicial organs. c. Offenses related to obstruction to good administration of justice through sub judice contempt34, publishing prejudicial material about pending court proceedings that would interfere with the administration of justice35. The provision of Article 256 of the Law no 68/2018 of 08/30/2018 is similar to what is stated in this subsection.

Following these general explanations, the Court will examine whether the provision of the aforementioned Article 256 infringes the freedom of expression provided for by article 38 of the Constitution. This Article states that: Freedom of press, of expression and of access to information are

(https://www.article19.org/data/files/pdfs/publications/freedom-of-expression-and- internet-regulation.pdf ). 32 Law Reform Commission of Ireland, Contempt of Court and other Offences and Torts Involving the Administration of justice, 2016, p. 11 (https://www.lawreform.ie/news/issues-paper-on-contempt-of-court-and-other- offences-and-torts-involving-the-administration-of-justice.644.html) 33 Law Reform Commission of Ireland, Contempt of Court and Other Offences and Torts Involving the Administration of Justice, op. cit, p. 11. 34 Sub judice contempt”, or contempt in connection with pending proceedings, relates to publications concerning pending proceedings that are intended to interfere with the administration of justice”; Ibid., p. 11. 35Ibid., p.

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recognized and guaranteed by the State. Freedom of expression and freedom of access to information shall not prejudice public order, good morals, the protection of the youth and children, the right of every citizen to honour and dignity and protection of personal and family privacy. Conditions for exercising and respect for these freedoms are determined by law.

In this regard, on the basis of various documents, it will be examined whether the principle of freedom of expression is an absolute principle or whether it is a principle with limitations, what are they and are how they are defined by other courts and law scholars. Finally, it will be examined whether or not such limitations apply to the provisions of Article 256 of the Law no 68/2018 of 08/30/2018.

The principle of freedom of expression has been reiterated by various international conventions ratified and domesticated by Rwanda, especially article 19 of the International Covenant on Civil and Political Rights36.

According to Articles 38 of the Constitution and 19 of the International Covenant on Civil and Political Rights, the freedom of expression is not an absolute principle; it has limitations. The Article 38 of the Constitution indicates the rights that this principle must not violate and further states that the conditions for exercising and respecting such freedoms are determined by law. Article 19,3 of the International Covenant on Civil and Political Rights stipulates that freedom of expression entails duties and responsibilities and it may therefore be subject to certain restrictions provided by law and are necessary for the respect of the rights of others.

36 Art. 19:

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

a) For respect of the rights or reputations of others; For the protection of national security or of public order (ordre public), or of public health or morals.

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Based on this International Convention, subjecting freedom of expression to restrictions must be provided by law for the purposes of fulfilling one of the objectives specified in Article 19 (3), and it must be necessary for the protection of such purpose (Under the ICCPR, restrictions must meet a strict three-part test37. First, the interference must be provided for by law. Second, the interference must pursue one of the legitimate aims listed in Article 19 (3). Third, the interference must be necessary to secure that aim). This was also reaffirmed by the Siracusa Principles on limitations and exceptions for the provisions of the International Covenant on Civil and Political Rights, in its article 10 (Whenever a limitation is required in the terms of the Covenant to be "necessary," this term implies that the limitation…… pursues a legitimate aim, and is proportionate to that aim)38

The “rights of others” referred to in Article 1 9(3) (a) undoubtedly includes rights linked to the administration of justice, such as the right to a fair trial and the presumption of innocence39.

Matters regarding restrictions to which freedom of expression is subjected in the context of protecting rights related to the right to due process of law had been defined by the various courts as follows: a. in the case Cullen v. Toibin rendered by the Supreme Court of Ireland, it has been ruled that freedom of expression under the Irish Constitution is not an absolute principle. It may not be respected in the context of protecting the right to due process of law. In addition, this ruling explains that articles published in the course of trial may compromise the right to a fair trial; and for this reason it may be necessary to limit freedom of expression in order to protect it and promote due process of law (The right to freedom of expression is also protected by Article 40.6.1° of the Constitution of Ireland. This

37 See Mukong v. Cameroon, views adopted by the UN Human Rights Committee on 21 July 1994, No.458/1991, para. 9.7. 38 Background Paper on Freedom of Expression and Contempt of Court for the Internationnal Seminar Promoting Freedom of Expression with three specialized international mandates, op. cit., p. 3. 39 SIRACUSA Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, Annex, UN Doc E/CN.4/1984/4 1984).

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right is not absolute, however, and is subject to limitation. For example, the right may be restricted so as to uphold the right to a fair trial of an accused person and to protect the administration of justice. In cases where a prejudicial publication has been made, this clearly has the potential to impede an accused person’s right to a fair trial. Therefore, it may be necessary to restrict the right to freedom of expression so as to protect the right to a fair trial and to maintain the administration of justice. Freedom of the press can, however, only be restricted where this is necessary for the administration of justice)40. b. In the judgement of Kelly v O’Neill41 rendered by the Supreme Court of Ireland, the court explained that the protection of freedom of expression is not absolute and may be subject to limitations on cases related to obstruction to good administration of justice, which applies to cases of contempt. (the court stated that the protection of freedom of expression is not absolute and may, …..., be subject to limitation in line with public order and the common good, which applies to cases concerning contempt). c. In addition, in the case DPP v Independent Newspapers (Irl) Ltd,42 tried by this Court, it was clarified that in the cases for sub judice contempt is to determine whether the material published was intended to interfere with the good administration

of justice or create the perception of such interference ( the Supreme Court (Dunne J) explained that the test for sub judice contempt is whether the material published was intended to interfere with the administration of justice, or created the perception of such interference). Further, in the case Attorney-General for England and Wales v Times Newspapers Ltd rendered by the Court of Appeal of England, it was clarified that judgments relating to offenses of contempt of the good administration of justice consist of the prevention of media litigation; the media should not broadcast about ongoing trials in a way that would mislead witnesses or judges (Sub judice contempt developed as another means to protect the administration of justice, by preventing a “trial by media”. The media should not attempt to “prejudge” the issues in

40 Cullen v Toibín [1984] ILRM 577 at 582, refered to in Contempt of Court and Other Offences and Torts involving the Administration of Justice, op. cit., p. 53. 41 1999] IESC 81, [2000] 1 IR 354, at 374. 42 [2005] IEHC 353, [2006] 1 IR 366, at paragraph 34.

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a certain case in a way that would influence would-be witnesses or jurors)43. d. In the case of Worm v. Austria44, the European Court of Human Rights clarified that the violation of freedom of expression was necessary in order to protect the right to due process of law and maintain public confidence in the administration of justice (the interference with freedom of expression was “necessary in a democratic society” in order to protect the right to a fair trial and to maintain public confidence in the administration of justice……). e. In the case of Sunday Times v. United Kingdom45. The European Court of Human Rights had also clarified that If the issues arising in litigation are ventilated in such a way to lead the public to form its own conclusion thereon in advance, it may lose its respect for and confidence in the courts. f. The Court of Appeal of New Zealand, in the case of Gisborne Herald Co. Ltd. v. Solicitor General46, had explained that when freedom of expression and the right to a fair trial cannot be fully guaranteed, the appropriate measure to be taken is to limit freedom of the press to ensure a fair trial (…The present rule is that, where on conventional analysis freedom of expression and fair trial rights cannot both be fully assured, it is appropriate in our free and democratic society to temporarily curtail freedom of media expression so as to guarantee a fair trial). g. The Supreme Court of Canada had explained that the decision to ban the publication of an article can be taken when it is necessary in the context of preventing the blatant and substantial obstruction to good conduct of the judgement, and that this decision must prevent the more severe risk than the deleterious effects it may have on the

43 Attorney-General for England and Wales v Times Newspapers Ltd [1974] AC 273 at 300; refered to in Contempt of Court and Other Offences and Torts involving the Administration of Justice, op. cit, p. 52. 44 29 August 1997, Application 22714/93, 25 EHRR 454, par.50. 45The Sunday Times v. United Kingdom, 26 April 1979, Series A No. 30, 14 EHRR 229, par. 63. 46 [1995] 3 NZLR 563; refered to in Background Paper on Freedom of Expression and Contempt of Court for the Internationnal Seminar Promoting Freedom of Expression with three specialized international mandates, o. cit., p.

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people affected by the decision (…. A publication ban should only be ordered when: (a) Such ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) The salutary effects of the publication ban outweigh the deleterious effects to freedom of expression of those affected by the ban)47. h. In the United States, the power to punish the interference in the good administration of justice by using dissenting opinions is rarely used. The general rule is that a publication can only be punished for contempt if there is a blatant and serious danger to the administration of justice (the power of the courts to punish for contempt by publication is extremely limited. The general rule is that a publication cannot be punished for contempt unless there is a “clear and present danger” to the administration of justice48. The test requires that “the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished)49. Apart from the United States and Canada, there are other countries which have declared that for a prosecution for contempt of the administration of justice to occur, the content of published articles must constitute the blatant and serious obstruction of the process of the judgement. Those countries are England and Wales (the test for sub judice contempt in section 2(2) of the Contempt of Court Act 1981 is that there is “a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced”); New Zealand (the test for “publication” is whether there is a “real

47 Dagenais v. Canadian Broadcasting Corp., No 23403, 1994: January 24, 1994, December 8, P.5. 48 Bridges v. California, 314 US 252 (1941); Pennekamp v. Florida, 328 US 331 (1946) Craig v. Harney 331 US 367 (1946); Wood v. Georgia 370 US 375 (1962). 49 Bridges v. California, Ibid., p.

263.

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risk” that the publication will interfere with the right to a fair trial50); and South Africa (the Supreme Court of Appeal held that “a publication will be unlawful, and thus susceptible to being prohibited, only if the prejudice that the publication might cause to the administration of justice is demonstrable and substantial and there is a real risk that the prejudice may occur if the publication takes place)51.

Among the provisions of the Constitution and the International Conventions as well as the positions of the jurisdictions taken especially in relation to the admissible limitations with regard to the freedom of expression, the following key conclusions are implied: a. Freedom of expression is not an absolute principle; it has limits; b. Limitations on freedom of expression must be determined by law; c. The restriction of freedom of expression must be necessary for the respect of the rights of others, and with a legitimate aim; Among the rights of others identified as one of the legitimate aims, includes the right to due process of law which includes the right to a fair trial; d. It must be necessary to achieve this goal; e. The limitations on freedom of expression must be necessary in order to promote public confidence for the administration of justice; f. Not all publications over ongoing trial are subject to prosecution. It becomes necessary to prosecute contempt of the good administration of justice in order to guarantee the right to a fair trial, when the publications constitute a blatant and substantial obstruction to the conduct of trial.

50 New Zealand Law Commission, Issues Paper on Contempt in Modern New Zealand (IP36 2014) at paragraph 4.9 (https://www.lawcom.govt.nz/sites/default/files/projectAvailableFormats/NZLC%20I P36.pdf). 51 South Africa Supreme Court of Appeal: The NDPP v Media 24 Limited & others and HC Van Breda v Media 24 Limited & others (425/2017) [2017] ZASCA 97 (21 June 2017), at para.37; and South Africa Supreme Court of Appeal: Midi Television v Director of Public Prosecutions (Western Cape) 2007 (3) SA 318 (SCA) at para 19.

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Following the comparative analysis of the main opinions and the provisions of Article 256 of Law no 68/2018 of 30/08/2018 determining offences and penalties in general, in the context of determining whether or not it is affected by the restrictions on freedom of expression, the Court notes that: a. Article 256 of the Law no 68/2018 of 08/30/2018 provides for restrictions on freedom of expression if these opinions intend to mislead witnesses or a decision of a judge before the case is determined. b. A person who publishes opinions with the intention to mislead witnesses or a decision of a judge before the case is determined, is considered to have the intention to obstruct the good administration of justice and the right to a fair trial. c. Obstruction of the good administration of justice and the right to a fair trial is one of the legitimate reasons that may lead to the need of limiting the freedom of expression. Nevertheless, the court, notes that not all the opinions expressed in relation to the current trial must be prosecuted on the basis of this provision, because for this to happen, it must be indicated that the publisher had intention of misleading and that the publications manifestly and seriously undermine the smooth conduct of the trial.

Regarding the statements of Kabasinga Florida that the judge rules based on the content of the file and that he/she cannot therefore be misled as a result of publications by any means, the court will examine this question based decided cases on the same matter. Some courts have indicated that a judge cannot be misled by publications while others concluded otherwise.

The judgements establishing that the judge cannot be misled by the publications include: a. The judgement rendered by the High Court of England, Vine Products Ltd. v. MacKenzie & Co. Ltd52, it ruled that professional judges participate in sufficient training to such an extent that they

52 1965] 3 All ER 58, referred to in Background Paper on Freedom of Expression and Contempt of Court for the International Seminar Promoting Freedom of Expression with three specialized international mandates, op.cit., p.

11.

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cannot be misled, during deliberation, by publications relating to the trial (It has generally been accepted that professional judges are sufficiently well equipped by their professional training to be on their guard against allowing [a prejudging of the issues] to influence them in deciding the case). b. The case Akinrinsola v. Attorney-General of Anambra State53 tried by the court of Nigeria ruled that a statement that was regarded as contempt in the smooth administration of justice in case involving non-professional judges, it would rarely be contempt in a trial by judge-alone (a statement that was regarded as contempt in a jury trial would rarely be contempt in a trial by judge-alone). c. the case Nebraska Press Association v. Hugh Stuart54, where the Supreme Court of the United States of America has ruled that the decision by the jury of the first jurisdiction of banning publication of media publications on the case pending in the courts because it is susceptible to the influence non-professionals is ill-founded(the American Supreme Court vacated a prior-restraint order passed by the trial Judge in a multiple murder case while that case was pending, on the ground that the view of the trial Judge that Jurors are likely to be influenced by the press publications, was speculative). d. The case Attorney General v. BBC55 rendered by the Court of Appeal in England where the judge had observed that professionally trained Judges are not easily influenced by publications (Lord Denning in the Court of Appeal had observed that professionally trained Judges are not easily influenced by publications).

Judgments establishing that judge may be influenced by publications include: a. The case Reliance Petrochemicals v. Proprietor of Indian Express56 rendered by the Supreme Court in India and ruled that there is no

53 (1980) 2 NCR 17, referred to in Background Paper on Freedom of Expression and Contempt of Court for the International Seminar Promoting Freedom of Expression with three specialized International Mandates p.11. 54 Nebraska Press Association v. Hugh Stuart: (1976) 427 US 539. 55 Attorney General v. BBC: 1981 A.C 303 (HL), p.312 56 Reliance Petrochemicals v. Proprietor of Indian Express : 1988(4) SCC 592. Re KABASINGA ET AL

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distinction between the professional and a nonprofessional judge with regard to being misled by publications made on the pending trial (No distinction is, in our judgment, warranted that comment on a pending case or abuse of a party may amount to contempt when the case is triable with the aid of a Jury and not when it is triable by a Judge or Judges). b. Explanations of Justice Frankfurter (concurrent opinion) during the case of John D. Pennekamp v. State of Florida57 tried by the Supreme Court of the United States of America: - The Judiciary could not function properly if what the press does is reasonably calculated to disturb the judicial judgment in its duty and capacity to act solely on the basis of what is before the Court. - No Judge fit to be one is likely to be influenced consciously, except by what he sees or hears in Court and by what is judicially appropriate for his deliberations. However, Judges are also human and we know better than did our forebears how powerful is the pull of the unconscious and how treacherous the rational process ... and since Judges, however stalwart, are human, the delicate task of administering justice ought not to be made unduly difficult by irresponsible print. The power to punish for contempt of court is a safeguard not for Judges as persons but for the functions which they exercise. (No Judge fit to be one is likely to be influenced

consciously, except by what he sees or hears in Court and by what is judicially appropriate for his deliberations. However, Judges are also human and we know better than did our forebears how powerful is the pull of the unconscious and how treacherous the rational process ... and since Judges, however stalwart, are human, the delicate task of administering justice ought not to be made unduly difficult by irresponsible print. The power to punish for contempt of court is a safeguard not for Judges as persons but for the functions which they exercise. It is a condition of that function - indispensable in a free society -

57 John D. Pennekamp v. State of Florida (1946) 328 US 331.

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that in a particular controversy pending before a court and waiting judgment, human beings, however strong, should not be torn from their moorings of impartiality by the undertone of extraneous influence. In securing freedom of speech, the Constitution hardly meant to create the right to influence Judges and Jurors". c. In the case of Attorney General v. BBC: 1981 A.C 303 (HL)58 Aforementioned, Lord Dilhorne dissented the opinion of Lord Denning that no Judge will be influenced in his Judgment by anything said by the media, but that no one is able to entirely get rid of what he/she has seen, heard or read that are likely to influence him/her unconsciously (It is sometimes asserted that no Judge will be influenced in his Judgment by anything said by the media and consequently that the need to prevent the publication of matter prejudicial to the hearing of a case only exists where the decision rests with laymen. This claim to judicial superiority over human frailty is one that I find some difficulty in accepting. Every holder of a Judicial Office does his utmost not to let his mind be affected by what he has seen or heard or read outside the Court and he will not knowingly let himself be influenced in any way by the media, nor in my view will any layman experienced in the discharge of Judicial duties. Nevertheless, it should, I think, be recognized that a man may not be able to put that which he has seen, heard or read entirely out of his mind and that he may be subconsciously affected by it).

The statements of the Justice Frankfurter and Lord Dilhorne have been echoed by some law reform commissions which added that criminalization of contempt of the good administration of justice is also intended to protect the public perception in relation to impartiality for decisions made by judges: a. The New South Wales Law Reform Commission in Australia had clarified that the judge can be subconsciously influenced – by what he/she has seen, heard or read-, and that it is essential to prevent the problem that the public would believe that the judge is biased (first, it is always possible that a Judicial officer may be subconsciously

58 Attorney General v. BBC: 1981 A.C 303 (HL), p. 335 Re KABASINGA ET AL

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influenced; and secondly, it is just as important to protect the public perception of Judges' impartiality as to protect against risk of bias)59. b. The Law Reform Commission of Canada had also explained that while Judges may generally be impervious to influence, the possibility of such influence could not be ruled out altogether, and that in the case of Judicial officers, the sub-judice rule served an important function of protecting public perception of impartiality)60.

The above reasons were reiterated by The UN Special Rapporteur on Freedom of Expression and Opinion) on the case of Ms. Bernadette and Mr. Michael McKevitt who fought for the independence of Ireland. The media reported that they are linked to the bomb explosion that killed around 29 people even before police's interrogated them. The UN Special Rapporteur had indicated that what was broadcast by the media had created a situation where no one is willing to tolerate the possibility that Bernadette and Michael McKevitt are innocent. This had led them to believe that if they are prosecuted, they have no hope of getting a fair trial. (….In the case of Bernadette and Michael McKevitt, the media have created a situation where almost no one in Ireland is prepared to countenance the possibility that they may be innocent……They create such certainty of their guilt in the minds of the public that, if these persons are even actually charged and tried, they have no hope of obtaining a fair trial)61.

What particularly concerns misleading witnesses was said in the case of Attorney General v. Mirror Newspapers (The premature publication of evidence may have a tendency to influence the evidence of witnesses or potential witnesses)62.

59 The New South Wales Law Commission in its Discussion Paper (2000) (No.43) on 'Contempt by Publication, https://www.lawreform.justice.nsw.gov.au/Documents/Publications/Other- Publications/Discussion-Papers/DP43, para 60 Canadian Law Reform Commission, Contempt of Court: Offences against Administration of Justice {Working Paper 20, 1977, p 42-43} and Report 17 (1982) at p 30), cited by Law Commission of India, 20 Report on trial by media, free speech and fair trial under criminal procedure code 1973, August 2006, p.57 (https://lawcommissionofindia.nic.in/reports/rep200.pdf). 61 Cited by Law Commission of India, 20 Report on trial by media, Free speech and Fair trial under Criminal procedure code 1973, August 2006, p. 12 & 13. 62 Attorney General v Mirror Newspapers Ltd [1980] 1 NSWLR 374; Referred to in civil Trials Bench Book, Contempt

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In the previous judgments and documents, three main schools of thought are evident. The first school advances that the professional judge cannot be misled by the publications made outside the hearing; while the second alleges that it is possible. The third declare that even if, in general, the judge can ignore broadcasts made during deliberation, but they are likely to influence him/her unconsciously. In addition, there is the problem that people who have watched or listened to these broadcasts may suspect that they have influenced them, which can lead them to discredit any decision and thus affect the good administration of justice. This Court concurs with the third school of thought.

Therefore, a career judge must adjudicate in a manner that he/she deems appropriate based on trial statements and on the content of the case file, regardless of what he/she has seen or heard. However, the judge is a human being all the same and by nature what goes into his/her intellect can influence his/her thinking unconsciously. Even though the judge can generally ignore broadcasts made during his/her deliberations, litigants and the public may suspect that he/she was influenced leading to discredit any decision to be made. And moreover, as stated by the Law Reform Commission of New South Wales (Australia)63 on the basis of the principle established in the judgment R v. Sussex Justices: Exparte McCarthy: 1924 (1) KB 256 which is still applicable, "Justice should not only be done, it should manifestly and undoubtedly be seen to be done".

It is therefore in the finding of the Court that based on the provisions of laws, international conventions ratified by Rwanda, as well as all elucidations, especially based on decided cases, the provisions of Article 256 of the Law no 68/2018 of 30/08/2018 determining offenses and penalties in general are acceptable restrictions with a legitimate aim on the principle of freedom of expression and thus do not infringe this principle. Therefore, it is not contrary to Article 38 of the Constitution.

Generally(https://www.judcom.nsw.gov.au/publications/benchbks/civil/contempt_gen erally.html#p10-0360 63 The New South Wales Law Commission in its Discussion Paper (2000) (No.43) on 'Contempt by Publication', p.70. Re KABASINGA ET AL

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DECISION OF THE COURT

Hereby declares with merit in part the petition initiated by Kabasinga Florida.

Hereby declares with merit the petition initiated by Niyomugabo Ntakirutimana.

Hereby declares paragraph 4 of the Article 84 of the Law no 68/2018 of 30/08/2018 determining offenses and penalties in general contrary to Articles 29, paragraph 4 of the Constitution; and without effect based on the provisions of Article 3 of the Constitution.

Hereby declares part of the text of article 92 of the Law no 68/2018 of 08/30/2018 determining offenses and penalties in general reading that: “that cannot be mitigated by any circumstances”, contrary to Articles 29 and 151 of the Constitution and without effect.

Hereby declares paragraph 3 of the Article 133 of the Law no 68/2018 of 30/08/2018 determining offenses and penalties in general, with regard to the part of the text reading that “if child defilement is committed on a child under fourteen (14) years, the penalty is life imprisonment that cannot be mitigated by any circumstances”, contrary to Articles 29 and 151 of the Constitution, and without effect.

Declares Article 256 of the Law no 68/2018 of 30/08/2018 determining offences and penalties in general not inconsistent with the Constitution;

Declares Article 256 of the Law no 68/2018 of 30/08/2018 determining offences and penalties in general not inconsistent with the Constitution;

Hereby orders the publication of this case in the Official Gazette of the Republic of Rwanda.

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Re KABASINGA [Rwanda SUPREME COURT – RS/INCONST/SPEC 00003/2020/SC– Vol [2022] 1 RLR – (Nteziryayo, P.J., Cyanzayire, Muhumuza, Rukundakuvuga and Hitiyaremye, J.) November 27, 2020] Constitution – The principle of equality before the law – Distinction of individuals – All persons are equal before the law without any distinction or discrimination and the enacted law should treat people equally – This principle may be subject to exception if there are reasonable grounds based on legitimate purpose of distinction of people but which, with consideration of their physiology, it does not constitute a discrimination. Law determining offences and penalties – Infanticide – It is a particular offense which is impossible to be committed by a male due to his physiology as a person unable to get pregnant and deliver, and therefore unlikely to undergo effects resulting from delivery or lactation as it happens to female – It is committed by a female as a consequence of delivery. Constitution – Fair justice – Fair justice consists with the set of procedural due process of the trial based on the principles of law and fair justice preventing the adoption of unreasonable legislation or other measures and violating the substantive due process in favour of the people – The Constitution of the Republic of Rwanda of 2003 as revised in 2015, article 29. Law determining offences and penalties –

Constitutive acts of infanticide – They are wilful acts or by omission committed by a women killing his or her biological child whose age is not above twelve (12) months but during the commission of which she was in postpartum depression or by effect of lactation – This depression is different from mental disturbance likely to result into incapacity of the person to perceive his/her acts. Facts: Kabasinga initiated a petition to the Supreme Court whereby she requests this court to declare article 108 of the Law Nº68/2018 of 30/08/2018 determining offenses and penalties in general to be inconsistent with the Constitution of the Republic of Rwanda of 2003 revised in 2015, in its articles 15 and 16, due to the fact that she deems that it contains discrimination based on gender since it only concerns a female. She states also that this provision is 165

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an obstruction to fair justice provided for by article 29 of the Constitution because it provides for punishment towards a woman who committed an offence while in a status of mind disturbance therefore it should be repealed basing on the provision of article 3 of the Constitution. The Government of Rwanda argues that this provision does not contain any discrimination based on gender and that it does not obstruct the right to fair justice; therefore, it should not be repealed because it does not contradict the Constitution. In the course of hearing in public, the petitioner alleges that article 108 of the above-stated law is inconsistent with articles 15 and 16 of the Constitution because it contains discrimination based on sex whereby it is only a woman who is likely to be prosecuted for this offense given that in no way a man can be found guilty of the offense provided for by this provision since he neither breastfeeds nor be pregnant. Another thing is that the postpartum effects that may lead to involuntary infanticide do not only regard the woman, they rather concern both parents including the man because, in the event of the postpartum death of the delivering mother, the parental duties also lies with a man who, at this time may kill the child voluntarily as a result of looking after it nights long which may impact his mind negatively. For this instance, a man would

be prosecuted based on article 111 of the stated law determining offenses providing for manslaughter, the situation which is different from the fact that a particular penalty is provided for a woman who would kill her child voluntarily. The government of Rwanda states that women and men who commit infanticide are prosecuted for voluntary murder in the same way but the particular physiology of a woman leads to the fact that she is the only person likely to undergo the postpartum depression or lactation effects leading to infanticide and in this case, she not punished for the voluntary murder, she is rather punished for the infanticide as a result of these effects. This entails that she is given a lesser penalty comparing to women or men who committed infanticide for reasons other than these. The Government of Rwanda clarifies that this provision was established in the context of the protection of the right of the child, whereby in the past, an infant used to be killed because its parents are not contented with its birth. This indicates that this provision does not contain discrimination since the man who commits infanticide is also punished the same way as a woman who would commit voluntary infanticide. Therefore, even though it may sound that this

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provision contains discrimination towards women, this would be positive discrimination permitted by the law. Health Development Initiative (HDI) organisation as the amicus curiae states that the punishment of the offense of infanticide does not occur for the first time in Rwandan legislation because the successive legislations have had the provision criminalising this offense where the man and woman were subject to the same penalties for infanticide. The particularity of article 108 of the Law no 68/2018 of 30/08/2018 consists of the fact that it punishes a woman only and stresses that she is punished in the event she commits infanticide while she is in the state of mental disturbance as a result of the effects stated above, implying that this organisation deems this provision to be discriminatory. The organisation “Women’s Link Worldwide” states also that it finds that article 108 of the stated law contains discrimination based on sex because it provides for the infanticide reserved for women solely. Regarding another issue relating to the fact that article 108 of the Law nº 68/2018 of 30/08/2018 determining offenses and penalties in general is an obstruct to the right to fair justice, and inconsistent with article 29 of the Constitution, the petitioner clarifies it by stating that this provision punishes the person who committed an act that does not fulfil all required

elements in order to be qualified as an offense as long as the intention to commit it is absent while in usual circumstances, the offense is considered as such if its constituent elements exist. Accordingly, despite the fact that it does not guarantee fair justice, this provision does not even abide by the general principles of criminal law. She pursues explaining that from the comparison of the criminalisation of this offense in Rwanda and other countries where our instrument seems to have originated from, it is evident that the legislator did not deeply explicit some notions and this is likely to continue enticing the injustice towards women who may undergo these postpartum depression, where instead of justice being served for them, the situation becomes as an aggravation to their traumatism. Consideration made of the principles of criminal laws, no person would be punished for an act committed involuntarily, even in the event of the occurrence of death since in the absence of intent, there is no offense and in this case, no conviction should be pronounced. She finds rather that this article 108 deserves to be amended for the purpose of its clarification in order to differentiate the instance where the fugitive would be considered as s/he committed the offense voluntarily and be held responsible, and the instance Re KABASINGA

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where s/he would commit it involuntarily and not be held responsible. Hence, this would help courts to administer fair justice. The Government of Rwanda contends that the statements that article 108 of the law punishes a wrong person are unfounded. It explains that the Kinyarwanda version of this provision introducing in the text “ubwenge bwe budakora neza” (postpartum depression), consists of the formulation issue only as this text should not be part of the provision, rather, it should be perceived as in the English and French versions where it is understood as any woman, who intentionally or by omission kills her biological child whose age is not above twelve (12) months but during the commission of the offense she was in postpartum depression or by the effect of lactation, commits an offense…..It relies on the fact that usually, the medical experts indicate that the postpartum or lactation effects are not likely to result in mental incapacity like in the case of mental disorder patients. This entails that even if she has such conditions, she remains with the faculties to know the good and wrong, and even the consequence of the acts he/she may commit, which is different in case of the person with a mental disorder who lacks such faculties. For this reason, she should be held liable for the act voluntarily committed with full knowledge, but with a reduced penalty because she

commits the offense of infanticide involuntarily as a result of those effects, the reason why not every woman who delivers or with postpartum depression does not kill her own child, therefore, the woman who does it should be punished. In its analysis of article 108 of the foregoing law, the organisation Health Development Initiative (HDI) as the amicus curiae alleges that this provision violates the rights of the woman to reproduction health as provided in the international conventions and other domestic legal instruments as well as the principle of criminal liability. In addition, it deems that this article 108 contradicts article 95 of the Constitution providing that international conventions duly ratified prevail over ordinary laws. For this reason, the Law nº 68/2018 of 30/08/2018 is an ordinary law which is inferior to the international convention ratified by Rwanda in relation to the right of the woman health in general and to reproductive health in particular. It is again inconsistent with articles 3, 12, and 16 of the Law n° 21/05/2016 of 20/05/2016 relating to human reproductive health because if these provisions were respected, the woman would not commit infanticide unless she has mental depression. This provision is as well inconsistent with Article 85(2) of the Law nº 68/2018 of 30/08/2018 stated above, providing that there is no liability if the accused had a mental disorder at the time of the commission of the offense.

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The organisation Women’s Link Worldwide (WLW) as another friend of the Court states that the Supreme Court would consider the issues relating to the punishment of infanticide including the misinterpretation of the instruments relating to the punishment of this crime where women are punished because they are unable to access the services of reproduction health and violation of the right of women to life, health and privacy and misinterpretation of the offense of infanticide by women and girls who aborted or who underwent the consequences of delivery constitute the severe and particular penalty. This organisation explains that in several countries, this offense is considered a petty offense comparing to other kinds of homicide, and the reason being that it is considered the reason for the commission of that crime. It concludes by stating that prosecuting for the crime on women and girls having undergone serious effects of delivery and abortion in an insecure way, consists of the serious violation of the right of women to life and health protected by the law and international convention as a human right. The right solution to this issue should be striving for the better security of women and have access to reproduction health services including abortion and post abortion care, sexual health education and pregnancy prevention. Held: 1. All persons are equal before the law. They are

entitled to equal protection of the law without any distinction or discrimination and the enacted law should treat people equally. This principle may be subject to exception if there are reasonable grounds based on legitimate purpose of distinction of people but which, with consideration of their physiology, it does not constitute a discrimination. For these reasons, article 108 of the Law nº 68/2018 of 30/08/2018 determining offences and penalties in general does not contain inequality before the law or the discrimination based on sex since infanticide could not be committed by a man due to the fact that his physiology is different from that of a woman, and is not inconsistent with article 15 and 16 of the Constitution of the Republic of Rwanda.

2. Infanticide is a particular offense impossible of being committed by a man due to his physiology as an individual unable to conceive and deliver and undergo postpartum and lactation effects as it happens to a woman. Thus, it is committed by a woman as a result of delivery depression. Fair justice consists with the set of procedural due process of the trial based on the principles of law and fair justice preventing the adoption of Re KABASINGA

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unreasonable legislation or other measures and violating the substantive due process in favor of the people. They are wilful acts or by omission committed by a women killing his or her biological child whose age is not above twelve (12) months but during the commission of which she was in postpartum depression or by effect of lactation. This depression is different from mental disturbance likely to result into incapacity of the person to perceive his/her acts. Therefore, this article 108 does not obstruct fair justice provided for by article 29 of the Constitution. Petition without merit. Statutes and statutory instruments referred to: Constitution of the Republic of Rwanda of 2003 revised in 2015, articles 3, 15, 16, 21, 29 and 95. Organic Law nº 01/2012/OL of 02/05/2012 instituting the penal code, article 143. Decree law nº 21/77 of 18 August 1977 instituting the penal code, article 314. The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, adopted in Maputo on 11 July 2003, ratified by the Presidential Order Nº 11/01 of 24/06/2004, article 8. African Charter on Human and Peoples Rights, ratified by the Presidential order nº 10/1983 of 17/05/1985, article 16. Convention on the Elimination of All Forms of Discrimination Against Women, adopted by Rwanda through the Presidential order nº431/16 of 10 November 1980 and ratified on

02/03/1981, articles 1 and 12. International Covenant on Economic, social and Cultural Rights, ratified by the decree law nº 8/75 of 12/02/1975, article 12. International Covenant on Civil and Political Rights), 1966, article 26. Universal Declaration of Human Rights of 1948, article 7. Law nº 68/2018 of 30/08/2018 determining offences and penalties in general, articles 85, 107, 108 and 111. Law n° 21/05/2016 of 20/05/2016 relating to human reproductive health, articles 3, 12 and 16.

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Foreign legislations referred to: Criminal code of Canada, article 233 UK penal code, article 16. The Law relating to infanticide in Canada, article 262. Cases referred to: RS/INCONST/SPEC00003/2019/SC, rendered by the Supreme Court on 04/12/2019, para.

13. RS/INCONST/SPEC00001/2019/SC, rendered by the Supreme Court on 29/11/2019. RS/SPEC/0001/16/CS, rendered by the Supreme Court on 23/09/2016, Law Report V. 2, 2017, p.1. S.C.C. No.: 36585, Her Majesty the Queen and Meredith Katharine Borowiec, para.

2. R. v. Parks, [1992] 2 S.C.R. 871, at p.

896. Authors cited: Erwin Chemerinsky, In Defense of Equality: A Reply to Professor Westin, 81 MICH. L. REv. 575, 578 n.17 (1983). Eric Vallillee, Western Journal of Legal Studies, Vol 5, Issue 4, article 1. I. Elements of the offence (Infanticide). R v. Smith (1976) 32 C.C.C.(2d)224(Nfdl Dist Ct), cited by Winifred H. Holland. Winifred H. Holland, Murder and related Issues: An Analysis of the law in Canada, Report for the Law Commission, July 27th, 2005, p.

26. Michele Connell, The Postpartum Psychosis Defense and Feminism: More or Less Justice for Women. I.

BRIEF BACKGROUND OF THE CASE

Kabasinga Florida initiated a petition before the Supreme Court requesting to declare article 108 of the Law Nº 68/2018 of 30/08/2018 determining offenses and penalties in general inconsistent with the constitution of the Republic of Rwanda of 2003 revised in 2015, in its articles 15 and 16, for the reason that it contains discrimination based on sex since it concerns solely a woman. She states further that this provision is an obstruction to the right to fair justice provided for by article 29 of the Re KABASINGA

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Constitution because it penalizes a woman who committed an offense while in the status of mental disturbance; therefore, she requests it to be repealed based on the article 3 of the Constitution.

Article 108 of the Law Nº 68/2018 stated above reads that any woman, who intentionally or by omission kills his or her biological child whose age is not above twelve (12) months but during the commission of the offense she was in postpartum depression or by effect of lactation commits an offense. Upon conviction, he / she is liable to imprisonment for a term of not less than five (5) years but not exceeding seven (7) years.

The Government of Rwanda states that this provision does not contain discrimination based on sex and that it does not obstruct the right to fair justice; therefore, it deems that it should not be repealed because it is not inconsistent with the constitution.

The case was heard in public on 03/11/2020, Kabasinga Florida who is the petitioner was assisted by Counsel Rwagitare Fred Fiston and Counsel Mugabonabandi Jean Maurice, in the presence of the Government of Rwanda represented by Counsel Umwari M. Claire together with Counsel Kabibi Spéciose. There were also the friends of the Court: the organisation of Health Development Initiative, (HDI) represented by Counsel Garura Christian and the organisation “Women’s Link Worldwide” represented by its representative in Rwanda and assisted by Counsel Cyiza Consolée.

In this case, the following issues were analysed:  Determining whether article 108 of the Law Nº 68/2018 of 30/08/2018 determining offenses and penalties in general contains discrimination based on sex to the extent of being inconsistent with the Constitution of the Republic of Rwanda of 2003 revised in 2015 in its articles 15 and 16;  Determining whether this provision is an obstruct to the right to fair justice provided for by article 29 of the Constitution.

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II.

LEGAL ISSUES AND THEIR ANALYSIS 1. Determining whether article 108 of the Law Nº 68/2018 of 30/08/2018 determining offenses and penalties in general contains discrimination based on sex to the extent of being inconsistent with the Constitution of the Republic of Rwanda of 2003 revised in 2015 in its articles 15 and 16;

Kabasinga Florida and her a Counsel state that article 108 of the Law Nº 68/2018 of 30/08/2018 determining offences and penalties in general contains the discrimination based on sex , therefore, it is inconsistent with the Constitution of the Republic of Rwanda of 2003 revised in 2015 in its articles 15 and 16. This provision provides that any woman, who intentionally or by omission kills his or her biological child whose age is not above twelve (12) months but during the commission of the offense she was in postpartum depression or by effect of lactation commits an offense. Upon conviction, he / she is liable to imprisonment for a term of not less than five (5) years but not exceeding seven (7) years. They state that it is evident that this provision discriminates against women for the following reasons: a. The woman is only the sole person who can be prosecuted for this offense, and in no way a man may be convicted of this offense because he does not breastfeed and get pregnant. The fact for the woman to be the only person to be concerned by this provision, is considered through constitutive special elements of the offense, meaning the fact for the mother to kill her child as a result of postpartum or lactation effects. b. The postpartum effects that are likely to lead to involuntary infanticide do not concern the woman only, they rather concern both parents including a man

because in the event of the postpartum death of the woman, all obligations to care for the child fall to the man, and in this case, he can also kill the child involuntarily as a consequence of looking after during nights and can lead to mental disturbance. c. In the event it happens to the man to commit infanticide, he would be prosecuted according to article 111 providing for manslaughter and be liable to imprisonment for a term of not less than six (6) months and not more than two (2) years and a fine of not less than five hundred thousand Rwandan francs (Frw 500,000) and not more than two million Rwandan francs (Frw 2,000,000) or only one of these penalties, and this is minor Re KABASINGA

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comparing to that provided for a woman who commits the same crime as that committed by a man. d. If the legislator intended to establish the penalty by considering the offense committed, he would not have segregated the woman and fixe a particular penalty. A woman who commits infanticide would be treated as any other person who commits the manslaughter provided for by article 111 of the above stated law, and if there is intent, she be punished of the same penalty destined to other persons for voluntary murder provided for by article 107 of the same law without being necessary to differentiate between man and woman.

They conclude by alleging that this provision is inconsistent with the Constitution of the Republic of Rwanda of 2003 revised in 2015 in its articles 15 and 16 prohibiting any kind of discrimination, and it is as well in contradiction to international conventions on the elimination of all forms of discrimination ratified by Rwanda. They cite the Protocol adopted in Maputo in 2003, ratified by the Presidential Order nº 11/01 of 24/06/2004, and for these reasons, they request the Supreme Court to rely on article 3 of the Constitution of the Republic of Rwanda and repeal it.

With regard to this reason, the State Attorneys for the Government of Rwanda state that they do not agree with the petitioner that article 108 of the Law nº 68/2018 of 30/08/2018 previously mentioned contains discrimination, and they rely their arguments on the following grounds: a. Men like women who all commit infanticide are prosecuted in the same way for voluntary murder because killing their own child consists of murder; b. The particular physiology of a woman leads to the fact that she is the only person that may suffer postpartum depression or lactation effects. However, if she commits infanticide as a result of those effects, she is not punished for voluntary murder, she is rather punished for infanticide due to postpartum depression and lactation effects. This entails that they are punished with a reduced penalty comparing to those imposed on men and women who committed infanticide for different reasons.

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The State Attorneys explain further that natural physiology of a woman who delivered is different from that of a man, and that it is this physiology which was taken into account for punishing the acts constituting a crime under article 108 of the Law nº 68/2018. They state that those acts stated in this article consist of killing a child after delivery and that the postpartum effects could not affect man. They argue therefore that they are those effects that were considered in this law, the situation which is different from the ancient instruments where a man and a woman were punished in the same way in the event of the commission of the crime of infanticide. The particularity of this provision consists of the fact that a woman who commits an infanticide as a result of the postpartum depression is punished but with a mitigated penalty.

They argue that the reason for establishing this provision was done in the context of protection of the right of the child, where in the past infanticide used to be committed against a child whenever it was born but undesired by the parents. For this instance, they provided an example of the parent who could kill his/her own child for the reason of being disabled or because of being a girl while they desired a boy.

They conclude their briefs by declaring that they don’t deem this article to contain discrimination due to the fact that a man who commits infanticide is also punished as a woman who would kill her child voluntarily; and that even though it may appear that this article discriminates against women, this would be considered as positive discrimination permitted by the law because if the distinction s based on a legitimate purpose and on given particularities, it is permitted. They give the instance of the law establishing the general statute for civil servants where it provides the long maternity leave for a woman than that given to a man without considering this as discrimination.

With regard to this issue, the representative of the organization of Health Development Initiative (HDI) as a friend of the Court, state that the punishment of the offense of infanticide does not occur for the first time in Rwandan legislation because the successive legislations have had the provision criminalizing this offense. She cites article 143 of the Organic Law Nº 01/2012/OL of 02/05/2012 instituting the penal code as well as article 314 of the Decree Law Nº 21/77 of 18 August 1977 instituting the penal code. Re KABASINGA

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She declares that those above-stated instruments provided for the same punishment for men and women in the event they commit infanticide. The particularity of this article 108 of the Law Nº 68/2018 of 30/08/2018 is that it punishes the woman only and stresses that she is punished in case she commits infanticide while in a state of mental disturbance as a result of postpartum depression or lactation effects; therefore, they find that this provision is discriminatory.

The representative of the organization of “Women’s Link Worldwide” states that article 108 of the Law mentioned above contains discrimination based on sex because it provides for the offense of infanticide which can only be committed by women.

DETERMINATION OF THE COURT

Article 15 of the Constitution of the Republic of Rwanda of 2003 revised in 2015 provides that all persons are equal before the law. They are entitled to equal protection of the law. In addition, article 16 of the Constitution states also that 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.

The article for which the abrogation is sought against which the petitioner alleges to be inconsistent with the provisions of the Constitution of the Republic of Rwanda as stated above consists of article 108 of the Law nº 68/2018 of 30/08/2018 determining offenses and penalties in general providing that any woman, who intentionally or by omission kills his or her biological child whose age is not above twelve (12) months but during the commission of the offense she was in postpartum depression or by effect of lactation commits an offense. Upon conviction, he / she is liable to imprisonment for a term of not less than five (5) years but not exceeding seven (7) years.

In order to know whether this provision contains discrimination based on sex, therefore inconsistent with article 15 as well as 16 of the Constitution of the Republic of Rwanda as declared by the petitioner, it is

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necessary to explain how these provisions are understood. As it was explained in the judgment RS/SPEC/0001/16/CS1 rendered by this Court on 23/09/2016, articles 15 and 16 of the Constitution are linked to the extent that it is difficult to interpret them separately. Indeed, article 15 provides that all persons are equal before the law and are entitled to equal protection of the law. This implies that there should not be discrimination likely to prevent people from enjoying equal protection or being deprived of their rights while they ought to enjoy them. On the other hand, article 16 pursues that the distinction between individuals is considered as discrimination and that, it is prohibited by the Constitution. Both provisions are to be considered as encompassing a single principle of prohibition of distinction in their rights or prohibitions with the purpose of excluding some people from enjoying the rights they are guaranteed by the law.

The principle of equality and prohibition of discrimination is not only found in the Constitution of the Republic of Rwanda, it is also present in International Conventions ratified by Rwanda. For example, we can cite article 7 of the Universal Declaration of Human Rights, 1948 which states that “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against discrimination in violation of this Declaration and against any incitement to such discrimination”.

There is also article 26 of the International Covenant on Civil and Political Rights, 1966 stating that “All persons are equal before the law and are entitled without any discrimination to equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, language, religion, political or other opinion, national or social origin, property, birth or other status”. In particular, concerning the equality between women and men, article 8(f) of Maputo Protocol, provides that “Women and men are equal before the law and shall have the right to equal protection and benefit of the law. States Parties shall take all appropriate measures to ensure …. (f): reform of existing discriminatory laws and practices in order to promote and protect the rights of women”.2

1 Rwanda Law Reports, V. 2, 2017, P.1. 2 Rwanda ratified this protocol on 25/06/2004. Re KABASINGA

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As indicated in the provisions of the law and international conventions previously stated, the principle of equality before the law entails that people are entitled to equal protection of the law without distinction or discrimination and the adopted instrument should treat people equally. However, this principle may be subject to exception in case there exists legitimate reason based on rational purpose. This has been held by this Court in the judgment RS/INCONST/SPEC 00001/ 2019/SC rendered on 29/11/20193. In this judgment, the Court explained also that the “Things that are alike should be treated alike, and things that are unalike should be treated unalike in proportion to their unlikeness”4. In other words, people should be treated equally but with consideration of their physiologies.

After explaining the meaning of equality before the law, in order for the issue of this case relating to know whether article 108 of the Law nº 68/2018 of 30/08/2018 determining offences and penalties in general containing discrimination be resolved, it is necessary to explain what is discrimination. In the judgment RS/SPEC/0001/16/CS5 delivered on 23/09/2016, this Court held that in general the discrimination consist of the distinction of people with the purpose of depriving some people of opportunities and practice nepotism in favor of others based on irrational grounds. Concerning the discrimination base on sex, the article one of international conventions on the elimination of all forms of discrimination against women, states that it is any distinction, exclusion or restriction made on the basis of sex which has the effect of nullifying the recognition, enjoyment of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field (For the purposes of the present Convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field)6.

3 RS/INCONST/SPEC00001/ 2019/SC rendered on 29/11/2019, p.12, para. 35 4 RS/INCONST/SPEC 00001/ 2019/SC rendered on 29/11/2019, p.12, para. 35 5 Law report, V. 2, 2017, P.16, Para. 22. 6 This Convention was ratified by Rwanda on 02/03/1981.

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After these given general explanations, it follows to determine whether, the fact for article 108 of the aforementioned Law nº 68/2018 to state that any woman, who intentionally or by omission kills his or her biological child whose age is not above twelve (12) months but during the commission of the offense she was in postpartum depression or by effect of lactation commits an offense, contains discrimination for omitting a man. In order for this issue to be answered, it is important to analyze the constitutive elements of the offence of infanticide.

This court finds that the provisions of article 108 above stated, do not exist in Rwanda only, and it is not the first time the debates about it arise across the world but in order to settle them, the legal instruments, court decisions as well as legal scholars always corroborate to consider the particularity of the woman due to her natural physiology. In Canada for instance, article 233 of the criminal code provides that “A female person commits infanticide when by a willful act or omission she causes the death of her newly born child, if at the time of the act or omission she is not fully recovered from the effects of giving birth to the child and by reason there of or of the effect of lactation consequent on the birth of the child her mind is then disturbed”. In the criminal code of UK, article 160 providing for infanticide reads that Where a woman by any willful act or omission causes the death of her child, being a child under the age of twelve months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child […].

The provisions of these articles came to be interpreted in various judgments. In his article on infanticide, Julio Arboleda-Florez indicated that according to the analysis of Lord justice McRuer7 of article 262(2) of the Law of Canada of the year 1948 on the offense of infanticide, he indicated that it is constituted by the following elements:

a) The accused should be a woman, b) She should have killed a child, c) The child should be an infant,

7 James Chalmers McRuer, OC (August 23, 1890 – October 6, 1985) was a Canadian lawyer, judge, commissioner and author in Ontario. Re KABASINGA

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d) The child should belong to the accused, e) The death should be the result of the intent to commit the offense or the omission to do what ought to be done. f) During this time, the accused should be in the state of postpartum lactation g) The accused should be in a state of postpartum depression. He expressed it in the following English terms: “In his analysis of the then Section 262, 2, Judge McRuer considered the elements of the offence of infanticide as: the accused must be a woman; she must have caused the death of a child; the child must have been newly born; the child must have been a child of the accused; the death must have been caused by a willful act or omission of the accused; at the time of the willful act or omission the accused must not have fully recovered from the effect of giving birth to the child; and by reason of giving birth to the child the balance of her mind must then have been disturbed (19)”8

In his article published in Western Journal of Legal Studies, titled Deconstructing Infanticide, Eric Vallillee clarified the constitutive elements of the offense provided by article 233 of the criminal law in Canada (Infanticide). The case law R v Smith that he referred to in his article indicated that the infanticide is constituted by the following elements: The accused is female; (b) The deceased was born alive; (c) The accused caused the death of her child; (d) The death of the child was caused by a willful act or omission of the accused; (e) The child was newly-born (under 12 months of age); (f) The accused was not fully recovered from the effects of giving birth to the child; (g) By reason of childbirth or the consequent effects of lactation the accused’s mind was disturbed.9

8 Available at https://docksci.com/infanticide-some-medicolegal- considerations_5e58e908097c47f42d8b4578.html. Consulté le 26/11/2020. 9 Western Journal of Legal Studies, Vol 5, Issue 4, article 1. I. Elements of the offence (Infanticide) R v Smith5 clarified the seven elements of section 233: The accused is female; (b) The deceased was born alive; (c) The accused caused the death of her child; (d) The death of the child was caused by a willful act or omission of the accused; (e) The child was newly-born (under 12 months of age); (f) The accused was not fully recovered from the effects of giving birth to the child; (g) By reason of childbirth or

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In the judgment opposing Her Majesty the Queen (Appellant) against Meredith Katharine Borowiec (Respondent), the Supreme Court of Canada held that infanticide consists of the offense which is committed in a particular manner. Firstly, this offense is committed by a mother, willfully kills her newborn child under twelve months of age. Secondly, at this time, he is still in a state of depression due to delivery or lactation effects. It stated this in the following English terms: “Infanticide, which is defined in s. 233 of the Criminal Code, is a form of culpable homicide and applies in the narrow set of circumstances where (1) a mother, by a willful act or omission, kills her newborn child (under one year of age, as defined by the Criminal Code, s. 2) and, (2) at the time of the act or omission, the mother’s mind is “disturbed” either because she is not fully recovered from the effects of giving birth or by reason of the effect of lactation: L.B., at para. 58”10

Based on the explanations provided in relation to the commission of infanticide, the Court realizes that it is a special offense that cannot be committed by man due to his physiology and unable to get pregnant and deliver, and thereafter suffers the effects of delivery and lactation as it happens to female. In addition, in order for the commission of infanticide to be possible, those circumstances are necessary as indicated above. The court finds in contrast that the offense of infanticide is committed by a female as a result of postpartum depression and lactation effects, and the purpose of the law is not to favour some people of depriving them of opportunities based on irrational grounds.

Accordingly, the fact that article 108 of the Law nº 68/2018 of 30/08/2018 determining offenses and penalties in general provides that infanticide could not be committed by a man due to his physiology which is different from that of a woman, therefore the court finds that no inequality before the law or discrimination is manifest in this provision; therefore, it is not inconsistent with article 15 and 16 of the Constitution of the Republic of Rwanda.

the consequent effects of lactation the accused’s mind was disturbed. This article is available in Western Journal of Legal Studies: http://ir.lib.uwo.ca/uwojls/vol5/iss4/1. 10 File No.: 36585. 2016: January 20; 2016: March 24. Re KABASINGA

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2. Determining whether article 108 of the Law nº 68/2018 of 30/08/2018 determining offenses and penalties in general is inconsistent with the Constitution of the Republic of Rwanda of 2003 revised in 2015, in its article 29.

Kabasinga Florida declares that article 108 of the Law nº 68/2018 of 30/08/2018 determining offenses and penalties in general is an obstruction to the right to fair justice, therefore, inconsistent with article 29 of the Constitution of the Republic of Rwanda of 2003 revised in 2015. She explains this in the following way:

a. This provision punishes the person who committed an act that does not fulfill the required constitutive elements of an offense in order to be considered as such because it provides that he/she could be punished for an act committed without intent while normally, in order to establish that the offense happened as declared by Robert Kint, it should be examined if the constitutive elements are present: which are a material element, legal element, and moral element. Accordingly, despite the fact that it does not guarantee fair justice, this provision does not even abide by the general principles of criminal law. b. Though the content of this article is found in other countries like the United Kingdom of Great Britain, Ireland, or Canada. In those countries, if it is found that a person committed infanticide involuntarily, due for instance to mental disorders is not punished because she rather follows the medical treatment of her treating doctor while in article 108 of the stated Law, instead of assisting her to access the medical treatment, it subjects her to severe sanctions. c. This provision does not do any distinction between a person that committed infanticide willfully or the one who committed it without intent.

She states that according to research carried out in relation to this offense in the United Kingdom and Wales [Pays des Galles in French] in the year 2005, the result was that among 49 women convicted of infanticide between the year 1989 and 2000 based on the provision which is similar to that contested provision, only two (2) were punished to imprisonment and the

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remaining number was placed in treatment facilities where they should follow medical advice, and this situation is different from that in Rwanda where the big number is incarcerated. She states that as indicated by this research, the persons punished according to the provision which is similar to article 108 of the Law in Rwanda are very few who manifested the intention to kill their children, which is different from the content of article 108 of the Law in Rwanda where this provision punishes a woman who killed a child without intent due to the fact that her mind is disturbed as a result of the postpartum depression or lactation effects. She deems that instead of being punished, she should be subject to medical treatment and follow-up in order to help her recover.

She goes on to state that in Canada as one of the developed countries in human rights in general, the provision of article 233 of the law criminalising the offense of infanticide providing that a female person commits infanticide when by a willful act or omission she causes the death of her newly-born child, if at the time of the act or omission she is not fully recovered from the effects of giving birth to the child and by reason thereof or of the effect of lactation consequent on the birth of the child her mind is then disturbed.

She alleges that the fact that this instrument does not have elaborate explanations, it arose debates which were settled by court decisions and those cases are Veit J held in R v Effert and R v LB. She states that these judgments settled these debates and served to explain this provision in this country, where courts started by determining whether the accused committed it with or without intent or if it was a result of unforeseeable event that drove her to commit it.

She adds that from the comparison of the criminalization of this offense in Rwanda and other countries where our instrument seems to have originated from, it is evident that the legislator did not deeply explicit some notions and this is likely to continue enticing the injustice towards women who may undergo these postpartum depression, where instead of justice being served for them, the situation becomes as an aggravation to their traumatism.

She states that the consideration of article 108 of the Rwandan Law determining offences and penalties in general, reveals that it contradicts itself by providing the text which contradicts the law. She alleges that there exists no issue for this provision to read that "in the event a woman kills her infant Re KABASINGA

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with intent" because in this case, the offense is complete since there is an intention. However, the issue resides in the fact that this provision pursues that “during the commission of the offense she was in postpartum depression”. Thus, she argues that the intent to commit an offense could not exist while the state of mind is disturbed, therefore, proving it as such suggests that the legislator withdrawn from the prosecutor the duty to prove the constitutive elements of the offence including the intent given that latter is only required to prove that a woman killed her infant.

She further explains that according to general principles of the Law as stated above, no person would be punished for an act committed without intent, even when it resulted into death. She emphasizes that whenever there is no intention, there is not offence and for this reason, no punishment should be imposed. She states therefore that this provision should be amended in order to clearly explain it and make a distinction between the situation where the accused would be considered as if she committed it willfully and be punished and the event when she committed it without intention and be inculpated. This position would help Courts to administer fair justice as supported and indicated by the results of aforementioned researches carried out in foreign countries.

She concludes her briefs by requesting the Court to deem that article 108 of the Law determining offenses and penalties in general contradicts all stated provisions namely articles 15, 16 as well as 29 of the Constitution of the Republic of Rwanda of 2003 revised in 2015; and therefore that it should be repealed in compliance with article 3 of the same Constitution.

Counsel Rwagitare Fred Fiston and Counsel Mugabonabandi Jean Maurice for Kabasinga Florida state that the text of article 108 of the Law determining offenses and penalties in general contradicts itself if confronted to the provisions of the law. They allege that the fact for this provision to state that “any woman, who intentionally or by omission […]”, and ends by stating that “but during the commission of the offense she was in postpartum depression or by effect of lactation [….]; they deem that the manifestation of intent is impossible as long as she is in a state of mind disturbance. They declare that this provision contradicts the article 85 of the same law providing that the person who commits an offense without intent is not prosecuted.

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Counsel Umwari M. Claire and Counsel Kabibi Spéciose, the State Attorneys reply that the statements according to which this provision inculpates the person who should not be prosecuted are not correct. Firstly, thought the Kinyarwanda version of this provision introduced the term “ubwenge bwe budakora neza” (postpartum depression), they deem this as the drafting issue only as this word should not be part of the provision, rather, it should be heard as in the English and French versions where it is understood as it is any woman, who intentionally or by omission kills his or her biological child whose age is not above twelve (12) months but during the commission of the offense she was in postpartum depression or by the effect of lactation commits an offense.

They allege to rely these affirmations on the fact that medical experts put it clear that postpartum depression of lactation effects are not likely to result in mental incapacity like in the case of mental disorder patients. This entails that even if she has undergone those effects, he/she remains with the faculties to know the good and wrong, and even the consequence of the acts he/she may commit, which is different in case the person with a mental disorder is unable to know the good and the wrong as well as the effects of the acts he/she may commit whether good or wrong. They argue that since the mind of that woman remains in a normal state, he/she should be held liable for the act willfully committed with full knowledge, but with a mitigated penalty because she commits the offense of infanticide involuntarily as a result of those effects beyond her control.

They pursue supporting that the fact for this provision to have provided for severe penalty comparing to that relating to manslaughter, is justified because, even though a woman who kills her child as a result of postpartum depression and lactation effects do it without intention, but she should not be punished as an author of manslaughter due to the permanent and special duty of protection she has with regards to her child. They elaborate that as follows :  She remains with a sound mind, with full knowledge of acts she can commit which are likely to kill it, therefore she has the obligation to refrain from doing them;

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 She has the duty of care in order to protect the life of the baby as the person who ensures it entirely and as her primary caregiver;

 Since every woman who delivers undergoes changes in her body including those affecting her mind, she should get ready beforehand, control herself, and assumes those effects at the time of delivery in order to preserve the life of the child.

The State Attorneys conclude their briefs by declaring that not every woman who delivers or who is depressed commits infanticide, the reason why that who kill the baby should be punished. They pray that if the court finds it necessary, it would be summoned a postpartum women psychologist to provide explanations.

For this issue, the representative of the organisation of Health Development Initiative, (HDI) as an amicus curia, states that their opinions are going to emphasise the explanations of the medical experts in relation to reproductive health as provided for by the Constitution of the Republic of Rwanda, other domestic instruments and international agreements relating to human rights.

Concerning the link between pregnant women, women who recently delivered, and mental health, she states that as the World Health Organization indicated through statistics at the world level, around 13% of pregnant women are usually affected by the mental disorder, especially, depression and in developing countries, where Rwanda belongs, the number raises to 19.8%.

She states in addition that according to the research carried out in Manchester City, it was discovered that the number of mothers admitted in psychiatric hospitals for postpartum depression is 8 times higher than that of other women who underwent other conditions that resulted in their depression.

She pursues to state that the Ministry of Health admits also that a woman who underwent postpartum depression could commit suicide or infanticide. The ministry declares that such a woman should get psychotherapy and medication. Another discovered element is that postpartum depression affects only women.

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She states that concerning the right to reproductive health in general, article 21 of the Constitution of the Republic of Rwanda provides that all Rwandans have the right to good health and that all Rwandans enjoy that right because article 16 (1) reads that all Rwandans are born and remain equal in rights and freedoms.

She states further that at international level, article 12 (1) of the International Covenant on Economic, social and Cultural Rights11 and article 16 (1) of African Charter on Human and Peoples Rights12 provide that every individual has the right to health. They read as follow in English version: “Every individual shall have the right to enjoy the best attainable state of physical and mental health”.

She pursues to argue that concerning health, the World Health Organisation clarified that health does not imply the lack of ailments but it extends to well-being: “Health is a state on complete physical, mental and social well-being and not merely the absence of disease or infirmity”. This entails that health covers also the mental aspect. The right to health does not imply the absence of disease, it rather involves the right to be protected from disease and to treatment in the event a person falls ill.

She declares that concerning the right of the woman on health in particular, article 14(2)(b) of the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa13 stipulates that States parties shall establish pre-natal, delivery and post-natal health for women during pregnancy and while they are breast-feeding (States Parties shall establish and strengthen existing pre-natal, delivery and Post-natal health and nutritional services for women during pregnancy and while they are breast- feeding).

She states further that article 12(2) of the Convention on the Elimination of All Forms of Discrimination Against Women stipulates also the same thing that “Notwithstanding the provisions of paragraph 1 of this

11 Rwanda ratified this Covenant by the Presidential order nº 8/75 of 12/02/1975. 12 Rwanda ratified this Covenant by the Presidential Order nº 10/1983 of 17/05/1985. 1313 Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, adopted in Maputo on July 11, 2003, ratified by the presidential order Nº 11/01 on 24/06/2004. Re KABASINGA

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article, states parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation”.

She goes that the Committee on the Elimination of Discrimination against Women (CEDAW Committee) analysed article 12 of this Convention in the following terms: “States parties should include in their reports how they supply free services where necessary to ensure safe pregnancies, childbirth and post-partum periods for women. Many women are at risk of death or disability from pregnancy-related causes because they lack the funds to obtain or access the necessary services, which include antenatal, maternity and post-natal services14. In other words, the above stated Committee requests state parties including Rwanda to indicate in the report they submit to this Committee, information with repect to free services in relation to safe pregnancies, childbirth and post-partum periods for women.

While analysing article 108 of the aforementioned Law Nº 68/2018 of 30/08/2018, she states that as they pointed it out above, they find that this provision is inconsistent with the following:  The right of woman to reproductive health as stipulated by international conventions and domestic instruments.  The principle of criminal liability.

With regards to the right of woman to reproduction health, she states that they are of the view that holding that infanticide resulted from postpartum depression and lactation effects consists of a sufficient reason to indicate that there has been violation of her right to good health because it is clear that her life was in dismay at the time of the commission of the offense.

She further states that they deem that the article 108 of the aforementioned Law is inconsistent with article 95 of the Constitution which provides that international treaties and agreements ratified by Rwanda prevail over ordinary laws. Therefore, the fact that the Law 68/2018 of 30/08/2018 is

14Office of the United Nations High Commission for Human Rights Committee on the Elimination of Discrimination against Women General recommendation Nº 24: Article 12 of the Convention (women and health).

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an ordinary law, it ranks below the international treaties and agreements ratified by Rwanda that were cited above, where they indicated what they provide about woman’s right to health in general and reproduction health in particular.

She declares that their analysis of article 108 of the Nº 68/2018 of 30/08/2018 determining offenses and penalties in general leads to the conclusion that it also contradicts the text of articles 12 and 16 of the Law n° 21/05/2016 of 20/05/2016 relating to human reproductive health, because if these provisions were respected, a woman would not commit infanticide unless she was in a state of depression.

She adduces that concerning the prosecution of a woman who committed infanticide as a result of postpartum depression, in the case State v. White, the Supreme Court of the State of Idaho in the United States of America released Jane White who was accused of infanticide due to postpartum depression she also suffered.

She goes on to argue that a person may wonder if there exist reasons for the punishment of woman while they indicated that according to the directives if the ministry of health, a woman who faced a postpartum psychosis deserves to be helped to access medical treatment, and in addition to that, even article 85(2) of the Law nº 68/2018 of 30/08/2018 provides that “there is no criminal liability if the accused was insane during the commission of the offence”.

She goes on to state that the Supreme Court of Idaho in the United States of America held that “the conviction of mentally ill persons does not serve the purpose of punishment in the criminal law, and it certainly does not serve the end of rehabilitation but rather may serve to release a mentally ill person to society after futile confinement.”

She concludes her court briefs by stating that “postpartum non- psychotic depression” is one of the problems that women use to face and this is a serious concern to public health that affect women and their families. A woman affected by postpartum non-psychotic depression deserves to be assisted rather than being punished for infanticide. Re KABASINGA

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The representative of the organisation of Women’s Link Worldwide (WLW) as another amicus curiae, states that after a brief analysis of the situation of the offence of infanticide in Rwanda, and concerns stated about the abortion services abuse by ladies applying for abortion services of affected by severe postpartum effects, they wish the Supreme Court to consider the following four issues with respect to the punishment of infanticide: The misapplication of law criminalising infanticide where women are punished as a consequence of inaccessibility to sufficient reproduction health services, consists of the violation to the right of woman to good well-being, health, and personal life and these affect women who already bear stigma, especially poor and rural women; The misapplication of infanticide against women and girls who aborted or affected by severe postpartum effects, consists of the violation to the right of woman to fair trial; The misapplication of infanticide against women and girls who aborted or affected by severe postpartum effects, consists of an unhuman and weird penalty. They explain that in many countries, the offense of infanticide is considered as a petty offense comparing to other kind of homicides since it is taken into account, the reasons of the commission of the offense. They state for instance the standards of living of the accused, mistreatment during

pregnancy, the reverential fear of parents, mental depression due to pregnancy, and the inexistence of evidence of the intent to commit a crime. As a conclusion, the organisation Women’s Link Worldwide (WLW), alleges that the prosecution of women and girls having faced serious problems of unsafe delivery and abortion constitutes the serious violation of the right of women to their lives and health protected by international instruments as human right. They explain that the inaccessibility by poor and rural women to adequate family planning and reproduction health services, confront them to delivery complications or the situations of forced abortions in secret, can lead them to prosecution for infanticide.

In conclusion, this organisation asked if, at the time of including infanticide into the penal code, the purpose was to reduce the number of

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offenders, that if this is the case, a good solution to this issue would be striving for the better security of women and have access to reproduction health services including abortion and post abortion care, sexual health education and pregnancy prevention.

DETERMINATION OF THE COURT

Article 29 of the Constitution of the Republic of Rwanda of 2003 revised in 2015 provides for some of the elements of the right to fair justice. As indicated by the wording of this provision, not all elements of the right to fair justice were listed. It was used the word “burimo” or “includes” in English. This implies that there are other unstated elements of the right to fair justice in addition to those listed by article 29.

As indicated by this Court in the judgment RS/INCONST/SPEC 00003/2019/SC rendered on 04/12/2019, the fair justice is explained in different ways whereby there is fair justice based on the procedural due process15 meaning a course of formal proceedings carried out regularly and in accordance with established rules and principles; and fair justice based on substantive due process16 which prohibit the adoption of irrational legal instruments and other measures affecting the peoples’ rights. This is what is in line with the petition submitted to this Court in this case.

Pursuant to these explanations, it is to be determined if the provisions of article 108 of the Law Nº 68/2018 of 30/08/2018 determining offenses and penalties in general, would be considered as depriving a woman of the right to fair justice since according to the petitioner, the text of this article violates the principles of fair justice by punishing a woman who committed infanticide without intent.

15 Procedural due process: a course of formal proceedings (such as legal proceedings) carried out regularly and in accordance with established rules and principles. RS/INCONST/SPEC 00003/2019/SC rendered on 04/12/2019, Para. 13. 16 Substantive due process: protection against enactment of arbitrary and unreasonable legislation or other measures that would violate peoples’ rights. Idem. Re KABASINGA

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The Court concurs with the petitioner that in order for the offense of infanticide to happen, like other offenses, it should fulfill three constitutive elements: Material element, legal element, and moral element.

Some of the elements provided by article 108 of the Law Nº 68/2018 of 30/08/2018 determining offenses and penalties in general are that, any woman who intentionally or by omission kills his or her biological child whose age is not above twelve (12) months but during the commission of the offense she was in postpartum depression or by effect of lactation commits an offense.

By responding to the petition submitted to the Court relating to determining whether this article holds responsible a woman who killed her baby without intention to commit the offense, it is necessary to know the elements of infanticide and its difference with murder provided for by the article 107 and manslaughter provided by article 111 both of the aforementioned Law Nº 68/2018.

The offense of murder may be committed by any person including a woman and towards any person including the own child. This may happen in relation to manslaughter too as a result of carelessness and failure to observe rules but without intent to kill him/her. The constitutive elements of murder consist of the person who kills another person (actus reus), with the intention to do that (mens rea). Among the constitutive elements of manslaughter include also the killing of a person but as a result of carelessness (actus reus) resulting from the attitude which would have been avoided and prevent the commission of the offense (mens rea).

Concerning the offense of infanticide, the law scholars analysed the constitutive elements of this crime from the legislation criminalising it in their countries. They demonstrate that in order for this offense to happen, there should be a will to kill or the intent to refrain from doing what ought to be done which resulted into death. In an article titled Deconstructing infanticide, Eric Vallillee explained the constitutive elements of infanticide provided in article 233 of the criminal law of Canada, where he indicated in the following words that the actus reus (material element) of the offense requires that an act

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or omission causes the death of the infant, while the mens rea (moral element) requires that this act or omission be intentional.17

The author known as Winifred H. Holland18 clarified the constitutive elements of the infanticide basing on the analysis carried out by Courts where he indicated that there should be a will to commit an act or an intent of ommission with a bad purpose or motive. He states it in the following words: What is the mens rea of the the offence? While it is clear that the act or omission must be “willful”, it is not clear whether the death must be caused willfully….According to Smith19 the act must be done with a bad motive or purpose, or with intent.20

Article 108 of the aforementioned Law Nº 68/2018 of 30/08/2018 is composed of the first part reading that “any woman, who intentionally or by omission kills his or her biological child whose age is not above twelve (12) months…”. In the Canadian law, it is stated that “A female person commits infanticide when by a wilful act or omission she causes the death of her newborn child….”, while the Uk law, it is stated that “Where a woman by any wilful act or omission causes the death of her child, being a child under the age of twelve months…”.

Consideration made of the above explanations, it is understood that in order for the offense of infanticide to be committed, there should have been the intent, implying the will to commit an act that causes the death of an infant or an omission that resulted in the death of a child. The problem that arises from article 108 of the Law Nº 68/2018 of 30/08/2018 determining offenses and penalties in general, consists of an issue of its drafting which does not indicate clearly the intent to refrain from doing what ought to be done and ambiguous explanation of what is termed in English and French as postpartum depression/état de dépression postpartum.

17 Eric Vallillee, “Disconstructing infanticide”, (2015)5:4 online: Uwojleg Stud/ https://ir.lib.uwo.ca/uwojls/vol5/iss4/1 18 Professor, faculty of law, University of Western Ontario, London, Ontario, Canada 19 R v. Smith (1976) 32 C.C.C.(2d)224(Nfdl Dist Ct), cited by Winifred H. Holland 20 Winifred H. Holland, Murder and related Issues: An Analysis of the law in Canada, Report for the Law Commission, July 27th, 2005, p.

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Courts explained that one of the elements of actus reus (material element) of infanticide and which differentiates it from that of murder, is that it should be committed by a female parent who kills his new born due to depression resulting from immediate effects of delivery. In the judgment of Her Majesty the Queen v. Meredith Katharine Borowiec, the Supreme Court of Canada elaborated it in the following words: “Infanticide convictions are rare, distinguishable from murder and manslaughter by their unique actus reus: causing the death of her newly-born child while the mother is not fully recovered from the effects of giving birth or lactation and by reason, thereof her mind is then disturbed.”21 This depression caused by delivery is the one termed postpartum depression/état de dépression postpartum stated in the above-stated article 108 in English and French versions, which is different from the mental disturbance (Ubwenge budakora neza) stated in Kinyarwanda version because this should rather be considered as “postpartum psychosis”.

As explained by experts, the delivering and breastfeeding mother may undergo two different conditions:

a) She may suffer postpartum psychosis, therefore unable to determine the good and wrong. In this situation, she could not be held liable for all acts she may commit including the killing of her own child since her mind is in a state of disorder. b) She may have postpartum depression but without implying that she does not have a sound mind. She is able to determine the good and wrong; therefore, she could be held liable for an act infringing the law she would commit, but due to this situation she undergoes, it is taken into account for her punishment.

In his article titled “The Postpartum Psychosis Defense and Feminism: More or Less Justice for Women”, Michele Connell explains that the difference between postpartum psychosis and postpartum depression is that a woman who gave birth and who develops postpartum psychosis loses her mind and becomes insane to the extent of being singled out for different legal treatment while the one who develops postpartum depression does not lose her mind and does not fail to determine the good and wrong, therefore, does not need special legal treatment. He stated it in the following English

21 S.C.C. No.: 36585, Her Majesty the Queen and Meredith Katharine Borowiec, para.

2.

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terms: “This distinction is crucial to understanding why postpartum psychosis can be singled out for different legal treatment while the other two illnesses cannot. Based on current medical research, postpartum psychosis is the only condition that should qualify for special legal treatment. "Baby blues" and postpartum depression, while medically recognized, would not meet the threshold of legal insanity in the majority of cases because they typically do not impair a mother's ability to tell right from wrong. It is also important to emphasize, as a rebuttal to those concerned with an overly broad insanity standard, that postpartum psychosis is a narrowly defined medical category that includes relatively few women”22

These above arguments were recalled in the judgment of Her Majesty the Queen v. L.B whereby the Court of Appeal of Ontario provided the definition of infanticide. It held that infanticide is constituted by two elements: the first is the relationship between the accused and the infant killed, and the second is that the mind of the accused who should be the mother of the deceased is in a state of disturbance as a result of delivery and lactation. This is unlike other ental states that may mitigate criminal liability. With regards to infanticide, it does not require the connection of any causal connection between the disturbance of the mind and the decision to do the thing that caused the child's death, because that state is not connected to the decision to kill. That disturbance is better considered as part of the actus reus and not a mens rea component of the crime of infanticide.23

22 Michele Connell, The Postpartum Psychosis Defense and Feminism: More or Less Justice for Women. Case Western Reserve Law Review. Available at: https://scholarlycommons.law.case.edu/caselrev/vol53/iss1/5 23 The definition of Infanticide focuses on two things. First, it requires a mother-child relationship between the perpetrator and the victim. Second, the mental state of the perpetrator/mother must be disturbed and that disturbance must be connected to the effects of giving birth or lactation. Unlike other mental states that may mitigate criminal responsability, infanticide does not require any causal connection between the disturbance of the mother's mind and the decision to do the thing that caused her child's death: R. v. Guimont (1999), 141 C.C.C (3d) 314 (Q.C.A), at p. 317, E. Cunlife, “infanticide: Legislative History and Current Questions” (2009) 55 Crim. L.Q. 94, at pp. 112-113; I; Grant, D. Chunn & C. Boyle, The Law of Homicide, loose-leaf (Scarborrough: Carswell, 1995), at p. 4-91. Because the mother's "mental disturbance" is not connected to the decision to kill, that "disturbance" is better considered as part of the actus reus and not a mens rea component of the crime of infanticideDocket: C49467-C49468, Re KABASINGA

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Back on this case, the petitioner states that article 108 of the Law nº 68/2018 of 30/08/2018 determining offenses and penalties in general does not ensure fair justice whereby she intends to instill that it does punish even the person without a sound mind and unable to make a distinction between good and wrong. Consideration made of the explanations stated above, a woman who is stated in this provision is not that person with postpartum psychosis, since this latter is unable to determine the good and wrong as we deemed above; therefore, she should not be held liable for punishable acts she commits. Rather, it is the one affected by postpartum depression who is only in a state of depression, who, given that she is able to determine good and wrong; if she commits unlawful acts including infanticide, she is held liable.

The petitioner alleges that the part of this provision that does not ensure fair justice is that reading that “…but during the commission of the offense she was in a state of mental disturbance caused by postpartum depression or by the effect of lactation …”. It reads in the English version as follows “…but during the commission of the offense she was in postpartum depression or by effect of lactation commits an offense”. She thus argues that if a person is in a state of mind disturbance, she would not express the intent to commit a crime. As recalled above, this provision exists even in other countries like England and Canada for instance. Article 233 of the criminal code of Canada states, regarding the state in which a woman should be at the time of the commission of infanticide, that “… if at the time of the act or omission she is not fully recovered from the effects of giving birth to the child and by reason thereof or of the effect of lactation consequent on the birth of the child her mind is then disturbed”.

In article 160(1) of the criminal code of England (UK), it is stated that “…but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child.” Despite that different words were used in these three legislations, the idea is the same that at the time a woman kills her infant, she is in a state of depression caused by postpartum or lactation effects. It is this indicated part of the provision of which the petitioner points out that the constitutive elements of the offense are not met, because the state of mind

Date: 20110302, Court of Appeal for Ontario, Doharty, Moldaver and Cronk JJ.A. Between Her Majesty and L.B, Para.

59.

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disturbance implies the absence of intent (mens rea); therefore, the punishment should not be imposed.

In the course analysis of the constitutive elements of infanticide with the purpose of establishing its constitutive elements, but especially to know the meaning of the words “her mind is then disturbed”, in the judgment Her Majesty the Queen (Appellant) v. Meredith Katharine Borowiec (Respondent), the Supreme Court of Canada explained that the legislator, by using these words, he did not intend to mean the person who lost his/her mind unable to determine the good and wrong as provided for by article 1624, he rather intended to mean that a woman should be depressed by effects of delivery and lactation; the depression which constitutes the act of killing (actus reus), instead of being the intent to kill (mens rea). The court stated it in the following English words: “The question of the meaning of the phrase “her mind is then disturbed” is one of statutory interpretation. The grammatical and ordinary sense of the words, their place within the Criminal Code, the provision’s legislative history and evolution, and the jurisprudence interpreting the phrase “her mind is then disturbed” do not support the conclusion that Parliament intended to restrict the concept of a postpartum depression to those who have “a substantial psychological problem”. Rather, the phrase “mind is then disturbed” should be applied as follows: (a) the word “disturbed” is not a legal or medical term of art,

but should be applied in its grammatical and ordinary sense; (b) in the context of whether a mind is disturbed, the term can mean “mentally agitated”, “mentally unstable” or “mental discomposure”; (c) the disturbance need not constitute a defined mental or psychological condition or a mental illness. It need not constitute a mental disorder under s. 16 of the Criminal Code or amount to a significant impairment of the accused’s reasoning faculties; (d) the disturbance must be present at the time of the act or omission causing the “newly-born” child’s death and the act or omission must occur at a time when the accused is not fully recovered from the effects of giving birth or of lactation; (e) there is no requirement to prove that the act or omission was caused by the disturbance. The disturbance is part of the actus reus of infanticide, not the mens rea; (f) the disturbance must be

24 Article 16 (1) of Criminal code states: No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong. Re KABASINGA

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“by reason of” the fact that the accused was not fully recovered from the effects of giving birth or from the effect of lactation consequent on the birth of the child”25.

This Court pursues that the accused of infanticide should not raise the mental disturbance as a defense since she does not lose the mind to the extent of ignoring that his/her acts are wrong. It stated this in the following English words: The concept of a “disturbed” mind is unique to infanticide and does not appear elsewhere in the Criminal Code. Conceptually, a “disturbed” mind must be different from a “mental disorder”, a term used in s. 16 of the Criminal Code, and, when proved on a balance of probabilities, can lead to a verdict of not criminally responsible. It must also be different from non-insane automatism, which makes the act committed by the accused involuntary: R. v. Parks, [1992] 2 S.C.R. 871, at p.

896.

In addition, in order to determine whether the fact that at the time of the commission of infanticide the accused’s mind was disturbed exempts her from liability, the Supreme Court of Canada in the judgment Her Majesty The Queen v. Meredith Katharine Borowiec, stated that when it was resolved such an issue in 1976, the judge held that the intention to commit infanticide is manifested into the commission of an intentional unlawful act, and indicated by the intent to harm; therefore, the fact that the accused’s mind was disturbed when she caused the death of her newborn baby does not alter her intention. This court expressed it in the following English terms: ““An early case relative to this issue is the 1976 trial decision of R v Smith. The judge determined that the mens rea of infanticide is a willful unlawful act consisting of intentional wrongdoing. The finding that the accused’s mind was disturbed when she caused the death of her newborn baby in that case did not alter the mens rea”.

Considering all previous grounds, the court is of the view that the punishable acts done by a woman that are provided in article 108 of the Law Nº 68/2018 of 30/08/2018 determining offenses and penalties in general, consist of willful acts or omission with the intent to kill her child but as a result of postpartum depression or lactation effects. As it was explained this depression is different from loss of mind likely to result into incapacity to perceive his/her acts. For this reason, this provision is not in any case an

25 2016 SCC 11, File No 36585, 2016: January 20; 2016: March 24.

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obstruction to fair justice provided for by article 29 of the Constitution of the Republic of Rwanda of 2003 revised in 2015.

The Court finds however that, as explained above, the way the above- stated article 108 is drafted is likely to cause confusion to the extent of being understood that a woman mentioned in it loses her mind to the point of becoming unable to make a difference between good and wrong while it should not be perceived as such; therefore, this Court advises relevant organs to redraft it in order to be understood well that a woman it states is the one having been affected by postpartum depression of lactation effects, but that she does not lose her mind to the extent of being exempted from criminal prosecution for her unlawful acts.

With regards to the intention expressed in this provision, The Court finds also that it ought to be well-drafted to the point of being singled out from an act of killing of the child (a willful act), and from an omission of doing something with the intent to kill her own child (a wilful omission) by a woman. According to the way it is drafted, this intention occurs with respect to the person who commits an act of killing of an infant, while for the omission to take a necessary action would be perceived as not revealing the wicked intention to the extent of being punished for manslaughter while it is not the case. III.

DECISION OF THE COURT

Declares the petition initiated by Kabasinga Florida without merit.

Declares that article 108 of the nº 68/2018 of 30/08/2018 determining offenses and penalties in general does not in any way contradict articles 15 and 16 of the Constitution of the Republic of Rwanda of 2003 revised in 2015.

Declares also that this article is not inconsistent with article 29 of the Constitution of the Republic of Rwanda of 2003 revised in 2015; rather, its drafting needs to be rectified.

Re KABASINGA

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Petitions challenging the provisions of the law on prevention and punishment of gender-based violence

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RE GATERA ET. AL. [Rwanda SUPREME COURT – RS/Inconst/Pén.0003/10/CS (Rugege, P.J., Mugenzi, Mukanyundo, Havugiyaremye, Kayitesi, Nyirinkwaya, Kanyange, Mukandamage and Munyangeri, J.) 07 January 2011] Constitution – Family – Marriage– A civil monogamous marriage between a man and a woman is the only recognised marital union. Constitution – Family – Unregistered cohabitation – Right to property – Assets distribution between cohabitants – The distribution of assets is premised on one of the cohabitants ‘right on the asset resulting from the fact that they either co-acquired or co-owned it. Constitution – Family – Unregistered cohabitation – Right to property – In the event one of the cohabitants decides to give up his/her asset with intention to co-own acquired asset, and his/her partner wilfully agrees to receive that asset being fully aware of such intention, when the receiver later decides to become the sole proprietor of the co-owned property, such decision is considered as categorically unjust towards the partner who gave up his/her asset. Facts: Based on the judgment appealed before the High Court after not being satisfied with the ruling of the Intermediate Court of Gasabo where it ordered Kiza Anita and Gatera Johnson to share equally the property of a house they co-own, Gatera and Kabalisa petitioned the Supreme Court seeking the repeal of article 39 of the law

preventing and punishing any gender based violence relied on by the Intermediate Court of Gasabo in distributing asset between them since it is contrary to article 29 of the Constitution of the Republic of Rwanda. They assert that any marriage or cohabitation not recognized by the Constitution cannot produce effects as produced by a lawful marriage. Kiza Anita contends that this article is not contrary to the Constitution, instead, it is a remedy provided by the legislator so that cohabitants be able to share the property they co-acquired and co-owned in case of separation and this view is shared with the State attorney where this attorney argues that every person has the right to the property he/she co-owns with others be it those living together or not. 203

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Held: 1. Assets distribution provided under article 39 of the law preventing and punishing any gender-based violence is not provided as the right arising from the contract of marriage instead it is a right to the property one of the cohabitants has based on the fact they co-acquired and co-owned it.

2. A civil monogamous marriage between a man and a woman is the only recognised marital union. Accordingly, any provision of the law recognising marriage between one husband and several wives or between one wife and several husbands or any other form of marriage other than the one recognised by the law would be contrary to paragraph one of article 26 of the Constitution.

3. For marriage between cohabitants to be valid, it must be a civil monogamous marriage between a man and a woman is the only recognised marital union and in the event a partner who lived with several wives or husbands decides to get legally married, he/she shares equally co-owned or co-acquired property with former cohabitants.

4. In the event one of the cohabitants decides to give up his/her asset with intention to co-own acquired asset, and his/her partner wilfully agrees to receive that asset being fully aware of such intention, when the receiver later decides to become the sole proprietor of the co-owned property, such decision is considered as categorically unjust towards the partner who gave up his/her asset.

5. The right to property is not only based on cohabitation, rather, it has to be a fact that they co-own or co-acquired it. The petition has no merit; Article 39 Law no59/2008 of 10/09/2008 on Prevention and punishment of gender- based violence does not contravene the Constitution of the Republic of Rwanda of 04 June 2003 as amended to date; Court fees on the appellants. Statutes and statutory instruments referred to: Constitution of the Republic of Rwanda of 04/06/2003 as amended to date, articles 26; Law nº59/2008 of 10/09/2008 on prevention and punishment of gender- based violence, article 39.

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Cases referred to: Lother Pettkus v. Rosa Becker [1980] rendered by the Supreme Court of Canada. Baumgartener v. Baumgartner [1987], rendered by the High Court of Australia. Judgment I.

BACKGROUND OF THE CASE

Kiza Anita instituted a petition before the Intermediate Court of Gasabo against Gatera Johnson requesting that they share the property they have co-acquired before the Gatera Johnson marries Kabalisa Teddy. Kabarisa Teddy was forced to intervene in that case. The Court ordered Gatera Johnson to equally share with Kiza Anita the house they co-owned. Gatera Johnson and Kabarisa Teddy appealed before the High Court, and later on they petitioned the Supreme Court praying for the repeal of article 39 of the law preventing and punishing any form of gender based violence on which the Intermediate Court of Gasabo based on ground that it is contrary to the Constitution of the Republic of Rwanda.

The case was heard by the Supreme Court on 17/11/2010 the petitioners being represented by Counsel Kazungu Jean Bosco alongside Counsel Gumisiriza Hilary while Kiza Anita was represented by Counsel Ruberwa Silas and Counsel Mukamisha Claudine, and the government represented by the State attorney Rubango Epimaque. After hearing the view of each party, the Court scheduled the pronouncement of the judgment on 07/01/2011. II.

THE LEGAL ISSUE TO BE ANALYSED

The legal issue to be examined in instant case is to determine whether article 39 of the law preventing and punishing any gender based violence, relating to equal distribution of assets between cohabitants is contrary to the Constitution of the Republic of Rwanda. Re. GATERA ET. AL.

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III.

DETERMINATION OF THE COURT

The article Gatera Johnson and Kabalisa Teddy pray the Supreme Court to repeal is article 39 of the Law no 59/2008 of 10/09/2008 on prevention and punishment of gender based violence which provides for that: “Those people entertaining unlawful marriages shall be married in accordance with the monogamous principle. If a person concerned with the provision of previous paragraph of this Article was living with many husbands/wives, he shall first of all share the commonly owned belongings with those husbands/wives equally.” The petitioners assert that such article is contrary to paragraph 1 of article 26 of the constitution of the Republic of Rwanda of 04 June 2003 as amended to date, which states that “Only civil monogamous marriage between a man and a woman is recognized (…)”. They contend that any other form of marriage or cohabitation not recognized by the constitution cannot produce similar as those of civil marriage.

The petitioners allege that the second paragraph of article 39 of the law stated above ordering cohabitants to share the property equally makes it unconstitutional. They rely their such allegation on the fact that it would lead to similar obligations as those produced by civil marriage. The counsels for Kiza Anita contends that this article is not contrary to the Constitution, instead, it is a remedy provided by the legislator so that cohabitants be able to share the property they co-acquired and co-owned in case of separation and this view is shared with the State attorney where this attorney argues that every person has the right to the property he/she co-owns with others be it those living together or not.

In examining the instant issue, the Court finds that the distribution of assets provided under the aforementioned article is not considered as a right arising from the contract of marriage, instead it is a right on the property one of the cohabitants has based on the fact they co-acquired or co-own it. The law does not provide that cohabitants equally share without taking into consideration the contribution of each of them in the accumulation of that property as it is the case for those who are married under the community of property or of acquests. Rather, the law applies two terms to wit “co- acquired” or “co-owned”. This prevents one of the cohabitants from grabbing the entire co-acquired or accumulated assets.

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Under paragraph 1 of article 26 of the Constitution of the Republic of Rwanda as amended to date, it is provided that only civil monogamous marriage between a man and a woman is recognized. Under this paragraph there are two main assertions to wit a recognized marriage concluded between one man and woman, which means that the marriage between one man and more than one woman or marriage between one woman and more than one man is not recognized. The second assertion is that for the marriage to be legally recognized it has to be celebrated before the public administration organ. The contract of marriage is valid only if it was concluded before the administrative organ provided for by the law. Any provision of the law recognizing marriage between one husband and several wives or between one wife and several husbands or any other form of marriage other than the one recognized by the law would be contrary to paragraph one of article 26 of the Constitution.

Article 39 of the aforementioned law on prevention and punishment of gender based violence provides that those people entertaining unlawful marriages shall be married in accordance with the monogamous principle. If a person concerned with the provision of previous paragraph of this Article was living with many husbands/wives, he shall first of all share the commonly owned belongings with those husbands/wives equally (...). There are two assertions in this provision to wit for the marriage of those who entertained illegal marriage to be recognized, it has to celebrated in accordance with the law that is to say in accordance with the provisions of article 26 of the Constitution, thus, it must be a civil monogamous. Another assertion is that in case one of the persons who entertained illegal marriage who was living with many husbands/wives decides to get married in accordance with the law, that is to say a civil monogamous marriage, that one who chose to become legally married shall first of all share the commonly owned belongings with those husbands/wives equally. The provisions of article 39 are not contrary to paragraph 1 of article 26 of the Constitution since it does not recognise marriage between one husband and several wives, marriage between one wife and several husbands or marriage that is not concluded before the competent public administration is recognized. Instead it is a remedy adopted by the legislator to prevent injustice with regard to property of persons who wish to withdraw from illegal marriage, while one of them chooses to get civilly married. Re. GATERA ET. AL.

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The fact that the law on prevention and punishment of the gender based violence distributes assets among persons who entertained illegal marriage is not the particularity of Rwanda. Some countries made an advancement by enacting special laws relating to the property of those who entertained illegal marriage. In Canada- province of Manitoba, there is a Homesteads Act1/ Loi sur la propriété familiale that allows cohabitants to have rights over property and sets the confines of such rights. Another country is New Zealand2 where they enacted the matrimonial regime in 1976 for law civilly married and cohabitants especially in its article 11 stating that “On the division of relationship property under this Act, each of the spouses or partners is entitled to share equally in— (a) the family home; And (b) the family chattels; And (c) any other relationship property.” The distribution of property between cohabitants is also featured in the laws applicable in some provinces of Australia. 3

Apart from special laws relating to rights on the property of cohabitants, there are decided cases by higher courts of different countries which indicated that any of the cohabitants has the right over the co-owned or co-acquired property. For instance, in Canada there are decided cases indicating that one of the cohabitants has the right over co-acquired or co- owned property. In the famous case of “Pettkus v. Becker”4 of 1980, Roser

1 The Homesteads Act C.C.S.M. c. H80 on http://web2.gov.mb.ca/laws/statutes/ccsm, see the section one regarding the definition of “Owner/ Propriétaire” (Means a married person, or a person in a common-law relationship, who is an owner of a homestead/ Personne qui est mariée ou liée à une autrepersonne par une union de fait et qui est propriétaire d'une propriété familiale) and section 2.2 regarding the “Homestead rights of second spouse or common-law partner”. 2 See article 11 of Property (Relationships) Act 1976 where it states … “On the division of relationship property under this Act, each of the spouses or partners is entitled to share equally in— (a) the family home; And (b) the family chattels; And (c) any other relationship property.”

3 New South Wales (Property Relationships Act 1984), Victoria (Relationships Act 2008), Queensland (Property Law Act 1974), South Australia (Domestic Partners Property Act 1996), Western Australia (Family Court Act 1997, the amendment act 2002), Tasmania (Relationships Act 2003), Australian Capital Territory (Domestic Relationships Act 1994, Legislation Act 2001 s 169), Northern Territory (De Facto Relationships Act 1991) 4 Supreme Court of Canada, Lother Pettkus v. Rosa Becker [1980]

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Becker and Lothar Pettkus cohabited for 19 years, since 1955 until 1974, and through all these years they kept bees, bought land in three different places on which they had to keep bees, on the money saved by Pettkus, Rosa Becker paid the rent of their home house and other household expenses, and worked in the bees’ farm. That bee keeping generated a significant interest. In 1974 they separated and Rosa Becker requested that ½ of the land and ½ of their beehives be registered on her.

The Supreme Court of Canada held that Rosa Becker and Pettkus who cohabited should share equally the land and beehives they co-owned. That Court held: “where one person in a relationship tantamount to spousal, prejudiced herself in reasonable expectation of receiving an interest in property and the other in the relationship freely accepted benefits conferred by the first person in circumstances he knew or ought to have known of that expectation, it would be unjust to allow the recipient of the benefit to retain it.”5

Another similar case is the case of Beaudouin Daigeault v. Richard Paul Eugene6 of 1984 where the Supreme Court of Canada held that after the separation of cohabitants yet there is the property of land they have co- acquired registered on the husband, they must share it. The Court opined that those who cohabited for a certain period of time and pulled different resources with intent to develop their property as it is the case for legally married spouses, in case of separation, no one should grab the entire property yet they all contributed to it.

It is not only in Canada courts where such decisions to distribute the property among cohabitants were made, but also Australian Courts in different

2 S. C. R. 834, http://www.scc-csc.gc.ca/decisions/index-fra.asp 5 .....lorsqu’une personne liée à une autre dans une relation qui équivaut à une union conjugale, se cause un préjudice dans l’expectative raisonnable de recevoir un droit de propriété et que l’autre personne accepte librement les avantages que lui procure la première, alors qu’elle connaît ou devrait connaître cette expectative, il serait injuste de permettre au bénéficiaire de conserver cet avantage. /.....where one person in a relationship tantamount to spousal, prejudiced herself in reasonable expectation of receiving an interest in property and the other in the relationship freely accepted benefits conferred by the first person in circumstances he knew or ought to have known of that expectation, it would be unjust to allow the recipient of the benefit to retain it 6 Supreme Court of Canada,Beaudouin – PaulEugen Richard, [1984] 1 R.C.S.2. Re. GATERA ET. AL.

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occasions made such decisions. For instance, , the High court of Australia held in Baumgartner v. Baumgartner7 of 1987 that the decision taken by the Court of Appeal of New South Wales was founded, where the ruling ordered the cohabits to share the house and land they co-owned. This has been also the case in New Zealand in Hayward v. Giordani8 where the Court of Appeal held that after the death of the wife, her husband be awarded ½ of the property that was registered on the wife whom they cohabited for 5 years.

The foregoing laws and case laws from other jurisdictions helps us to clearly understand that the approach provided under article 39 aims at protecting the cohabitants whose who separated yet they have cohabited for considerable time while working toward the same goal. Such separation should not be prejudicial to any of them simply because they are not legally married. The distribution of assets between cohabitants is not an obstruction and belittlement to marriage.

In the instant case, the petitioners contend that allowing cohabitants to share the property would amount to giving them rights and obligations similar to married couple. The effects on the property of cohabitants in case of separation are not the same as in divorce case. When the persons legally married have chosen the community of property or the community of acquests matrimonial regime, they share on equal basis the entire property once they divorce. The right to property is based on that contract in so much that there is no further evidence required for asset distribution. However, for separated cohabitants to share the property they must have co-acquired or co-owned it. The right to property is not only based on cohabitation, rather, it has to be a fact that they co-own or co-acquired it.

In the premises, article 39 of the Law no 59/2008 of 10/09/2008 on prevention and punishment of gender based violence is not contrary to article 26 of the Constitution of the Republic of Rwanda of 04 June 2003 as amended to date, but it prevents one of the cohabitants to grab the entire co-acquired or co-owned property.

7 High Court of Austraria, Baumgartener v Baumgartner [1987] HCA 59; (1987) 164 CLR 137 (10 December 1987) 8 8 The Right Honourable Lord Justice NOURCE, Unconscionability and the unmarried couple. Some development in the Commonwealth, Royal Courts of Justice, London, p104-105

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IV. DECISION OF THE SUPREME COURT

The Supreme court hereby admits the petition of Gatera Johnson and Kabalisa Teddy;

Declares the petition without merit;

Declares article 39 of the law no 59/2008 of 10/09/2008 on prevention and punishment of gender based violence not contrary to the Constitution of the Republic of Rwanda of 04 June 2003 as amended to date.

Orders Gatera Johnson and Kabalisa Teddy to jointly pay the court fee of this case amounting to 7,400 Frw, each paying 3,700Frw.

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Re GLIHD [Rwanda SUPREME COURT – RS/INCONST/SPEC 00002/2019/SC – Vol [2020] 4 – (Rugege, P.J., Nyirinkwaya, Cyanzayire, Rukundakuvuga and Hitiyaremye, J.) October 04, 2019] Constitution – Right to property – Cohabitants ‘right to property – The rationale for assets distribution between cohabitants is based on co- acquisition and co-ownership of the concerned assets– In the event where cohabitants separate, though they were not legally married, they distribute among themselves immovable and movable property they co-acquired. Court practice and procedures – The doctrine of precedent (stare decisis) – The Supreme Court as the highest court with its unique nature which makes it have jurisdiction on all types of cases that are heard by all courts so that it can set precedents for other courts to follow, this makes it a supreme source of precedents for other courts. Court practice and procedures – The doctrine of precedent (stare decisis) requires each court to follow the precedent it set or set the one by a superior court when making a ruling on a case with similar facts. Facts: GLIHD petitioned the Supreme Court seeking to declare paragraph 2 of article 39 of Law n° 59/2008 of 10/09/2008 2008 on prevention and punishment of gender-based violence inconsistent with articles 15,16 and 34 of the Constitution of the Republic of Rwanda of 2003 revised in 2015. In its submission, GLIHD

alleges that paragraph 2 of article 39 of the law mentioned above provides that it sharing of the property among cohabitants takes place only if one of them is going to get married to another person other than his/her cohabitant; consequently, such cohabitants are not treated and protected equally given that no other ground other than getting married was provided. It also argues that in case one of cohabitants wants to have his or her share of the assets, he/she can't get it without first proving that the reason for their separation is to get married to another person, thus he/she cannot enjoy that property he/she co-acquired with the other partner they separated with. The State Attorney argues that the petitioner’s allegations are groundless because when paragraph 2 of Article 39 of the aforementioned law is repealed, 213

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there would be no more property sharing for cohabitants and the provision itself would lose its meaning because all 4 paragraphs are complementary. She further argued that instead, the better course of action is the reformulation of paragraph 2 of the impugned article, so that the sharing of the property takes place in case one of the partners is getting married, or if there is another reason for their separation. The Faculty of Law of the University of Rwanda, which intervened as Amicus Curiae, states that paragraph 2 of the article mentioned above is not unconstitutional because there is no category which this law prevented from having their right on the property. Moreover, the precedents set by the Supreme Court protect cohabitants equally in the event of separation regardless of the reason for such separation. As to whether the foregoing issue was settled by the precedents set by the Supreme Court in the cases it decided, the petitioner argues that such issue was not settled by those precedents because there is no case in which that issue was examined in a similar manner and that fact that the current law does not mandate the lower courts to adhere to precedents of the Supreme Court , which raises a concern that the lower courts may prejudice cohabitants who separate for other reasons other than marrying another person in case the instant petition is found without

merit. The Government of Rwanda, as well as the University of Rwanda (the amicus curiae), find those precedents to have settled the issue on ground they held that in the event cohabitants separate, they are entitled to the property they co- acquired and those case laws do not discriminate cohabitants who separate for other reasons other than getting married. Held: 1. The issue concerning the right to property of cohabitants who separated for other reasons other than getting married was settled by the Supreme Court in its various case laws.

2. The rationale for assets distribution between cohabitants is based on co- acquisition and co-ownership of the concerned assets.

3. In the event where cohabitants separate, though they were not legally married, they distribute among themselves immovable and movable property they co-acquired.

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4. The Supreme Court as the highest court with its unique nature which makes it have jurisdiction on all types of cases that are heard by all courts so that it can set precedents for other courts to follow.

5. The doctrine of precedent (stare decisis) requires each court to follow the precedent it set or the one set by a superior court when making a ruling on a case with similar facts. Petition without merit. Paragraph 2 of article 39 of the Law n° 59/2008 of 10/09/2008 on prevention and punishment of gender-based violence is not inconsistent with articles 15, 16, and 34 of the Constitution of the Republic of Rwanda. Statutes and statutory instruments referred to: The Constitution of the Republic of Rwanda of 2003 as revised in 2015, article 15,16 and 34 Law no 22/2018 of 29 / 04/2018 relating to the civil, commercial, labour and administrative procedure, article 9 Law n°30/2018 of 02/06/2018 determining the jurisdiction of Courts, article 65, 73 Law n°59/2008 of 10/09/2008 on prevention and punishment of gender- based violence, article 39. Cases referred to: Uwiragiye Charles v. Uwamahoro Jeanine, RCAA 00043/2016/CS rendered by the Supreme Court on 15/09/2019. Gatera Johnson v. Kabalisa Teddy RS/INCONST/Pén.0003/10/CS rendered by the Supreme Court on 07/01/2011. Re Mpangare Hope, RS/INCONST/Pén.0001/11/CS rendered by the Supreme Court on 29/04/2011.

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Judgment I. BACKGROUND OF THE CASE

Based on article 72 of Law n°30/2018 of 02/06/2018 determining the jurisdiction of Courts1 GLIHD petitioned the Supreme Court seeking the repeal of paragraph 2 of article 39 of the Law n°59/2008 of 10/09/2008 on prevention and punishment of gender-based violence for the rights of t cohabitants to be equally respected in accordance with the principle enshrined in the Constitution of the Republic of Rwanda and other international human rights conventions ratified by Rwanda.

GLIHD advances the foregoing principles including the following: a. Equality before the law ; b. Equal protection of the law; c. Non-discrimination ; d. Right to property.

It is in this context that GLIDH petitioned the Supreme Court seeking the repeal of the second paragraph of article 392 of Law n ° 59/2008 of 10/09/2008 on prevention and punishment of gender-based violence .

The petition was registered on RS / INCONST / SPEC 00002/2019 / SC, the State was summoned and the University of Rwanda was requested to intervene as amicus curiae. The hearing was scheduled on 08/11/2019, on that day both parties were present, GLIHD represented by Umulisa Vestine (its

1 That article provides that the Supreme Court is petitioned by any person or company and associations with legal personality over petitions seeking to declare unconstitutional a law if they have any interest. 2Those people entertaining unlawful marriages shall be married in accordance with the monogamous principle. If a person concerned with the provision of the previous paragraph of this Article was living with many husbands/wives, he shall first of all share the commonly owned belongings with those husbands/wives equally. The property distribution referred to in paragraph 2 of this Article shall not entrench on the children’s legally recognized rights.

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Deputy Chairperson) assisted by Counsel Sezirahiga Yves and Counsel Gumisiriza Hillary, the Government represented by Gahongayire Miriam while the University of 'Rwanda was represented by its Lecturers Shenge Laurent and Uwineza Odette.

In elaborating the grounds of their petition, GLIDH Deputy Chairperson Umulisa Vestine, Counsel Sezirahiga Yves, and Counsel Gumisiriza Hillary submit that the content of paragraph 2 of Article 39 of the GBV Law is contrary to the provisions of Articles 15, 16 and 34 of the Constitution, as follows: a. Regarding inconsistency with article 15 of the Constitution of the Republic of Rwanda

This article provides that all people are equal before the law. The law protects them in the same way. GLIHD argues that when this article is analyzed in light of the provisions of paragraph 2 of article 39 of the Law n° 59/2008 of 10/09/2008 on prevention and punishment of gender-based violence mentioned above, it is found the sharing of the co-owned assets by the cohabitants is only provided when one of them decides to legally marry someone other than the one they were cohabiting; therefore, the legislator did not give equal opportunity or equal protection to the cohabitants who decide to separate for a different reason other getting legally married by one of the cohabitants, distribution of co-owned assets for cohabitants who separate for other reasons was not provided for. b. Regarding inconsistency with article 16 of the Constitution of the Republic of Rwanda

GLIHD argues that article 16 of the Constitution of the Republic of Rwanda provides that all Rwandans are born equal and continue to enjoy equal rights and freedoms. It also provides that 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.

GLIHD argues that when that article is analysed in light of paragraph 2 of article 39 of Law N ° 59/2008 of 10/09/2008 on prevention and Re. GLIHD

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punishment of gender-based violence, that paragraph discriminates against cohabitants because it puts them in two (2) different categories to wit those who have the right to share the co-owned or co-acquired property and who do not have such right yet all of them are in the same conditions - living as husband and wife. Therefore, it finds the foregoing discrimination inconsistent with the principle enshrined in this article of the Constitution which provides that all persons are equal before the law and that they are entitled to equal protection of the law and also contrary to the principle prohibiting any form of discrimination or propaganda thereof. c. Regarding inconsistency with article 34 of the Constitution of the Republic of Rwanda

Article 34 of the Constitution of the Republic of Rwanda provides that “Everyone has the right to private property, whether individually or collectively owned. Private property, whether owned individually or collectively, is inviolable. The right to property shall not be encroached upon except in public interest and accordance with the provisions of the law”.

GLIHD argues that when this article is analysed together with the provisions of paragraph 2 of article 39 of Law N ° 59/2008 of 10/09/2008 on prevention and punishment of gender-based violence, the impugned paragraph prevents and deprives some category of cohabitants of the right to property when the reason for their separation is not getting legally married to another person because in case one of them seeks to be given his or her share of that property for any other reason, he/she cannot get it without first proving that the reason for the separation was to legally marry another person. Thus, he/she is deprived of the right to the property acquired with the former partner.

The State attorney argues that the grounds for the petition seeking the Supreme Court to repeal paragraph 2 of article 39 of Law nº 59/2008 of 10/09/2008 on prevention and punishment of gender-based violence on ground that it is unconstitutional, are unfounded, because if that paragraph is repealed even those it granted the right to share the property when one decides to get legally married to another person will completely lose it, and that article will lose its meaning because all the four (4) paragraphs are complementary. If one paragraph is repealed, the entire article would be worthless since it would not be protecting anyone.

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The Government also argues that in the Judgment nº RS / INCONST / Pén 0003/10 / CS3, the Supreme Court found that article 39 was not unconstitutional rather it was a remedy established by the legislator to prevent injustice in relation to property co-owned by cohabitants who wish to separate and in the event whereby one of them chooses to get lawfully married.

The Government argues that it would be better if paragraph 2 of the impugned article 39 is reformulated and that the sharing of the property by the cohabitants takes place in case one of the partners is going to be lawfully married, or for any other reason that would occasion their separation. It recommends that it would be more clear if the following distinct paragraph is inserted after paragraph 2 of the impugned article: “assets distribution also occurs in any event of of separation by cohabitants”.

The Faculty of Law of the University of Rwanda which intervened as an amicus curiae objects to the petition of GLIHD, which seeks to declare paragraph 2 of article 39 mentioned above unconstitutional because as held in the cases decided by the Supreme Court, no category of spouses is excluded by this law because according to the position set in those cases separated cohabitants are equally protected regardless of the reason of their separation.

The University of Rwanda cited the following case laws: a. Judgment RCAA 00043/2016/CS, Uwiragiye Charles v. Uwamahoro Jeanine rendered on 15/09/2019 by the Supreme Court; b. Judgment RS/INCONST/Pén.0003/10/CS, Gatera Johnson v. Kabalisa Teddy rendered on 07/01/2011 by the Supreme Court; c. Judgment RS/INCONST/Pén.0001/11/CS, of Mpangare Hope rendered by the Supreme Court

3 In this case, Gatera Johnson and Kabarisa Teddy were requesting the Supreme Court to declare invalid the provision of article 39 of the Law Nº 59/2008 of 10/09/2008 on prevention and punishment of gender-based violence because it was inconsistent with article 26 of the Constitution of the Republic of Rwanda which provides that A civil monogamous marriage between a man and a woman is the only recognized marital union (…). The state that the other marital union or unlawful marriages cannot have the same effects as those for lawful marriage. Re. GLIHD

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The University of Rwanda explains that in all these cases, the parties cohabited and separated without the intention of re-marrying. However, the Supreme Court, regardless of the reason for their separation, and pursuant to article 39 of the aforementioned Law, held that they should equally share the property they co-acquired.

After hearing the amicus Curiae’s brief, the Government of Rwanda also concurs that the concerns of GLIHD were indeed resolved, however, GLIHD insisted that paragraph two of article 39 of the above mentioned Law is unconstitutional and that the aforementioned case laws did not settle that issue as it was not isolatedly examined.

The Supreme Court finds therefore that the issues to be examined are the following: - Whether the second paragraph of Article 39 of Law n ° 59/2008 of 10/09/2008 infringes on the right to property of cohabitants when they separated without the intention of marrying a different person; - Whether various precedents of the Supreme Court on the issue regarding separated cohabitants did not exhaust the issue regarding the rights of which GLIDH alleges separated cohabitants with no intention to remarry are deprived of. II. ANALYSIS OF LEGAL ISSUES A. Whether the second paragraph of Article 39 of Law n ° 59/2008 of 10/09/2008 infringes on the right to property of cohabitants when they separated without the intention of marrying a different person

GLIHD submits that article 39 of Law n° 59/2008 of 10/09/2008 on prevention and punishment of gender-based violence does not protect equally cohabitants because paragraph 2 of that article defines the right they have on co-owned property when they decide to separate and marry someone else, but the said article remains silent about cohabitants whose purpose of separation is not to get married to another person. As explained in paragraphs 6-10, GLIHD finds it discriminatory against those in the latter category because it

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deprives them of their right on the property they acquired as a husband and wife, and this is a violation of the fundamental rights enshrined in the Constitution of the Republic of Rwanda and other International Human Rights treaties ratified by Rwanda.

Before supporting the Amicus curiae’s briefs demonstrating that issue was settled by the cases decided by the Supreme Court, even though the government does not concur with GLIHD that paragraph two of article 39 is unconstitutional, it had also requested that it be reformulated to avoid ambiguity by inserting a subsequent to paragraph 2 reading as follows: “Assets distribution also occurs in any event of separation by cohabitants. Separate".

DETERMINATION OF THE COURT

The entire text of article 39 of the Law n° 59/2008 of 10/09/2008 on prevention and punishment of gender-based violence reads as follows: “Those people entertaining unlawful marriages shall be married in accordance with the monogamous principle. If a person concerned with the provision of the previous paragraph of this Article was living with many husbands/wives, he shall, first of all, share the commonly owned belongings with those husbands/wives equally. The property distribution referred to in paragraph 2 of this Article shall not entrench on the children’s legally recognized rights”.

From the analysis of that article, it was aimed for the following three purposes: a. Providing the procedure on how cohabitants can get legally married by also reminding them that a civil monogamous marriage between a man and a woman is the only recognized marital union. This is contained in the first paragraph of this article and it is clear that the legislator wanted to indicate to cohabitants, that even if a man/woman has several more wives/husbands whom he/she loves equally, it is not lawful to marry all of them. b. Demonstrate the rights of cohabitants (who did not get the chance to be chosen as a husband/wife) on the property they shared when one of them has decided to get legally married, which is explained in the second paragraph of this article. Apparently, in complying with the provisions Re. GLIHD

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of the first paragraph only, issues regarding the rights of the remaining wives/husbands on the property could have arisen, when the husband/wife chooses, as required by law, to marry only one of them or another one whom they have not been cohabiting with.

c. Demonstrate the rights of the child in the event one of them marries according to the procedure provided for in the instant article (this is provided in paragraph three).

In general, as explained in the preceding paragraph, this article deals with the specific issue of couples cohabitating as husband and wife who wish to get legally married with one of the spouses they were cohabitating with, in case he/she has been cohabitating with more than one. This article is not intended to deprive of the right to property those who separated for other reasons, nor is it intended to give special rights or discriminate against anyone in such a way that it is construed as being inconsistent with the mentioned provisions of the Constitution (articles 15, 16 and 34), rather its purpose is to guide cohabitants wishing to get legally married. For the other categories which were not mentioned, that is, separated cohabitants without the intention of getting legally married, it was due to the fact that they were not in line with its rationale. So instead of being treated as if it discriminated against them, it should be construed as being silent thereof.

Therefore, the Supreme Court finds that in the event the law is silent on an arisen issue, it does not imply that those concerned were deprived of certain rights granted to them by the Constitution, or that there is a law that deprives them of that right which must be repealed. Instead, such issue is settled through courts’ discretion as provided for in article 9 of Law no.22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure. That article provides that: “…. In the absence of such rules, the judge adjudicates according to the rules that he/she would establish if he/she had to act as legislator, relying on precedents, customs, general principles of law and doctrine.”

The Supreme Court finds that the foregoing concurs with the holdings by the Supreme Court in various cases regarding the issue of the right of cohabitants whose reason for separation is not getting legally married, consequently the petition initiated by GLIHD on the ground that they were deprived of their constitutional rights and by the same requesting that the

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second paragraph of article 39 of the above-mentioned article be repealed, is without merit. B. Whether various precedents of the Supreme Court on the issue regarding separated cohabitants did not exhaust the issue regarding the rights of which GLIDH alleges separated cohabitants with no intention to remarry are deprived of.

GLIHD argues that the cases decided by the Supreme Court regarding cohabitants who separated for different reasons other than getting legally married did not settle the issue according to which the paragraph two of article 39 of the above-mentioned law deprives them of constitutional rights because no case examined such issue in that perspective. GLIHD also adds that in laws into force, the judgments of the Supreme Court no longer bind lower courts, which is also another concern that those courts can be unjust toward cohabitants who separate for reasons other than getting married to another man/woman in case this Court finds its petition without merit.

The government as well as the Amicus curiae, the University of Rwanda are of the view that GLIHD should not worry because the rights enshrined in articles 15, 16, and 34 of the Constitution of which it seeks to protect in favour of cohabitants which separated for reasons other than getting legally married is not trampled upon, because as explained in the cases cited in paragraph 15, the Court held that they enjoy such right because since it was held that when cohabitants separate, each of them is entitled to the property they co-acquired together and they do not discriminate those who separate for different reasons other than getting married.

DETERMINATION OF THE COURT

The Court finds that the legal position set by the Supreme Court in the previous cases should have cleared the doubt of GLIDH on the issue regarding cohabitants it alleges to be deprived of their rights to property as demonstrated in the following paragraphs.

In the Case No. RS/INCONST/Pén 0003/10/CS between Gatera and Kabalisa rendered on 07/01/2011, the Court examined “whether article 39 of the Law on prevention and punishment of gender-based violence regarding the Re. GLIHD

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sharing of the property of cohabitants is unconstitutional” because it would be treating them as those who are legally married. The court, after motivating that the persons who have been cohabitating have the right to the property theyco- acquired and also demonstrating that such right differs from that of those who are legally married, held that “….in order for separated cohabitants to share the property, they should be jointly owning or acquired it4. ” It also clearly explained that the property right is not only based on the fact that they cohabited, but it should be evident that they co- own or co-acquired it.5

As indicated in this case, although the Court did not specifically examine the issue of the rights to property of cohabitants separating for reasons other than getting married, be the case it was not the subject matter, it did explain that the basis for the sharing of that property between cohabitants is that they co-own or co-acquired that property. This should have shown GLIHD that even cohabitants who separate for other reasons other than getting married to another person can rely on the holding of this judgment and consider to have been recognized the right to that property as long as they can prove that they jointly own or acquired it.

In addition, the right to property of cohabitants who separated for reasons other than getting married was further explicitly emphasized in case No. RCAA00043/2016/SC between Uwiragiye Charles and Uwamahoro Jeanine. In this case, the parties were litigating "the sharing of the property they acquired while they cohabited which consists of a house located on plot n° 367, a plot of land nº 0139, and two vehicles", the Supreme Court ruled that "... cohabitants, even if they are not legally married, share the property, whether immovable or movable, they acquired together when they separate6 ”. It should be recalled that in this case, the reason for the separation of Uwiragiye and Uwamahoro was not to get married to another person as held in cases nº RCA00239/2016/HC/KIG and nº RC0281/15/TGI/GSBO, nevertheless, it did not prevent the Supreme Court from apportioning them the property they owned before separating.

In contrast, the arguments of GLIHD that following the repeal of article 47 of the Organic Law no 03/2012/OL of 13/06/2012 determining the

4 See paragraph 14 of that judgment 5 Idem 6 See paragraph 16 of that Judgment.

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organisation, functioning and jurisdiction of the Supreme Court7 the precedents of the Supreme Court are no longer binding on other courts, are baseless because the use of precedents has been stressed in the current law on the jurisdiction of Courts.8 That law vested the Supreme Court with special competence to set legal position to be followed by other courts. This is mostly clear in the second paragraph of the explanatory note of the Organic Law instituting the Court of Appeal, whereby it explains that the special status of the Supreme Court is to be a stand-alone Court, which oversees other courts, overrules and reconciles the judgments on cases with similar issues, and accordingly set legal position or precedents for lower courts9. This position was emphasized by article 65 of the Law n° 30/2018 of 02/06/2018 determining the jurisdiction of courts whereby it is mandatory to comply with the existing precedents on similar issue because to overturn that precedent requires a petition to the Supreme Court, has to first determine the issue with the existing precedent before setting a new position as demonstrated in the last paragraph of article 73 of that Law.

The basis of the system of precedent is the principle of stare decisis and this requires a later court to use the same reasoning as an earlier court where the two cases raise the same legal issues10, therefore the higher up a court is in the hierarchy, the more authoritative its decisions: decisions of the higher courts will bind lower courts to apply the same decided principle11. In particular, the Supreme Court as the highest court, it is obvious that it is also the main source of precedents which are followed by other courts, the reason for its stand-alone status, as explained in the preceding paragraph, vests it with

7 Par. 6 of that article provides that: ” Judgements and decisions of the Supreme Court are binding on all courts in the country.” 8 Article n°30/2018 of 02/06/2018 determining the jurisdiction of Courts. 9 See the Senate’s report (The Committee on Political and Good Governance) of 21 March 2017. 10 The Open University, Open Learn, Judges and the law, available at https://www.open.edu/openlearn/society-politics-law/judges-and-the-law/content- section-3.4 11 Idem. There are two exceptions to this principle : Overruling (the procedure whereby a court higher up in the hierarchy sets aside a legal ruling established in a previous case) and distinguishing (the possibility that a court may regard the facts of the case before it as significantly different from the facts of a cited precedent, so it will not find itself bound to follow that precedent). Re. GLIHD

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jurisdiction over all types of cases filed to courts so that it can set precedent for lower courts to follow. III. DECISION OF THE COURT

Admits the petition initiated by GLIHD, but upon its examination, finds it without merit;

Holds that paragraph two of article 39 of the Law n° 59/2008 of 10/09/2008 on prevention and punishment of gender-based violence is not inconsistent with the provisions of articles 15, 16, and 34 of the Constitution of the Republic of Rwanda.

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PETITIONS CHALLENGING PROVISIONS OF

TAX LAWS

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Re AKAGERA BUSINESS GROUP [Rwanda SUPREME COURT – RS/SPEC/0001/16/CS – Vol [2017] 2 RLR – (Rugege, P.J., Mukanyundo, Hatangimbabazi, Kanyange, Mukamulisa, Rugabirwa, Hitiyaremye, Ngagi and Nyirandabaruta, J.) September 23, 2016] Constitution – Equality before the Law and non-discrimination – Equality before the Law and non-discrimination does not always mean that differentiation of persons itself entails discrimination. Differentiation or categorization of persons can be necessary for legitimate or rational purpose. Constitution – Equality before the Law and non-discrimination – A taxpayer who is a party to the case – Evidence production at the level of appeal – The fact that taxpayer litigants are not allowed to produce new evidences at the level of appeal cannot be regarded as treating them unequally towards other litigants since it is based on their particularity and responsibilities of keeping financial statements of which they are entrusted by the Law. Facts: ABG filed a claim to the Commercial High Court whereby it sued Rwanda Revenue Authority (RRA) requesting the reduction of the tax imposed amounting to 1,050,442,993Frw. The Commercial High Court ruled that ABG loses the case due to the failure to produce evidence for its allegations. ABG appealed the case to the Supreme Court alleging that there exist elements of evidence submitted to the Commercial High Court which

it did not examine. In the defence submission, RRA stated that ABG did not produce evidence in support to its allegations. In the course of pre-trial conference before the Supreme Court, ABG indicated the elements of evidence which were disregarded by the Commercial High Court and subsequently RRA prepared the additional defence submission whereby it requested their inadmissibility according to article 1(5) of the Law nº74/2008 of 31/12/2008 modifying and complementing the Law nº25/2005 on tax procedure. After ABG realised that those elements of evidence were disregarded by the court at all, it seized the Supreme Court whereby it alleged that the provision of article 1(5) of the Law nº74/2008 of 31/12/2008 modifying and complementing the Law nº25/2005 on tax procedure on which RRA relies, 229

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should be repealed because it is inconsistent with the provisions of articles 11 and 16 of the Constitution of Rwanda of 04 June 2003 applicable at the time the petition was initiated, on ground that the impugned article provides that a taxpayer shall not be allowed to provide at any stage of appeal, any additional evidence that had not been produced during the audit, which set barriers to taxpayers litigants tax cases, a situation which is not similar to litigants in other cases, and such situation deprives taxpayers of their constitutional rights. ABG further added that it is unclear how in other non-tax cases, the parties are allowed to produce evidence at all levels, and it is not prohibited to raise new grounds or produce new elements of evidence, which have not been examined in the first instance, at the level of appeal, while such is not allowed in tax cases where the right to produce evidence at any level of the case is only given to the tax administrator but not to the taxpayer. The Government of Rwanda argues that the article does not intend to prevent taxpayers from produce conclusive elements of evidence or evidences which establish the truth, but rather emphasizes the taxpayer's responsibility to keep financial records and statements at his or her workplace, and that he or she has a duty to present them during the audit unless there are legitimate reasons.

The government argues that in tax cases, the tax administrator and the taxpayer are not in the same category and in the same circumstances so that they be protected under the same legislations because in ordinary cases, a party may produce elements of evidence and it would have no effect on his/her opponent regardless the level of the case at which such evidences are produced. On the other hand, the taxpayer may refuse to present his/her financial statements with the intention to evade tax. Held: 1. Equality before the Law and non-discrimination does not always mean that differentiation of persons itself entails discrimination. Differentiation or categorization of persons can be necessary for legitimate or rational purpose. Therefore, article 1(5) of the Law nº74/2008 of 31/12/2008 modifying and complementing the Law nº25/2005 on tax procedures, though it does not treat the taxpayer litigants in the same manner as litigants in other kind of litigations, it does not contain inequality before the law nor does it provides unequalprotection of the law as well as any kind of discrimination.

2. The fact that taxpayers are not allowed to produce evidence they did not exhibit at the time of audit at appeal level, while the tax administration is allowed to do so, should not be considered as inequality of arms before the

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court. Rather, this is justified by the fact that taxpayers are the only custodians of those elements of evidence who can avail them in due time. Therefore, due to the particularity of the taxpayer litigants, the law treats them differently from other litigants for reasonable grounds which are not intended to deprive them of their rights and other privileges entitled to them by the Law. Paragraph 5, Article one of the Law nº74/2008 of 31/12/2008 modifying and complementing the Law nº25/2005 on tax procedure is not inconsistent with articles 15 and 16 of the Constitution of the Republic of Rwanda of 2003 revised in 2015; Petition is without merit. Statutes and statutory instruments referred to: Domestic statutes and ratified conventions: Constitution of the republic of Rwanda of 2003 revised in 2015, articles 15 and 16. Organic Law No03/2012/OL of 13/06/2012 determining the organisation, functioning and jurisdiction of the Supreme Court, article 53(2). The Universal Declaration of Human Rights (UDHR) of 10 December 1948, article 7. International Covenant on Civil and Political Rights of 16 December 1966, articles 14 and 26. Law N°21/2012 of 14/06/2012 relating to civil, commercial, labour and administrative procedure, article 168(3). Law Nº74/2008 of 31/12/2008 modifying and complementing the Law Nº25/2005 on tax procedures, article 1(5). Foreign legislations: The Constitution of the Republic of Kenya 2010, articles 27(1o, 4o and 5o). The Constitution of the Republic of South Africa, 1996, articles 9(1) and 3. Canadian Charter of Rights and Freedoms, article 15.

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Cases referred to: Cases from foreign courts: Firma A. Racke v Hauptzollamt Mainz, Court of Justice of the European Union Backus v. Fort St. Union Depot Co., 169 U.S. 557, 18 S. Ct. 445, 42 L. Ed. 853 (1898). S v Lawrence 1997 (4) SA 1176 para. 44-45. Eur.Court HR, Case “relating to certain aspects of the laws on the use of language in education in Belgium” judgment of 23 July 1968, series A, No6. p.31. para 10. UNHR, Dudko v. Australia, Comm. No1347/2005, UN.Doc. CCPR//90/D/1347/2005 (Aug. 29. 2007 para 7.4.) Authors cited: Human Rights Committee, General Comment 18, Non-discrimination (Thirty-seventh session, 1989), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc.HRI/GEN/1/Rev.1 at 26 (1994). Primsloo Van der Linde 1997(3) SA 1012 CC para.

22. Communication No172/1984 S.W.M. Broeks v The Netherlands (views adopted on 9 April 1987) in UN Doc. GOAR, A/42/40 P.150, para.

13. CJCE, aff. 283/83, 13 novembre 1984, Racke/Hauptzollamt Mainz, Rec., 1984, p.3791. ; CJCE, aff. 106/83, 13 décembre 1984, Société Sermide, Rec., p.4209 ; CEDH, 6 Avril 2000, Thlimennos c. Grèce, N°34369/97. Hogg “Proof of facts in Constitutional Cases (1976) 26 University of Toronto Law Journal 386 at 396-7. UNHR, Dudko v Australia, Comm. No1347/2005, UN. Doc.CCPR//90/D/1347/2005 (Aug.29.2007para 7.4. United Nations Human Rights Committee, General Comment No.32, Article 14, Right to equality before Courts and tribunals and fair trial, UN.Doc. CCPR//G/32/Aug.23, 2007 para 13.

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Judgment I. BACKGROUND OF THE CASE

Akagera Business Group (ABG) filed the claim to the Commercial High Court against Rwanda Revenue Authority (RRA) whereby it requested the reduction of imposed tax amounting to 1,050,442,993Frw. The Commercial High Court delivered the judgment on 20/12/2012, whereby it decided that ABG loses the case due to the failure to produce evidence in support to its allegations. ABG appealed against the case to the Supreme Court alleging that there are elements of evidence disregarded by Commercial High Court. In the Supreme Court, the case was recorded on NoRCOMA0009/13/CS.

In its defense submission, RRA stated that ABG did not produce evidence in support to its pretentions. In the course of pre–trial conference before the Supreme Court, ABG indicated elements of evidence it alleges were disregarded. Meantime, RRA prepared the additional defense submissions whereby it relied on article 1(5) of the Law nº74/2008 of 31/12/2008 modifying and complementing the Law nº25/2005 on tax procedures to request the rejection of those elements of evidence.

Subsequently, ABG petitioned the Supreme Court requesting the repeal of article 1(5) of the Law nº74/2008 of 31/12/2008 modifying and complementing the Law nº25/2005 on tax procedures on which RRA relies because it is inconsistent with article 11 and 16 of the Constitution of the Republic of Rwanda of June 4, 2003 as revised to date, and the petition was registered on N° RS/SPEC/0001/16/CS.

After the initiation of the petition, the Constitution was revised, therefore ABG submitted additional defense submissions to the petition with the intention to indicate the revisions in the constitution whereby article 15 replaced 16 and article 16 replaced 11. The petition was examined in the hearing held on 19/07/2016, where AKAGERA BUSINESS GROUP was represented by Counsel Nsengiyumva Abel while the Ministry of Justice which was summoned to submit its opinion was represented by the State Attorney Kabibi Specioza. Re. AKAGERA BUSINESS GROUP

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II. ANALYSIS OF LEGAL ISSUE Whether article 1(5) of the Law nº74/2008 modifying and complementing the Law nº25/2005 on tax procedures is inconsistent with the provision of article 15 and 16 of the Constitution of the Republic of Rwanda of June 4, 2003 revised in 2015

Counsel Nsengiyumva Abel representing ABG urgues that articles 15 and 16 of the Constitution provide for equal treatment and that all Rwandans are born and remain equal in rights. These provisions read along with article 1(5) of the Law nº74/2008 of 31/12/2008 modifying and complementing the Law nº25/2005 on tax procedures which states that the taxpayer is not be allowed to provide at any stage of appeal, any additional evidence that had not been produced during the audit, which implies that the taxpayers in the capacity of litigants are bared from some rights which are however bestowed to litigants in other kind of cases, and this is therefore the obstruction of their constitutional rights.

He further states that the fact that the taxpayer has obligation to prepare and preserve financial statements, should not be a ground to be treated differently from other litigants, because even in case it becomes clear that there was tax evasion, the author could be punished or ordered to pay a heavy tax as a fine rather than preventing him/her from the opportunity to produce his/her supporting evidence whenever he/she finds them since he/she may be unaware of their usefulness.

He states in addition that it is not clear how in cases other than tax, litigants are permitted to submit new evidence and grounds at any instance level including appeal which were not raised at the first instance, while this is not allowed in tax cases whereby only the tax administration is permitted to do so unlike taxpayer. He concludes his defence by stating that this is inconsistent with the Constitution given that the taxpayer is not treated equally towards other litigants to ordinary cases whereas they should be governed by same general principles, and this consists of inequality of treatment which is inconsistent with article 15 and 16 of the Constitution.

Counsel Kabibi Specioza, the State Attorney states that article 1(5) of the Law nº74/2008 of 31/12/2008 modifying and implementing the Law

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nº25/2005 on tax procedure is not inconsistent with articles 15 and 16 of the Constitution of 2003 revised in 2015, because it does not intend to prevent the taxpayers from submitting conclusive evidence as ABG insinuates, rather, this article emphasizes the duties of the taxpayer to keep financial records and account statements at the business place and has obligation to produce them in the course of the tax audit unless there are reasonable grounds. She states that it is inconceivable for the law which provides for these obligations to allow at the same time the taxpayer to submit these records and statements of account at the appeal level without reasonable grounds which prevented him or her from submitting them during tax audit.

She elucidates that in tax cases, the taxpayer and tax administration are not in the same category to the extent that the Law may treat them equally, because RRA does not have obligation to fill and keep account statements of the taxpayer while article 13 of Law Nº25/2005 on tax procedure provides for the obligation of the taxpayer to keep and present records and account statements to prove the real status of his/her business. This is the reason why the tax auditor should find them at the business place, and if the taxpayer was allowed to submit them later, this obligation to keep them would be vain.

She concludes that another element emphasizing that litigants who are not in the same category should not be governed by the same legislation, is the fact that in ordinary litigations, whenever the litigant produces elements of evidence, it is not likely to affect his/her opponent, while the taxpayer may deny to present his/her account statements at the time of tax audit with the intent of tax evasion due to the fact that his/her turnover cannot be known while it constitutes the tax base.

DETERMINATION OF THE COURT

Article 53(2) of the Organic Law n°03/2012/OL of 13/06/2012 determining the organization, functioning and jurisdiction of the Supreme Court states that the Supreme Court shall also hear petitions regarding the partial or complete repealing of an organic law, an ordinary law, or a decree- law on account of non-conformity with the Constitution. As stated above, ABG petitioned to declare article 1(5) of the Law nº74/2008 of 31/12/2008 modifying and complementing the Law nº25/2005 on tax procedure because he finds it inconsistent with articles 15 and 16 of the Constitution. Re. AKAGERA BUSINESS GROUP

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Article 15 of the Constitution of the Republic of Rwanda of 2003 as revised in 2015 states that “All persons are equal before the law. They are entitled to equal protection of the law”, while its article 16 states that “All Rwandans are born and remain equal in rights and freedoms. 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”.

The provision for which the repeal is petitioned consists of article 1(5) of the Law nº74/2008 of 31/12/2008 modifying and complementing the Law nº25/2005 on tax procedure which reads “[…..] the taxpayer shall not be allowed to provide at any stage of appeal, any additional evidence that had not been produced during the audit”. This provision modified and complemented article 20 of the Law Nº25/2005 of 04/12/2005 on tax procedure which is in the title of this law concerning tax audit and investigation.

In order to provide a right answer to the issue raised in this case, it is necessary to interpret the provisions of both articles of the Constitution to find their meaning about the right of: (i) Equality before the law (ii) Non-discrimination.

The two provisions are linked to the extent that their separate interpretation is hard. Article 15 states that all persons are equal before the law. They are entitled to equal protection of the law. This implies that there should not be discrimination from equal protection or loss of rights where they should be entitled to them. Article 16 states in addition how distinction of people is considered as a discrimination which is prohibited by the Constitution. Both articles ought to be considered as containing same principle but which is divided into two related parts.

As it was stated by United Nations Human Rights Committee: “Non– discrimination, together with equality before the law and equal protection of the law without discrimination, constitute a basic and general principle relating

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to the protection of human rights1”. The link between articles 15 and 16 of the Constitution is the ground for which in other countries, the two principles are joined in single provision of the Constitution. In Canada for instance, article 15 of Canadian Charter of Rights and Freedoms states that: “[e]very individual is equal before and under the law and has the right of equal protection and equal benefit of the law without discrimination and in particular without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability”.

In Universal Declaration of Human Rights of 1948, its article 7 reads that: “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against discrimination in violation of this Declaration and against any incitement to such discrimination”. In addition, article 26 of International Covenant on Civil and Political Rights, 1966 states that: “All persons are equal before the law and are entitled without any discrimination to equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, language, religion, political or other opinion, national or social origin, property, birth or other status”. The provisions of the Constitution of Kenya2 and South Africa3 are also drafted in that way. This is the reason why the Constitutional Court of South Africa stated that the examination of the issue of equality before the law and non-discrimination in the same judgment but in separate way is not desirable and feasible because the principle of equality before the law and non-discrimination is the same principle constituted by linked parts4. Even in this judgment, both issues shall be examined together, whereby answer to the following issue shall be provided: What does equality before the law and equal protection without discrimination mean?

1 Human Rights Committee, General Comment 18, Non-discrimination (Thirty- seventh session, 1989), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc.HRI/GEN/1/Rev.1 at 26 (1994). 2The Constitution of Kenya 2010, Article 27, litera1, 4 and 5. 3The Constitution of the Republic of South Africa, 1996, article 9, para. 1 and 3. 4 “It may be neither desirable nor feasible to divide the various subsections or descriptions into water tight compartments”. Primsloo Van der Linde 1997(3) SA 1012 CC para.

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Equality before the law and non-dicrimination do not imply that distinction of individuals itself in all circumstances is a discrimination. Distinction of people or group of people could be necessary depending on objective and existence of legitimate or rational purpose. For instance, the government may award some help to needy or vulnerable groups of people like children, disabilities, indigenous and others, without according the same to the rest, or it may take affirmative action in favor of women. This may not be considered as discrimintion, rather it is alegitimate differentiation. This has also been communicated by the United Nations Committee in the following terms: “The right to equality before the law and equal protection of the law without any discrimination, does not make all differences of treatment discriminatory. A differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of article 265.

In the course of providing advisory opinion on the revision of the constitution of Costa Rica, the Inter American Court of Human Rights explained clearly the meaning of equality and discrimination. It held that: “Precisely because equality and nondiscrimination are inherent in the idea of the oneness in dignity and worth of all human beings, it follows that not all differences in legal treatment are discriminatory as such, for not all differences in legal treatment are in themselves offensive to human dignity […..]. There may well exist certain factual inequalities that might legitimately give rise to inequalities in legal treatment that do not violate the principle of justice. They may in fact be instrumental in achieving justice or in protecting those who find themselves in a weak legal position. Accordingly, no discrimination exists if the difference in treatment has a legitimate purpose and if it does not lead to situations which are contrary to justice, to reason or to the nature of things. It follows, that there would be no discrimination in differences in treatment of individuals by a state when the classifications selected are based on substantial factual differences and there exists a reasonable relationship of proportionality between these differences and the aims of the legal rule under review. These aims may not be unjust or unreasonable, that is, they may not be arbitrary,

5 Communication No172/1984 S.W.M. Broeks v The Netherlands (views adopted on 9 April 1987) in UN Doc. GOAR, A/42/40 P.150, para 13.

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capricious, despotic or in conflict with the essential oneness and dignity of human kind”6.

In the case Firma A. Racke v Hauptzollamt Mainz, the Court of Justice of the European Union explained that “[……] discrimination consists solely in the application of different rules to comparable situations or in the application of the same rule to differing situations [….]7”. It is therefore clear that the differentiation of people in different groups does not constitute a discrimination, but on the other hand, the application of same rules to different groups of people may constitute a discrimination.

The aforementioned article 1(5) of the Law Nº74/2008 of 31/12/2008, constitutes the basis of the allegations of the petitioner concerning its inconsistency with the constitution whereby he states that this provision differentiates between a taxpayer litigant and a litigant in other kind of cases and operates inequality before the Law because the litigant in cases other than tax is allowed to produce evidence at any stage of proceedings. Do these constitute inequality before the law and discrimination?

Article 16 of the Constitution indicates clearly the list of reasons of differentiation. In general, discrimination means differentiation of people with intent to prevent some rights to them and favor others under illegitimate reasons. As far as this case is concerned, there exists the category of litigants in tax disputes, tax administration and litigants in other kind of cases. In these categories, none of them relies on one of legitimate reasons of differentiation as specified in the constitution.

In case the differentiation of people relies on the reason specified in article 16 of the Constitution, it is considered as discrimination unless it is provided a legitimate reason of unequal treatment of individuals provided in the aforementioned article 16. However, this article 16 provides for the list of reasons on which differentiation may rely but varying the text with the

6 I-A Court H.R, Proposed Amendment to the Naturalization Provision of the Constitution of Costa Rica, Advisory Opinion OC 4/84 of Jan 19, 1984, series A No4, p.104-106 paras 56-57. 7 CJCE, aff. 283/83, 13 novembre 1984, Racke/Hauptzollamt Mainz, Rec., 1984, p.3791; CJCE, aff. 106/83, 13 décembre 1984, Société Sermide, Rec., p.4209; CEDH, 6 Avril 2000, Thlimennos c. Grèce, N°34369/97. Re. AKAGERA BUSINESS GROUP

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following sentence “or any other form of discrimination”. That is the reason why it should be examined the law or whatever act alleged to be inconsistent with this provision in order to indicate whether or not there is discrimination. As explained in previous paragraph, if differentiation of people does not rely on one of the reasons indicated on the list provided for under article 16, it is examined if the given reason is legitimate and with interest to people in general or to a given group of people.

It is realy true that in ordinary cases, the litigant is allowed to produce new elements of evidence at any stage of proceedings that was not produced at first instance level. Article 168(3) of the Law n°21/2012 of 14/06/2012 relating to civil, commercial, labour and administrative procedure states that: “[…..] it is not prohibited to submit in appeal new arguments or elements of evidence that were not heard at the first level”. It should therefore be examined if the law does not treat people in same category and situation equally and the rationale of the existence of article 1(5o) of the Law no74/2008 modifying and complementing the Law no25/2005 on tax procedure which prohibits the taxpayer to produce new evidence at appeal level.

The prohibition of the taxpayer from production of evidence at appeal level which were not produced in the course of audit may be construed as depriving him/her of the right entitled to other litigants, which is inconsistent with the principle of equality before the law and non-discrimination. In the case law Backus v. Fort St. Union Depot Company in the United States of America, the provision of the law which used to prevent the landlord to sue the tenant for damages relating to destruction, in case the landlord mismanaged security deposit was analysed. The Supreme Court of this country held that the law which entitles the individual some rights in the course of court proceedings while it prevents it to others in the same status may be perceived as discriminatory and uncomplying with the principle of equality before the law and equal protection of the law, which is inconsistent with the constitution.

However, it is clear in this case that taxpayer litigants are not in the same situation like other litigants. Taxpayers are in the category of special group which has some obligations in order for the important duty of the country to be well fulfilled. If some taxpayers were forbiden to produce evidence at appeal level while others are not, it would constitute an inequality between litigants in the same category and situation. The reason behind the prohibition to all taxpayers to produce evidence at appeal level which were not

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produced at the time of audit, consists of incentive to submit them timely in order to allow the tax administration to perform tax audit duty with ease. The taxpayer is entitled the right to produce all evidence at the time of audit in order to evaluate the tax due. He/she is even the one holding all evidence likely to indicate the veracity of the tax due. This is different from the ordinary litigant who may be in need of evidence in the custody of third parties with no access to them whenever he/she wishes. This court considers that the existence of the provision of the Law for which the repeal is petitioned, is legitimate and protects general interest, the reason why it should not be considered as discriminatory.

However, the Law may have a reasonable and legitimate objective but with measure not proportional to the purpose or objective to be achieved. This is also what has been stated by the European Court of Human Rights in the following terms: “[…..] on this question, the Court holds that the principle of equality of treatment is violated if a distinction has no objective and reasonable justification. A difference of treatment in the exercise of a right laid down in the Convention must not only pursue a legitimate aim: article 14 is likewise violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised”8.

In the instant case, it should be examined if the measures taken to facilitate the taxpayer to produce all necessary documents in due time, meaning the prohibition to the taxpayer to produce new elements of evidence at apeal level which were not produced in the course of audit, is likely to be considered as usurpation in determining the measures to be taken to achieve such objective. However, in the course of examination and ruling whether the provision of the law about the achievement of its aim or if there should be another way which would not prejudice taxpayers, the court should avoid interfering in the power of the policy makers and its implementation, as well as the duties of the legislator.

The court should not declare the law to be inconsistent with the Constitution by relying solely on the ground that the objective of the law would be achieved through other means. The litigant who criticizes a provision of the

8Eur.Court HR, Case “relating to certain aspects of the laws on the use of language in education in Belgium” judgment of 23 July 1968, series A, No6., p.31. para 10. Re. AKAGERA BUSINESS GROUP

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law has the duty to indicate that the path opted by the legislator is ambiguous, unclear, or if subject to rationale, it does not meet the purpose of the enactment of the law. This concurs with the principle of separation of powers9. This assertion has been upheld in the case law S v Lawrence10 rendered by the Constitutional Court of South Africa which invoked the statements of Professor Hogg whereby he states that the Court is independent to decide on issues under litigation but that it is not independent to decide on issues relating to the grounds the legislator relies on to enact laws. The act of the court would only consists of valueing the existence of rational connection between a law and the puprose intended by the legislator, that is to mean whether or not facts relied on are legitimate. This author pursue stating that in democracy, it would not be rational for courts to disregard the discretion of the legislator on account of theirs11.

In general, the production of evidence is governed by the law no15/2004 of 12/6/2004 relating to evidence and its production but it is especially governed by the Law nº74/2008 of 31/12/2008 modifying and complementing the Law nº25/2005 on tax procedures, precisely in its article one. The purpose of this provision is not the differentiation of taxpayers from other litigants with the intention to deprive them of the opportunity to exercice

9Article 61 of the Constitution of Rwanda, 2015. 10 S v Lawrence 1997 (4) SA 1176 para. 44-45. 11 Hogg “Proof of facts in Constitutional Cases (1976) 26 University of Toronto Law Journal 386 at 396-7 “While a court must reach a definite conclusion on the adjudicative facts which are relevant to the disposition of litigation, the court need not be so definite in respect of legislative facts in constitutional cases. The most that the court can ask in respect of legislative facts is whether there is a rational basis for the legislative judgment that the facts exist. The rational-basis test involves restraint on the part of the court in finding legislative facts. Restraint is often compelled by the nature of the issue: for example, an issue of economics which is disputed by professional economists can hardly be definitively resolved by a court staffed by lawyers. The most that can realistically be expected of a court is a finding that there is, or is not, a rational basis for a particular position on the disputed issue. The more important reason for restraint, however, is related to the respective roles of court and legislature. A legislature acts not merely on the basis of findings of fact, but upon its judgment as to the public perceptions of a situation and its judgments as to the appropriate policy to meet the situation. These judgments are political…. It is not for the court to disturb political judgments, much less to substitute the opinions of experts. In a democracy it would be a serious distortion of the political process if appointed officials (the judges) could veto the policies of elected officials.

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the right to defence and produce evidence, rather, it intends to determine the special procedure in accordance of which the taxpayer produces evidence especially by relying on the legal obligation he/she has to keep account statements and other related documents. Therefore, the taxpayer is entitled the right to produce evidence according to the procedure specified by the law which is different from that provided for other litigants.

The law entitles the taxpayer to keep and maintain all records relating to his/her business in order to produce them in the course of audit. Subsequent to that, he/she is allowed to produce to the tax admistration other testimonial evidence and other kind of evidences within 30 days from the day he/she was served the notification of rectification document in order to correct potential mistakes12. Apart from that, he/she is allowed to produce them at appeal level whenever there is a reasonable ground to the failure of submitting them at the time of audit13. This is to mean that the evidence forbidden to be produced consists of the evidence the taxpayer would have produced in the course of audit but which he/she failed to do with bad faith, misleading or unjustifiable negligence. The taxpayer with good faith to pay the taxes due on time does not incur any damage from the provision for which repeal is requested because the required elements of evidence are communicated to him/her before the audit, whereby those still missing are submitted at the time of their finding but after providing reasonable grounds as to why they were not availed before.

The prohibition to produce elements of evidence at appeal level that one did not submit at the time of audit, is the consequence of default to assume responsibility to hand to tax administration accounts statements and other financial records mentioned in articles 12, 13 and 15 of the Law n°25/2005 of 04/12/2005 at the time the audit was conducted. If the taxpayer is allowed to submit accounts statements and other financial records at any time after the conduct of audit, this duty would no longer be mandatory as longer as he/she

12 Articles 27 and 29 of the Law Nº25/2005 entitles the taxpayer the right to submit to the tax administration additional testimony and evidence within 30 days from the time of reception of rectification notice, which indicate the mistakes in imposition in order to reexamine it and rectify it if necessary. 13 The last paragraph of the provision for which repeal is petitioned states that: “the preceding paragraph shall not apply in cases where the taxpayer has reasonable grounds justifying his/her inability to provide the required evidence during the audit period”. Re. AKAGERA BUSINESS GROUP

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has option to submit them immediately or later at appeal level, and this is likely to hinder the tax audit.

Although Akagera Business Group did not rely on the equality of arms in its submissions, it raised it in the course of hearing. It alleged that it is controversial to prohibit the taxpayer to produce new elements of evidence at appeal level that was not submitted in the course of tax audit whereas the tax administration is allowed to do so. In her defence, the State Attorney urgues that the taxpayer and tax administration are not in the same category and situation, that they have different obligations, therefore their different treatment should not be regarded as inequality before the law or discrimination.

Equality of arms between litigants is not provided for under the Constitution of Republic of Rwanda, therefore this is not a special right. However, consideration made of International principles and United States Human Rights Committee (UNHRC), the court finds that equality of arms before the court is considered as part or portion of the right to equal treatment before courts as provided for under article 14 of International Covenant on Civil and Political rights (ICCPR). This article stipulates that all people are treated equal before courts. In linking this provision to the right to defence, the Committtee stated that same procedural rights are to be provided to all the parties unless distinctions are based on law and can be justified on objective and reasonable grounds, not entailing actual disadvantage or other unfairness to the litigant14.

In the case Dudko v Australia, the Committee (UNHRC) stated: “It is for the State party to show that any procedural inequality was based on reasonable and objective grounds not entailing actual disadvantage or other unfairness to the author […]”15.

14United Nations Human Rights Committee, General Comment No.32, Article 14, Right to equality before Courts and tribunals and fair trial, UN.Doc. CCPR//G/32/Aug.23, 2007 para 13. “This means that the same procedural rights are to be provided to all the parties unless distinctions are based on law and can be justified on objective and reasonable grounds, not entailing actual disadvantage or other unfairness to the defendant”. 15UNHR, Dudko v Australia, Comm. No1347/2005, UN. Doc.CCPR//90/D/1347/2005 (Aug.29.2007 para 7.4.)

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With regard to this issue relating to inequality of treatment before the law and production of evidence, the court finds that the nature of audit and tax precedures and the fact that the taxpayer has the obligation to keep account statements and other financial records, therefore being the sole person who holds the reliable information of which he/she may opt to communicate or not; this entitles the tax administration with the right to produce new evidence although the taxpayer is not allowed to do so. Thus, this is not likely to be regarded as inequality of arms to defence before courts.

In the premises, the court finds that even if the provision of article 1(5) of the Law nº74/2008 of 31/12/2008 modifying and complementing the Law nº25/2005 on tax procedure does not equally treat taxpayers litigants to other litigants, but it does not contain inequality of treatment and protection by the law as well as discrimination of any kind. The ground relied on by the petitioner to allege the existence of discrimination is not included into the instances likely to lead to discrimination as mentioned in article 16 of the Constitution; and this article is clear. It should neither be considered as if it has no impact on the objective of encouraging taxpayers to cooperate with the tax administration to abide by the obligations of the law. Due to special status of taxpayers litigants, the law treats them differently from other litigants on legitimate grounds which do not intend to prevent them from the privileges and rights they are entitled by the law. In addition, the fact that they are not allowed to produce at appeal level, the evidence they did not produce at first instance level, while the tax administration is allowed to do so, this should not be regarded as inequality in the exercice of the right to defence before courts, rather, it is due to the fact that only taxpayers hold those elements of evidence and may produce them at request as it was held above. In summary, the provision of the law for which the repeal is petitioned, is not inconsistent with the provision of articles 15 and 16 of the Constitution because it does not contain inequality of treatment before the law as well as any kind of discrimination. III. DECISION OF THE COURT

Admits the petition initiated by Akagera Business Group for the repeal of article 1(5) of the Law nº74/2008 of 31/12/2008 modifying and complementing the Law nº25/2005 on tax procedures alleged to be Re. AKAGERA BUSINESS GROUP

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inconsistent with articles 15 and 16 of the Constitution of the Republic of Rwanda of 2003 revised in 2015 ;

Finds the petition without merit;

Declares that article 1(5) of the Law Nº74/2008 of 31/12/2008 modifying and complementing the Law nº25/2005 on tax procedure is not inconsistent with the provisions of articles 15 and 16 of the Constitution of the Republic of Rwanda of 2003 revised in 2015;

Decides that court fees deposited by Akagera Business Group cover expenses incurred in this case.

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Re MURANGWA [Rwanda SUPREME COURT – RS/INCONST/SPEC 00001/2019/SC – Vol [2020] 1 – (Rugege, P.J., Nyirinkwaya, Cyanzayire, Hitiyaremye and Rukundakuvuga, J.) November 29, 2019] Constitution – Discrimination – Although people are equal before the law, the differentiation or categorisation thereof does not necessarily lead to discrimination because it may be necessary for legitimate or rational purpose. Constitution – Petition seeking to declare a provision of the Law or a Law unconstitutional – The petitioner challenging the constitutionality of the Law or its provisions is required to prove that it is implicitly or explicitly unconstitutional. Facts: Following the publication of the Law n° 75/2018 of 07/09/2018 determining the sources of revenue and property of decentralized entities in the Official Gazette Nº 44 of 29/10/2018, Murangwa initiated a petition to the Supreme Court alleging that articles 16, 17, 19 and 20 are contrary to articles 15, 16, 34 and 35 of the Constitution of the Republic of Rwanda of 2003, revised in 2015. Before the hearing of case, the Supreme Court invited those who wish to intervene as Amicus curiae to apply for leave to do so through the Court Registry, thereafter the Court allowed the School of Law/University of Rwanda, Transparency International Rwanda, Counsel Dieudonne Nzafashwanayo, Counsel Twiringiyemungu Joseph and Ntibaziyaremye Innocent to

intervene as Amicus Curiae. The challenged articles are in the following three categories: The first category consists of two articles to wit 16 and 17, whereby the petitioner states that the provisions of article 16 are inconsistent with the Constitution given that apart from the fact that it overburdens taxpayers in the category of residential buildings, it also fix high tax rate for the same category which is of low-income earners compared to the category of commercial and industrial buildings with low tax rate, to the extent that it can hinder the government policy of affordable housing. He further states that people opting to construct residential commercial and industrial buildings, should all be equally treated as investors respectively, thus differentiating them for the 247

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purpose of imposing tax is immaterial yet all people are equal before the law. Rather, each one should pay tax basing on his/her income. He adds that all paragraphs of article 17 complement article 16 which discriminates individuals on basis of economic categories and property, to the extent that such articles do not equally treat people, neither do they uphold equal protection as stated by articles 15 and 16 of the Constitution. The School of Law/ University of Rwanda argues that article 16 violates the principle of building a State committed to promoting social welfare and establishing appropriate mechanisms for equal opportunity to social justice, because that article provides for high tax rate on residential buildings instead of commercial buildings which generate high income. High tax for residential houses will discourage the estate developers while there are still need for residential houses and it does not back up the national housing policy. Transparency International Rwanda assert that article 16 indicates that the legislator focused on the promotion of investment, however it was not necessary to differentiate residential from commercial buildings, because he disregarded the need for residential houses by most of Rwandans and the government’s commitment for access to affordable housing for all Rwandans. Ntibaziyaremye Innocent as Amicus Curiae states that the tax on

residential buildings should not be different from that of commercial buildings given that each person opts among the two a business of his/her choice. He adds that the tax should gradually decrease in proportion to the depreciation rate of the building, and such tax be calculated after the owner has fully paid the loan to buy the plot of land or for constructing the house or to determine the value of the property by deducting the construction loan taken by the owner up to its full payment. The government argues that there is no discrimination based on economic categories because categorisation concerns the buildings and not their owners and especially that for single family residential house and its annexes are exempted from the tax while commercial and industrial buildings are not, the reason why additional residential buildings can be considered as luxury. Counsel Twiringiyemungu Joseph as Amicus Curiae states that any promulgated tax is lawful because it is established by a law providing for the taxpayers and tax collection modalities to the extent that it is difficult to challenge constitutionality of such tax as its establishment is based on the

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Constitution. He submits that it is not mandatory for laws to always have a general scope. The second category consists of article 19 relating to the tax rate on land exceeding the standard size of plot of land of which the petitioner alleges to be states that it i inconsistent with article 15 of the Constitution. On this issue, he states that considering various modalities of land transfer in Rwanda it is evident that there is no equal treatment between people who acquired d land before and after the publication of this Law. The School of Law/University of Rwanda states that article 19 contravenes article 15 of the Constitution because imposing different taxes on plots of land on basis of the period of acquisition by the taxpayer does not constitute a valid ground for the differentiation. Concerning the plot of land acquired before or after the application of the law, they argue that the principle of non- retroactivity of a law as a ground for differentiation of plot owners should not be construed in terms of the period of acquisition or use of the plot, rather it should be approached in the light of the period of ownership (the time of the exploitation of the land). Transparency International Rwanda contends that this article is problematic to citizens concerning the procedure to follow between the acquirer or heir of land and its former owner one would wonder whether the

buyer or the heir must firstly proceed by subdivision and why the legislator differentiates between the current and potential land owners as well as the owners of large and small land. Therefore, they consider such tax as considered as a penalty and inconsistent with tax law principles. Counsel Twiringiyemungu Joseph states that the additional tax rate provided for under article 19 is a common practice. He cites an example of the income tax where a tax rate of 20% is imposed on a salary of 100,000 Frw and below, whereby while a tax rate of 30% is imposed on a salary exceeding 100,000 Frw. Accordingly, whoever exceeds the standard size of plot provided for by the law shall bear such additional tax. Regarding the fact that article 19 states that the additional tax rate does not apply to the plot of land acquired before the commencement of the Law, he submits that this is in line with the protection of acquired rights, since a new law cannot encroach on the right acquired before its commencement. The government of Rwanda contends that the differentiation of taxpayers must not be construed as violation of the principle of equality before the law when Re. MURANGWA

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there is legitimate and rational purpose to do so. It further states that the principle of equality before the law has other principles connected to it and these include the equal treatment in equal circumstances, the preferential treatment as well as the specificity and special rules. Regarding the third category made up of article 20 relating to the tax rate for undeveloped plot of land, the petitioner states that the provisions of that article contravene articles 34 and 35 of the Constitution because it imposes 100% on undeveloped plot without considering if the owner has capacity to pay such tax, thus, such tax is excessive and many individuals will fail to pay it. Therefore, they submit that given that the right to immovable property and land is inviolable and considering the principles of taxation, they find that article 20 is inconsistent with the rights enshrined under articles 34 and 35 of the Constitution. University of Rwanda/School of Law states that articles 19 and 20 seem to be punitive because they respectively provide for an increase of 50% and 100% of tax rate, which is contrary to the legal general principles, given that a person is punished in case of failure to perform an obligation legally stated or the performance of an act legally prohibited, and one may wonder what the citizen in this case would have omitted or committed to be penalized. This

violates the principles governing the social welfare and the citizen will bear the tax burden given that one who paid tax for his/her plot will add the same of amount of tax at the time of sale and the landlord will do the same, thus making the cost of living high and moreover the government cannot fulfil its obligation of ensuring the social justice as long as the citizens do not have the right to property, the equal opportunities and do not enjoy equallity before the law. Counsel Nzafashwanayo Dieudonné as Amicus curiae, argues that the provisions of article 20 contravenes articles 15 and 16 of the Constitution because it discriminates the owner of a developed plot of land from the owner of undeveloped plot who is requested to pay an additional tax. He further adds that it also limits the rights provided for under articles 34 and 35 because the owner can be dispossessed of the plot of land when he/she fails to pay tax, therefore it was enacted without taking into account the effects on the owners of undeveloped plots of land. He also states that it was not necessary to introduce such article to overcome speculation over plots of land given that such issue is addressed by article 58 of the Law governing land. Transparency International Rwanda as Amicus curiae states that article 20 violates the right to private property over land because the tax provided for by

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that article is a burden to low-income earner, because it is like a penalty for those who possess undeveloped land due to lack of means and in case he/she is unable to pay that tax, it will result in auctioning his/her property including that land to recover the tax, and therefore he/she would be deprived of the right to property enshrined in the Constitution. Ntibaziyaremye Innocent argues that it is inappropriate to levy a tax of 100% on an undeveloped plot of land because there may be different reasons especially lack of means. He further adds that when a land purpose is modified from agricultural to residential, the owner automatically pays tax while it is no longer productive and he/she bears the burden of paying tax to the extent that her/his heirs may renounce the succession over it for inability to pay tax arrears. The government argues that article 20 does not violate the right to immovable property and the right to land enshrined in the Constitution because it differentiates the owners who exploit the land for the intended purpose and those who do not do so and keep it undeveloped without being transferred to individuals with means to develop it while the government is committed to boosting its economy through exploitation of its small land. Held: 1. The petitioner challenging the constitutionality of the Law or its provisions is obliged to prove that it’s implicitly or explicitly unconstitutional.

2. Much as people are equal before the law, the differentiation or categorisation thereof sometimes does not necessarily imply discrimination because differentiation or categorisation of persons may be necessary when there is a legitimate or rational purpose.

3. Much as article 20 of the Law N° 75/2018 is not unconstitutional, the content thereof should be reformulation to include the time limit for which the un developed land can be charged an additional tax and the circumstances where the additional tax is waived for legitimate ground. Article 16 and 17 of the Law N° 75/2018 of 07/09/2018 determining the sources of revenue and property of decentralized entities, is not inconsistent with article 15 and 16 of the Constitution of the Republic of Rwanda. Re. MURANGWA

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Article 19 of the Law N° 75/2018 of 07/09/2018 determining the sources of revenue and property of decentralized entities, is inconsistent with article 15 of the Constitution of the Republic of Rwanda. Article 20 of the Law N° 75/2018 of 07/09/2018 determining the sources of revenue and property of decentralized entities is not inconsistent with articles 34 and 35 of the Constitution of the Republic of Rwanda. Statutes and statutory instruments referred to: The Constitution of the Republic of Rwanda of 2003 revised in 2015, article 164 The Universal Declaration of Human Rights of 1948, articles 7 and 17 International Covenant on Civil and Political Rights of 1966, article 26 African Charter on Human and Peoples’ Rights, article 14. Foreign legislation: European Convention on Human Rights, Protocol No. 1, article 1 American Convention on Human Rights, article. 21 Cases referred to: Re Akagera Business Group (ABG), RS/SPEC/0001/16/CS rendered by the Supreme Court on 23/09/2016 Cases from foreign courts: Supreme Court of the United States, Regan v. Taxation with Representation of Wash., 461 U.S.

540. Supreme Court of United States, Bell's Gap Railroad Company v. Pennsylvania, 134 U.S. 232 (1890). Madden v. Kentucky, 309 U.S. 83, 87-88 (1940) Supreme Court of the United States, Noerdlinger v. Hahn, June 18, 1992, 112 S. Ct. (1992). Communication No 172/1984 S.W.M. Broeks v The Netherlands (views adopted on 9 April 1987) in UN Doc. GOAR, A/42/40 P.150. Authors cited: Erwin Chemerinsky, In Defense of Equality: A Reply to Professor Westin, 81 MICH. L. Revd. 575, 578 n.17 (1983)

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Levell, P., Roantree, B., & Shaw, J.). Mobility and the Lifetime Distributional Impact of Tax and Transfer Reforms, 2016, p32., Judgment I. BACKGROUND OF THE CASE

Murangwa Edward petitioned the Supreme Court contending that following the publication in the Official Gazette of the Law N° 75/2018 of 07/09/2018 determining the sources of revenue and property of decentralized entities, he read it and noticed that the articles 16, 17, 19 and 20 are contrary to articles 15, 16, 34 and 35 of the Constitution of the Republic of Rwanda of 2003 revised in 2015. in filing his petition, he relied on article 43 of the Constitution of the Republic of Rwanda which states that “The Judiciary is the guardian of human rights and freedoms”.

According to Muramgwa Edward, the impugned articles sought to be repealed on the grounds of unconstitutionality are four [4], they are divided in three categories: The first category consists of two articles to wit article 16 and 17, of the Law N° 75/2018 mentioned hereinabove. Article 16 states that " The tax rate on buildings is determined as follows: 10 one per cent (1%) of the market value of a residential building, 20 zero point five per cent (0.5%) of the market value of the building for commercial buildings, 30 zero point one per cent (0.1%) of the market value of industrial buildings, buildings belonging to small and medium enterprises and those intended for other activities not specified in this article”. Whereas article 17 states that “Except for the tax rate of zero point one per cent (0.1%), the tax rates prescribed by Article 16 of this Law are applied progressively as follows: 1º for residential buildings a progressive rate is applied as follows: a. Zero point twenty-five percent (0.25%) from the first year after the commencement of this Law; b. Zero point fifty percent (0.50%) from the second year after the commencement of this Law; Re. MURANGWA

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c. Zero point seventy-five percent (0.75%) from the third year after the commencement of this Law; d. One percent (1%) from the fourth year after the commencement of this Law; 2º for commercial buildings a progressive rate is applied as follows: a. Zero point two percent (0.2%) of the market value of the building is applied in the first year of the commencement of this Law; b. Zero point three percent (0.3%) during the second year of the commencement of this Law; c. Zero point four per cent (0.4%) during the third year of the commencement of this Law; d. Zero point five percent (0.5%) during the fourth year of the commencement of this Law. Residential apartments having a minimum of four floors, including basement floors, benefit from reduction of tax rates, equivalent to fifty per cent (50%) of the ordinary rate”.

Murangwa Edward avers that the provisions of the article 16 are unconstitutional given that aside from the fact that it overburdens those in the category of residential buildings, it also provides for high tax rate for the same category which is of low-income earners compared to the category of commercial and industrial buildings upon which a low tax rate is imposed while industry owners are high-income earners. He asserts that article 17 and all its paragraphs complement article 16 which discriminates individuals on basis of economic categories and status, he thus finds those articles to unequally treat individuals before the law, neither do they uphold equal protection as stated by articles 15 and 16 of the Constitution.

The second category consist of article 19 of Law N° 75/2018 mentioned herein above which states that “The tax rate determined by the District Council per square meter of land in accordance with the provisions of

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Article 18 of this Law1 is increased by fifty percent (50%) applicable to land in excess to standard size of plot of land meant for construction of buildings. The standard sizes of plot of land meant for construction of buildings are determined by an Order of the Minister in charge of housing. Additional tax rate as referred to under Paragraph One of this Article does not apply to the plot of land acquired before the commencement of this Law”. Murangwa asserts that the provisions of article 19, paragraphs 1 and 3 contravene article 15 of the Constitution which states that “All persons are equal before the law. They are entitled to equal protection of the law”. In consideration of the different modalities of transfer of land rights in Rwanda which include gift, succession, inheritance, and sale, there is evidently no equal protection for those who acquired the land before and after the publication of the impugned law N° 75/2018.

The third category concerns article 20 of Law N° 75/2018 mentioned herein above which provides for the tax rate for undeveloped plot of land, it states that “Any undeveloped plot of land is subject to additional tax of one hundred percent (100%) to the tax rate referred to in Article 18 of this Law”. Murangwa avers that the provisions of article 20 contravene articles 34 and 35 of the Constitution which state that the right to immovable property and the right to land are inviolable and the first category of national resource is the citizens, the second category is the land they occupy, exploit and which is the source of their livelihood, the fact that this article imposes an additional tax of 100% on an undeveloped plot without considering whether the owner has capacity to pay such tax he finds it is excessive and unviable for many people.

Article 34 states that “Everyone has the right to private property, whether individually or collectively owned. Private property, whether owned individually or collectively, is inviolable. The right to property shall not be encroached upon except in public interest and in accordance with the provisions of the law”. Article 35 states that “Private ownership of land and other rights related to land are granted by the State. A law determines modalities of concession, transfer and use of land”.

1 The article 18 provides for the tax rate on plots of land and states that “The tax rate on plot of land varies between zero (0) and three hundred Rwandan francs (FRW 300) per square meter. The District Council determines the tax rate on square meter of plot of land based on criteria and standard rates set by an Order of the Minister in charge of taxes”. Re. MURANGWA

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The State Attorney contends that the assertion to the effect that articles 16 and 17 of Law N° 75/2018 of 07/09/2018 mentioned herein above encroaches on the principle of the equal protection provided for by the Constitution is unfounded on ground that such tax is imposed on property and what has been categorized is the property (buildings) not the owners, and the categorization of buildings for taxation purposes does not constitute discrimination based on financial status.

The State Attorney adds that article 19 does not violate the principle of equality before the law enshrined in article 15 of the Constitution and the principle of protection from discrimination provided under article 16 of the Constitution since article 19 highlights other legal principles including the right to due process of law and non-retroactivity of the law.

The State Attorney further contends that article 20 does not violate the right to immovable property and the right to land provided under articles 34 and 35 of the Constitution as purported by Murangwa because article 20 serves to differentiate between the land owners who exploit the land for the intended purpose and those who do not by keeping it undeveloped without being transferred to the individuals with the willingness and capacity to exploit it cognizant of the State’s need to boost its economic development through exploiting its small land.

Before proceeding to the hearing on merits of the case, the Court notices that due to the importance of the legal issues to be examined in this case, it is imperative for individuals, public entities and non-governmental organisations who wish to intervene as Amicus curiae to apply for leave to do so through the Court Registry and file their submissions thereafter.

Following the reception of submissions from different persons seeking leave to intervene as Amicus curiae in the instant case, The Court analysed them and decided that the following applicants meet the requirements and are therefore allowed to intervene as Amicus curiae: School of the Law/of University of Rwanda, Transparency International Rwanda, Counsel Dieudonne Nzafashwanayo, Counsel Twiringiyemungu Joseph and Ntibaziyaremye Innocent and filed their submissions on Murangwa Edward’s petition as it shall later be demonstrated .

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The hearing was held on 1/11/2019, MURANGWA Edward represented by Counsel RUGEMINTWAZA Jean Marie Vianney and Counsel Bahati Vedaste, the government was represented by Counsel Cyubahiro Fiat and Counsel Ntarugera Nicolas, the School of Lawof University of Rwanda represented by Turatsinze Emmanuel, Bagabo Faustin and Habimana Pie, Transparency International Rwanda represented by its Chairperson, Ingabire Marie Immaculée assisted by Counsel Habumuremyi Anglebert. Present also were Counsel Dieudonne Nzafashwanayo, Counsel Twiringiyemungu Joseph and Ntibaziyaremye Innocent. II. LEGAL ISSUES AND THEIR ANALYSIS Whether articles 16 and 17 of the Law N° 75/2018 of 07/09/2018 determining the sources of revenue and property of decentralized entities are inconsistent with articles 15 and 16 of the Constitution of the Republic of Rwanda

Murangwa Edward and his Counsel argue that article 10, paragraph 5 of the Constitution of the Republic of Rwanda provides that “The State of Rwanda commits itself to build a State committed to promoting social welfare and establishing appropriate mechanisms for equal opportunity to social justice” whereas paragraph 6 provides that “The State of Rwanda commits itself to a constant quest for solutions through dialogue and consensus”. They aver that these principles are upheld in article 15 of the Constitution which stipulates that “All persons are equal before the law. They are entitled to equal protection of the law” and article 16 states that all Rwandans are born and remain equal in rights and freedoms without any form of discrimination2.

They explain that articles 16 and 17 of the Law N° 75/2018 of 07/09/2018 aforementioned violate the fundamental principles enshrined in articles 15 and 16 cited above because apart from overburdening those in the category of residential buildings, they also provide for high tax rate for the same category which is of low-income earners compared to the category of

2 All Rwandans are born and remain equal in rights and freedoms. 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 is prohibited and punishable by law. Re. MURANGWA

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commercial and industrial buildings upon which a low tax rate is imposed yet they are high-income earners, to the extent that it can affect the national housing policy.

They aver that if someone opts to construct a residential building, another one a commercial building and another an industrial building, they should all be equally treated as investors in so much that differentiating them with the intent of imposing taxes on them is unreasonable yet all people are equal before the law, rather each one should pay tax basing on his/her income since a real estate owner may earn more than the owner of small industry.

Murangwa Edward and his counsel add that the legislator under article 17 highlighted the modalities under which the annual tax rate will progressively apply, but he did not motivate the grounds underlying the tax increase, instead, the appropriate course of action would have been to establish a person's profit for the first and second fiscal years and such profit would constitute the base for the tax progressive rate, otherwise the legislator's action tantamount to the impoverishment of the citizens.

Turatsinze Emmanuel, Bagabo Faustin, and Habimana Pie, on behalf of the School of Law/ University of Rwanda, argue that all State policies which do not uphold its commitment to promoting social welfare contravene the Constitution.

They contend that article 16 violates the principle of building a State committed to promoting social welfare and establishing appropriate mechanisms for equal opportunity to social justice because that article provides for high tax on residential buildings instead of commercial buildings that generate high income. They submit that the fact that a residential house is constructed for income generation and a commercial building for rental purposes does not constitute a valid reason for imposing a different tax on such buildings, especially that they were constructed for income generation. They further submit that the fact that such an article provides for high tax on residential houses will discourage the real estate developers considering the big number of people in need of residential houses such per se is contrary to the national housing policy.

They aver that normally taxation policy should correspond to the rights of taxpayers-the citizens, and the distribution of national resources so

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that the tax should not become a burden to the citizens, but according to their analysis the tax for residential building is double of the tax for commercial building and ten times that of an industrial building and this is contrary to the principle of equal opportunity for social justice with equal rights; the taxation policy should not be perceived as a way of only collecting financial resources, instead, it should be a system of safeguarding the citizens' welfare. They contend that the ground of promoting cities and industries advanced in the explanatory note of the law is not substantial enough given even though such tax will be a burden to the real estate developers, it will not preclude a few to build such houses and accordingly shift the burden to the tenants, moreover industrial and commercial buildings cannot contribute to the development of the cities when there is lack of residential houses.

They further submit that another reason advanced in the explanatory note for establishment such tax policy is the fact that Rwanda has the lowest tax rate compared to other countries in the Region, such ground in unfounded because Rwanda is ranked fourth as regards to GDP in the region so much that increasing the tax rate while it is evident that a citizen has meagre income will deprive him/her of the purchasing power. They cite Kenya as an example where the GDP per capita is 1507 USD per annum while in Rwanda, it is 780 USD, such demonstrates that the grounds in the explanatory note is misleading.

They maintain that the tax rate should be identical for taxpayers of the same category or with the same indicator, it is unfair to charge identical tax to the taxpayers of different categories when the tax administration did not indicate serious grounds for differentiation among taxpayers.

Regarding Article 17, they submit that it serves to implement the provisions of article 16 to the degree that the unconstitutionality of article 16 occasions the repealing of article 17 given that what it serves to implement is unreasonable. They conclude by submitting that both articles are contrary to article 15 and 16 of the Constitution on the ground of discrimination among taxpayers and violate the principle guaranteeing the State commitment for equal opportunity for social justice.

Ingabire Marie Immaculée and her Counsel on behalf of Transparency International Rwanda assert that they concur with the petition against articles 16 and 17 of the Law n° 75/2018 mentioned herein above on Re. MURANGWA

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grounds of discrimination among the owners of residential and commercial buildings because they contravene the principles guaranteed by the Constitution. It is in their stance that the spirit of article 16 denotes that the legislator envisioned the promotion of investment, however, it was not necessary to differentiate residential and commercial buildings because he disregarded the need of most of Rwandans for residential houses and the State commitment for affordable housing for all Rwandans by enabling them to own a house. Therefore, the tax provided for by that article is excessive and detrimental to the citizens' welfare and the National Housing Policy of 20153, hence it is contrary to article 10, 5o 5 of the Constitution.

Moreover, they aver that the provisions of articles 17 are similar to those of article 16 mentioned in the preceding paragraph, which elucidates that it is also discriminatory and infringes upon the citizens' welfare because it provides for the taxation procedure. It is in that regard they advance that in case article 16 is repealed, article 17 should also be repealed because as such it will have no purpose to serve, consequently both articles should be repealed. the fact the legislator determined different tax rates proves that he/she was aware that such tax is high compared to citizen’s ability to pay, such procedure did not benefit them, hence the right course of action would be to refrain from imposing such tax.

Ntibaziyaremye Innocent asserts that the tax on residential buildings should not be different from that of commercial buildings given that each person opts among the two a business of his/her choice. He adds that the tax should gradually decrease in proportion to the depreciation rate of the building, and such tax be calculated after the owner has completely paid the loan incurred to buy the plot of land or for constructing the house or the value of the property be determining by deducting the construction loan incurred by the owner up to its full payment. He further argues that the tax on a building should be proportional to its depreciation rate because, within 100 years, a person is likely to pay a tax higher than the value of the taxed house, the reason why he considers such tax excessive and a burden to the citizens.

He submits that several taxes (land tax, rental income tax, and property tax) should not be imposed on the same property given that many taxes harm the taxation system. He is of the view that a building itself is such

3 Ministry of Infrastructure, National Housing Policy, 2015.

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a burden that it should not be taxed according to Law n°75/2018, rather the tax should be imposed basing on the income generated, especially in a case an additional house is constructed to assist needy people, for example, a house constructed by a child for his/her parents after studies as a way of acknowledging their efforts in underwriting for his/her tuition fees, while the house is not registered in the parents' names for avoiding its succession by others.

The State Attorney rebuts the allegations according to which articles 16 and 17 of Law n° 75/2018 of 07/09/2018 mentioned above violate the principle of protection from discrimination provided for by the Constitution on grounds that such tax consists of property tax and the categorization concerns the buildings rather than the owners. Moreover, the categorization of buildings for taxation purpose does not amount to discrimination based on the economic categories. He adds that even if such is construed as taxpayers' categorization, it would not necessarily amount to discrimination, especially that they were determined for the achievement of reasonable, manifestly evident, and legitimate purpose and the grounds for such categorization underlie the public interest.

Furthermore, he submits that it is baseless to allege that a high tax was imposed on residential houses in comparison to the commercial and industrial buildings while the owners of residential houses are low-income earners, for the following reasons: a) The supporter of such allegations did not carry out any survey to demonstrate that the owners of residential houses are low-income earners in comparison to the owners of commercial buildings. b) Even if the owners of residential houses are low-income earners, this would not justify the allegations according to which this taxation policy is discriminatory because there are different taxation procedures (proportional, progressive, and regressive) depending on the taxation policy, the national economy and development goals of the country.

The State Attorney reminds that one building whose owner intends for residence and its annexes located in a residential plot for single family are exempted from the tax (art 12) while commercial and industrial buildings are not exempted from tax, the reason why additional residential buildings can be Re. MURANGWA

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considered as luxury, a piece of evidence that he/she is a wealthy person who cannot be considered as a low-income earner.

Counsel Twiringiyemungu Joseph argues that any established tax is legal because it is determined by a law providing for the taxpayers and tax collection modalities, and for this reason, it is difficult to challenge it’s the constitutionality since its enactment is based on the Constitution. He submits that not all laws need to always have a general scope where he gave the example of the law establishing the general statutes for public service that exclusively governs civil servants.

He contends that taxation laws provide for the taxpayers' categories in accordance with the intended policy where for example, article 21 of Law nº 016/2018 of 13/04/2018 establishing taxes on income states that the income earned from agricultural activities is exempt if the yield does not exceed 20,000,000 Frw, while a lawyer who earns 12,000,000 Frw pays the tax, the difference which does not tantamount to discrimination. Consequently, he finds that articles 16 and 17 do not contravene the Constitution.

DETERMINATION OF THE COURT

In determining whether article 16 of Law n° 75/2018 of 07/09/2018 is contrary to articles 15 and 16 of the Constitution, it is necessary to analyze their meaning and difference. As held in the case No RS/SPEC/0001/16/CS tried by this Court on 23/04/20164, articles 15 and 16 of the Constitution are complementary to the extent that it is barely impossible to separately interpret them. As motivated in that case, article 15 states that all persons are equal before the law and they are entitled to equal protection of the law, which implies that any form of discrimination that can hinder the equality before the law and the rights to which all persons are entitled is prohibited. Article 16 stresses that any kind of discrimination is prohibited by the Constitution. Both articles enshrine the same principle with two complementary points.

The international conventions ratified by Rwanda uphold the complementarity of the principle of equality before the law and the principle of equal protection of the law. Article 7 of the Universal Declaration of Human

4 Case RS/SPEC/0001/16/CS Akagera Business Group (ABG), para.

15.

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Rights, 1948 states that “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against discrimination in violation of this Declaration and any incitement to such discrimination”. Article 26 of the International Covenant on Civil and Political Rights, 1966 also states that “All persons are equal before the law and are entitled without any discrimination to equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, language, religion, political or other opinions, national or social origin, property, birth, or another status”.

In simple terms, equality before the law means that all persons are equally treated before the law without inequality, nor discrimination and the newly enacted law treats equally its subjects. Erwin Chemerinsky puts it as follows: “Things that are alike should be treated alike, and unalike things should be treated unalike in proportion to their unlikeness5”.

Much as people are equal before the law, the differentiation or categorization thereof does not necessarily tantamount to discrimination. Differentiation or categorization of persons may be necessary given the intent based on legitimate or rational purpose. In that respect, the Human Rights Committee observed that “The right to equality before the law and equal protection of the law without any discrimination, does not make all differences of treatment discriminatory. A differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of Article 266”.

Even if the differentiation of persons is allowed as explained in the preceding paragraph, their differentiation on basis of the grounds laid down under article 167 of the Constitution is prohibited. The Human Rights

5 Erwin Chemerinsky, In Defense of Equality: A Reply to Professor Westin, 81 MICH. L. REv. 575, 578 n.17 (1983). 6Communication No 172/1984 S.W.M. Broeks v The Netherlands (views adopted on 9 April 1987) in UN Doc. GOAR, A/42/40 P.150, para 13. 7 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 Re. MURANGWA

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Committee also does not approve the differentiation on grounds enumerated in article 26 of the International Covenant on Civil and Political Rights. The same was upheld in Muller and Engelhard v Namibia case “A differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of Article 26. Different treatment based on one of the specific grounds enumerated in Article 26, clause 2 of the Covenant, however, places a heavy burden on the State party to explain the reason for the differentiation8”.

Article 16 of Law n° 75/2018 of 07/09/2018 establishes the tax rate on residential buildings which is different from the tax rate on commercial, industrial buildings, and other buildings intended for other activities not specified in this Article. The Court finds that, according to the formulation of article 16 indicated in this paragraph, there is a differentiation of tax rates levied on the buildings based on their purposes (residence, commerce, industry, and other). The State Attorney explained that such differentiation is based on the State policy of promoting commercial buildings over residential houses.

As held in the case RS/SPEC/0001/16/CS9 tried by this Court on 23/04/2016, equality before the law and protection from discrimination does not mean that the differentiation of persons is always discriminatory. Differentiation or categorization of persons can be necessary becauseof a legitimate or rational purpose. In this case, the differentiation of tax rates is based on the State's policy of promoting commercial buildings over residential houses as submitted by the State Attorney in his rejoinder in the hearing.

As regards taxation, the legislator has the freedom to categorize taxpayers because he is in the right position than courts to know the needs of the citizens and the State upon which he bases to determine the categories and rates of tax unless it is manifestly clear that differentiation intends to harm particular persons. The similar position was upheld by the Supreme Court of the United States in Regan v. Taxation with Representation of Wash case wherein the Court declared that “[T]he passage of time has only served to underscore the wisdom of that recognition of the large area of discretion which is needed by a legislature in formulating sound tax policies. Traditionally

8 HRC, Muller, and Engelhard v Namibia (Communication No. 919/00), para 6.7. 9 Case RS/SPEC/0001/16/CS Akagera Business Group (ABG)

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classification has been a device for fitting tax programs to local needs and usages to achieve an equitable distribution of the tax burden. It has, because of this, been pointed out that in taxation, even more than in other fields, legislatures possess the greatest freedom in classification. Since the members of a legislature necessarily enjoy a familiarity with local conditions which this Court cannot have, the presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is hostile and oppressive discrimination against particular persons and classes. The burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it10”. The Court finds that the promotion of commercial and industrial buildings is a valid and lawful reason as the applicant and supporting Amicus curiae did not demonstrate that the intent was the discrimination of taxpayers to the detriment of the owners of residential buildings.

For the purpose of public interest, the State can classify taxpayers to promote a particular category over others, but such should be done by avoiding discrimination and categorization which oppress particular persons. The similar statement was upheld by the Supreme Court of the United States in Bell's Gap Railroad Company v. Pennsylvania, where it declared that “It may impose different specific taxes upon different trades and professions, and may vary the rates of excise upon various products; it may tax real estate and personal property differently; it may tax visible property only, and not tax securities for payment of money; it may allow deductions for indebtedness, or not allow them. All such regulations, and those of like character, so long as they proceed within reasonable limits and general usage, are within the discretion of the state legislature, or the people of the State in framing their Constitution. But clear and hostile discriminations against particular persons and classes, especially such as are unusual, unknown to the practice of our governments, might be obnoxious to the constitutional prohibition11". This indicates that differentiation or classification in taxation is a practice that is not contrary to the Constitution unless it is done based on forms of discrimination provided under article 16 of the Constitution.

10 Supreme Court of the United States, Regan v. Taxation with Representation of Wash., 461 U.S.

540. See also Madden v. Kentucky, 309 U.S. 83, 87-88 (1940) 11 Supreme Court of United States, Bell's gap railroad company v. Pennsylvania, 134 U.S. 232 (1890). Re. MURANGWA

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Concerning the submission of Murangwa Edward and Amicus curiae in his support, that the imposition of the high tax rate on residential buildings will differently prejudice particular persons, the Court finds it to not to be an unconstitutional matter, rather, it should be assessed in the framework of public policy, an attribution that falls under the responsibility of the government where the observations on that policy, the areas of improvement, the gaps therein and other related issues be submitted to the initiating organ which is competent to decide on the reformulation thereof. The Courts have judicial powers while other State branches have their own constitutional and statutory powers.

In respect of the principle of the separation and independence of the three State branches of power to wit legislature, Executive and Judiciary12, the Court cannot solely find a law unconstitutional based on existing divergent understandings, criticisms, unfair aspects of law, or its impugned articles that are sought to be repealed. The petitioner should prove that a law or its articles on tax categories are directly or indirectly unconstitutional. In this particular case, the Court finds that the tax rates on buildings have been determined in the framework of public policy implementation. The similar stance was upheld by the Supreme Court of the United States in Tax Commissioners v. Jackson case wherein it declared that “It is not the function of this Court in cases like the present to consider the propriety or justness of the tax, to seek for the motives or to criticize the public policy which prompted the adoption of the legislation. Our duty is to sustain the classification adopted by the legislature if there are substantial differences between the occupations separately classified13”.

Concerning the fact that article 16 of Law n°75/2018 of 07/09/2018 is discriminatory, article 16 of the Constitution enumerates the grounds underlying the discrimination. Generally, discrimination is the differentiation of persons to deprive some of their opportunities to the advantage of others. In this case, there are tax rates on residential, commercial, and industrial buildings. Among those categories, none of them is based on the grounds underlying the discrimination as enumerated in the Constitution.

12 Article 61 of the Constitution of the Republic of Rwanda of 2003 revised in 2015 13 U.S. Reports: Tax Commissioners v. Jackson, 283 U.S. 527 (1931).

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Much as article 16 enumerates the grounds underlying discrimination, it further stresses that “(…) or any other form of discrimination". Murangwa Edward does not indicate any other criterion of classification that would tantamount to discrimination. As explained, discrimination is the differentiation of persons to deprive some of their opportunities to the advantage of others. In this case, article 16 was not enacted to deprive particular persons of their opportunities to the advantage others. As explained above, different tax rates were set on building categories in order to promote commercial and industrial buildings. Such policy does not tantamount to discrimination to lead to a conclusion that article 16 of Law n° 75/2018 of 07/09/2018 is contrary to article 16 of the Constitution.

Basing on the motivations provided in the preceding paragraphs, the Court finds that article 16 of Law n° 75/2018 of 07/09/2018 determining the tax rate on building categories denotes the differentiation based on the intended use of that building. As explained above, such differentiation is based on a legitimate ground related to the promotion of commercial buildings. Article 16 does not contain any form of discrimination. Consequently, the Court concludes that it is not contrary to articles 15 and 16 of the Constitution of the Republic of Rwanda.

Much as the Court does not have the responsibility nor jurisdiction to examine the grounds based on in determining the tax rate on residential buildings as explained, it would be prudent for the Government to meticulously reconsider the various obstacles that would arise from the enforcement of article 16 as indicated by Murangwa Edward and Amicus curiae who supported his stance. Among the obstacles to be examined include the fact that the rate of 1% of the value of a building is exorbitant; the fact that the taxable value of a building is comprised of the value of the building itself and the value of the plot whereon the building is constructed while there is separate tax on land; matters related to the building constructed with outstanding loans; the houses constructed for parents; the buildings constructed but not in use or which cannot be used for particular reasons of which it is difficult to collect revenue to meet tax obligations; the fact that the building tax is imposed on basis of the market value without taking into account of its depreciation.

Murangwa Edward prays the Court to repeal article 17 which enforces article 16 that he claims to be unconstitutional. The Court finds that Re. MURANGWA

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repealing or maintaining article 17 because of the unconstitutionality of article 16 is an issue legal formulation and not of unconstitutionality.

The provisions of Article 17 that tax rates on buildings will be progressively applied, are not contrary to the Constitution, rather it is a procedure set by the legislator for facilitating taxpayers to pay the new tax, starting by the low tax rate which increases progressively as provided for by that article. The Court finds that had the tax on the building been determined in respect of the principle of the equality before the law provided for by article 15 of the Constitution, nothing would preclude its payment according to the modalities provided for by article 17 of Law n° 75/2018 of 07/09/2018 determining the sources of revenue and property of decentralized entities. Whether article 19 of Law n° 75/2018 of 07/09/2018 determining the sources of revenue and property of decentralized entities contravenes article 15 of the Constitution of the Republic of Rwanda.

Murangwa Edward and his Counsel contend that article 19 providing for the tax rate on land exceeding the standard size of a plot of the land states that “The tax rate determined by the District Council per square meter of land in accordance with the provisions of Article 18 of this Law14 is increased by fifty percent (50%) applicable to land in excess to standard size of a plot of land meant for construction of buildings. The standard size of the plot of land meant for construction of buildings is determined by an Order of the Minister in charge of housing. Additional tax rate as referred to under Paragraph One of this Article does not apply to the plot of land acquired before the commencement of this Law”.

They aver that such article contravenes article 15 of the Constitution which reads that “All persons are equal before the law. They are entitled to equal protection of the law", in consideration of the different modalities of transfer of land rights in Rwanda including gift, succession, inheritance and sale, there is evidently no equal protection between those who acquired the land before and after the publication of the challenged Law n° 75/2018.

14 Article 18 states that "The tax rate on a plot of land varies between zero (0) and three hundred Rwandan francs (FRW 300) per square meter. The District Council determines the tax rate on a square meter of a plot of land based on criteria and standard rates set by an Order of the Minister in charge of taxes”.

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They further adduce examples corroborating the unconstitutionality of such article, where for instance, a child who got the plot of land as a donation and registered in his/her names in 2018 before the entry into force of this article and his/her relative who got and registered it in his/her names in 2019 after this article has entered into force. Despite the fact that they got those plots of land with equal areas from their parents, both are not subjected to pay the same tax as the child who got the plot of land in 2019 will pay the tax increment of 50% provided for under paragraph 2 of article 19, meaning that they are not entitled to equal protection of the law pursuant to article 15 of the Constitution.

They cite another example of the land managed by the guardian of minors where the land is registered in his/her names and that in the due time when the plot of land be registered in each child’s names (after 2019) and after the entry into force of this law, each child will be obliged to pay a tax of 50% for the land exceeding the standard size of a plot of land while their relatives who were adult before the enforcement of this law are not concerned with an additional tax of 50%, thus ostensibly clear that this law does not guarantee them the equality and the equal protection as provided for by article 15 of the Constitution mentioned above.

They conclude by pointing out that the provision of article 19 related to the fact that the law does not apply to persons who got the plot of land before its publication while a published law applies collectively to everyone, it arises an issue of whether being born before the enactment of the law confers special rights than those conferred to other Rwandans.

Turatsinze Emmanuel, Bagabo Faustin and Habimana Pie, on behalf of the School of Law/University of Rwanda, sustain that article 19 which is sought to be repealed contravenes article 15 of the Constitution because imposing different tax rates on plots of land on basis of the period of acquisition by the taxpayer does not constitute a valid ground for the differentiation.

Concerning the plot of land acquired before or after the commencement of the law, they argue that the principle of non-retroactivity of law relied upon by the State Attorney as a ground for differentiation of plot owners, such ground should not be envisioned in terms of the period of acquisition or use of the plot, rather it should be approached in the light of the Re. MURANGWA

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period when the right over land was effective (the time when the land started to be developed).

Ingabire Marie Immaculée and her Counsel, on behalf of Transparency International Rwanda, contend that article 19 prejudices the Citizens as regards whether the buyer or the heir would have to subdivide the plot of land acquired or inherited from its prior owner, and it is questionable why the legislator differentiates between the actual and future owners of land as well as between the owners of large and small plots.

They uphold that such article discriminates between the owners of large and small land, while the ownership of large land should not raise any problem without considering acquisition modalities, which should be the basis of tax imposition of the owner. They consider it as a punitive tax, which is illegal because a person is punished for omission to do something he/she is required or to do a prohibited act.

The State Attorney sustains that article 19 does not violate the principle of equality before the law provided for under article 15 of the Constitution and the principle of equal protection of the law provided under article 16 on the backdrop that article 19 serves to emphasize other legal principles, mostly the principles of fair justice and non-retroactivity of a law.

He explains that the differentiation of taxpayers must not be considered a violation of the principle of equality before the law when there is a legitimate and rational purpose to do so. He submits that the principle of equality before the law has other principles connected to it and these include equal treatment in equal circumstances, the preferential treatment, and the specificity and special rules.

Counsel Twiringiyemungu Joseph argues that the additional tax rate provided for under article 19 is a common practice where he cites an example of the income tax according to which a tax of 20% is imposed on a salary of 100,000 Frw and below, where a tax of 30% is imposed on a salary exceeding Frw 100,000. In that light whoever exceeds the standard size provided for by the law shall be liable accordingly. Regarding the fact that article 19 states that the additional tax rate does not apply to the plot of land acquired before the commencement of the Law, he submits that this is in line with the protection of the inviolable acquired rights.

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DETERMINATION OF THE COURT

Article 19 includes the following ideas: (1) the standard size of a plot of land meant for construction of buildings15 will be set; (2) the owners of plots of land which do not exceed the standard size will pay a tax varying between zero (0) and three hundred Rwandan francs (Frw 0- 300) per square meter; (3) the tax rate for the land in excess to standard size will be increased by 50%; (4) additional tax rate of 50% does not apply to the plot of land acquired before the publication of the Law n°75/2018 of 07/09/2018 in the Official Gazette on 29/10/2018.

According to Murangwa Edward, the petitioner, the questionable part of article 19 is the one that is related to the fact that the tax rate of land in excess to standard size will be increased by 50% and the fact that the additional tax rate of 50% does not apply to the plot of land acquired before the publication of the Law n°75/2018 of 07/09/2018 in the Official Gazette. It is in this context that the petitioner alleges that this article is discriminatory in as far as that it provides for differentiated tax on the plots of land with equal surface and that the owners of the land in excess to standard size acquired before the publication of the Law n°75/2018 of 07/09/2018 will not pay the additional tax rate of 50% while it will apply to future acquirers.

The issue for determination is whether the differentiation contravenes the principle of equality before the law provided for under article 15 of the Constitution. In other words, to determine whether imposing a 50% increase on owners of plots exceeding standard size in and the fact that those who acquired the plots of land before the publication of the law are exempted from it; contravenes article 15 of the Constitution.

As explained in the preceding paragraphs, the differentiation based on legitimate and rational purpose is not considered as inequality before the law. There is no valid ground based neither on article 19 nor on Law n° 75/2018 of 07/09/2018 to justify the additional tax rate for the land exceeding standard size. The arguments of the State Attorney that the differentiation intended to encourage the construction of buildings on the plots not exceeding the standard size to be determined and to uphold the principle of non-

15 It will be determined by an Order of the Minister. Re. MURANGWA

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retroactivity of law are baseless because the non-retroactivity of a law insinuates exemption from taxes from the period preceding the publication of the law. The imposition of new taxes on the property acquired before the publication of the law is not contrary to the principle of non-retroactivity of law.

Article 10 of the Law n° 43/2013 of 16/06/2013 governing land in Rwanda reads that “Private individual land shall comprise land acquired through custom or written law. That land has been granted definitely by competent authorities or acquired by purchase, donation, inheritance, succession, ascending sharing, and exchange or through sharing [...]”. This article indicates the modalities for land acquisition. The same modalities enumerated in article 10 apply for the acquisition of land meant for construction of buildings. It is only in case of transfer of land exceeding the standard size based on one of the grounds enumerated in this article and performed after the publication of the Law n° 75/2018 of 07/09/2018 that the additional tax rate of 50% is applied.

Article 19 of the Law n°75/2018 of 07/09/2018 provides that the standard size of the plot of land meant for construction of buildings is determined by an Order of the Minister in charge of human settlement. This Order mentioned in article 19 can determine the standard size inferior to those determined before it enters into force. This elucidates that the difference of the standard sizes of the plots meant for construction depends on the development in the amendment of the laws on the matter. Any transfer performed on the plot of land exceeding the standard size provided for by the Ministerial Order in compliance with the applicable laws during the acquisition period would lead to the payment of an additional tax rate of 50% as a result of circumstances beyond his/her control; rather, it would be due to the evolution in the amendment of the law.

For those who will acquire plots of land in accordance with the sizes determined by the Ministerial Order stated under article 19 of the Law n°75/2018 of 07/09/2018, it would be contrary to the principle of equality before the law if a differentiated tax is imposed on the plots with equal size, closely located in the same area, some being subjected to an additional tax rate of 50% solely on the grounds that they were acquired before or after the publication of the Law n° 75/2018 of 07/09/2018 in the Official Gazette.

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In the similar case Nordlinger v. Hahn rendered by the Supreme Court of the United States, the petitioner initiated a claim seeking the repealing of the law providing for the high tax for those who acquired houses after that law in comparison to those who already had them, and the majority of judges decided that such move cannot be considered as inequality. According to the dissenting opinion of Judge John Paul Stevens, […] "it is irrational to treat similarly situated persons differently based on the date they joined the class of property owners. [….] Similarly, situated neighbours have an equal right to share in the benefits of local government. It would be unconstitutional to provide one with more or better fire or police protection than the other; it is just as unconstitutional to require one to pay five times as much in property taxes as the other for the same government services. In my opinion, the severe inequalities created by Proposition 13 are arbitrary and unreasonable and do not rationally further a legitimate state interest16 […]". This Court concurs with the dissent opinion of Judge Stevens, and thus the tax rate for plots of land meant for construction of buildings should be identical for the plots with equal size and located in the same area, regardless of the acquisition period. It is this stance that would comply with the principle of equality before the law.

The Court finds that the fact that the Law n° 75/2018 of 07/09/2018 establishes the tax on plots of land meant for construction of buildings does not pose any problem because, pursuant to articles 3 and 18 of that Law, the tax on plots of land meant for construction of buildings is one of the sources of revenue and property of decentralized entities. The Court deems that the tax rate should be equal and persons with extra land should pay corresponding excessive tax. This practice complies with the principle of vertical equity according to which those with higher income, or higher ability to pay, should pay a greater amount of tax17.

On basis of the explanations provided in the preceding paragraphs, the Court is persuaded that the establishment of additional tax by the Law n° 75/2018 of 07/09/2018 determining the sources of revenue and property of decentralized entities, does not equally treat the taxpayers and this without legitimate grounds, such approach is contrary to the principle of equality

16 Supreme Court of the United States, Nordlinger v. Hahn, June 18, 1992, 112 S. Ct. (1992). 17 Levell, P., Roantree, B., & Shaw, J.). Mobility and the Lifetime Distributional Impact of Tax and Transfer Reforms, 2016, p.32. Re. MURANGWA

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before the law provided for under article 15 of the Constitution. Consequently, such article is devoid of effect on the basis of article 3 of the Constitution stating that any law contrary to the Constitution is without effect. Whether article 20 of the Law n° 75/2018 of 07/09/2018 determining the sources of revenue and property of decentralized entities contravenes the articles 34 and 35 of the Constitution of the Republic of Rwanda

Murangwa Edward and his Counsel aver that article 20 providing for the tax rate for undeveloped plot of land which states that “Any undeveloped plot of land is subject to an additional tax of one hundred percent (100%) to the tax rate referred to in Article 18 of this Law” is contrary to articles 34 and 35 of the Constitution reading that everyone has the right to immovable property and land and that such right is inviolable; consequently, such article should be repealed.

They submit that Rwandans are the first category of a national resource while the second category is the land which they occupy and exploit for living. Therefore, the fact that this article provides for an additional tax of 100% for the undeveloped plot without considering whether the owner can afford to pay such tax, it is an indication that it is disproportionate and will be outstanding for many persons. They argue that the fact that Murangwa Edward filed a petition does not mean that he opposes the such tax because he acknowledges that the tax is the foundation of national development as provided for under article 18 of the law mentioned above determining the sources of revenue and property of decentralized entities, nor does he question the increase from 0-80 Frw per square meter provided under the repealed law to 0-300 Frw per square meter provided under the new law, instead, he challenges the additional tax of 100% for an undeveloped plot of land which was imposed without considering the reason for which the owner does not develop it because he/she can be short of means to develop it.

They further submit that it was not necessary to increase the tax again to 100% without considering the reason for which the owner does not develop the plot since it was increased to 300% before. Concerning the argument of the State Attorney who alleges that the purpose of such tax is to discourage those who accumulate plots, Murangwa Edward and his Counsel rebut that such was not the appropriate approach to be applied, especially that there are instructions which dictate that the owner of an undeveloped plot of land will

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be dispossessed of it, the action that discourage the accumulation of plots of land and in addition to that, Rwandans are known to have modest means.

They further sustain that the persons falling in the categories mentioned above will finally be unable to pay such tax, which will result in the application of article 44 of the Law governing land in Rwanda stating that "In case the lessee does not comply with the lease contract obligations other than those stipulated in article 38 of this Law18, the lessor may terminate the lease after a written warning notice of fifteen (15) working days, without any other formalities", thus all those persons will be dispossessed of their land due to the tax arrears.

They clarify that their argument is based on the Constitution which provides for the inviolable right to the property and is protected by the Constitution in articles 34 and 35. Article 34 states that “Everyone has the right to private property, whether individually or collectively owned. Private property, whether owned individually or collectively, is inviolable. The right to property shall not be encroached upon except in public interest and in accordance with the provisions of the law”. while Article 35 states that “Private ownership of land and other rights related to land is granted by the State. A law determines modalities of concession, transfer, and use of land”.

They aver that the fundamental principles of taxation including the ability to pay and tax certainty are important to enable taxpayers to willingly pay. Therefore, they submit that given that the right to immovable property and land is inviolable and taking into account the principles of taxation, they observe that article 20 of the law mentioned above which provides for the tax increase of 100% on the undeveloped plot of land irrespective of the reason for which the plot is not developed is inconsistent with the rights enshrined under articles 34 and 35 of the Constitution and the rights protected by the international conventions ratified by Rwanda (Universal Declaration of

18 The article 38 provides for servitudes as follows "The landowner shall not act against other people's rights. In that regard he/she shall not: 1° refuse passage to his/her neighbours leading to their parcels when there is not any other way. However, for other passage, this should be convenient for both parties; 2° block water that is naturally flowing through his / her land; 3° refuse other people to access water from a well found on his or her land unless he or she can prove that such a well has been dug by him or her.” Re. MURANGWA

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Human Rights, art.17, paragraph 1 which stating that “Everyone has the right to own property alone as well as in association with others. No one shall be arbitrarily deprived of his property”). Hence, he prays the Supreme Court to exercise its discretion and powers bestowed on by the law to repeal article 20 which is inconsistent with the Constitution.

They conclude by praying the Supreme Court that, in examining the petition filed by Murangwa Edward, may it analyse the in its discretion consider the impugned articles in light standards of living of the Rwandan society, the value of immovable property and the perception of land in Rwandan society before the introduction of written laws and master plans, as well the consequences of confiscation of the immovable property on Rwandans who are unable to pay the additional tax of 100%.

Turatsinze Emmanuel, Bagabo Faustin, and Habimana Pie, on behalf of the University of Rwanda/School of Law, support that the principles enshrined in the Constitution mainly preserve the social welfare, especially article 10 which provides for building a State committed to promoting social welfare and equal opportunity to social justice, the State has the responsibility to ensure the social welfare as provided for under laws and international conventions. They aver that the report of National Housing Policy indicates that 83% of the population depend on rent, and they are concerned of the potential tax increase consequences on Rwandans because each landlord will increase the rent accordingly cognisant the fact that when a tax becomes a burden to the citizens, the State is accordingly affected because taxpayers conceal their properties and it is trite law that tax fairness facilitates tax payment.

They point out that articles 19 and 20 seem to be punitive because they respectively provide for an increase of 50% and 100%, which is contrary to the legal general principles, given that a person is punished for omission to do something he/she is required or to do a prohibited act. One wonders what the citizens in this case omitted or committed to be penalized. This violates the social welfare principles and the citizen will bear the tax burden given that one who paid the tax for his/her plot shall add the same amount on the resale price and the tenant will add the same tax, which will make the cost of living high.

They contend that taxes are among factors that enable the government to fulfil its obligation of ensuring social welfare, but it cannot achieve social

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justice when the citizens do not have the right to property, equal opportunities, and when they are not equal before the law.

Dieudonne Nzafashwanayo as Amicus curiae, argues that article 20 of the Law n° 75/2018 mentioned above contravenes articles 15 and 16 of the Constitution as it discriminates the owner of a developed plot of land from the owner of the undeveloped plot of land who is requested to pay an additional tax of 100%. He adds that article 20 infringes on the rights provided for under articles 34 and 35 because the owner can be dispossessed of the plot of land when he/she fails to pay tax, therefore it was enacted without taking into account of the effects it will have on the owners of undeveloped plots of land.

He submits that through the enactment of laws, the Government is empowered to put limitations on the rights provided for under articles 15, 16, 34 and 35 of the Constitution through taxation purposely for its functioning, however, he is of the stance that article 20 does not serve that purpose, because if it were, it would have provided for a tax proportional to the the ability of taxpayers. He further contends that the enactment of such an article was not necessary for addressing the issue of plots hoarding for higher prices given that such issue is addressed by article 58 of the Law governing land which states that the land is confiscated in absence of valid reasons of no exploitation.

He furthermore asserts that the issue of tax determination was settled by the African Court on Human and Peoples ‘Rights and its decisions corroborate the statements of Adam Smith in his book, Inquiry into the Nature and Causes of the Wealth of Nations19. They concurred that tax is determined purposely to enable the State to address the citizens' needs and the tax should be determined in accordance with the ability of taxpayers; accordingly, he is of the view that the tax provided for under article 20 was determined in total disregard of such opinions.

He also argues that a plot of land can be undeveloped not because of its owner but because of the master plan regulations and article 20 should not have provided for the land confiscation for reasons of being unexploited while article 58, paragraphs 3 and 4 provides for the land which cannot be confiscated for being unexploited and the location thereof. He states that the

19 Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, Lausane, 2007, p.

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legislator can discourage a given practice through taxation, however, the tax should not be confiscatory nor a burden on the taxpayer.

He asserts that the Government can impose a tax for a legitimate purpose and set proportional rate for achieving the intended purpose. He concludes that if the Court takes into consideration those principles it will find that article 20 which is sought to be repealed can lead to deprivation of the right to property for failure to pay tax.

Ingabire Marie Immaculée, on behalf of Transparency International Rwanda as Amicus curiae, asserts that she generally supports the taxation as it benefits the citizens, but it should not be detrimental to their social welfare. Article 20 of the Law n° 75/2018 mentioned above violates the right to private property of the land because the tax it provids is a burden to low-income earners as it is punitive to the owner of an undeveloped plot of land for lack of means and failure to pay tax leads to the auction his/her property including the land to recover the tax. Therefore, he/she would be deprived of the right to property enshrined in article 34 of the Constitution.

She advances that the legislator set the tax provided for by article 20 as a harsh sanction of 100% without taking into account the reason for which the plot of land is undeveloped to the extent that the provisions of that article encroach upon the social welfare of the citizens, mostly the youth, because when a person earns some money he/she buys a plot of land and has to wait to get other money for construction, thus this tax will prevent him/her from building because the savings will be absorbed by tax. They argue that such tax will impoverish the citizens because if a citizen fails to pay it and his/her plot of land be auctioned as a result, he/she will be deprived of his/her property, which will relegate most of them into the first category of ubudehe.

She further avers that some citizens do not have residential houses due to lack of financial means, thus the legislator did not consider them when enacting this article, nor did he consider a person who bought a plot of land, but later after the introduction of a master plan, the area in which that plot is located be meant for construction of storeyed buildings, of which the citizen is unable to construct, which implies that the plot will continue to be charged an additional tax rate of100%, a situation that would finally promote to corruption in decentralized entities. She also argues that the legislator did not

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take into account various reasons why a plot of land may remain undeveloped. She concludes by praying the Court to repeal the impugned article 20.

Ntibaziyaremye Innocent as Amicus curiae asserts that it is inappropriate to levy a tax of 100% on an undeveloped plot of land because there are different reasons as to why it is undeveloped, especially the lack of means. He moreover adds it happens that a land be repurposed from agricultural to residential, and the owner automatically bears the burden of paying tax while he/she no longer exploit it in so much that her/his heirs may reject the succession thereof for fear of tax arrears.

The State Attorney submits that article 20 does not violate the right to immovable property and the right to land provided for under articles 34 and 35 of the Constitution because it differentiates the owners who exploit the land for the intended purpose and those who do not and leave the plots undeveloped without being transferred to others who can exploit them while the State is committed to boosting its development through exploitation of her small land. He further argues that when a plot of land is developed, a low tax would be charged due to depreciation, contrary to the undeveloped plot of land which does not depreciate, instead, its value can appreciate through development, the reason why the two categories cannot be subject to the same tax.

He avers that article 20 does not violate the right to the immovable property and the right to land provided for by the Constitution because taxing people does not imply deprivation nor encroachment of the right to private property. He submits that, even if such was the case, the principle stating that “The right to private property can be encroached upon in public interest and in accordance with the provisions of the law" remain valid, and it is trite law that tax serves the public interest given that it contributes to national development. Consequently, imposing tax determined by the law on private property for developing infrastructures and other activities beneficial to all citizens should not be considered as a violation of the right to private property or the right to private land. He concludes that, based on the explanations he provided, article 20 which is sought to be repealed is not contrary to the Constitution.

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DETERMINATION OF THE COURT

The legal issue to be analysed in this part is to determine whether the additional tax rate of 100% imposed on an undeveloped plot of land violates the principle of the right to property in general and the right to land in particular.

Article 34 of the Constitution states that “Everyone has the right to private property, whether individually or collectively owned. Private property, whether owned individually or collectively, is inviolable. The right to property shall not be encroached upon except in public interest and in accordance with the provisions of the law”. Article 35 states that “Private ownership of land and other rights related to land is granted by the State. A law determines modalities of concession, transfer, and use of land”. The two articles enshrine two complementary principles namely the right to private property and the right to land.

These principles are embedded in various international conventions, such as the Universal Declaration of Human Rights, article 17 which provides that “Everyone has the right to own property, alone as well as in association with others and no one shall be arbitrarily deprived of his or her property”20, European Convention on Human Rights, Protocol No. 1, article 121, American Convention on Human Rights, article 21, African Charter on Human and Peoples’ Rights, article 1422.

Article 20 of the Law N° 75/2018 of 07/09/2018 determining the sources of revenue and property of decentralized entities provides that “Any

20 Article 17, Universal Declaration of Human Rights 21 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 22 “Everyone has the right to property. No one shall be deprived of his property except in the public interest and in accordance with the law (and upon payment of just compensation”.

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undeveloped plot of land is subject to an additional tax of one hundred percent (100%) to the tax rate referred to in Article 18 of this Law”. That article provides that “The tax rate on a plot of land varies between zero (0) and three hundred Rwandan francs (FRW 300) per square meter”.

Article 39, paragraph 1 of the Law no 43/2013 of 16/06/2013 governing land in Rwanda states that “Any person owning land shall exploit it in a productive way and in accordance with its nature and intended use”. This article clearly indicates that the landowner has the obligation to properly exploit it. The owner of the undeveloped plot of land violates article 39 because the land should be exploited unless there is a reasonable and legitimate reason to that effect.

The Court finds that the additional tax rate of 100% to the standard tax rate emanates from the fact that the landowners do not comply with the exploitation obligation. The development of land is in the public interest of promoting economic sustainable development and social welfare of Rwandans. This concurs with the provisions of article 3 of the Law no 43/2013 of 16/06/2013 governing land in Rwanda which provides that “The land is part of the common heritage of all the Rwandan people: the ancestors, present and future generations. Notwithstanding the recognized rights of people, only the State has the supreme power of management of all land situated on the national territory, which it exercises in the general interest of all intending to ensure rational economic and social development as defined by law. […] ”.

The Court finds reasonable and not contrary to the Constitution and also in line with the national policy of small land use and exploitation for the public interest, the ground by the Government that the purpose of imposition of additional tax on undeveloped plot of land is to discourage the acquirers of plots which they do not intend to exploit but for future speculation.

Regarding the issue of the defaulters of the additional tax of 100% leading to the auction of their land for tax recovery as stated by Murangwa and some of the amicus curiae, it has to be analysed in the general context about the scenario when a taxpayer defaults on tax. As provided for under articles 63 and 64 of the Law n° 026/2019 of 18/09/2019 on tax procedures, if the taxpayer does not pay within the period referred to in the Law, the Tax administration may seize any movable or immovable property of the taxpayer, held by the taxpayer or a third person and such property shall be auctioned. Re. MURANGWA

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Similarly, if a taxpayer fails to pay the land tax within the period referred to in the Law, the tax payment can proceed with the auction of such property that may also be the taxable land. The Court finds that such a procedure does not violate the taxpayer's right to private property, instead, it is a common procedure for tax recovery.

Important to be noted is that article 20 which is sought to be repealed does not necessarily result in the auction. In addition, no survey was conducted to establish that most of the land owners who do not exploit their plots lack the means or hoard them for higher prices.

Article 31 of the Law n° 75/2018 of 07/09/2018 determining the sources of revenue and property of decentralized entities states that "The concerned District Council can only waive the due immovable property tax in the following cases: 1° the taxpayer has provided a written statement of an inventory of his property justifying that he/she is totally indebted so as a public auction of his/her remaining property would yield no result; 2° the taxpayer proves that he/she is not able to pay immovable property tax. The taxpayer applying for a waiver of the immovable property tax liability must write to the tax administration. When the request is found valid, the tax administration makes a report to the executive committee of the competent decentralized entity which also submits it to the District Council for decision. The waiver of immovable property tax liability cannot be granted to a taxpayer who understated or evaded taxes”. The provisions of this article indicate that the Government took into account those who lack the means to pay the tax on the immovable property. Similarly, the owner of the land referred to in article 20 who lacks the means to pay the tax due to grounds provided by article 31 of the Law n° 75/2018 mentioned above can also apply for a waiver of immovable property tax liability. This clears the doubts raised by the petitioner and some of the amicus curiae who purports that some will default to pay tax and face auction of their properties due to lack of means.

Concerning Murangwa averments that the additional tax of 100% provided under article 20 is excessively high, the Court recalls its stance in the judgment No RS/SPEC/0001/16/CS rendered on 23/09/2016, where it held that “The Court cannot declare a law unconstitutional only on the basis that in its understanding the purpose of that law could be realized through other means. A party who challenges a law must demonstrate that the process set by the legislator is equivocal, unclear or it logically differs from the purpose of the

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law. This underpins the principle that the branches of government are separate, independent and they respect one another23”. The Court finds that this legal position should be maintained even in this case, thus it cannot examine whether that tax rate is excessive or lower as asserted by the petitioner and some of the amicus curiae and decide on its unconstitutionality because the matter related to the value of tax rate falls under the responsibility and discretion of the Parliament24.

Generally, the owner of a plot of land meant for construction of a building has the full right to exploit it. If he/she is required to pay additional tax because he/she did not develop it, and defaulted on it, and he/she has to forcibly pay it, therefore this cannot be considered as a violation of the right to exploit the land in accordance with the law. Article 1 of Protocol no. 1 to the European Convention on Human Rights clearly illustrates that paying tax should not be confused with violation of the right to property. It states that “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties”.

As motivated above, imposing the additional tax of 100% on the undeveloped plot of land results from the failure of the landowner to comply with the obligation of exploiting it for the intended purpose. Those unable to pay such tax can apply for tax waiver in case they fulfil the requirements stated under article 31 of the Law n° 75/2018 of 07/09/2018 determining the sources of revenue and property of decentralized entities. In addition, the fact that such a tax rate is excessive is not a ground to justify that the law determining such tax is inconsistent with the Constitution. Basing on these grounds, the Court finds that article 20 of the Law n° 75/2018 of 07/09/2018 determining the sources of revenue and property of decentralized entities does not contravene articles 34 and 35 of the Constitution.

23 Case No RS/SPEC/0001/16/CS, AKAGERA Business, p.29 24 The article 164 of the Constitution states that "Tax is imposed, modified or removed by law. No exemption or reduction of a tax can be granted unless authorized by law”. Re. MURANGWA

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Even if article 20 of the Law n° 75/2018 is not inconsistent with the Constitution as motivated above, the Court finds that its formulation should be completed to include the time limit during which the land can spend without being exploited, to be charged the additional tax and the instances it should not be charged in case there is reasonable ground for its nonexploitation as it is the case with article 58 of the Law no 43/2013 of 16/06/2013 governing land in Rwanda relating to the land subject to confiscation.

DECISION OF THE COURT

Holds that the petition filed by Murangwa Edward has merits in part.

Finds that article 16 of the Law n° 75/2018 of 07/09/2018 determining the sources of revenue and property of decentralized entities is not contrary to article 15 of the Constitution of the Republic of Rwanda.

Finds Decides that article 16 of the Law n° 75/2018 of 07/09/2018 determining the sources of revenue and property of decentralized entities is not contrary to article 16 of the Constitution of the Republic of Rwanda.

Finds that article 17 of the Law n° 75/2018 of 07/09/2018 determining the sources of revenue and property of decentralized entities is not contrary to articles 15 and 16 of the Constitution of the Republic of Rwanda.

Decides that article 19 of the Law n° 75/2018 of 07/09/2018 determining the sources of revenue and property of decentralized entities is inconsistent with article 15 of the Constitution of the Republic of Rwanda, therefore, article 19 is without effect as provided for by article 3 of the Constitution of the Republic of Rwanda.

Finds that article 20 of the Law n° 75/2018 of 07/09/2018 determining the sources of revenue and property of decentralized entities is not contrary to articles 34 and 35 of the Constitution.

Orders the publication of this judgment in the Official Gazette.

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Re. NZAFASHWANAYO [Rwanda SUPREME COURT – RS/INCONST/SPEC 00004/2019/SC – (Ntezilyayo, P.J., Nyirinkwaya, Cyanzayire, Hitiyaremye and Rukundakuvuga, J.) July 24, 2020] Tax law – Value Added Tax (VAT) – Treating the taxpayers who buy services and goods which are not available in Rwanda differently from those who buy services and goods from abroad but which are available in Rwanda should not be considered as discrimination or unequal protection before the law because they are intended to promote service delivery and it was done for a legitimate purpose in order to adopt measures to bridge the the gap in trade and foreign exchange. Tax law – Value Added Tax (VAT) – The Reverse Charge Principle – The Reverse Charge Principle mandates the buyer of goods or services from outside Rwanda to pay the value-added tax for those goods and services. Tax law – Value Added Tax (VAT) – Destination principle of taxation – The Destination Principle mandates that VAT on goods be paid in the country of consumption and exempted from paying the VAT from the country of origin. Facts: Nzafashwanayo petitioned the Supreme Court, arguing that article 12, paragraphs 3 and 4 of Law n ° 37/2012 of 09/11/2012 establishing the value added tax (VAT) is inconsistent with articles 15 and 95 of the Constitution of the Republic of Rwanda of 04/06/2003 revised in 2015. The Government of Rwanda appeared in the

hearing and the University of Rwanda (School of Law) intervened as amicus curiae. Explaining his petition, Nzafashwanayo argues that article 12, paragraphs 3 and 4 of the above-mentioned law is inconsistent with the principles enshrined in article 15 of the Constitution as it does not treat taxpayers equally whereby a taxpayer who imports services is allowed to deduct input VAT from those services on output VAT only if those services are not available in Rwanda, yet the buyer of domestic services is allowed to deduct input VAT on those services from the output VAT received without any other requirement. Based on the International Trade Agreements ratified by Rwanda (GATS, EAC Common Market Protocol and Protocol to the Agreement Establishing 285

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the African Continental Free Trade Area on Trade in Services), he adds that the principle of National treatment enshrined in those agreements is contradicted by article 12 paragraphs 3 and 4 of the law mentioned above, therefore it is inconsistent with article 95 of the Constitution. Thus, the inequality and the discriminatory nature of the law makes domestic services less competitive vis-a-vis the foreign services that can be needed by business operators in Rwanda. The Government argues that the fact for the legislator to have put the taxpayers in two categories cannot be considered as discrimination or being unequal protection before the law since it was done for a legitimate purpose. The foregoing was supported by the Amicus Curiae’s brief (School of Law of the University of Rwanda) that averred that in tax matters treating equally people who are not in the same category would rather amount to injustice or inequality. Furthermore, it argues that the impugned article of the Law on value added tax does not contradict article 15 of the Constitution, as the two (2) taxpayers in question are different. Taxing an importer of goods or services which are also available in Rwanda is intended to protect and promote domestic traders and investors, which is acceptable in those agreements. As to whether article 12 of the above-mentioned law is contrary to article 95 of the Constitution,

the petitioner argues that there is inconsistency since the impugned article contradicts the international treaty ratified by Rwanda while that treaty is higher in the hierarchy than the law on the Value Added Tax. Such international treaties are in line with the principle of National Treatment stipulating that imported goods are treated in the same way as domestic products once they have been cleared from customs. Failure to comply with this principle would result in favouring services or service providers in Rwanda compared to services or service providers from abroad, which is a consequence of article 12 of the impugned law. The Government argues that article 12 does not violate article 95 of the Constitution and does not contradict the principle of National Treatment but rather upholds it, because domestic and international services are treated the same as they are charged value added tax for those goods or services to which it applies or exempted on the goods or services for which they are exonerated. The Amicus Curiae submits that article 12 of the aforementioned Law is not inconsistent with article 95 of the Constitution because apart from the fact that

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whenever an article of the law does not comply with the superior law cannot be regarded as violation of the Constitution. Held: 1. Treating the taxpayers who buy services and goods which are not available in Rwanda differently from those who buy services and goods from abroad but which are available in Rwanda should not be considered as discrimination or unequal protection before the law because they are intended to promote service delivery and it was done for a legitimate purpose in order to adopt measures to bridge the gap in trade and foreign exchange.

2. The Reverse Charge Principle mandates the buyer of goods or services from outside Rwanda to pay the value-added tax for those goods and services.

3. The Destination Principle mandates that VAT on goods be paid in the country of consumption and exempted from paying the VAT from the country of origin.

4. The situation where negotiations are yet to take place or prior requirements to be met for countries to agree on the basis of the implementation of a ratified international treaty cannot be considered as a violation of that treaty. Petition dismissed. Statutes and statutory instruments referred to: The constitution of the Republic of Rwanda of 2003 revised in 2015, articles 15 and 95. World Trade Organization General Agreement on Trade in services (GATS). World Trade Organization. Communication from Rwanda, Schedule of Specific Commitments under the General Agreement on Trade in Services, 30 August 1995. Protocol on establishment of East African Community Common Market. Protocol to the Agreement Establishing the African Continental Free Trade Area on Trade in Services. Decision on the African Continental Free Trade Area (AfCFTA), 33rd Ordinary Session of the Assembly of the Union, 9-10 February 2020, Addis Abeba, Ethiopia. Law n° 37/2012 of 09/11/2012 establishing the value added tax, articles 11 and 12. Re. NZAFASHWANAYO

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Cases referred to : Conseil Constitutionnel, décision no 2009-599 DC du 29 décembre 2009, para 80 ; Gulf, Colorado & Santa Fe Ry. Co. v. Ellis 165 U.S. 150 (1897); Vodacom Business Nigeria v. Federal Inland Revenue Service (FIRS), Appeal No. CA/556/2018, p.23; Re AKAGERA BUSINESS GROUP, RS/SPEC/0001/16/CS rendered by the Supreme Court on 23/09/2016; Re Murangwa, RS/INCONST/SPEC 00001/2019/ rendered by the Supreme Court on 29/11/2019. Authors cited: MINICOM, Made in Rwanda Policy, 2017, pp. 1-2; F Paris and N Ghei, “The Role of Reciprocity in International Law” (2003) Cornell International LJ 36 (93), p. 94; Joseph J. Cordes, Robert D. Ebel, and Jane Gravelle, The Encyclopedia of Taxation & Tax Policy (The Urban Insitute, 2005), page 82-83; Hans Gribnau, “Equality, Legal Certainty and Tax Legislation in the Netherlands: Fundamental Legal Principles as Checks on Legislative Power: A Case Study”, (2013) Utrecht L. Rev. 52 (9), p.62; P. Lampreave,' Fiscal Competitiveness Versus Harmful Tax Competition in the European Union” (2011) bfit 65 (6), p.4; P T Scanlam, 'Globalization and Tax-Related Issues: What are the Concerns?' in R Biswas (ed), International Tax Competition: Globalization and Fiscal Sovereignty (commonwealth Secretariat 2002), p.45; Victor Thuronyi (ed), Tax Law Design and Drafting, Volume 1 (International Monetary Fund, 1996), page 196; William B. Barker, ‘The Three

Faces of Equality: Constitutional Requirements in Taxation’, (2006), Case W.Res.L.Rev. 57(1), p. 5; Italian Discrimination against Imported Agricultural Machinery, Report adopted on 23 October 1958 (L/833 - 7S/60; Consultants 'Report on the Harmonization of Income Taxes within the East African Community, 1 November 2014; East African Community, Report of the Meeting to validate the studies on the development of policy frameworks for the harmonization of VAT, Excise duties and Income tax in EAC, Mombasa, 23rd – 25th October 2014;

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PWC, Policy for harmonization of VAT and Excise duties, 28 October 2014; East African Community, Report of the 38th Meeting of the Council of Ministers, 6th – 10th May 2019, pp. 30-31; East African Community, Report of the 38th Meeting of the Council of Ministers, 6th – 10th May 2019, Annex IV: EAC Domestic Tax Harmonization Policy, pp. 8-9. Judgment I. BACKGROUND OF THE CASE

Counsel Nzafashwanayo Dieudonné petitioned the Supreme Court, alleging that article 12, paragraphs 3 and 4 of the Law n° 37/2012 of 09/11/2012 establishing the value added tax (VAT) is contrary to the articles 15 and 95 of the Constitution of the Republic of Rwanda of 04/06/2003 revised in 2015.

Counsel Nzafashwanayo Dieudonné further avers that the article 12, paragraphs 3 and 4 of the of the aforementioned Law n° 37/2012 herein against which he filed a claim as it is unconstitutional provides that: a. If a taxpayer gets services from a person who is outside Rwanda, the taxpayer is considered as if he/she has delivered taxable services and has received an output tax from that person residing outside Rwanda. b. The service delivery is treated as it was made on the date on which the services were performed by the person residing outside Rwanda for a value determined under Article 11 of this Law. The output tax is payable on the date of filing the value added tax declaration for the value added tax period in which those services were performed. The output tax must appear on the receipt that justified the payment to the foreign services provider, and that document is considered to be the value added tax invoice. c. Notwithstanding the provisions of Paragraphs, One and 2 of this Article, recipients of foreign services that are not Re. NZAFASHWANAYO

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available in Rwanda are allowed to deduct input tax on output tax. d. Services are considered not to be available in Rwanda if no person can deliver identical or similar services on the local market.

Article 15 of the Constitution of the Republic of Rwanda provides that “All persons are equal before the law. They are entitled to equal protection of the law “and article 95 provides that "The hierarchy of laws is as follows: 1° Constitution; 2° organic law; 3° international treaties and agreements ratified by Rwanda; 4° ordinary law; 5° orders. A law cannot contradict another law that is higher in hierarchy.

The case was heard in public on 23/06/2020, where Counsel Nzafashwanayo Dieudonné was assisted by Counsel Bizimana Emmanuel, in presence of the Government of Rwanda represented by Counsel Kabibi Specioza. In the course of the hearing, the Court firstly heard the parties about the request of the University of Rwanda (School of Law) to intervene in the case as Amicus Curiae for providing opinions, and after finding that they accepted that it could be admitted to do so because it fulfilled the requirements, its request was admitted, and heard the case on the merits.

As they explained in the submissions and the pleading before the Court, Counsel Nzafashwanayo Dieudonné and Counsel Bizimana Emmanuel who assists him sustain that on basis of the principle upheld under article 15 of the Constitution, note that article 12, paragraphs 3 and 4 of aforementioned Law n° 37/2012 does not equally treat the taxpayers, whereby an importer of foreign services for his/her business activity is allowed to deduct input tax from output tax only when the services are considered not to be available in Rwanda while the buyer of domestic services is allowed to deduct the input tax on the services from Output VAT received without any other requirement.

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They also support that the provision of such article 12, paragraphs 3 and 4 is contrary to article 95 of the Constitution, given that it violates the principle of the national treatment applied in the international trade in services provided under the World Trade Organization General Agreement on Trade in Services (GATS), Protocol on establishment of East African Community Common Market (EAC Common Market Protocol), and Protocol to the Agreement Establishing the African Continental Free Trade Area on Trade in Services signed and ratified by Rwanda.

The Government of Rwanda and Amicus Curiae do not concur with the foregoing. They aver that in taxation law, a State can make a categorization of the citizens for reasonable grounds. Such categorization is not contrary to the principle of equality before the law, rather equally imposing the taxes on the citizens who are not in the same category would amount to inequality. They sustain that allowing to deduct input tax from output tax to the buyer of foreign services which are not available in Rwanda but not to the buyers of foreign services which are available in Rwanda intends to protect domestic investors and such act is provided under WTO/GATS as an exception to the principle of national treatment.

The Court finds that the legal issues to be examined in this case are: A. Whether article 12, paragraphs 3 and 4 of the Law n° 37/2012 of 09/11/2012 establishing the value added tax is contrary to article 15 of the Constitution of the Republic of Rwanda of 2003 revised in 2015. B. Whether article 12, paragraphs 3 and 4 of the Law n° 37/2012 of 09/11/2012 establishing the value added tax is contrary to article 95 of the Constitution of the Republic of Rwanda of 2003 revised in 2015. II. LEGAL ISSUES OF THE CASE AND THEIR ANALYSIS A. Whether article 12, paragraphs 3 and 4 of the Law n° 37/2012 of 09 /11/2012 establishing the value added tax is contrary to article 15 of the Constitution of the Republic of Rwanda of 2003 revised in 2015

Counsel Nzafashwanayo Dieudonné and Counsel Bizimana Emmanuel sustain that article 12, paragraphs 3 and 4 of the aforementioned Law n° 37/2012 of 09/11/2012 is contrary to the article 15 of the Constitution Re. NZAFASHWANAYO

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of the Republic of Rwanda of 2003 revised in 2015 which provides that the persons who are in the same category are equal before the law, given that it does not equally treat the taxpayers whereby a buyer of foreign services for his/her business activity is allowed to deduct input tax from output tax when the services are considered not to be available in Rwanda while the buyer of domestic services is allowed to deduct the input tax on the services from output received without any other requirement. They explain that even if the Government is allowed to differently treat the taxpayers or categorize them, there is a procedure to be applied on basis of a reasonable ground, and it should be done in respect of the constitutional principles as upheld by the Constitutional Court of France which ruled that “il appartient au Législateur de déterminer, dans le respect des principes constitutionnels et compte tenu des caractéristiques de chaque impôt, les règles selon lesquelles doivent être assujettis les contribuables…(It is a duty of the legislator to determine, in respect of constitutional principles and by taking account of the features of each tax, the rules governing the taxpayers)1.

Counsel Bizimana Emmanuel supports that even the Supreme Court of the United States of America upheld that The mere fact of classification is not sufficient to relieve a statute from the reach of the equality clause of the Fourteenth Amendment, and in all cases, it must appear not merely that a classification has been made, but also that it is based upon some reasonable ground - something which bears a just and proper relation to the attempted classification, and is not a mere arbitrary selection2”.

Basing on the decisions of the other Sates’ high courts with constitutional jurisdiction - judicial review, Counsel Bizimana Emmanuel notes that there is no reasonable nor evident ground for which a buyer of foreign services for his/her business activity is allowed to deduct input tax from output tax when the services are considered not to be available in Rwanda, while the buyer of domestic services is allowed to deduct the input tax on the services from output VAT received without any other requirement.

Counsel Nzafashwanayo Dieudonné and Counsel Bizimana Emmanuel who assists him find that even if the Government of Rwanda can

1 See Conseil Constitutionnel, décision no 2009-599 DC du 29 Décembre 2009, para. 80. 2 See Gulf, Colorado & Santa Fe Ry. Co. v. Ellis 165 U.S. 150 (1897)

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sustain that the intention for passing article 12 (paragraphs 3 and 4) of the Law n° 37/2012 is to stimulate the consumers to resort to domestic services more than foreign services in order to safeguard the service sector, the Court should nott consider it as the lawful ground as it is contrary to the principle of national treatment provided under article 17 of East African Community Common Market Protocol, the article 17 of General Agreement on Trade in Services (GATS) and article 20 of African Continental Free Trade Area Protocol on Trade in Services stipulating that the member State should enforce the principle of no less favourable treatment towards both domestic and foreign similar services as well as domestic and foreign providers of similar services .

In the premises, they conclude by sustaining that article 12 (paragraphs 3 and 4) of the Law n° 37/2012 gives rise to inequality of taxpayers before the law and unequal protection by the law as provided under article 15 of the Constitution and the domestic services could not compete on the same level with the foreign services that can be needed by the owners of the business activities in Rwanda due to such inequality.

Counsel Kabibi, the State Attorney, Specioza avers that the categorization of the taxpayers by a given organ does not always amount to discrimination, and such position had been taken by the Supreme Court in the judgment n° RS/SPEC/0001/16/CS rendered on 23/09/2016 and the judgment n° RS/INCONST/SPEC 00001/2019/SC rendered on 29/11/2019.

Counsel Kabibi Specioza further sustains that in the judgment n° RS/INCONST/SPEC 00001/2019/SC rendered on 29/11/2019, the Supreme Court upheld that "concerning the taxation, the legislator has the full right to categorize the taxpayers, especially since he/she is in a better position than the judge to identify the needs of the Citizens and the Government which can serve him/her to set up the categories and the tax rate, except when it is evident that the categorization was done on basis of the discrimination intended to to prejudice some individuals”.

Counsel Kabibi Specioza explains that the fact that the legislator has put the taxpayers into two categories namely the category of the buyers of foreign services that are not available in Rwanda and the category of the buyers of foreign services available in Rwanda cannot be regarded as discrimination and unequal protection before the law given that he/she did so for legitimate and reasonable grounds. Some of those grounds include the protection and the Re. NZAFASHWANAYO

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promotion of the small business persons and investors operating in Rwanda and promoting the value added tax regime, given that when a buyer gets the service in Rwanda, his/her service providers pay the value added tax while the providers of services unavailable in Rwandaa buyer do not., This means that when a buyer decides to import a service he/she should pay such value added tax for failure to get the same available service from available provider in Rwanda who would pay the domestic tax.

Counsel Kabibi Specioza supports that the buyers of the services unavailable in Rwanda do not pay such tax (they are allowed to deduct input tax from output tax), given that they do not have any other alternative to get those services, unless they import them, in addition, no business person operating in Rwanda who could pay tax for those services was denied the opportunity of supplying those services. She concludes by sustaining that the statements of Counsel Nzafashwanayo Dieudonné and Counsel Bizimana Emmanuel who assists him that article 12 (paragraphs 3 and 4) of the Law n° 37/2012 is contrary to article 15 of the Constitution of the Republic of Rwanda of 2003 revised in 2015 are baseless.

Counsel Habimana Pie, as Amicus curiae, avers that any State has full independence to enact taxation laws in their all aspects. He added that the independence as regards to taxation is upheld by the legal scholars as a fundamental element for the State existence and such independence is inalienable3. He sustains that the independence relating to taxes is perpetual even if those States are members of international organizations, he cites examples of the Organisation for Economic Cooperation and Development – (OECD) and the European Union (EU) where the taxation regime is based on each State independence and freedom4.

3 P. Lampreave,' Fiscal Competitiveness Versus Harmful Tax Competition in the European Union” (2011) bfit 65 (6), p.4; P T Scanlam, 'Globalization and Tax-Related Issues: What are the Concerns?' in R Biswas (ed), International Tax Competition: Globalization and Fiscal Sovereignty (Commonwealth Secretariat 2002), p.45. 4 Hans Gribnau, “Equality, Legal Certainty and Tax Legislation in the Netherlands: Fundamental Legal Principles as Checks on Legislative Power: A Case Study”, (2013) Utrecht L. Rev. 52 (9), p.62.

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Counsel Habimana Pie further sustains that even in within the same State, it is possible for some regions to have different tax laws, this is the same case in Rwanda where tax rate on immovable property is different, even the trade license tax has different rate according to the location of taxpayers’business activities and their nature.

Counsel Habimana Pie also supports that equality or equal protection before the taxation law should be construed as the principle of equal treatment of persons in the same category and unequal treatment of persons in different categories. He bases his argument on the statement of William B. Barker, the legal scholar, who wrote that “things that are alike should be treated alike and things that are unlike should be treated unlike in proportion of their un- likeness”.5 In this context, Counsel Habimana Pie further sustains that the equal treatment of the taxpayers who are unlike is rather the unequal treatment of taxpayers as upheld by the legal scholar William B. Barker who stated that "The truth is that a formally equal tax can be in some cases the most unequal of all taxes. [….] In the same token, it has been even argued that adhering to a strict standard of equality would result in a disaster".6

Counsel Habimana Pie also maintains that article 12, paragraphs 3 and 4 of the law establishing the value added tax cannot be separately considered, rather it should be explained in relation with article 15 of the same law which provides under the allowance of input tax. Therefore, if these two articles are analysed together, they can indicate that there are principle and exception in allowing to deduct or not the input value added tax.

He concludes by supporting that article 12 (paragraphs 3 and 4) of the law n° 37/2012 of 09/11/2012 establishing the value added tax as modified and complemented to date is not contrary to article 15 of the Constitution of the Republic of Rwanda of 2003 revised in 2015, given that in consideration of the taxpayer mentioned in article 12 who gets a service abroad which is available in Rwanda and the taxpayer who gets the service in Rwanda, are two different taxpayers in so much that there is no room to support that article 15

5 William B. Barker, ‘The Three Faces of Equality: Constitutional Requirements in Taxation’, (2006), Case W.Res.L.Rev. 57(1), p. 5 – See paragraph 8 of the submissions of Amicus curiae. 6 William B. Barker, op. cit., pp. 7,8,16. – See para. 9 of the submissions of Amicus Curiae. Re. NZAFASHWANAYO

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of the Constitution was violated because the unlike taxpayers cannot be equally treated, especially that imposing a tax on the buyer who got abroad the service or goods available in Rwanda is a mechanism of protecting and promoting business persons and the investors operating in Rwanda and it is provided under the international treaties mentioned by the petitioner.

DETERMINATION OF THE COURT

In examining the issue related to determine whether article 12 (paragraphs 3 and 4) of the law N° 37/2012 of 09/11/2012 establishing the value added tax is inconsistent with article 15 of the Constitution of the Republic of Rwanda of 2003 revised in 2015, the Court finds that it is necessary to first explain two principles related to the value added tax on transnational trade of goods and services to wit the Reverse Charge Principle and Destination Principle, and thereafter, it shall examine the principle of equality before the law.

With regard to the principle of the reverse charge in tax, legal scholars explain that such principle “treats the customer being supplied with a service originating abroad as making the supply to itself. It must then account to its tax authorities for the VAT due as output tax on that supply7”.

A similar statement has been upheld by the Court of Appeal of Nigeria in Vodacom Business Nigeria V. Federal Inland Revenue Service (FIRS) case which supported that "The reverse charge applicable to European Union Countries whereby the buyer of goods or services from the supplier(s) in other EU countries assumes the responsibility of paying the applicable VAT rates instead of the Supplier. By this principle it is the buyer of goods or services that pays the VAT, put differently the VAT is paid by the person to whom the goods or services are supplied.8”

7 Victor Thuronyi (ed), Tax Law Design and Drafting, Volume 1 (International Monetary Fund, 1996), page 196. 8 “The reverse charge applicable to European Union Countries whereby the buyer of goods or services from supplier(s) in other EU countries assumes the responsibility of paying the applicable VAT rates instead of the Supplier. By this principle it is the buyer of goods or services that pays the VAT, put differently the VAT is paid by the person to whom the goods or services are supplied.” - Vodacom

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Basing on the statements above mentioned, the Court finds that according to the principle of the reverse charge tax applicable to European Union Countries, if a person is supplied with goods or services by the suppliers operating in other countries of the European Union, the buyer of goods or services assumes the responsibility of paying the applicable VAT rates instead of the supplier of goods or services. The principle exempts or reduces the obligation of the suppliers to be registered for the value added tax in the Destination State in which the goods or services are imported. In case the suppliers are required to pay the value added tax on the imported goods or services on basis of the principle of the reverse charge tax, they can be entitled to be refunded such tax on basis of the procedure used for requesting to be refunded the value added tax established in the European Union9.

The Court finds that the principle of reverse charge tax above mentioned as applied in the European Union is provided under article 12, paragraph 1 of the law no. 37 of 09/04/2012 establishing the value added tax which stipulates that “If a taxpayer gets services from a person who is outside Rwanda, the taxpayer is considered as if he/she has delivered taxable services and has received an output tax from that person residing outside Rwanda”.

Concerning the Destination Principle in Tax Law, the Court finds that it has been explained in Vodacom Business Nigeria and Federal Inland Revenue Service (FIRS) case above mentioned herein whereby the Court of Appeal upheld that “The Destination principle in taxation stipulates that goods imported from a State are exempted from VAT and are instead taxed from VAT in the Destination State in which the goods are imported. It is in principle promoted by Organization for Economic Co-operation and Development (OECD)”10.

Business Nigeria V. Federal Inland Revenue Service (FIRS), Appeal No. CA/556/2018, p.23, https://lawpavilionplus.com/summary/judgments/?suitno=CA. 9 KPMG International, VAT/GST Treatment of Cross-Border Services, 2017 Survey, p.20, https://assets.kpmg/content, 13-nov-17.pdf 10 The Destination principle in taxation stipulates that goods imported from a State are exempted from VAT and are instead taxed from VAT in the Destination State in which the goods are imported. It is in principle promoted by Organization for Economic Co-operation and Development (OECD).” Vodacom Business Nigeria V. Federal Inland Revenue Service (FIRS), Appeal No.CA/556/2018,p.23,https://lawpavilionplus.com/summary/judgments/?suitno=CA. Re. NZAFASHWANAYO

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The legal scholars sustain that “Under the destination principle of taxation, goods and services are taxed where they are purchased or consumed, rather than where they are produced or originate. Destination-basis treatment can be contrasted with the origin principle, under which goods and services are taxed where they are produced. All goods and services sold in the destination jurisdiction are taxed, provided they are not specifically exempted from the tax base”11.

Concerning the principle of equality before the law, article 7 of the Universal Declaration of Human Rights, 1948 provides that "All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against discrimination in violation of this Declaration and any incitement to such discrimination''.12 The article 26 of the International Covenant on Civil and Political Rights, 1966 provides that "All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinions, national or social origin, property, birth or other status".13

11 Joseph J. Cordes, Robert D. Ebel, and Jane Gravelle, The Encyclopedia of Taxation & Tax Policy (The Urban Insitute, 2005), page 82-83. Under the destination principle of taxation, goods and services are taxed where they are purchased or consumed, rather than where they are produced or originate. Destination-basis treatment can be contrasted with the origin principle, under which goods and services are taxed where they are produced. All goods and services sold in the destination jurisdiction are taxed, provided they are not specifically exempted from the tax base; 12 All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against discrimination in violation of this Declaration and against any incitement to such discrimination’’ 13 All persons are equal before the law and are entitled without any discrimination to equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, language, religion, political or other opinion, national or social origin, property, birth or other status”

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As explained by Amicus Curiae14, legal scholars sustain that the principle of equality before the law upholds that the law equally treats the persons in the same category and it is equally enforced. In other words, things that are alike should be treated alike. There should be no discrimination against persons in the same circumstances and conditions. The persons who are not in the same category should not be equally treated.

Basing on the foregoing, the Court finds that the categorization of taxpayers by a State does not always mean discrimination, given that such position has been set by the Supreme Court in the judgment N° RS/SPEC/0001/16/CS rendered on 23/09/2016 and judgment n° RS/INCONST/SPEC 00001/2019/SC rendered on 29/11/2019 wherein it upheld that "the equality before the law and the non-discrimination do not mean that the distinction of persons is always discrimination. The distinction or categorization of persons can be necessary on basis of the legitimate or rational purpose”.

In this case, the distinction between taxpayers who get abroad the services not available in Rwanda and those who get abroad the services available in Rwanda can neither be considered as discrimination nor unequal protection before the law given that the Government did it for a legitimate or rational purpose, for example setting up the strategies to safeguard the balance of international trade and payments as Rwanda is liberalizing the services in the framework of the transnational trade in services, as shall be explained by the analysis of the same issue15.

In the premises, it is in the finding of the Court that article 12 (paragraphs 3 and 4) of the Law n° 37/2012 of 09/11/2012 establishing the value added tax is not contrary to article 15 of the Constitution of the Republic of Rwanda of 2003 revised in 2015.

14 See the brief of the School of Law/University of Rwanda) as Amicus curiae for the judgment RS/INCONST/SPEC/00004/2019/SC, para. 8, 9 and 10. 15The issue related to determining whether article 12, paragraphs 3 and 4 is contrary to GATS, AFCTA Protocol on Trade in Services and EAC Common Market Protocol Re. NZAFASHWANAYO

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B. Whether article 12, paragraphs 3 and 4 of the Law n° 37/2012 of 09/11/2012 establishing the value added tax is contrary to article 95 of the Constitution of the Republic of Rwanda of 2003 revised in 2015

Counsel Bizimana Emmanuel avers that article 12 (paragraphs 3 and 4) of the Law N° 37/2012 of 09/11/2012 establishing the value added tax is contrary to the article 95 of the Constitution of the Republic of Rwanda given that it is contrary to the international treaties ratified by Rwanda which prevail over the law establishing the value added tax as it is an ordinary law and article 95 of the Constitution providing for the hierarchy of laws stipulates that a law cannot contradict a superior law.

Counsel Bizimana Emmanuel sustains that article 12 (paragraphs 3 and 4) of the law n° 37/2012 establishing the value added tax is contrary to the following international treaties ratified by Rwanda inter alia Protocol on the Establishment of the East African Community Common Market (EAC Common Market) in its article 17, World Trade Organisation (WTO) General Agreement on Trade in Services (“GATS”) in its article 17 and Protocol to the Agreement Establishing the African Continental Free Trade Area on Trade in Services (AfCFTA Protocol on Trade in Services) in its article 20. He sustains that the articles of those international treatiess uphold that the principle of national treatment is not respected when the measures taken lead to modification of the conditions of competition so as to privilege services or service suppliers of a given country in comparison with services or service suppliers of other countries.

Counsel Bizimana Emmanuel further supports that the business person who pays the input tax should be allowed to deduct the input tax from the output tax or be refunded the additional tax in case the output tax is higher than the input tax.

Counsel Bizimana Emmanuel further maintains that article 12 (paragraphs 3 and 4) of the Law n° 37/2012 establishing the value added tax does not equally treat services available in Rwanda and those from abroad, and such unequal treatment can make business persons operating in Rwanda to be disinterested in the imported services (rather they prefer the services available in Rwanda) because they are aware that they would not be allowed to deduct the input tax from the output tax in case those services are available in Rwanda.

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Counsel Bizimana Emmanuel supports that the effect caused by article12 (paragraphs 3 and 4) is the modification of the conditions of competition to privilege services or service suppliers in Rwanda in comparison to the services and service suppliers from other countries, therefore such privilege is contrary to the principle of the national treatment provided under article 17 of EAC Common Market Protocol, article 17 of GATS and article 20 of AfCFTA Protocol on Trade in Services.

Counsel Nzafashwanayo Dieudonné and Counsel Bizimana Emmanuel who assists him submit that the same position has been upheld by World Trade Organisation (WTO) Panel in its definition of national treatment principle in relation to trade16 wherein it declared that products imported abroad are equally considered with those domestically produced when they have been cleared through customs, also the fact that a law is silent about the sale or the purchase of goods and services is not an issue , otherwise, countries can indirectly block the products from abroad.

They further sustain that the WTO Panel explains that the principle of national treatment does not only concern the legislation governing the sale and the purchase, but it also concerns other legislation that can have adverse effects on the competition at the domestic market between domestic and imported products, and that the same foregoing explanations were relied on by WTO Panel to decide that the law passed by the Italian Parliament allowing the subsidization to the farmers who purchase the machines produced in Italy without allowing it to imported machines. Despite that it is not provided for under that law, the objective was to illegally protect the machines produced in Italy, which is contrary to the principle of national treatment.

Counsel Kabibi Specioza avers that article 12 (paragraphs 3 and 4) of the law establishing the value added tax is not contrary to article 95 of the Constitution and it does not contradict the principle of national treatment enshrined in the international treaties ratified by Rwanda, given that the fact that the rights entitled to the importer of the services not available in the country, but denied to the buyer of the domestic servicesconsists of the mechanism of protecting domestic investors by only importing services not

16 See Italian Discrimination against Imported Agricultural Machinery, Report adopted on 23 October 1958 (L/833 - 7S/60 Re. NZAFASHWANAYO

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available in the country, and such mechanism is recognized by WTO/GATS which admits exception to the national treatment.

Counsel Kabibi Specioza further supports that the foregoing article 12 (paragraphs 3 and 4) is not contrary to the principle of national treatment, rather it stresses that principle, given that the domestic and imported services are equally treated as they are charged with the value added tax for those normally meant to be taxed or exempted from taxes for those which are normally exempted. She also explains that the fact that the taxpayer is allowed to deduct the input tax from the output tax for the services not available in Rwanda or the taxpayer who gets the services not available in Rwanda is refunded, such does not violate the principle of national treatment, especially that those services are unavailable in the country so as they are allegedly accorded less favourable treatment than imported services for which it is allowed to deduct such tax.

In the capacity of Amicus Curiae, Counsel Habimana Pie sustains that the fact that the claimant maintains that the article 12 (paragraphs 3 and 4) of the law n° 37/2012 of 09/11/2012 establishing the value added tax is contrary to the article 95 of the Constitution of the Republic of Rwanda as it contradicts the international treaties ratified by Rwanda is baseless given that, besides, when a legal provision is not enforced or contrary to article of a superior law does amount to the violation of the Constitution, and there is no indication that article 12 contradicts article 95 of the Constitution.

Counsel Habimana Pie further supports that the principle of reciprocity as one of the fundamental principles governing international treaties upholds that country towards another country should be returned in kind17, accordingly, no one can request a member state to enforce a given provision of the international treaty, rather he/she should request it to all member states or to another international competent organ instead of being regarded as an issue of unconstitutionality.

17F. Paris and N. Ghei, “The Role of Reciprocity in International Law” (2003) Cornell International LJ 36 (93), p.

94.

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DETERMINATION OF THE COURT

In examining the issue to determine whether article 12 (paragraphs 3 and 4) of the Law n° 37/2012 of 09/11/2012 establishing the value added tax is contrary to article 95 of the Constitution of the Republic of Rwanda of 2003 revised in 2015, the Court deems necessary that it is necessary to first examine whether article 12, paragraphs 3 and 4 of the aforementioned law herein is contrary to international treaties of petitoner alleges to be inconsistent with provisions of paragraphs 3 and 4of the impugned article while the said treaties are superior to the law establishing the value added tax, on the basis of article 95 of the Constitution of the Republic of Rwanda of 2003 revised in 2015. a. Wheteher article 12, paragraphs 3 and 4 of the Law n0 37/2012 of 09/11/2012 establishing the value added tax is contrary to the General Agreement on Trade in Services (GATS), African Continental Free Trade Area Protocol on Trade in Services and East African Community Common Market Protocol

The General Agreement on Trade in Services (GATS) is made up of the Framework Agreement, Annexes and the Schedule which indicates the services each member State is committed to liberalizing or excluding to other members in a given period. In order to determine how a member State of GATS respects fundamental principles of GATS including the principle of national treatment, it is necessary to consider the aforementioned Schedule.

Concerning the national treatment, article XVII18 of GATS provides that “each Member shall accord to services and service suppliers of any other Member, in respect of all measures affecting the supply of services, treatment no less favourable than that it accords to its own like services and service suppliers”. A member State wishing to exclude some services from this framework, meaning taking some measures for according to foreign services

18 Article XVII: National Treatment 1. In the sectors inscribed in its Schedule, and subject to any conditions and qualifications set out therein, each Member shall accord to services and service suppliers of any other Member, in respect of all measures affecting the supply of services, treatment no less favourable than that it accords to its own like services and service suppliers.

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or service suppliers different treatment from domestic services, the member State must indicate it in its schedule of specific commitments.

The Court finds that according to the schedule commitments of Rwanda in the framework of GATS submitted to the World Trade Organization in 1995, there are limitations including some commercial services, some education services, some tourism services and transport services19.

The Court finds that article XII20 of GATS provides that a country can set up the restrictions to safeguard the balance of payments.

In this regard, basing on different policies including “Made in Rwanda Policy”21, Rwanda set up strategies for safeguarding the balance of payments.

In the premises, the Court finds that the statements of the petitioner supporting that by passing article 12, paragraphs 3 and 4 of the Law establishing the value added tax, Rwanda did not respect its commitments as a member of GATS, the allegations he pointed out that such concerns all services without considering its restrictions or its rights to take measures to safeguard the balance of payments, are baseless and therefore not contrary to the said Agreement.

19 World Trade Organization. Communication from Rwanda, Schedule of Specific Commitments under the General Agreement on Trade in Services, 30 August 1995 20 Article XII GATS: Restrictions to Safeguard the Balance of Payments 1. In the event of serious balance-of-payments and external financial difficulties or threat thereof, a Member may adopt or maintain restrictions on trade in services on which it has undertaken specific commitments, including on payments or transfers for transactions related to such commitments. It is recognized that particular pressures on the balance of payments of a Member in the process of economic development or economic transition may necessitate the use of restrictions to ensure, inter alia, the maintenance of a level of financial reserves adequate for the implementation of its programme of economic development or economic transition. Part III. Specific Commitment. 21MINICOM, Made in Rwanda Policy, 2017,

pp. 1-2, http://www.minicom.gov.rw,_January_2018_v2.pdf

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Concerning the African Continental Free Trade Area Protocol on Trade in Services, its article 18 providing for progressive liberalization stipulates that "State Parties shall negotiate sector specific obligations through the development of regulatory frameworks for each of the sectors, as necessary, taking account of the best practices and acquis from the RECs, as well as the negotiated agreement on sectors for regulatory cooperation. State Parties agree that negotiations for continuing the process shall commence following the establishment of the AfCFTA, based on the work program to be agreed by the Committee on Trade in Services".

The same article provides that “The list of Priority Sectors and the Modalities on Trade in Services shall be annexed to this Protocol and shall form an integral part hereof”. The Protocol also provides that the States will hold negotiations on the issues upon which they do not agree.

The Court finds that the session of the Heads of State Members to AfCFTA held in February 2020 approved the resolutions of the Council of the Ministers which decided that the extraordinary session of the Heads of States should be held on 30 May 2020 to decide on all necessary requirements for launching the AfCFTA on 1 July 202022.

The Court also notes that the Session requested the Ministers of Trade to hold the necessary sessions to conclude the negotiations on the rule of origin, the schedules of tariff concessions and the schedules of specific commitments concerning five principal sectors of services, and it requested the States to determine their commitments on the remaining sectors of services and the cooperation on the trade in services not later than June 202023.

Basing on the explanations provided in the previous paragraphs on this issue, the Court deems that the statements of the claimant maintaining that Rwanda did not respect the provisions of the African Continental Free Trade Area Protocol on Trade in Services unfounded, as long as there are pending negotiations to decide on some requirements necessary for the implementation

22 Decision on the African Continental Free Trade Area (AfCFTA), 33rd Ordinary Session of the Assembly of the Union, 9-10 February 2020, Addis Abeba, Ethiopia, https://www.tralac.org/documents/resources/cfta/3176-au-assembly-decision-on-the- afcfta-february2020/file.html 23 Ibidem Re. NZAFASHWANAYO

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of that Protocol. Thus, the Court does not have any basis to decide that article 12, paragraphs 3 and 4 of the Law establishing the value added tax contradicts the African Continental Free Trade Area Protocol on Trade in Services.

The petitioner also submits that article 12, paragraphs 3 and 4 of the Law establishing the value added tax is contrary to the East African Community Common Market Protocol. The first paragraph 24 of Article 16 of the Protocol provides that the Partner States should guarantee the free movement of services supplied by nationals of the Partner States and the free movement of service suppliers who are nationals of the Partner State within the Community”.

The paragraph 5 of that article provides that for the purposes of paragraph 1, the Partner States shall progressively remove existing restrictions and shall not introduce any new restrictions on the provision of services in the Partner States, by nationals of other Partner States except as otherwise provided in this Protocol25.

In addition, article 17 of that Protocol relating to national treatment provides that each Partner State shall accord services and service suppliers of other Partner States treatment no less favourable than that accorded to similar services and services suppliers of the partner states26.

Moreover, article 20, paragraph 1 of the same Protocol provides that the partner state may regulate their services actors provided that the measures are consistent with the provisions of this Protocol and do not constitute trade barriers27.

24 The Partner States hereby guarantee the free movement of services supplied by nationals of Partner States and the free movement of service suppliers who are nationals of the Partner State within the Community. 25 For the purposes of paragraph 1, the Partner States shall progressively remove existing restrictions and shall not introduce any new restrictions on the provision of services in the Partner States, by nationals of other Partner States except as otherwise provided in this Protocol. 26 Each partner State shall accord to services and service suppliers of other partner States treatment no less favorable than that accorded to similar services and services suppliers of the Partner States 27 The Partner State may regulate their services sectors provided the measures are consistent with the provisions of this Protocol and do not constitute barriers to trade.

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Regarding the free movement of services, article 23 of that Protocol28 provides that the implementation of Article 16 of that Protocol shall be progressive and in accordance with the Schedule on the progressive liberalization of services specified in Annex V of this Protocol. In addition to that, article 32 of that Protocol relating to harmonization of tax policies and laws provides that the Partner States undertake to progressively harmonize their tax policies and laws to remove tax distortions in order to facilitate the free movement of goods, services and capital and to promote investment within the Community29.

Furthermorer, article 47 of that Protocol provides that the partner states shall undertake to approximate their national laws and to harmonize their policies and systems, for purposes of implementing this Protocol. Besides, the Community Council of the Ministers shall set up Directives for the implementation of this Protocol30.

The Court also notes that Annex V of the Protocol above mentioned relating to the Schedule of Commitments on the progressive liberalization of services31, Rwanda and other Partner States had made commitments up to 2015.

The Court also finds that the Partner States held meetings for discussing the procedure of liberalization of transnational goods and services. In this regard, the Secretariat of the Community published the Consultants report32 on the harmonization of income taxes within the East African

28 The implementation of Article 16 of this Protocol shall be progressive and in accordance with the Schedule on the progressive liberalization of services specified in Annex V of this Protocol. 29 The Partner States undertake to progressively harmonize their tax policies and laws to remove tax distortions in order to facilitate the free movement of goods, services and capital and to promote investment within the Community 30 The Partner States undertake to approximate their national laws and to harmonize their policies and systems, for purposes of implementing this Protocol.The Council shall issue directives for purposes of implementing this Article 31 East African Community Common Market Protocol – Schedule of Commitments on the Progressive Liberalization of Services, November 2009. 32 Consultants’ Report on the Harmonization of Income Taxes within the East African Community, 1 November 2014; East African Community, Report of the Meeting to validate the studies on development of Policy frameworks for the harmonization of Re. NZAFASHWANAYO

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Community. In its meeting of May 2019, the Council of the Ministers of East African Community validated the EAC Domestic Tax Harmonization Policy and requested the Partner States to implement it33.

The Court also notes that in the context of the harmonization of domestic tax policy, the Partner States agreed that the progressive approach would be used for tax harmonization, starting with the excise tax, then the value added tax and the income tax. They decided that the Council Directives should be taken so that a specific directive be taken on each tax category and should indicate the period for which each Partner State should have harmonized its legislation and each directive concerning each tax category34.

In the premises, the Court finds the statements of the petitioner maintaining that Rwanda violated the East African Community Common Market Protocol by passing article 12, paragraphs 3 and 4 of the Law establishing the value added tax baseless, given that there are the prerequisites for the implementation of domestic tax harmonization policy including the issuance of Directives of the Council of the Ministers of East African Community on the value added tax.

Basing on the finding that article 12, paragraphs 3 and 4 of the Law establishing the value added tax does not contradict the international treaties namely GATS, AfCFTA Protocol on Trade in Services and EAC Common Market Protocol of which the petitioner based on to support that article 12, paragraphs 3 and 4 are contrary to the article 95 of the Constitution of 2003 revised in 2015, the Court finds article 12, paragraphs 3 and 4 of the Law establishing the value added tax not contrary to the article 95 of the Constitution of the Republic of Rwanda of 2003 revised in 2015.

VAT, Excise duties and Income tax in EAC, Mombasa, 23rd – 25th October 2014; PWC, Policy for harmonization of VAT and Excise duties, 28 October 2014. 33 East African Community, Report of the 38th Meeting of the Council of Ministers, 6th – 10th May 2019, pp. 30-31. 34 East African Community, Report of the 38th Meeting of the Council of Ministers, 6th -10th May 2019, Annex IV: EAC Domestic Tax Harmonization Policy, pp. 8-9.

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III. THE DECISION OF THE COURT

Finds the petition initiated by Counsel Nzafashwanayo Dieudonné without merit.

Holds that article 12 (paragraphs 3 and 4) of the Law n0 37/2012 of 09/11/2012 establishing the value added tax is not contrary to article 15 of the Constitution of the Republic of Rwanda of 2003 revised in 2015.

Holds that article 12 (paragraphs 3 and 4) of the Law n0 37/2012 of 09/11/2012 establishing the value added tax is not contrary to article 95 of the Constitution of the Republic of Rwanda of 2003 revised in 2015.

Re. NZAFASHWANAYO

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Re NDAYISABYE [Rwanda SUPREME COURT – RS/INCONST/SPEC 00001/2020/SC – Vol [2022] 1 RLR – (Ntezilyayo, P.J., Cyanzayire, Muhumuza, Rukundakuvuga, Mukamulisa, J.) October 30, 2020] Tax law – Advance tax ruling – The ruling issued before tax payment – It is an administrative act to be honoured by the tax administration which issued it and implemented by the taxpayers in accordance with the principle of Good faith – A taxpayer may apply for the cancellation of such ruling through ordinary administrative procedure or seize a competent court in case he/she is not satisfied with the legal position provided. Constitution – Equality of people – The fact that the Commissioner General of the Revenue Authority is entrusted by the law the power to issue advance tax ruling, despite equality of people before the law, it does not place him in a superior with regard to other taxpayers because they belong to different categories and with different responsibilities before the law. Facts: Ndayisabye petitioned the Supreme Court to declare article 9 of the Lawn° 026/2019 of 18/09/2019 on tax procedures inconsistent with articles 15 and 96 of the Constitution of the Republic of Rwanda of 04 June 2003, revised in 2015 on ground that it vested the Commissioner General of Rwanda Revenue Authority (RRA) with the power to issue advance tax ruling to taxpayers. He motivates that article 9 of the

aforementioned law n° 026/2019 of 18/09/2019 contradicts the constitutional principle of equality and equal protection before the law provided under article 15 of the Constitution, because the Commissioner General is not treated like other taxpayers for he has the power to issue binding advance tax ruling. He further submits that it is in his finding that the power vested with the Commissioner correspond with authentic interpretation of laws provided under article 96 of the Constitution of the Republic of Rwanda, whereas he/she is not the person entrusted with this power. He bases his statements on the following three grounds that is; the formulation of Kinyarwanda version of article 9 of the aforementioned Law n° 026/2019; the text of Kinyarwanda 311

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version is different from the text in other languages, namely “advance tax ruling/décision anticipée”; and the fact that the ruling of the Commissioner General is final. The State Attorney argues that the petition of Ndayisabye is baseless, as article 9 of the Law n° 026/2019 aforementioned does not in no way contradict article 96 of the Constitution, rather, the petitioner confused the power of the Commissioner General for issuing advance tax ruling with the power of authentic interpretation of laws done by the Supreme Court. She added that article 9 of the Law n° 026/2019 of 18/09/2019 on tax procedures does not contradict article 15 of the Constitution because among general duties and responsibilities of the Revenue Authority include educating and sensitizing the population on tax payment. It is in carrying out this responsibility that the Commissioner General refers to the provisions of article 9 of that law to issue advance tax rulings. She motivates that because of such responsibilities of the Commissioner General, she/he is placed in a superior position with regard to other taxpayers, but any taxpayer is not contented with the advance tax ruling on a particular tax law, has the right to seize the competent courts in the form of administrative action for annulment in case they are inconsistent with the law. Held: 1. An advance tax ruling issued by the Revenue Authority is an administrative act which has to be enforced by that Authority and implemented by a taxpayer following the principle of Good Faith. A taxpayer may apply for cancellation of such decision through an ordinary administrative procedure or seize a competent court in case he/she is not satisfied with the legal position provided.

2. The fact that the Commissioner General of the Revenue Authority is entrusted by the law the power to issue advance tax ruling despite equality of people before the law, it does not place him/her in a superior position with regard to other taxpayers because they belong to different categories and with different responsibilities before the law. The petition lacks merit. Statutes and statutory instruments referred to:

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Constitution of the Republic of Rwanda of 2003, revised in 2015, articles 15, 29 and 96; International Covenant on Civil and Political Rights, 1966, article 26; International Covenant on Civil and Political Rights, 1966, article 26; Universal Declaration of Human Rights of 1948, article 7; Law n° 026/2019 of 18/09/2019 on tax procedures, articles 9, 52 and 53. Law n° 37/2012 of 09/11/2012 establishing value added tax, article 30; Law n° 08/2009 of 27/04/2009 determining the organization, functioning and the duties of Rwanda Revenue Authority (RRA), article 3; Law n° 25/2005 of 04/12/2005 on tax procedures, article 27. Cases referred to: RS/INCONST/SPEC 00001/2019/SC rendered by the Supreme Court on 29/11/2019; RS/SPEC/00001/2017/SC rendered by the Supreme Court on 28/04/2017; RS/SPEC/0001/16/CS rendered by the Supreme Court on 23/09/2016; Delhi-V, Supreme Court of India, Civil Appeal Nos. 5105-5107 of 2009, Judgment rendered on 11 September 2020, Postscript 1, paragraph 11. Authors cited : G. Michiels, Normae Generales Juris Canonici (Tournai : Desclée, 1949), vol. I, p.

483. Cited by Msgr; John F. McCarthy, (in) The canonical meaning of the recent authentic interpretation of canon 230.2 regarding female altar servers, Organ of the Roman Theological Forum, January 1995; Waerzeggers, C., & Waerzeggers, C. (2016). Introducing an Advance Tax Ruling (ATR) Regime (No. 16/2). Washington, DC: International Monetary Fund, p.1. Alia, D. U. T. A. (2009). The harmonization of advance tax rulings systems in European Union member states Why? Finante-provocarile viitorului (Finance-Challenges of the Future), 1(9), 122, 248-250, P.248, 249. Carlo Romano, Advance Tax Rulings and Principles: Towards a European Tax Rulings, IBFD, 2020, pge 44, 77. John M. Huels, Classifying Authentic Interpretations of Canon Laws, The Jurist 72 (2012). Re. NDAYISABYE

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Judgment I.

BACKGROUND OF THE CASE

Counsel Ndayisabye Alexis petitioned the Supreme Court to declare article 9 of the Law n° 026/2019 of 18/09/2019 on tax procedures is inconsistent with the Constitution of the Republic of Rwanda of 04 June 2003, revised in 2015 in its articles 15 and 96, on ground that it vested the Commissioner General of Rwanda Revenue Authority (RRA) with the power to issue advance tax ruling to the taxpayers. He states that when one analyses the power entrusted to the Commissioner General, you would find it contradictory to the provisions of the Constitution on matters related to authentic interpretation of laws normally exclusively done by the Supreme Court, upon request by Cabinet or the Bar Association.

Counsel Ndayisabye Alexis also states that, as a lawyer, he finds such article prejudicial to the constitutional principle of equality and equal protection before the law. He indicates that with respect to taxation, the Commissioner General does everything in the interest of Rwanda Revenue Authority he/she represents, even when issuing advance tax ruling, he does not do it in a satisfactory manner for the taxpayers. He submits that the fact that the ruling of the Commissioner General has a binding force for a taxpayer, the law does not treat equally all taxpayers of the Rwanda Revenue Authority represented by the Commissioner General.

Counsel Ndayisabye Alexis states that in examining his petition, the Court should base on the provisions of the article 9 of the Law on tax procedures in Kinyarwanda version, because that article entrusts the Commissioner General the power to interpreted tax laws, while in English version, that article stipulates the power of the Commissioner General to issue an advance tax ruling, and this is far different from interpreting laws.

Counsel Kabibi Specioza, the State Attorney argues that the petition of Ndayisabye Alexis lacks merit, that article 9 of the Law n° 026/2019 of 18/09/2019 on tax procedures does not contradict article 15 of the Constitution

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1because the general duties and responsibilities of the Revenue Authority includes education and sensitization the population on tax payment. She added that it is in carrying out this responsibility that the Commissioner General refers to the provisions of article 9 of that Law n° 026/2019 on tax procedures in issuing an advance tax ruling. She motivates that of such responsibilities elevate him/her in a superior position over taxpayers, but the latter have the right to seize competent courts in the form of administrative action procedure in case they are not contented with the advance tax ruling, for annulment in case they were not made in accordance with the law.

She also advances that article 9 of the aforementioned Law n° 026/2019 does not in no way contradict article 96 of the Constitution, that the petitioner confused the power of the Commissioner General for issuing advance tax ruling with the power of authentic interpretation of laws done by the Supreme Court.

The submissions by Counsel Ndayisabye Alexis can be summarized in two grounds: a. The first ground relates to the fact that the power entrusted by article 9 of the Law n° 026/2019 of 18/09/2019 on tax procedures to the Commissioner General to issue an advance tax ruling consists of an authentic interpretation of laws provided by article 96 of the Constitution of the Republic of Rwanda, of which this article does not entrust to the Commissioner General. He bases these allegations on the following three grounds: I. The formulation of article 9 of the Law n° 026/2019 of 18/09/2019 on tax procedures in Kinyarwanda version; II. The text in Kinyarwanda version is different from the text in other languages, notably “advance tax ruling/décision anticipée”; III. The fact that the ruling of the Commissioner General is final.

1 That article provides that: “All persons are equal before the law. They are entitled to equal protection of the law”. Re. NDAYISABYE

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b. The second ground relates to the fact that the Commissioner General is not treated like other taxpayers because he/she has the power to issue an advance tax ruling, which contradicts the principle provided under article 15 of the Constitution of the Republic of Rwanda that all persons are equal before the law , and entitled to equal protection of the law.

Following the consideration of the submissions of Counsel Ndayisabye Alexis and the retorts by the State Attorney, the Court finds that the issue to be analyzed in this case consists of whether article 9 of the Law n° 026/2019 of 18/09/2019 on tax procedures is inconsistent with the provisions of articles 15 and 96 of the Constitution of the Republic of Rwanda of 2003 revised in 2015. II.

LEGAL ISSUE AND ITS ANALYSIS 1. Whether the article 9 of the Law n° 026/2019 of 18/09/2019 on tax procedures is inconsistent with the articles 15 and 96 of the Constitution of the Republic of Rwanda of 2003, revised in 2015

Counsel Ndayisabye Alexis states that article 15 of the Constitution of the Republic of Rwanda of 04 June 2003, revised in 2015, providing that all persons are equal before the law and are entitled to equal protection of the law. In addition, its article 96 reads that Authentic interpretation of laws is done by the Supreme Court. Authentic interpretation of laws may be requested by Cabinet or the Bar Association. Any interested person may request for an authentic interpretation of a law through the Bar Association. In case of conflict between the languages in which a law was published in the Official Gazette, the language in which that law was adopted prevails. He confirms that such provisions concur with the holdings of the Supreme Court in the judgement RS/SPEC 0001/2017/SC.

He also advances that article 9 of the Law n° 026/2019 of 18/09/2019 on tax procedures provides that subject to the provisions of other laws, on request or by his or her own initiative, the Commissioner General issues an advance tax ruling. In case this ruling is for the public, it is published through a nationwide media. The rules of the Commissioner General determine modalities for establishment of an advance tax ruling.

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Counsel Ndayisabye Alexis adds that, according to the Constitution, an authentic interpretation of laws is done by the Supreme Court upon request by the Cabinet or the Bar Association and that any interested person may sue before the Supreme Court requesting for an authentic interpretation of a law through the Rwanda Bar Association. He indicates that the publication of law on tax procedures providing that, the Commissioner General issues in writing an advance tax ruling on request or by his or her own initiative, which is not provided by the Constitution, he finds such article inconsistent with the Constitution because his/her ruling is final.

He further contends that in Kinyarwanda version the text reads that the Commissioner interprets laws, but in other languages, they have used the text “advance tax ruling” and “décision anticipée”, and this has nothing to do with interpretation of laws. He prays that in examining his petition, they should consider the Kinyarwanda version in providing a legal position because it is the language of adoption of the law.

He gives an example of where the Commissioner General issued an advance ruling on article 15, subparagraph 7 of the Law on income tax, where it is stated that in implementing the subparagraph 7 relating to moral damages for widow(er)s and orphans on whether those moral damages can be considered as taxable employment income, the commissioner stated that those damages consist of moral compensation and not employment income. the petitioner finds this ruling of the Commissioner General final.

He gives another example of the ruling issued by the Commissioner General on article 27 of the Law n° 25/2005 of 04/12/2005 on tax procedures, where he states that we have decided the following: The rectification note may be issued in a period of five or ten (10) years in case of tax evasion, starting from January 1st, following the tax period, which was not provided by the law. The second example is about the advance tax ruling by the Commissioner General on article 30 of the Law n° 37/2012 of 09/11/2012 establishing the value added value where he states that we decided the following: in any other case apart from importation of goods, the amount is to be converted into Rwandan francs at the National Bank of Rwanda exchange rate applying between the foreign currency and Rwandan franc on the date on which the amount is given, which was not provided by that article. Re. NDAYISABYE

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He also motivates that in case of conflict of interpretations of tax laws, the Commissioner General provides interpretation basing on his/her personal conviction, which is different from Advance Tax Rulingissued upon request of the taxpayer about individual concerns, and this ruling is not made public. He added that in interpreting the law, the Commissioner General does it in the interests of the institution under his/her management instead of public interests, and this proves an inequality between the Commissioner General and taxpayers, and obstructs the implementation of government policy of doing business adopted by the Republic of Rwanda in order to speed up business and respect the legislation thereof because potential investors in Rwanda may be discouraged by the excessive powers entrusted to the Commissioner General.

Counsel Tugirumuremyi Raphael assisting him advances that the Law establishing Rwanda Revenue Authority entrusted the Commissioner General the power to educate and sensitize the population on tax legislation, where it determines the mission of that institution, but he finds it unnecessary to do it in accordance with the provisions of article 9 of the aforementioned law, because it is clear that the advance ruling is not different from the authentic interpretation.

He also states that the statements of the State Attorney according which the interpretation provided by the Commissioner General under e article 9 of the aforementioned law is an “Advance Tax Ruling” which is not mentioned in the Kinyarwanda version in which the law was adopted. He motivates that they conducted a research on “Advance Tax Ruling” and came to the conclusion that it concerns one taxpayer or a group of taxpayers, and that such ruling issued does not concern other taxpayers whereas the ruling issued for the Rwandan taxpayers is final, the situation whih he deems violating the principle of separation of powers, because executive organ cannot be also entrusted the power to enact the law. He prays that the power of interpretation of the laws remains in the jurisdiction of the same organ provided by Constitution.

He further submits that article 9 of the Law n° 026/2019 mentioned above, does not treat equally the taxpayer and the Commissioner General, because the Commissioner General has the excessive power to implement the law and provide his/her discretionary interpretation, which is not the case for the taxpayer, but he/she is instead bound to execute even the advance tax ruling issued by the Commissioner General. He prays the Supreme Court to declare

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article 9 of the Law n° 026/2019 of 18/09/2019 on tax procedures inconsistent with the Constitution, as revised up to date.

Counsel Kabibi Specioza, the State Attorney, states that the allegations of Counsel Ndayisabye Alexis that the Commissioner General is not treated like other taxpayers because he/she is entrusted the power to issue a final advance tax ruling , the Supreme Court motivated thereon in the judgements RS/SPEC/0001/16/CS rendered on 23/09/2016 and RS/INCONST/SPEC 00001/2019/SC rendered on 29/11/2019, where it held that the equality and prohibition of distinction of persons do not mean that distinction of persons amounts always to discrimination, since distinction and or categorization of persons can be necessary depending legitimate or rational purpose.

In motivating on the reason the Commissioner General is treated differently from other taxpayers or he/she is not included in the same category with them, Counsel Kabibi Specioza states that article 3, paragraph 3 of the Law n° 08/2009 of 27/04/2009 determining organization, functioning and responsibilities of Rwanda Revenue Authority (RRA), reads that the responsibilities of RRA include educating and sensitizing the population on tax legislation, which includes issuing to them an advance tax ruling provided in article 9 of the aforementioned Law no 026/2019 alleged to be unconstitutional.

Counsel Kabibi Specioza added that the Commissioner General of Rwanda Revenue Authority (RRA) cannot belong to the same category with other taxpayers, the reason why the law entrusts him the power to issue administrative acts such as “Advance Tax Ruling”, and this act has an immediate effect, in to the context of raising awareness of the taxpayers about tax legislation, accountability and transparency with regard to that institution, in order to avoid fines imposed to taxpayers for mistakes occasioned misinterpretation of tax legislation. She also motivates that this cannot deprive the taxpayer of the right to seize the court to mend injustice that would have resulted from that act.

Counsel Kabibi Specioza declares that the advance tax ruling issued by the Commissioner General is not considered as the law with binding force, but rather an administrative act that can be welcomed by its subjects or not. She indicates that in case the taxpayer is not contented with such act, he/she is Re. NDAYISABYE

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allowed to exercise the right conferred by articles 52 and 53 of the aforementioned Law no 026/2019 and article 29(3o) of the Constitution of the Republic of Rwanda, and attack it before a competent court.

Counsel Kabibi Specioza also submits that article 9 of the law on tax procedures does not contradict article 96 of the Constitution because the petitioner confused the power of the Commissioner General of issuing an advance tax ruling with the power to do authentic interpretation. She motivates that such advance tax rulings (ATR) by the Commissioner General normally aims at indicating the level of autonomy of the institution expressed by its transparency, accountability, collaboration between RRA and taxpayers, as well as the capacity of the institution to settle disputes, and this is what she explained in English as follows2.

She quotes Gommar Michiels, a Law scholar, who further defined authentic interpretation as follows: “…authentic interpretation is an act of the will commanding that the determined meaning of the law be accepted as obligatory, and not just an act of the intellect defining the meaning that was originally intended by the lawmaker”. (such as an interpretation note given through an advance tax ruling issued by the Commissioner General). This indicates that the authority doing an authentic interpretation issues commanding and binding interpretation, and thus, advance tax rulings issued by the Commissioner General are not binding. 3

She states that the advance tax ruling issued by the Commissioner General is used in levying taxes on some goods and services considered as difficult to understand by the taxpayer issued upon request by the taxpayer or by the Commissioner General on his own initiative, that the intended purpose of the Commissioner General herein to demonstrate the stance of the revenue authority on certain articles of the law or on matters related to taxation of certain goods and taxation modalities, and this helps a taxpayer who has a good

2 Transparency, clarity, consistency, certainty; compliance and proper functioning of a self-assessment system, healthy relationship of taxpayers with the tax authority and reduction of conflict. 3 G. Michiels, Normae Generales Juris Canonici (Tournai : Desclée, 1949), vol. I, p.

483. Cited by Msgr. John F. McCarthy, (in) The canonical meaning of the recent authentic interpretation of canon 230.2 regarding female altar servers, Organ of the Roman Theological Forum, January 1995.

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faith to honour them as they are set in order to avoid fines and penalties in case he/she fails to respect it due to wrong interpretation of the law.

She added that the petitioner’s statements that an “Advance Tax Ruling” concern one individual or a group of individuals are not true, because the taxpayer may request in writing for an clarification on an article which he/she considers unclear. In such case, the Commissioner General addresses only the request from the sender (Private Tax Ruling). In some other cases, especially in monitoring tax recovery activities, the Commissioner General may find out that the majority of taxpayers have conflicting interpretation about a certain article and thereby issue what is known as Public Tax Ruling and this ruling is published because it is made for all taxpayers. With regards to the binding force of that ruling, she motivates that what Counsel Ndayisabye Alexis states that all taxpayers are bound to execute that ruling, is not true, instead, RRA which issued such ruling has to honour it, and the taxpayer may or may not comply with it.

Counsel Kabibi Specioza also motivates that international organizations for economic development4 as well as expert in fiscal law5 explain advance tax ruling (ATR) issued by the Commissioner General as a a written statement issued to a taxpayer by a Revenue body that interprets and applies the tax law to a specific set of facts and is binding upon the Revenue body before taxation process. In other words, this is an act of the Commissioner General about clarification of taxation. She alleges that the analysis of the provisions of the aforementioned article 9 suggests that the advance tax ruling of the Commissioner General is issued in order to clarify e articles of tax laws for the taxpayers and other users who do not have a clear or same understanding about them, and who may face some difficulties in implementing or using them in general.

4 Counsel Kabibi indicates that OECD (Organisation for Economic cooperation and Development) defines ATR as follows: “a written statement issued to a taxpayer by a Revenue body that interprets and applies the tax law to a specific set of facts and is binding upon the Revenual body”. 5 Counsel Kabibi Spéciose argues that an International guide to advance ruling defines ATR as a “statement issued upon request to the (potential) taxpayer indicating the tax administration’s view of the tax treatment of the particular set of facts and circumstances contemplated in the process of completion, or completed but not yet assessed”. Re. NDAYISABYE

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Shefurther alleged that when the Commissioner General issues that ruling, his/her purpose is not to enact laws which contradict or conflict with articles of the law as purported by the petitioner, he/she rather aims at helping taxpayers and other users to have a clear understanding of those provision. She additionally submits that what justifies the necessity of such ruling is the fact that many taxpayers and users of tax laws use to write to the Commissioner General requesting a legal position to be be referred to about legal provisions for which they do not have a clear understanding or same assumption.

She motivates that those advance tax rulings are uploaded on the website of Rwanda Revenue Authority (RRA) for all taxpayers and other users to have access on the stance of the revenue body on tax laws, in order to avoid that this stance remains exclusive to those who requested advice, therefore that suchrulings cannot be considered as new laws enacted by the Commissioner General, meaning that Rwanda Revenue Authority cannot only rely on those rulings to impose taxes.

She also motivates that the statements of Counsel Ndayisabye Alexis that those rulings contradict the principle of “Doing business”, are baseless, because that principle is based on the transparency, the reason why in order to avoid fines and penalties imposed to taxpayers due to misunderstanding of the laws they may have and to reduce disputes between the taxpayer and the revenue authrity, they are given explanations in advance, which is the basis of the principle of “Doing business”.

He also states that the Kinyarwanda version of article 9 of the aforementioned law does not clarify the meaning of “Advance Tax Ruling” where it reads that the Commissioner General interpretes laws, while it would be clear if the translation “icyemezo gifashwe mbere” meaning “(advance ruling” was used.

Counsel Ndayisabye Alexis and his counsel submit that a ruling issued by the Commissioner General is by nature an unappealable administrative act, which, is normally subject to appeal, and with regards to intepretation of law, you cannot appeal before the Commissioner General telling him/her that he/she misintepreted the law, and this is not even provided by the law.

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On matters related to practices of revenue athorities in other countries (elucdations on ATR provided by OECD), Counsel Ndayisabye Alexis states that the Republic of Rwanda is not a member state of OECD, in so much that the Commissioner General may apply practice of the Commissioners General of the revenue authority in those member countries , that that those Commissioners do not issue advance tax rulings as it is the case in Rwanda, they rather give their opinions like other scholars from universities and experts from research institutions.

DETERMINATION OF THE COURT a. Whether article 9 of the Law n° 026/2019 of 18/09/2019 on tax procedures contradicts article 96 of the Constitution of the Republic of Rwanda of 2003, revised in 2015

The principal ground on which Counsel Ndayisabye Alexis relieshis petition that article 9 of the Law n° 026/2019 of 18/09/2019 contradicts article 96 of the Constitution of the Republic of Rwanda, is the fact that the Commissioner General was entrusted by the Law on tax procedures the power to provide interpretation of the law, while the power to do an authentic interpretation of laws is vested with the Supreme Court by article 96 of the Constitution. In examining its basis, the Court finds that it has to examine the nature of the advance tax ruling in order to be able to determine whether that advance tax ruling issued by the Commissioner General is an authentic interpretation.

Article 9 of the Law n° 026/2019 of 18/09/2019 on tax procedures provides that : “Subject to the provisions of other laws, on request or by his or her own initiative, the Commissioner General issues an advance tax ruling. In case this ruling is for the public, it is published through a nationwide media. The rules of the Commissioner General determine modalities for establishment of an advance tax ruling”.

The Court finds that article 9 of the aforementioned Law n° 026/2019 to imply that the Commissioner General issues an advance tax ruling in the following circumstances:  Upon request by a taxpayer or a group of taxpayers; Re. NDAYISABYE

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 By the Commissioner General’s own initiative in case where various taxpayers have a a different perception on a given law.

The Court finds that, because the Commissioner General has not yet set up the rules determining the modalities of issuing an advance tax ruling, a reference must be made to the motivations provided in decided cases or opinions from scholars, wherein the types of such documents, their importance, nature as well as their impact on tax administartion and taxpayers.

In the judgement rendered by the Supreme Court of India, it was motivated that a strong system of issuing an advance tax ruling can play a vital role in reducing the number of taxation litigations. They state that instead of declaring tax first and face disparate tax perception with tax administration later, a system of issuing an advance tax ruling can avoid such disputes and litigations.6

In that judgement, they also stated that the aim of any properly framed advance ruling system ought to be a dialogue between taxpayers and revenue authorities to fulfil mutually beneficial purpose for taxpayers and revenue authorities of bolstering tax compliance and boosting tax morale.7

Christophe Waerzeggers and Cory Hillier, legal experts, in their article: Introducing an advance tax ruling (ATR) Regime, also show the

6 “In our opinion, a vibrant system of advance ruling can go a long way in reducing taxation litigation. (…) Instead of first filing a return and then facing consequences from the Department because of a different perception which the Department may have, an Advance Ruling system can facilitate not only such resolution, but also avoid the tiers of litigation which such cases go through.” See National C-operative Development Corporation Vs. Commissioner of Income Tax, Delhi-V, Supreme Court of India, Civil Appeal Nos. 5105-5107 of 2009, Judgment rendered on 11 September 2020, Postscript 1, paragraph 11, https://www.advocatekhoj.com/library/judgments/announcement.php? WID=13147 7 “The aim of any properly framed advance ruling system ought to be a dialogue between taxpayers and revenue authorities to fulfil mutually beneficial purpose for taxpayers and revenue authorities of bolstering tax compliance and boosting tax morale.” See National C-operative Development Corporation Vs. Commissioner of Income Tax, Delhi-V, Supreme Court of India, Civil Appeal Nos. 5105-5107 of 2009, Judgment rendered on 11 September 2020, Postscript 1, paragraph 19, https://www.advocatekhoj.com/library/judgments/announcement.php?WID=13147

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difference between Private Advance Tax Ruling and Public Advance Tax Ruling as follows: A private tax ruling consists of advice that a taxpayer may seek from the tax authority in relation to the application of the tax law to their particular arrangement. The ruling typically binds the tax authority in relation to the arrangement for which it is issued. As such, the taxpayer will ordinarily be protected from additional tax, penalties and interest when relying on the ruling issued. The benefit of a private tax ruling is typically personal to the taxpayer to whom that ruling is issued and is not binding on the tax authority as against other taxpayers, even if the same or similar circumstances exist.8

With regard to Public Advance Tax Ruling, experts mentioned in the previous paragraph, define it as a written opinion by the tax authority dealing with the way in which the tax law applies to taxpayers, or a class of taxpayers, generally. A public ruling is made publically available in full and can be used as a primary means of publishing and disseminating advice on the tax authority’s interpretation of the tax laws they administer. These instruments also serve important functions in tax law administration, particularly where they provide guidance with respect to the exercise of discretionary powers contained in a tax law. Public rulings may or may not have legally binding force per se but may, at the very least, create legitimate expectations for taxpayers under general principles of administrative law.9

8 Waerzeggers, C., & Waerzeggers, C. (2016). Introducing an Advance Tax Ruling (ATR) Regime (No. 16/2). Washington, DC: International Monetary Fund, p.1: A private tax ruling consists of advice that a taxpayer may seek from the tax authority in relation to the application of the tax law to their particular arrangement. The ruling typically binds the tax authority in relation to the arrangement for which it is issued. As such, the taxpayer will ordinarily be protected from additional tax, penalties and interest when relying on the ruling issued. The benefit of a private tax ruling is typically personal to the taxpayer to whom that ruling is issued and is not binding on the tax authority as against other taxpayers, even if the same or similar circumstances exist. 9 IDEM, A public ruling: a written opinion by the tax authority dealing with the way in which the tax law applies to taxpayers, or a class of taxpayers, generally. A public ruling is made publically available in full and can be used as a primary means of publishing and disseminating advice on the tax authority’s interpretation of the tax laws they administer. These instruments also serve important functions in tax law administration, particularly where they provide guidance with respect to the exercise of discretionary powers contained in a tax law. Public rulings may or may not have legally binding force per se but may, at the very least, create legitimate expectations for taxpayers under general principles of administrative law. Re. NDAYISABYE

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The Court finds that the provisions of article 9 of the Law n° 026/2019 of 18/09/2019 on tax procedures and the statements of various experts, both state that an Advance Tax ruling is in two categories to wit Private Advance Tax Ruling and Public Advance Tax Ruling. Therefore, the allegations of Counsel Ndayisabye Alexis and his legal counsel that they conducted a research on “Advance Tax Ruling” and found that it only concerns taxpayers and a class of taxpayers, and that such ruling does not concern others, is baseless.

The Court finds that what is not mentioned in the formulation of article 9 of the aforementioned Law no 026/2019 in Kinyarwanda version, but explained in other languages and in agreement with legal experts is to the effect that such ruling is issued before the taxpayer starts taxable activities, and Counsel Kabibi Specioza admitted that it would be clear if the legislator stated “Icyemezo gifashwe mbere” (an advance ruling). The fact that such term was not used is not regarded as a concern, because the rationale of the legislator is clearly conveyed in other languages.

The Court finds Counsel Ndayisabye Alexis and his legal counsel’s allegations according to which article 3 of the Law n° 08/2009 of 27/04/2009 determining organization. functioning and responsibilities of Rwanda Revenue Authority assigns to the Commissioner General the responsibility of educating and sensitizing the population on tax payment, therefore it was not necessary to also assign him/her the responsibility of interpreting laws, baseless, because article 3, subparagraph 3o of the Law n° 08/2009 provides for the responsibilities of Rwanda Revenue Authority including educating and sensitizing the population on tax payment, whereas article 9 of the aforementioned Law n° 026/2019 provides that the Commissioner General has the responsibility to issue an advance tax ruling. This responsibility is premised on the frequent changes in tax legislation or sometimes misunderstanding of such laws by given their formulation, as motivated by the State Attorney. The revenue authority clarifies them for the taxpayers on request or by their initiative, in order to settle disputes that may arise or already occurred, to promote cooperation between taxpayers and revenue authority, reducing disputes that may result from conflicting perception of tax laws and for transparency purpose.

The Court also finds that legal experts also emphasise the importance of an advance tax ruling, such as Alia Duta, in her writing titled: “The

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harmonization of advance tax rulings systems in european union member states – why?”, wherein she states that using that ruling is important for both taxpayers and revenue authority, because of frequent changes of tax legislation and sometimes taxpayers misunderstand the text of such legislation due to their formulation. The expert indicates that those rulings serve as a barometer of the capacity of the revenue authority in disputes settlement, and the use of such rulings help in promoting cooperation between taxpayers and revenue authorities and reduction of litigations. She added that those advance tax rulings system should comply with the generally prevailing principles of a tax order, like principle of legality, of equality and of transparency.10

Basing on the statements of expert Alia Duta, the Court finds that, in issuing an advance tax ruling, the Commissioner General does not base on his/her own assumption, as alleged by Counsel Ndayisabye Alexis and his counsel, he/she instead issues it basing on the generally prevailing principles of a tax order, like principle of legality, of equality and of transparency.

This is also emphasised by that expert, where she explains that in enforcing advance tax rulings (ATR), the tax administration stands in a position of supremacy in its relation with taxpayers and is acting in order to realize the collective interest of every citizen.11

Considering also the explanations provided by experts on “Advance Tax Ruling”, the Court finds that they confirm that an advance tax ruling is an administrative act. This is stressed by Carlo Romano in his book titled Advance Tax Rulings and Principles: Towards a European Tax Rulings where he explains that the fact that an advance tax ruling is considered as an administrative act instead of an agreement binding public institutions or an individual, plays a vital role in protecting the taxpayer and is also beneficial

10 Alia, D. U. T. A. (2009). The harmonization of advance tax rulings systems in European Union member States-Why? Finante-provocarile viitorului (Finance- Challenges of the Future), 1(9), 248-250, P.248, 249 An advance tax rulings system should comply with the generally prevailing principles of a tax order, like principle of legality, of equality and of transparency. 11 IBIDEM, P.122. In many instances, such as for the functions performed by the tax administration in tax law, the tax administration stands in a position of supremacy in its relation with taxpayers and is acting in order to realize the collective interest of every citizen. Re. NDAYISABYE

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depending on the legal modalities of issuing those rulings[…..].12 He adds that “The information given by the respective authority is legally not binding, but protected under the principle of good faith, but when he does, he has to do it as mentioned in the ruling request.”13

The Court finds that the fact that an advance tax ruling is an administrative act, which has to be enforced by the Revenue authority that issued it, means that a taxpayer may request for its invalidation through ordinary procedure applied in administrative acts or seize a competent court in case he/she is not contented with the ruling by the Commissioner General.

With regard to authentic interpretation provided under article 96 of the Constitution of the Republic of Rwanda, a one John M. Huels, who is a legal expert explains that an authentic interpretation of laws is made in a special way by competent persons, and resolves the meaning of a doubtful law. He states it as follows: “[….] there is a special form of interpretation that officially and authoritatively resolves the meaning of a doubtful law. This is

12 Carlo Romano, Advance Tax Rulings and Principles: Towards a European Tax Rulings, IBFD, 2020, pge 77, Advance tax rulings (also called advance, private or letter rulings) are legal instruments under which taxpayers (or their tax advisors) may obtain a more less binding statement from the tax authorities concerning the treatment of transaction or a series of contemplated future (and sometimes past) actions or transactions. Advance tax rulings are addressed to particular taxpayers upon request and explain how the tax administration will apply the law to a particular taxpayer or group of taxpayers in relation to a transaction, or a series of specified facts or transactions. They are usually referred to as “advance rulings”, since they are usually provided before the taxpayers enter into a transaction or arrangement, or (in certain jurisdictions) after the event but before a taxpayer files a tax return. Such rulings are tailor made for the taxpayer concerned because they take into account the factual situation of the taxpayer and are thus not directly applicable to other taxpayers. They may also provide a determination of whether or how a general ruling applies to the facts and circumstances of a particular taxpayer. 13 IBIDEM, Pge 44 “The information given by the respective authority is legally not binding, but protected under the principle of good faith. This means that the taxpayer in general can trust the information, if it is not obviously illegal. In general, the applicant-taxpayer is not bound by the obtained advance tax ruling, which means that he can choose not to do the transaction (but when he does, he has to do it as mentioned in the ruling request).”

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called "authentic interpretation" and may only be made by the legislator or one to whom he has entrusted the power to interpret the law authentically.14

In the judgement RS/SPEC/00001/2017/SC rendered by the Supreme Court on 28/04/2017, the Court basing on the fact that an uthentic interpretation refers to intepretation of laws done in accordance with the provisions of the law and by competent persons, declared that an authentic interpretation cannot be compared to an ordinary intepretation of laws.

Basing on all foregoing elucidations, the Court finds that an advance tax ruling issued by the Commissioner General is different from an authentic interpretation under the jurisdiction of the Supreme Court, therefore, article 9 of the Law n° 026/2019 of 18/09/2019 on tax procedures is thereby not inconsistent with article 96 of the Constitution of the Republic of Rwanda of 2003, revised in 2015. b. Whether article 9 of the Law n° 026/2019 of 18/09/2019 on tax procedures contradicts the article 96 of the Constitution of the Republic of Rwanda of 2003, revised in 2015

Article 15 of the Constitution of the Republic of Rwanda of 04 June 2003, revised in 2015 provides that all persons are equal before the law. They are entitled to equal protection of the law.

Article 7 of Universal Declaration of Human Rights of 1948 stipulates that all persons are equal before the law and are entitled without any discrimination to equal protection of the law.15 And article 26 of International Covenant on Civil and Political Rights, 1966 provides that all persons are equal before the law and are entitled without any discrimination to equal protection of the law.16

14 John M. Huels, Classifying Authentic Interpretations of Canon Laws, The Jurist 72 (2012). 15 All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against discrimination in violation of this Declaration and against any incitement to such discrimination. 16 All persons are equal before the law and are entitled without any discrimination to equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on Re. NDAYISABYE

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Basing on the provisions of the International covenant mentioned in the previous paragraph, and in alignment with the provisions of article 15 of the Constitution which provides the principle that each person must be treated equally before the law and that all are subject to the same laws. Therefore, the law must guarantee that no individual nor group of individuals be privileged or discriminated against by the government.17 However, equality before the law and non-discrimination of individuals do not mean that distinction of individuals per se amounts always to discrimination. As stated by the Court, 18 distinction or categorization of individuals can be necessary, when it is done for legitimate or rational purpose.

This means that the fact that the Commissioner General of Rwanda Revenue Authority is vested by the law with the power to issue an advance tax ruling, it does not mean that the law places him/her in a superior position with regard to other taxpayers because they do not belong in the same category and their responsibilities are not similar. In addition, the statements of the petitioner to the effects that the Commissioner General makes decisions when issuing advance tax rulings with the sole purpose of protecting the interests of the institution under his/her management, differ from the motivations provided in the instant case on matters related to private and public advance tax rulings, because they are issued with the purpose of facilitating the taxpayers to have a clear understanding on tax laws, and hence comply with tax payment, thereby reducing taxation litigations.

Basing on the premises, the Court then finds that, the article 9 of the Law n° 026/2019 of 18/09/2019 on tax procedures is not inconsistent article 15 of the Constitution of the Republic of Rwanda of 2003, revised in 2015.

any ground such as race, colour, language, religion, political or other opinion, national or social origin, property, birth or other status. 17 Equality before the law, (…) is the principle that each independent being must be treated equally by the law (…) and that all are subject to the same laws of justice (…). Therefore, the law must guarantee that no individual nor group of individuals be privileged or discriminated against by the government. See https://en.wikipedia.org/wiki/Equality_before_the_law. 18 See judgement RS/SPEC/0001/16/CS rendered on 23/09/2016 and the judgment RS/INCONST/SPEC 00001/2019/SC renderd on 29/11/2019.

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III.

DECISION OF THE COURT

Declares baseless the petition initiated by Counsel Ndayisabye Alexis;

Declares article 9 of the Law n° 026/2019 of 18/09/2019 on tax procedures not inconsistent with articles 15 and 96 of the Constitution of the Republic of Rwanda of 2003, revised in 2015. Re. NDAYISABYE

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PETITION CHALLENGING PROVISIONS OF

THE LAW DETERMINING THE

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Re ASIIMWE [Rwanda SUPREME COURT – RS/INCONST/SPEC 00004/2020/SC – Vol [2021] 4 RLR – (Ntezilyayo, P.J., Cyanzayire, Nyirinkwaya, Hitiyaremye and Rukundakuvuga, J.) March 26, 2021] Constitution – Jurisdiction of courts – Appeal – Second appeal – Due process of law – The inalienable right of appeal consists of the first appeal which may however have some limitations for legitimate reasons - The right to appeal may be limited on the second appeal but for legitimate reasons. Constitution – Jurisdiction of courts – Unconstitutionality – Second appeal in criminal cases – Due process of law – The fact that the party pleading not guilty may be allowed a second appeal depending on the sentence imposed while the accused who pleaded guilty is barred from lodging a second appeal, amounts to unequal treatment of accused persons, which is inconsistent with the principle of equality before the law. Facts: Asiimwe initiated a petition to request th Supreme Court to declare paragraph 2 of article 52 and paragraph 3 of article 46 of the Law n°30/2018 of 02/06/2018 determining the jurisdictions of courts inconsistent with article 29 of the Constitution of the Republic of Rwanda. He elucidates that the foregoing articles violate the due process of law provided under the Constitution on ground that in examining the second appeal, the Court limits itself to determine only whether the appellant lost

the case for same reasons before both previous courts and/or whether he/she admitted charges brought against him/her. The State Attorney contends bu submitting that the foregoing articles are in no way inconsistent with rticle 29 of the Constitution given that there are other remedies provided under the law to which a litigant can resort in the event she/he deems to have experienced injustice. The court admitted and accorded the petition a docket number and on the hearing date, it was examined whether the inadmissibility of a second appeal on ground that the appellant lost the case for same reasons in both previous Courts, violates the right to due process of law and whether such inadmissibility with respect to those who pleaded guilty, violates the principle 335

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of equality before the law provided under article 15 of the Constitution, and thus inconsistent with due process of law provided under article 29 of the Consitution. Regarding Article 52, paragraph 3 of the aforementioned Law no 30/2018 providing for the inadmissibility of the second appeal on ground that the appellant lost the case on same reasons in previous courts, the petitioner alleges that this provision creates a situation where, in the event the convict by the lower Courts resorts to the Court of Appeal for rectification of all irregularities by such courts, it declares itself incompetent on ground that he/she lost the case on same reasons, and refrains from hearing the merit of the case, which would have allowed to determine whether there has been violation of the law or disregard of evidence, and it contradicts the purpose of appeal remedy and thus, the appellant is deprived of the right to due process of law. She additionally submits that had the law provided that the Court of Appeal does not admit the second appeal in case the appellant lost the case in previous courts for same reasons after prior examination whether there has been no violation of the law and blatant disregard of adduced evidence, the right of the litigant would have been respected. She rests her case by submitting that the existence of the cases review due to injustice is a clear proof that the

inferior courts to the High Court and Court of Appeal may err in the course adjudication. Accordingly, as long as paragraph 3 of article 52 of the aforementioned Law no 30/2018 is applied in the same manner the Court of Appeal applies it, the litigant deprived of the right to be heard in merit while feeling aggrieved at first and second instances, would consider such a practice as condoning injustice and corruption. The State attorney submits that the Rwandan law uphold the principle of one appeal but with exception to some cases that can be appealed at the first and the second level after examining whether the two previous courts came to the same conclusion based on similar reasons seeing that courts are expected to dispense fair justice. She further states that concerning the ground relating to due process of law, the legislator accorded equal rights to parties where on one hand the right to appeal for the loser and on the other the right to justice for the winner, which is consistent with the provisions of article 15 of the Constitution providing that all persons are equal before the law and entitled to equal protection of the law. She concludes by submitting that paragraph 2 of article 46 and paragraph 3 of

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article 52 of the Law no 30/2018 mentioned above are not inconsistent with article 29 of the Constitution. He submits that regarding the inadmissibility of the second appeal with respect to cases wherein litigants admitted charges brought against them, the petitioner submits that the provisions of paragraph 2 of article 46 and paragraph 3 of article 52 of the Law no 30/2018 mentioned above bars the appellant who pleaded guilty before previous courts whereas the appeal of the party who pleaded innocent is admitted based only on the fact that he/she was sentenced to a penalty of fifteen (15) years of imprisonment, he/she accordingly finds this article inconsistent with the principle of equality before the law provided under article 15 of the Constitution. He elucidates that regarding criminal cases, it should be clear that what must be considered, is that even if the accused admitted charges before lower courts, this act should not deprive him/her of the right to lodge an appeal to the Court of Appeal as long as he deems the sentence pronounced against him unfair. He concludes by submitting that the existence of extraordinary remedies including case review due to injustice does not solve the problem because in the event the losing party exercises such remedy, he/she seizes the same court that rejected his/her appeal, which does not guarantee him/her fair trial. The State Attorney

states that paragraph 3 of article 52 and paragraph 2 of article 46 of the Law no 30/2018 determining jurisdiction of courts are not inconsistent with article 29 of the Constitution since even though the second appeal is not admitted on ground that the appellant pleaded guilty before previous courts, the Law provides for another remedy in case he faces injustice. Held: 1. For the purpose of dispensation of fair justice, the legislator provided that for the second appeal to be admitted, the appellant should not have lost the case for same reasons, and this does not deprive him/her of the right to due process of law, given that the right to first appeal, which is an inaliable right, is granted to him/her, even though some limitations may be set for legitimate reasons.

2. The inadmissibility of the appeal on ground that the appellant lost the case for same reasons does not imply the occurrence of injustice since the legislator determined the remedy of case review due to injustice, therefore paragraph 2 of article 46 and paragraph 3 of article 52 of the Law no 30/2018 of 02/06/2018 Re. ASIIMWE

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determining jurisdiction of courts are not inconsistent with article 29 of the Constitution. Nonetheless, the formulation of article 52 of the said law would be rectified whereby paragraph 3 should be dissociated from subparagraphs of paragraph 2 of the same article, with the exception of subpagraph 8 and 9. In addition, paragraph 2 of article 46 should be linked to subpagraph 6 of paragraph 1 of the same article.

3. The fact that the party pleading not guilty may be allowed a second appeal depending on the sentence imposed while the accused who pleaded guilty is barred from lodging a second appeal despite that he/she facilitated the administration of justice, amounts to unequal treatment of accused persons, which is inconsistent with the principle of equality before the law provided under article 15 of the Constitution. Consequently, the parts of the text of paragraph 3 of article 52 and of paragraph 2 of article 46 of the Law no 30/2018 of 02/06/2018 determining jurisdiction of courts with respect to inadmissibility of the second appeal on ground that the appellant admitted charges brought against him/her, are inconsistent with articles 15 and 29 of the Constitution of the Republic of Rwanda. The petition to repeal articles that are inconsistent with the Constitution has merit in part; Paragraph 2 of Article 46 and Paragraph 3 of Article 52 of Law n˚30 / 2018 of 02/06/2018 determining the jurisdiction of Courts on matters relating to inadmissibility of second appeal “for parties having admitted charges brought against them” are inconsistent with Article 15 of the Constitution of the Republic of Rwanda. Statutes and statutory instruments referred to: Constitution of the Republic of Rwanda of 2003, revised in 2015, articles 15 and 29; International Covenant on Civil and Political Rights, article 14, paragraphs 1 and 5; Law no30/2018 determining the jurisdictions of courts, article 46, paragraph 2 and article 52, paragraph 3. Cases referred to: RS/INCONST/SPEC 00003/2019/SC, Kabasinga Florida rendered by the Supreme Court on 4/12/2019,

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RS/REV/INJUST/CIV 0023/16/CS, Rutabayiro n’abandi v Mukakabano rendered by the Supreme Court on 27/09/2019 Authors cited : Serge Guinchard, Droit processuel : Droit commun et droit compare du procès equitable, 4ème Ed. Dalloz 2007, Page 420 The Right to Appeal as a Fundamental Right under International Acts and Jurisprudence, with Special Emphasis on Criminal Procedure. Acta Universitatis Danubius. Juridica, Vol 13, No 1 (2017), http://journals.univ- danubius.ro/index.php/juridica/article/view/3868/4027 Nuala Mole et Catharina Harby, Le droit à un procès equitable, Un guide sur la mise en oeuvre de l’article 6 de la Convention européenne des Droits de l’Homme, Conseil de l’Europe 2007, p. 43 Tarun Jain, Limitations on Second Appeal: The Law Revisited, 18 November 2010, http://legalperspectives.blogspot.com/2010/11/limitations-on- second-appeal-law.html; Sabodt Asthana, Second Appeal under Civil Procedure Code: Nature, Scope, Forum and Procedure, 4 January 2020, https://blog.ipleaders.in/second-appeal Kotak Mahindra Bank Pvt. Limited Vs Ambuj A. Kasliwal & Ors, Supreme Court of India, Civil Appellate Jurisdiction, Civil Appeal No. 538 of 2021 Judgment I. BACKGROUND OF THE CASE

Asiimwe Frank petitioned the Supreme Court praying it to declare paragraph 3 of Article 52, and paragraph 2 of Article 46 of Law n°30/2018 of 02/06/2018 determining the jurisdiction of courts inconsistent with Article 29 of the Constitution of the Republic of Rwanda. His petition was given the docket N° RS/INCONST/SPEC 00004/2020/SC.

He argues that the fact that, in examining the admissibility of the second appeal, the Court considers only that the fact that a party lost his/her case in the two previous courts for the same reasons without examining the merit of reasons are legally valid, and this violates the right to fair justice. He Re. ASIIMWE

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also points out that the fact that a party who pleaded guilty in the previous courts does not have the right to a second appeal also violates the right to fair justice, whereby he explains that pleading guilty is different from acquiescing inthe decision of the Court.

The State Attorney states that Article 52, paragraph 3 and Article 46, paragraph 2 of Law n°30/2018 of 02/06/2018 determining the jurisdiction of the courts are not in contradiction with Article 29 of the Constitution of the Republic of Rwanda reading that: "Everyone has the right to due process of law", because, the law provides for other remedies that a party can exercise when he/she feels he/she aggrieved.

The hearing was scheduled on 11/01/2021, but was not held on this date and postponed to 04/03/2021. On this day, it was held in public whereby, all parties appeared, Asiimwe Frank being assisted by Counsel Rwigema Vincent, Counsel Kabasinga Florida, Counsel Gakunzi Musore Valéry and Counsel Munyentwali Charles, while the Government of Rwanda was represented by Counsel Gahongayire Myriam.

Based on the submissions of the petitioner and his legal counsel, the Court finds that the legal issues to be analyzed are as follows: Whether the inadmissibility of the second appeal due to the fact that the appellant lost his/her case in the previous courts for the same reasons violates the right to due process of law provided under article 29 of the Constitution ; Whether the inadmissibility of the second appeal for cases in which the parties have admitted the charges brought against them violates the principle of equality before the law provided under article 15 of the Constitution, as well as the right to due process of law provided under article 29 of the Constitution.

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II. LEGAL ISSUES AND THEIR ANALYSIS A. Whether the inadmissibility of the second appeal due to the fact that the appellant lost his/her case in the previous courts for the same reasons violates the right to due process of law provided under article 29 of the Constitution

In the submissions and pleadings that Asiimwe Frank and his counsels presented to the Court they argue that Article 52, paragraph 3 of the Law no 30/2018 creates a situation where, in the event the convict by the lower Courts resorts to the Court of Appeal for rectification of all irregularities by such courts, it declares itself incompetent on ground that he/she lost the case on same reasons, and refrains from hearing the merit of the case, which would have allowed to determine whether there has been violation of the law or disregard of evidence, and it contradicts the purpose of appeal remedy provided under Articles 150 and 157 of Law no. 22/2018 of 29/04/2018 relating to Civil, Commercial, Social and Administrative Procedure.

They support this argument by stating that the inadmissibility of the appeal on ground that a party lost the case on same grounds, deprives the appellant of the right to due process of law. They explain the principle of due process of law in two ways by referring to the judgment no RS/INCONST/SPEC00003/2019/SC rendered by the Supreme Court whereby the procedural due process of law, meaning a set of rights to be respected in the course of trial; and substantive due process of law. This situation prohibits the adoption of irrational laws and other measures that infringe upon the rights of the people.

To explain the principle of the right to fair justicel, they referred to the case of East African Law Society vs. Attorney General of the Republic of Burundi & The Secretary General of the East African Community,1 and argued that the Court relied on the fact that the plaintiff was deprived of his right to due process of law, which is therefore contrary to the principle of the rule of law provided for in Articles 6 (d) and 7 (2) of the Treaty Establishing the East African Community.

1 EACJ, Reference No. 1 of 2014, delivered on 15 May 2015. Re. ASIIMWE

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They also claim that such right is reiterated by Article 14 of the International Covenant on Civil and Political Rights, which provides for the principle of fair trial. They motivate that the provisions of Article 46, paragraph 2 and Article 52, paragraph 3 of the aforementioned Law no 30/2018 violate this principle, as they establish barriers for a party who was aggrieved by two courts from lodging an appeal to another court for redress.

They also motivate that the same reasons should not be confused with certain appropriate, well-founded and lawful grounds, which cannot be proved unless the Court examines the merits of the case, especially that in the lower courts the party is often not assisted, and it is clear that at the level of the Court of Appeal, he/she would have the opportunity to produce additional evidence. They argue that had the law provided that the Court of Appeal should reject the second appeal by the appellant who lost the case in the previous courts for same reasons after examining whether there has not been violation of law or disregard of evidence, the right of a party to due process of law would have been respected.

They point out that along as the Court of Appeal rejected the appeal on ground that the appellant lost the case for the same reasons, even if he/she were to apply for review of the case due to injustice before the Court of Appeal or the Supreme Court for judgments rendered by the High Court, he/she would not be successful because such courts, in examining whether there has been injustice, take into account only the judgment rendered at last instance by analyzing whether the previous courts based on the same reasons to reach the final decision as decided in the case RS/INJUST/RP 00002/2019/SC between the Prosecution and Habimana Innocent.

To conclude on this ground, they argue that the fact that there are judgments subject to review due injustice implies that the lower courts to the High Court and Court of Appeal can err in in adjudication. They explain that as long as this article 52, paragraph 3 of Law no 30/2018 mentioned above continues to be applied in the same manner as the Court of Appeal does, the party deprived of his/her rights to be heard in merit of the case while being aware of his/her injustice at first and second instances, he/she would consider such resort as condoning injustice and corruption in the judicial system.

Counsel Gahongayire Myriam, the State Attorney, specifies that the law in force in Rwanda recognizes the principle of a basic appeal, but the law

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provides for exceptions for some cases susceptible to second level of appeal (articles 46 and 52 of the Law n° 30/2018 of 02/06/2018 determining the jurisdiction of courts) after determination whether the two previous courts reached the same decision based on the same reasons, especially that courts are expected to dispense fair justice.

She also indicated that Article 55 of the aforementioned Law no 30/2018 provides the causes for lodging the appeal for review against a final judgment tainted with injustice, that the aggrieved party who is bared by Articles 46 and 52, can resort to this remedy. She added that, although it was found that among all judgments subjected to application for review, only 3% of them were vitiated by injustice. Accordingly, this article was laid down with the purpose to assist the citizen and protecting him from possible deprivation of his/her rights.

She further states that concerning the ground relating to due process of law, the legislator accorded equal rights to parties where on one hand the right to appeal for the loser and on the other the right to justice for the winner, which is consistent with the provisions of article 15 of the Constitution providing that all persons are equal before the law and entitled to equal protection of the law. She concludes by submitting that paragraph 2 of article 46 and paragraph 3 of article 52 of the Law no 30/2018 mentioned above are not inconsistent with article 29 of the Constitution.

DETERMINATION OF THE COURT

Before examining whether paragraph 2 of Article 46 and paragraph 3 of Article 52 of the aforementioned Law n˚ 30/2018 are contrary to Article 29 of the Constitution, the court finds it necessary to explain for the onset the principle of the right to due process of law and the right to appeal.

Article 29 of the Constitution provides that “Everyone has the right to due process of law”. This article lays down some of the components of the due process of law. In judgment n˚ RS/INCONST/SPEC 00003/2019/SC2, the

2 RS/INCONST/SPEC 00003/2019/SC about Kabasinga Florida rendered by the Supreme Court on 4/12/2019, page 4 and 5. Re. ASIIMWE

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Supreme Court gave two explanations of the due process of law, as mentioned in paragraph 7 of the instant judgment.

The Court notes that article 14, paragraphs 1 and 5, of the International Covenant on Civil and Political Rights provides for the right to a trial by a competent court and the right to appeal as part of the right to a due process of law. Legal scholars specify that the due process of law is a right to a remedy available to each party to the case who is not satisfied with the decision of the court. He/she also has the right to have the court's decision reviewed, annulled or reversed by a higher court, in accordance with the law.3

Another legal scholar, Vilard BYTYQI, explains that the notion of appeal refers to the right of the accused and the prosecutor (the prosecuting authority) to have the chance to appeal the judgement of the court of first instance, under the pretense of any eventual error undertaken by this level of trial. The right to submit the appeal guarantees the procedural parties that the principal of two instances will be respected..4

In addition, article 14, paragraph 5, of the International Covenant on Civil and Political Rights provides that everyone convicted of a crime shall have the right to have his conviction and sentence reviewed by a higher

3 Serge Guinchard, Droit processual: Droit commun et droit compare du procès equitable, 4ème Ed. Dalloz 2007, Page 420, Le droit d’accès à un tribunal est l’une des deux expressions du droit à un recours. Le droit au recours est le droit de toute personne de pouvoir contester une mesure prise à son encontre, devant une instance investie d’un pouvoir de réformation de cette mesure et/ ou de réparation de ses conséquences dommageables. 4 The Right to Appeal as a Fundamental Right under International Acts and Jurisprudence, with Special Emphasis on Criminal Procedure. Acta Universitatis Danubius. Juridica, Vol 13, No 1 (2017), http://journals.univ- danubius.ro/index.php/juridica/article/view/3868/4027 - The notion of appeal refers to the right of the accused and the prosecutor (the prosecuting authority) to have the chance to appeal the judgement of the court of first instance, under the pretense of any eventual error undertaken by this level of trial. Therefore, the appeal plays the role of the instrument that fixes the eventual errors, which could have been done by the court of first instance. The right to submit the appeal guarantees the procedural parties that the principal of two instances will be respected.

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tribunal according to law, that is, the manner in which the review by a higher tribunal is to be carried out, and the determination of the tribunal entrusted with the task of carrying out the review in accordance with the Covenant. Article 14(5) does not require member states to establish more than one appellate body. However, if domestic law provides for other instances of appeal, the sentenced person must be able to make effective use of all of them. 5

Legal scholars such as Nuala Mole and Catharina Harby argue that the right to appeal to a court or to be heard by a judge is not definitive. They pointed out that the European Union Court in Golder v. United Kingdom case, explains that the usual method applied, which is considered as a legitimate reduction of this right is to the effect that a given form of appeal is only allowed after examining the ground of its admissibility in accordance with in the laws established by the States.6

5 Le paragraphe 5 de l’article 14 dispose que toute personne déclarée coupable d’une infraction a le droit de faire examiner par une juridiction supérieure la déclaration de culpabilité et la condamnation conformément à la loi, c’est à dire les modalités selon lesquelles le réexamen par une juridiction supérieure doit être effectué, ainsi que la détermination de la juridiction chargée de procéder au réexamen conformément au Pacte. Le Paragraphe 5 de l’article 14 n’exige pas aux Etats parties qu’ils mettent en place plusieurs instances d’appel. Toutefois si le droit interne prévoit d’autres instances d’appel, le condamné doit pouvoir utiliser effectivement chacune d’entre elles. (Nations Unies, Pacte international relatif aux droits civils et politiques, Remarques générales No. 32, 23 aout 2007, http://hrlibrary.umn.edu/gencomm/french/f- gencom32.pdf ) 6Nuala Mole et Catharina Harby, Le droit à un procès equitable, Un guide sur la mise en oeuvre de l’article 6 de la Convention européenne des Droits de l’Homme, Conseil de l’Europe 2007, p.

43. Toutefois, le droit d’accès à un tribunal n’est pas absolu. La Cour a ajouté dans l’arrêt Golder c. Royaume-Uni que ce droit appelle, de par sa nature même, une réglementation émanant de l’Etat (qui peut varier dans le temps et dans l’espace en fonction des besoins et des ressources de la collectivité et des particuliers), laquelle ne doit en aucun cas porter atteinte à la substance dudit droit ni se heurter à d’autres droits consacrés par la Convention. Les juges de Strasbourg ont en outre précisé dans leur jurisprudence qu’une limitation du droit d’accès ne serait compatible avec l’article 6 qu’à la double condition de : a. poursuivre un but légitime ; b. présenter un rapport raisonnable de proportionnalité entre les moyens employés et le but visé. Re. ASIIMWE

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The same Court further upheld that such right can be limited in accordance with article 6 of the European Convention on Human Rights on the following two conditions: a. Pursue a legitimate purpose ; b. a reasonable relationship of proportionality between the means employed and the end sought.7

Other legal scholars added that the right to a first-level appeal is treated as a fundamental right, the law established by the states determines how it is exercised. The second appeal and other appeal remedies provided under national law are exercised in accordance with the needs of the community, and the legislator may also determine the requirements for the admissibility of the appeal.8

The provision of the requirements for the admissibility of the appeal is also evident in the judgment of the Supreme Court of India between Kotak A. Mahindra Bank Pvt. Limited and Ambuj A. Kasliwal & Ors9, where the Court held that it is trite law that in the event where the right of appeal is provided under the law, and while granting such right, the legislature may lay down the conditions for the exercise of such right thereof, and such exercise must be done without obstructing the rights of the beneficiary.

The Court notes that the Rwandan Legislator, as it is in other countries, provided for the possibility for a party to the case to appeal to a higher court than the trial court, in articles 46 and 52 of the aforementioned

7 Ibidem. 8 Tarun Jain, Limitations on Second Appeal: The Law Revisited, 18 November 2010, http://legalperspectives.blogspot.com/2010/11/limitations-on-second-appeal-law.html ; Sabodt Asthana, Second Appeal under Civil Procedure Code: Nature, Scope, Forum and Procedure, 4 January 2020, https://blog.ipleaders.in/second-appeal / 9 Kotak Mahindra Bank Pvt. Limited Vs Ambuj A. Kasliwal & Ors, Supreme Court of India, Civil Appellate Jurisdiction, Civil Appeal No. 538 of 2021, https://indiankanoon.org/doc/56200562 /: “It is well settled that when a Statute confers a right of appeal, while granting the right, the Legislature can impose conditions for the exercise of such right, so long as the conditions are not so onerous as to amount to unreasonable restrictions, rendering the right almost illusory.”

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law n˚ 30/2018, he/she has also provided for the modalities of lodging a second appeal. He/she has provided in paragraph 2 of Article 46, and paragraph 3 of Article 52 of the aforementioned law, that the second appeal is not admissible for a losing party for the same reasons.

For a fair administration of justice, it is in the finding of the Court that the fact that the legislator provided that in order for the second appeal to be admissible, the appellant must not have lost for the same reasons, does not deprive him/her of the right to the due process of law since he/she is guaranteed the possibility of appealing for the first instance, and this is an inalienable right that he/she cannot be deprived of, although there may be certain limitations for legitimate reasons.

With regard to the issue of whether there is no other remedy for the party to obtain justice in case he/she lost the case for the same reasons and both courts prejudiced him/her, the Court notes that the fact that the Court of Appeal rejects his appeal does not prevent him/her from applying for a review of the judgment against him/her on grounds of injustice, provided that he/she does not exceed a period of thirty days effective from the date he/she was notified of the decision of the Court of Appeal in accordance with the legal position set by such Court in various cases.10

Based on motivations provided, the Court finds that paragraph 2 of Article 46, and paragraph 3 of Article 52, of Law n˚ 30/2018 of 02/06/2018 determining the jurisdiction of courts are not contrary to Article 29 of the Constitution.

Nonetheless, the Court notes the formulation of article 52 of the said law would be rectified whereby paragraph 3 should be dissociated from subparagraphs of paragraph 2 of the same article, with the exception of subpagraphs 8 and 9. In addition, paragraph 2 of article 46 should be linked to subpagraph 6 of paragraph 1 of the same article. Indeed, the judge should not ignore the defects referred to in subparagraphs 2 to 7 of article 52, and subparagraphs 1 to 5 of article 46, even if the party has lost in both courts for the same reasons.

10 Example of Case No. RS/REV/INJUST/CIV 0023/16/CS, rendered on 27/09/2019, paragraph 28. Re. ASIIMWE

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B. Whether the inadmissibility of the second appeal for cases in which the parties have admitted the charges against them violates the principle of equality before the law provided under article 15 of the Constitution, thus violating the right to due process of law provided under article 29 of the Constitution

As for criminal cases, Asiimwe Frank and his counsels argue that the right to appeal for a convicted person is reiterated by article 14 of the International Covenant on Civil and Political Rights ratified by Rwanda. They motivate that normally pleading guilty is beneficial to the defendant in different ways, such as minimizing impact of an offence on the victim, reducing the time and money spent on investigative activities and prosecution, especially for the offender, resulting in a reduction of the sentence in his/her favor as decided by the Supreme Court in judgment RPAA 0014/10 / CS rendered on October 25, 2013, involving the Public Prosecutor's Office vs. Dusabeyezu Damascene. They further argue that regarding criminal cases, it should be clear that what must be considered, is that even if the accused admitted charges before lower courts, this act should not deprive him/her of the right to lodge an appeal to the Court of Appeal as long as he/she deems the sentence pronounced against him/her unfair. Nevertheless, the provisions of paragraph 2 of Article 46 and paragraph 3 of Article 52 of the aforementioned Law n˚30 / 2018 prevent the appellant who pleaded guilty before previous courts whereas the appeal of the party who pleaded innocent is admitted based only on the fact that he/she was sentenced to a penalty of fifteen (15) years of imprisonment, he/she accordingly finds this article inconsistent with the principle of equality before the law provided under article 15 of the Constitution.

They go on to explain that law scholars stress that the primary purpose of appeals in criminal cases is to secure justice. Evidently, any obstacle that deprives the aggrieved party of the right to appeal is contrary to the principles of administration of justice.

They refer to judgments rendered by the Court of Appeal in which it dismissed the appeal on ground the appellant pleaded guilty at all previous instances. They inter alia include case n˚ RPAA 00147/2018/CA, the Prosecution v. Munyurangabo Jean Paul who pleaded guilty to defilement at all instances and the Court sentenced him to life imprisonment. He appealed

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to the High Court which decided that his appeal was without merit. He appealed to the Court of Appeal, which ruled that the appeal was not within its jurisdiction on ground that he had lost the case at two previous instances for the same reasons. They also cite the authority no. RPAA 00166/2018/CA against Habimana Cedrick, authority no. RPAA 00168/2018/CA against Bizumuremyi Thadée, authority no. RPAA 00069/2018/CA against Ngezahoguhora Olivier and authority no. RPAA 00167/2018/CA the Public Prosecutor's Office against Museruka Fabrice.

They motivate that Article 107, paragraph 1 of Law n˚ 027/2019 on Criminal Procedure states that the burden of proof of an offence lies with the prosecution and the civil party. They point out that relying solely on the defendant's admission of charges for the Court to declare his/her appeal inadmissible violates the principle of not self-incrimination.

They conclude by by submitting that the existence of extraordinary remedies including case review due to injustice does not solve the problem because in the event the losing party exercises such remedy, he/she seizes the same court that rejected his/her appeal, which does not guarantee him/her fair trial. They also point out that the purpose of the legislator in enacting paragraph 3 of Article 52, and paragraph 2 of 46, of Law n˚ 30/2018 was to determine jurisdiction on the basis of the value of the subject matter or the sentence imposed, and such should be maintained.

State Attorney Gahongayire Myriam argues that Article 52, paragraph 3 and Article 46, paragraph 2 of Law no. 30/2018 determining the jurisdiction of the courts are not contrary to the provisions of Article 29 of the Constitution, because although the second appeal is not admissible on ground the appellant pleaded guilty in the previous courts, the law nevertheless provides for other avenues of redress if he/she considers him/herself wronged.

DETERMINATION OF THE COURT

Article 52, paragraph 3 of the aforementioned law provides that "the appeal at second instance cannot be admissible for cases in which parties have admitted charges brought against them […]", the same is true for paragraph 2 of article 46, of the aforementioned law concerning the admissibility of the appeal at the level of the High Court. Re. ASIIMWE

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With regard to the right of appeal in criminal matters, the Court considers that, as stated above, the inalienable right of appeal consists of the first level of appeal, although it may also be subject to limitations for a legitimate purpose. This right may be limited for the second level of appeal, but for a legitimate purpose and in a reasonable relationship of proportionality between the means employed and the aim pursued, as decided by the judges of the Court of Justice of the European Union.11

It is in the finding of the Court that in criminal matters, Article 52, paragraph 2, subparagraph 9 of the aforementioned Law n˚30 / 2018 allows the person sentenced by the High Court or the High Military Court to at least 15 years of imprisonment to appeal to the Court of Appeal.

The Court notes, however, that paragraph 3 of Article 52 of the aforementioned Law n˚30/201812 provides that the second level of appeal by parties who pleaded guilty is inadmissible, which means that persons convicted of the same offense and sentence have the right to appeal to the Court of Appeal, such a person who has pleaded not guilty has the right to appeal based only on the sentence imposed on him or her, for such a person who has pleaded guilty, the appeal is inadmissible even though he or she has facilitated the court in the administration of justice. This amounts to inequality of the parties and their unequal protection, which is contrary to the principle of equality before the law provided under Article 15 of the Constitution.

Based on the foregoing, the Court finds that paragraph 3 of article 52 and part of paragraph 2 of article 46 of Law n˚30 / 2018 determining the jurisdiction of courts regarding the inadmissibility of the second level of appeal on ground that the appellant has admitted the charges against him/her are contrary to article 15 of the Constitution of the Republic of Rwanda and thus contrary to article 29 of the Constitution.

11 Cfr paragraph 21 and 22 of the present case 12 This also concerns paragraph2 of article 46 of the aforementioned Law about the second appeal in the High Court.

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III. DECISION OF THE COURT

Holds that the petition initiated by Asiimwe Frank is partially founded;

Holds that part of paragraph 2 of Article 46 and part of paragraph 3 of Article 52 of Law n˚30/2018 of 02/06/2018 determining the jurisdiction of the courts regarding the admissibility of the appeal in second instance for " a party who has lost his/her case in both courts for the same reasons", are not contrary to Article 29 of the Constitution of the Republic of Rwanda; the Court recommends, however, that article 52 of this Law be reformulated so that the provisions of paragraph 3 apply only to subparagraphs 8 and 9 of paragraph 2, and that paragraph 2 of article 46 applies only to subparagraph 6 of paragraph 1 of this article;

Holds that part of paragraph 2 of Article 46 and part of paragraph 3 of Article of Law n˚30/2018 of 02/06/2018 determining the competence of the courts regarding the admissibility of the appeal to the second degree for "the appeal at second instance cannot be admissible for cases in which parties have admitted charges brought against them" are contrary to the provisions of Article 15 of the Constitution of the Republic of Rwanda, and thus devoid of effect in accordance with the provisions of Article 3 of the Constitution;

Orders that this judgment be published in the Official Gazette of the Republic of Rwanda.

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PETITION RELATING TO GENERAL PUBLIC

INTEREST

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ASSOCIATION DES ASSUREURS DU RWANDA (ASSAR) v. GOVERNMENT OF RWANDA (MIFOTRA) [Rwanda SUPREME COURT – RS/PIL/SPEC 00001/2019/SC –Vol [2021] 4 RLR (Ntezilyayo, P.J., Nyirinkwaya, Cyanzayire, Hitiyaremye and Rukundakuvuga., J.) June 19, 2020] Procedure for special claims – Petition relating to the general interest – The role of the Government in the petitions of general interest – A general interest litigation must be aimed at respecting the rights of others rather than that of the petitioner even if the latter also has interest in the subject matter. He/she should commonly share such interest with other people – In such petitions of general interest, the Government is summoned to present an opinion but not as a party that may claim or be charged costs. Procedure for special claims – Petition relating to general interest – Justification for general interest – The general interest arises when an action or omission infringes on the rights of many persons or adversely affects them, which is remedied by petitioning a competent court. Facts: The Association des Assureurs du Rwanda (in this case to be referred to as ASSAR) filed a claim against the Government of Rwanda (MIFOTRA) to the Supreme Court claiming that it should be compelled to eliminate all barriers which hinder the putting in place of the Minimum Wage (SMIG) in Rwanda on the basis of article 68 of the Law n° 66/2018 of

30/08/2018 regulating labour in Rwanda providing that the Minimum Wage (SMIG ) is established by a Ministerial order having labour in his/her attribution, which has not been done without explanation of the reasons of failure to establish it. It explains that the inexistence of a Minimum Wage is detrimental to the general interest of Rwandans and is contrary to articles 49 and 121 of the Constitution of the Republic of Rwanda of 04/06/2003 revised in 2015. The Court first examined the issue relating to the fact that ASSAR sued the government of Rwanda, and accordingly, ASSAR argues that the Government should be a party to this case because the gist of the action is of general interest and it is the one responsible for the wellbeing of Rwandans. 355

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The State Attorney argues that normally in such cases, the Government does not intervene as a party, rather, it intervenes to give an opinion, and that in the event the Court finds that the government is not a party, it could consider the opinion of the government. The amicus curiae also argue that general interest litigation consists of exparte application and therefore, the government should be treated as an opinion giver to the court. Following the court determination of the government status in the instant case, the hearing focused solely on the issue of admissibility of the petition in accordance with the provisions of the law. ASSAR argues that currently there is no Minimum Wage in Rwanda, which prejudices the general interest of Rwandans in general and in particular the category of Rwandans in insurance business and that due to the lack of employment, employees are not a good position to negotiate with the employers about the wage, which has a negative impact on them as they may be paid a little salary, which is another indication that this issue is detrimental to the general interest. The State Attorney argues that the fact that the Ministerial Order instituting the Minimum Wage (SMIG) has not yet been established does not prejudice the general interest because currently there is no legal vacuum since there is a case law of the Supreme Court in which it determined the

Minimum Wage and in doing so, the Supreme Court based on its competence to act as a Legislator in the absence of a law. The State Attorney further added that the compensation is awarded in accordance with the Presidential Order nº 31/01 of 25/08/2003 on compensation for personal injury due to accidents caused by a motor vehicle while the minimum pension and occupational hazards benefits are granted in accordance with the Presidential Order n° 069/01 of 13/04/2018 increasing pension and occupational hazards benefits granted by Rwanda Social Security Board. The Amicus Curiae argues that the argument that there is no Minimum Wage in Rwanda is misleading because since 2012, the Supreme Court through its judgment fixed the Minimum Wage and in the year 2016 it was revised based on market prices. Concerning the study annexed on the petition, the petitioner argues that it is an indication that there is no Minimum Wage because that study was conducted by MIFOTRA in a bid to resolve the issue of Minimum Wage and

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that before petitioning the Court, ASSAR had tried to find a way the issue of determining the Minimum Wage would be resolved but failed. The State Attorney argues that the petitioner did not demonstrate the study conducted by the experts to indicate the gravity of the problem because the study he annexed was not conducted with the purpose of demonstrating the consequences of not having a Minimum Wage in the country. For the Amicus Curiae, the study relied on by the petitioner was conducted by the Ministry in charge of labor and it does not indicate the consequences of inexistence of a Minimum Wage. Held: 1. Regarding petitions of general interest, the Government is summoned as an opinion giver and not a party that may claim or be charged costs.

2. A general interest litigation must be aimed at respecting the rights of others rather than that of the petitioner even if the latter also has interest in the subject matter, such must be shared by other people.

3. The general interest arises when an action or omission infringes on the rights of many persons or adversely affects them, which is remedied by petitioning a competent court.

4. The objectives of the study set out in the annex to the petition are not intended to demonstrate the consequences of inexistence of a Minimum Wage, but to consider the basis for determining the minimum salary in various categories of work. Therefore, since that study does not indicate all that, means that it does not meet the requirements provided by the Law. The petition dismissed. Statute and statutory instruments referred to: Constitution of the Republic of Rwanda of 4 June 2003 as amended in 2015, article 49 and 121. Law n° 66/2018 of 30/08/2018 regulating labour in Rwanda (abrogated), articles 2 and 3. Law n° 30/2018 of 02/06/2018 determining the jurisdiction of courts, article 68 and 80. Law no 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure, article12. ASSOCIATION DES ASSUREURS DU RWANDA (ASSAR) v. GOVERNMENT OF RWANDA (MIFOTRA)

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Law nº 005/2015 of 30/03/2015 governing the organization of pension schemes, article 27. Minimum wage-fixing machinery convention, 1928 n° 26” ratified on 1976. Presidential Order nº069/01 of 13/04/2018 increasing pension and occupational hazards benefits granted by Rwanda Social Security Board, article 2. Presidential Order nº 31/01 of 25/08/2003 on compensation for personal injury due to accidents caused by motor vehicle. Cases referred to: Nyetera Jean Baptiste v. CORAR, RCAA 0202/07/CS rendered by Supreme Court on 09/04/2009; SORAS AG Ltd v. Umuhoza Pacifique et al. RCAA 0049/14/CS rendered by Supreme Court on 25/11/2016; Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R.

236. Authors cited: Albert Ruturi & Another v. Minister for finance and others, (2002) IK.LR 61 (Kenya) and Downtown Eastside Sex Workers United Against Violence Society v. Canada (Attorney General) 2012 SCC 45 (2012) 2 S.C.R 524; Something in which the public as a whole has a stake (…), Black’s Law Dictionary, Ninth Edition, p. 1350; Wadehra, Basant Lal. Public Interest Litigation: A Handbook, with Model PIL Formats. Universal Law Publishing, 2009, p. 46; A Study on the Establishment and the Determination of the Minimum Guarantee Wage (MGW/SMIG) per Occupational Categories, Last Version, July 2018. Judgment I.

BACKGROUND OF THE CASE

Association des Assureurs du Rwanda (ASSAR) lodged a lawsuit before the Supreme court against the Government of Rwanda (MIFOTRA)

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seeking to eliminate all obstructions to the establishment of a minimum wage (SMIG)1 in Rwanda since its inexistence constitute a threat to general interests.

ASSAR avers that subparagraph 272 of article 2 of the Law n° 66/2018 of 30/08/2018 regulating labour in Rwanda expounds what is meant by a minimum wage where it states that it is the minimum salary recognized by Law based on each category of occupation, and such definition is somehow similar to that of the International Labor Organization where it defined the minimum wage as the minimum amount of remuneration an employer is required to pay an employee for the work performed during a given period which cannot be reduced by collective agreement or an individual contract.

ASSAR submits that article 68 of the law n° 66/2018 of 30/08/2018 regulating labour in Rwanda provides that the minimum wage is established by an Order of the Minister in charge of labour and that even repealed labour laws especially article 76 of the Law n° 13/2009 of 27/05/2009 and article 83 of the Law n° 51/2001 of 30/12/2001 similarly provided that the ministry in charge of labour has the duty to determine the minimum wage, however, this was not implemented, and no reasonable ground to that effect was given.

ASSAR maintains that aside from the domestic law that governs labour which mandates the Ministry having labour in its attributions to determine the minimum wage, there is also the “Minimum wage-fixing machinery convention, 1928 n° 26" ratified by Rwanda in 1976 which also provided under article one that each member that ratifies this Convention undertakes to create or maintain machinery whereby minimum rates of wages can be fixed for workers employed in certain of trades or parts of trades existing in member states.

ASSAR goes on to elucidate that the inexistence of minimum wage in Rwanda yet the same is provided under the law constitutes an issue of general interest and it is inconsistent with articles 49 and 121 of the Constitution of Rwanda of 04/06/2003 revised in 2015 which provides that every Rwandan has the duty to respect the Constitution and all leaders implement laws through Orders and accordingly, they decided to lodge a

1 Salaire Minimum Interprofessionnel Guaranti 2 It is article 3 of the law N° 66/2018 of 30/08/2018 regulating labour in Rwanda ASSOCIATION DES ASSUREURS DU RWANDA (ASSAR) v. GOVERNMENT OF RWANDA (MIFOTRA)

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lawsuit before the Supreme Court seeking to eliminate all existing impediments to the determination of the minimum wage.

The instant case was heard in public on 19/052020, where ASSAR was represented by learned Counsel Butare Emmanuel and Umugwaneza Claudine whereas the Government of Rwanda was represented by learned counsel Kabibi Specioza.

Following the examination of the University of Rwanda School of Law’s application to appear as Amicus Curiae in the instant case as an opinion giver, and the opinion of both the representatives of ASSAR and the Government of Rwanda to that effect given that it is legally eligible to do so, the court accordingly confirmed the application of the school of Law.

The Court also examined the issue related to the lodged a case against the Government of Rwanda yet according to paragraph 4, article 80 of Law no30/2018 of 02/06/2018 governing the competence of courts states that in such cases, the hearing is conducted in public and in the presence of a government representative. On this matter learned counsel Kabibi Specioza avers that as a rule, in such claims, the Government does not appear as a party to the case, but as an opinion giver. However, based on ASSAR’s averments, it is as if they lodged the claim against the Government and accordingly, she prays the court to disallow ASSAR’s plaint, should the court find that the Government is not a party to the instant case, it may as well consider its opinion on the matter.

Learned Counsel Butare Emmanuel maintains that the reason as to why the Government was summoned to the instant case is because the subject matter thereof is a general interest matter, and it is the government that is responsible for the wellbeing of the people the reason why the legislator provided that in such cases, the Government should be represented. On the other hand, learned counsel Umugwaneza Claudine expounds that the fact that the determination of a minimum wage is a MIFOTRA's responsibility, the Government could not appear in the case as an opinion giver because it would violate article 13 of the Law no 22/2018 of 29/04/2019 relating to the civil, commercial, labour and administrative procedure.

Learned Counsel Sebucensha Leonard, representing the School of law maintains that petitions in connection with the rights relating to the general

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interest should not be brought against any defendant otherwise, it would appear as demonstrating that there should be someone to be held responsible for the rights of the petitioner, rather, the Government should appear as an opinion giver.

After hearing the parties’ arguments, the court withdrew to deliberated that the Government shall appear in the instant case as an opinion giver and not a party to the case who might be held liable or claim damages against the opponent.

Following the deliberation on this matter of allowing the school of law to appear as Amicus curiae and the matter relating to the status of the government in the instant case, the court held that the hearing shall focus on admissibility of ASSAR’s petition in light of the provisions of article 80 of the aforementioned Law no 30/2018. II. ANALYSIS OF LEGAL ISSUES

Based on the provisions of article 80 of Law no 30/2018 mentioned hereinabove, and after considering ASSAR’s submissions and the School of law’s representative opinion on the same, the court finds that the following are the legal issues to be examined: a. Whether ASSAR’s petition demonstrates a public legitimate interest pursued, and the legal basis for its action. b. Whether ASSAR's study report attached to its petition complies with the provisions of paragraph 2 of article 80 of the Law no 30/2018 of 02/06/2018 determining the jurisdiction of courts. The court shall therefore examine the legal issues one by one. a. Whether ASSAR’s petition demonstrates a public legitimate interest pursued, and the legal basis for the rights pursued/ the legal basis for its action.

Learned counsel KABIBI Specioza, the State Attorney submits that much as it is reasonable that the Order determining the Minimum wage be ASSOCIATION DES ASSUREURS DU RWANDA (ASSAR) v. GOVERNMENT OF RWANDA (MIFOTRA)

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established because it is provided under the law, the fact that it is not yet in place does not violate the general interest of Rwandans as purported by ASSAR for the following reasons: - There is no legal vacuum occasioned by the inexistence of minimum wage given that in the case n° RCAA0049/14/CS that was decided on 25/11/2016, the Supreme Court held that the minimum wage is three thousand Rwandan Franc (3,000Frw) per day. The court based its ruling on the fact that it has jurisdiction to act as a legislator in the event of the legal vacuum. - She cites an example relating to the determination of compensation for injuries due to accidents caused by motor vehicles among others where the amount of 3,000Frw determined by the Supreme Court is the basis upon which Insurance institutions base themselves in determining damages. - Regarding pension, she explains that in the event where a person earns below 13,000Frw, the amount is raised to 13,000Frw to avoid that the pensioner falls below the poverty line, and in advancing this she relied on the Presidential Order nº 31/01 of 25/08/2003 on compensation for personal injuries due to accidents caused by motor vehicles which state that: Pension and occupational hazard benefits granted to the insured person cannot go below thirteen thousand Rwandan francs (13,000) per month.

The State Attorney Kabibi Speciose goes on to submit that based on the foregoing elucidations, she is convinced that there is no general interest that is violated by the absence of the Order determining the minimum wage given that the basis for its determination n is available. She expounds that normally; the minimum wage is determined for salaried workers to prevent them from falling below the poverty line.

She demonstrates that a Labor force survey conducted in 2018, showed that the average monthly salary for paid employment is 56,982Frw, whereas “the Fifth Integrated Household Living Conditions Survey” (EICV5) on the wellbeing of the households shows that at least 159,375Frw is needed

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in the year for a person who earns such amount to not fall below the poverty line. This survey demonstrates that the salary earners in Rwanda are paid an amount that prevent them from falling below the poverty line.

She rests her case by submitting that given all the foregoing elucidations, she is of the stance that there is no serious issue with adverse effects to people in general that is occasioned by the fact that the Order determining the minimum wage is not yet established, on the contrary, it demonstrates that the forces of demand and supply establish a minimum wage that is market related and proportional to the work performed. Accordingly, she advances that the fact that the Order is not yet established does not by itself constitute an impediment to general interests.

Counsel Umugwaneza Claudine submits that the inexistence of minimum wage prejudices the general interest of Rwandans particularly the category of insurance companies. She goes on to motivate that the impediment of general interests is manifested in the fact that article 68 of the Law no 66/2018 of 30/08/2018 regulating labour in Rwanda provides that a minimum wage is determined by an Order of the Minister in charge of labour and the labour law has been amended three times, but still, the minimum wage is not yet determined.

On matters related to the effects resulting from the inexistence of minimum wage in Rwanda, Counsel Umugwaneza Claudine submits that it grossly undermines general interests of the Insurance companies, because the inexistence of such wage so far resulted in the situation where different courts including the Supreme Court undertook to set an amount as a threshold in determining compensation benefits for the victims of accidents.

She cites case No RCAA0202/07/SC that was diced by the Supreme Court on 09/04/2009 between Nyetera Jean Baptiste and CORAR as an example where in paragraph 78 of that case, the Supreme Court held that the minimum wage can be determined on 2,500Frw per day. In another case N° RCAA0049/14/CS between SORAS AG Ltd and UMUHOZA Pacifique, IZABAYO Sylvie, NIYOYITA Jacques which was adjudicated by the Supreme Court on 25/11/2016 it held in paragraphs 27 and 28 that hitherto, there is no law determining the minimum wage, much as there are decided cases wherein an amount of money was set to be construed as the minimum wage, and in this very case, the court set 3,000Frw as the minimum wage. ASSOCIATION DES ASSUREURS DU RWANDA (ASSAR) v. GOVERNMENT OF RWANDA (MIFOTRA)

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She expounds that in insurance Companies, the premiums are the basis of compensations for victims of motor vehicle accidents. The calculation of such compensation based on the amount set by the Supreme Court is prejudicial on grounds that it is merely based on the discretion of the court.

She goes on to argue that even the Law n° 05/2015 of 30/03/2015 governing the organization of pension schemes, article 27 provides that the old-age pension, disability, or early retirement benefits shall in no way be less than fifty percent (50%) of the minimum wage determined by an Order of the Minister in charge of labour. Accordingly, this elucidates that as long as such minimum wage is not yet determined, it shall adversely affect the pension funds, or the pension beneficiary given that it is hard to determine the value of such an amount.

Counsel Butare Emmanuel added that the 2018 Labour force survey on which the State attorney relied her arguments demonstrates that the unemployed people are 15.2%. It also shows the number of unemployed graduates implying that because of unemployment, a job seeker has no salary bargain power, which is consequently prejudicial to him/her as he/she might be subjected to a meagre salary as a result of inexistence of minimum wage hence another proof that this matter is a threat to the general interest.

, Counsel Sebucensha Leonard, amicus curiae contend that companies as well as other organisations pursue their interests and those of their members, and accordingly he finds ASSAR's petition not be pursuing general interests because all Rwandans have no interest in Insurance Companies. He stressed that a general interest petition is one that is lodged before a competent court with the purpose of defending people's interests in general and he gives examples of how different jurisdictions resolved the matter of the eligible party to lodge general interests petition.3

Counsel Sebucensha Leonard submits that much as the Minister in charge of labour was mandated to determine the minimum wage, the fact that such Order is not yet determined does not amount to a violation of laws, including Constitutional provisions cited by ASSAR or International

3 Albert Ruturi & Another v. Minister for finance and others, (2002) IK.L.R 61 (Kenya) and Downtown Eastside Sex Workers United Against Violence Society v. Canada (Attorney General) 2012 SCC 45,(2012) 2 S.C.R 524

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conventions ratified by Rwanda given that the law did not determine the deadline for establishing such Ministerial Order, and the Government should in no way be pressured to do so since it takes many other factors that need to be carefully considered.

Counsel Sebucensha Leonard submits that ASSAR's allegation to the effect that there is no minimum wage in Rwanda is misleading on grounds that from 2012, the Supreme Court determined the minimum wage, which it amended in 2016, based on the market price as evidenced in Cases No RCAA 0202/07/CS, RCAA 0003/11/CS, RSOCAA 0112/10/CS and RCAA 0049/14/CS.

DETERMINATION OF THE COURT

Article 80 of law no 30/2018 of 02/06/2018 determining the jurisdiction of courts provides that "a natural person or a government institution, a political organization, a company, a non-governmental organization or association with legal personality may bring an action for preservation or deprivation of rights relating to the general interest of the country, its natural resources, it's entire or part of the population. The applicant must demonstrate in his/her submission the public legitimate interest pursued (…)”

Following the analysis of the contents of article 80 mentioned hereinabove, the court finds it necessary to firstly understand the meaning of public legitimate interest pursued because such meaning was not provided by the legislator. Legal scholars and courts who analyzed such issue demonstrated requirements necessary for the admissibility of the action for preservation or deprivation of rights relating to the general interest, and such must be the basis in examining whether ASSAR is defending a public legitimate interest in the instant case.

General interest is perceived as something in which the public as a whole has a stake.4 It is in the light of the foregoing that a legal scholar a one Wadehra, Basant Lal. expounds that “Public interest litigation means litigation

4 Something in which the public as a whole has a stake (…), Black’s Law Dictionary, Ninth Edition, p. 1350 ASSOCIATION DES ASSUREURS DU RWANDA (ASSAR) v. GOVERNMENT OF RWANDA (MIFOTRA)

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which serves the general interest. It is a litigation that vindicates a right of a large number of people, perhaps millions, or redresses a wrong done to them. He furthermore stresses that for the existence of general interest litigation, four conditions are necessary: a. Some action, inaction, or state of affairs; b. Such action causes the deprivation of a right of a large number of people, or causes a large number of people to suffer a similar wrong; c. The right is sought to be enforced or the wrong redressed, through a petition to the appropriate courts; d. By a public-oriented person or an association acting on behalf of those injured.

He goes on to submit that in general interest litigation, the sine qua non condition is that it must intend to enforce the rights of others and not the individual grievances of the petitioner. Even if the petitioner is interested in the matter, it must be an interest that he/she shares with other members of the public. The relief, if granted must benefit a large part of society not a handful of individuals. 5

It is also in the finding of the court that the arguments of the legal scholar Wadehra, Basant Lal in respect with the conditions necessary for the existence of general interest litigation, were also held by the Canadian Supreme Court in case Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236, wherein the court upheld that the recognition of the need to grant public interest standing whether occasioned by either the gravity of the public rights or the desire to comply with the principles enshrined in the Constitution Act, 19826, in some circumstances does not amount to a blanket approval to grant standing to all who wish to litigate an issue. A balance must be struck between ensuring access to the courts and preserving judicial resources. It would be disastrous if the courts were allowed to become hopelessly overburdened as a result of

5 Wadehra, Basant Lal. Public Interest Litigation: A Handbook, with Model PIL Formats. Universal Law 6 Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236 (https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/835/index.do)

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the unnecessary proliferation of marginal or redundant suits brought by well- meaning organizations, pursuing their particular cases.7

Concerning SSAR's petition/action as evidenced in its submission and other documents in their file, ASSAR is associated with legal personality and as provided under 4 article 4, subparagraphs 1, 2 and 4 of its articles of Association, ASSAR's objective is to promote insurance business, defend the interests of its members related to their business and to represent its members before Government organs as well as other institutions wherein general interest can be protected.

The court finds that what to be construed in Article 4 mentioned in the preceding paragraph is that ASSAR is an association that pursues the interests of its members rather than the interests of Rwandans in general and the foregoing is stressed by learned counsel Umugwaneza Claudine who represents it by elucidating that the inexistence of a minimum wage greatly affects companies that offer insurance services and as a result, courts were prompted to determine the same based on their sole discretion, without basing on well-established rates and gave examples of Supreme Court decided cases to wit case N° RCAA0202/07/CS that was adjudicated by the Supreme Court on 09/04/2009 which set 2,500Frw as the minimum wage, and case N° RCAA 0049/14/CS decided by the Supreme Court on 25/11/2016 which increased it to 3,000Frw.

It is also in the finding of the court that in its letter dated 14/11/2016 to MIFOTRA, the National Bank of Rwanda stressed that the lack of minimum wage is prejudicial to Insurance companies where it demonstrated that the Minister in charge of labour has not yet determined the minimum wage in Rwanda is injurious to Insurance Companies especially on matters regarding compensation for injuries due to accidents caused by motor vehicles that are awarded based on the amount set by the Supreme Court in case NoRCAA0202/07/CS of 09/04/2009 that determined 2,500Frw per day and moreover, other courts undertook to determine a higher amount.

In respect to learned counsel Umugwaneza Claudine’s argument to the effect that ASSAR pursues the general interests of Rwandans based on the

7 Ibidem ASSOCIATION DES ASSUREURS DU RWANDA (ASSAR) v. GOVERNMENT OF RWANDA (MIFOTRA)

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fact that compensation for injuries due to accidents caused by motor vehicles by the Insurance Companies come from the premiums paid by Rwandans, it is in the finding of the court that her elucidations do not justify that it pursues the public legitimate interest given that as expounded by the State Attorney as well as the amicus curiae, that not all Rwandans own vehicles to be obliged to pay premiums to Insurance Companies, in lieu it is a small part of Rwandans, especially that ASSAR did not produce any evidence that the insured persons submitted to it the matter regarding the lack of minimum wage that should be determined by an Order of the Minister in charge of labour.

Regarding the argument of ASSAR’s legal counsel to the effect that the absence of the minimum wage adversely affects the pension funds and the beneficiary, the Court finds that apart from mere utterings basing on Article 27 of the Law8 n° 05/2015 of 30/03/2015 Governing the Organization of Pension Schemes which states that “the old-age pension, disability or early retirement benefits shall in no way be less than fifty percent (50%) of the minimum wage”, , ASSAR, apart from mere utterance, does not demonstrate the nature of such adverse effects occasioned by the lack of the minimum wage that should be determined by an Order of the Minister in charge of labour. Moreover, even if there are fears that the beneficiaries of pension benefits may be granted little amount as a result of the lack of the minimum wage which would determine the minimum amount, it is in the finding of the court that such an issue was settled by Article 2 of the Presidential Order n° 069/01 of 13/04/2018 increasing pension and occupational hazards benefits granted by Rwanda Social Security Board where it provides that pension and occupational hazard benefits granted to the insured person cannot be less than thirteen thousand Rwandan francs (Frw 13,000) per month.

8 Article 7 of the Law nº 005/2015 of 30/03/2015 governing the Organization of Pension Schemes provides that for the member referred to under Paragraph One of Article 5 of this Law, the salary used as the basis for calculating the contribution shall not be less than the base salary and may not exceed one hundred and thirty percent (130%) of final salary used as the basis for calculating contributions. This salary cannot increase by more than thirty percent (30%) every three (3) years. Article 27 of the same law stipulates that The old-age pension, disability, or early retirement benefits shall in no way be less than fifty percent (50%) of the minimum wage determined by an Order of the Minister in charge of labour.

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Regarding ASSAR’s argument that its petition seeks to protect the general interest because the determination of the minimum wage by An Order of the Minister in charge of labour is a way of complying with the law regulating labour and the international conventions ratified by Rwanda, of which failure to comply with tantamount to violation of the Constitution, the court finds that it is indeed provided under Article 68 of the law mentioned hereinabove that the Minister in charge of labour shall establish such Order, but as advanced by the amicus curiae, the same law does not determine the deadline to do so and as evidenced in the case file, there are some steps made by MIFOTRA towards the establishment of such Order and in which ASSAR also contributed.

In the premises, the court finds that ASSAR’s petition seeking the elimination of any kind impediments to determination of the SMIG/Minimum Wage in Rwanda, does not demonstrate the legitimate general Interests pursue as provided by article 80 of the Law no 30/2018 mentioned hereinabove. b. Whether ASSAR's study report attached to its petition complies with the provisions of paragraph 2 of article 80 of the Law no 30/2018 of 02/06/2018 determining the jurisdiction of courts

Learned counsel Kabibi Speciose submits that ASSAR’s action does not demonstrate an expert study report pointing out the gravity of the issue, its resolution attempts in cooperation with the government organs that failed and the eventual consequences of failure to address it. She goes on to maintain that the study report that ASSAR attached to its action which it allegedly to have been made by the Ministry of labour and civil servants (MIFOTRA), is a draft study report showing the market salaries of different levels of employment, different practices in place in determining the minimum wage and the Gross domestic product, the minimum wage in reducing profit inequalities, poverty and so forth. She contends that such a study report could not be relied upon given that its initial purpose was not to established the gravity of the lack minimum wage in the country and the consequences thereof. She prays the court to disallow ASSAR's action since it does not fulfil the requirements provided under Article 80 paragraph 2 of the Law no 30/2018 mentioned hereinabove. ASSOCIATION DES ASSUREURS DU RWANDA (ASSAR) v. GOVERNMENT OF RWANDA (MIFOTRA)

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Learned counsel Kabibi Specioza goes on to submit that ASSAR does not demonstrate any tangible attempt in resolving the matter related to determining the minimum wage, nor does it demonstrate whether it carried out any research on the lack of minimum wage, in a bid to indicate the consequences faced by Rwandans as a result and the proposed settlement attempts and she again rests her case praying the honourable court to disallow ASSAR's action since it does not fulfil the requirements provided under the law.

In rebuttal to learned counsel Kabibi Speciose’ arguments, Counsel Butare Emmanuel contends that a study made by the Ministry in charge of labour demonstrates that there is no determined minimum wage, where its introduction highlights an existing problem and related effects occasioned by the absence of a minimum wage, implying that MIFOTRA referred to that study report in an attempt to solve the issue of the minimum wage. He elucidates that be it the Government of Rwanda or the Amicus curiae, they consistently concur to the fact that there is no determined minimum wage, and that the responsible Ministry is still carrying out studies to that effect, however, considering the failure to meet the deadline set by the labor law to determine the minimum wage, it is his stance that MIFOTRA did not prioritize the matter.

In supporting his arguments, Counsel Umugwaneza Claudine points out that the study report on the minimum wage was made by the ministry of labour and civil servants itself in July 2018, and on page 33 thereof, it is demonstrated that the minimum wage should be 1,400Frw per day, and they also demonstrate its advantages where they stressed that it is a way of uprooting poverty and other problems mentioned in that study, given that the instant study demonstrates how different labour laws provided for the determination of the minimum wage and its importance in the national and citizens development and the citizens and accordingly she finds such report relevant to demonstrate the gravity of the issue related to the lack of the minimum wage in Rwanda.

Counsel Umugwaneza Claudine furthermore submits that before ASSAR decided to lodge an action to the Supreme Court, it had unsuccessfully attempt to solve the issue relating to the determination of the minimum wage and such account is supported by various letters written to the Ministry in charge of labor which inter alia included the letter from the National Bank of Rwanda as the supervising organ of insurance companies to the Minister of

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labor and public service of 14/11/29016 demonstrating to him the fact that there is no minimum wage, yet such is a duty entrusted to the Ministry in his charge by the labour law, pushes different courts to set an amount as a threshold for determining the compensation for personal injuries due to accidents caused by insured motor vehicles, consequently, it adversely affects insurance companies in Rwanda.

Learned Counsel Umugwaneza Claudine explicates that the Ministry of labor and civil servants responded to the foregoing letter on 23/01/2017 where said it stated in paragraph 2 that the determination of the minimum wage awaits the amendment of the Law nº 13/2009 of 27/05/2009 governing labour in Rwanda. She maintains that much as that letter was promising, the law governing labour was published in the official gazette of the republic on 30/08/2018, and hitherto a year has elapsed and the matter relating to the minimum wage has not been solved while article 68 of the law in question provides that an Order of the Minister in charge of labour determines minimum wage.

She goes on to expound that there is yet another letter written to MINECOFIN on 05/06/2019 and MIFOTRA and MINIJUST were carbon copied wherein ASSAR once again undertook to reveal a critical problem it suffers as a result of the lack of the minimum wage in Rwanda. Accordingly, the fact that ASSAR attempted to address this matter to different institutions, yet hitherto the matter is still intact, it finds that it is only the Supreme Court that can solve this issue.

In their shared submissions, learned counsel Serugo Jean Baptiste and learned Counsel Sebucensha Leonard submit that ASSAR relies upon the study report made by the Ministry in charge of labor yet such a report does not demonstrate the gravity of the issue of lack of the minimum wage, and was not intended to demonstrate the lack of minimum wage. They elucidate that such a study report cannot be construed as one that was made by experts and they furthermore explain that it be consistent with the provisions of article 80 of Law no 30/2018 mentioned hereinabove, it should be made by a person with expertise on the matter under examination and accordingly the study report submitted by ASSAR does not fulfil the requirements laid down under Article 80 of the Law mentioned hereinabove. ASSOCIATION DES ASSUREURS DU RWANDA (ASSAR) v. GOVERNMENT OF RWANDA (MIFOTRA)

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They went on to remind that Article 80 of Law no 30/2018 mentioned hereinabove provides that it should be demonstrated in the study report annexed to the submissions of the petitioner in actions relating to the general interests, the settlement attempts in cooperation with government institutions that failed. On this point, they contend that the different letters adduced by ASSAR as the evidence to prove its attempt to resolve the matter of determination of the minimum wage, should not be construed as relevant evidence to that effect. They expound that the fact that the National Bank of Rwanda- the supervisory entity to the Insurance companies, wrote to MIFOTRA on the matter of determination of the minimum wage, or the fact that ASSAR wrote to MINECOFIN and carbon copied MIFOTRA and MINIJUST respectively, does not in itself demonstrate that ASSAR unsuccessfully attempted to solve the issue by the responsible institution which is MIFOTRA. It is based on the foregoing that they pray the court to disallow ASSAR's action since it falls short of the requirements provided for by the law.

DETERMINATION OF THE COURT

Article 80 of the law no 30/2018 mentioned hereinabove provided that […...]. He/she must annex to his/her submissions a study report made by experts demonstrating the seriousness of the issue, its resolution attempts in cooperation with the institutions of the State that failed and the eventual consequences of the non-resolution.

The court finds that the study report alluded to in this Article is characterized by four parts which the legislator desired that they manifest therein for the action to be admitted: - It should be made by the expert; - It has to demonstrate the seriousness of the issue; - It has to indicate the resolution attempts in cooperation with the government institutions that failed; - It has to demonstrate the eventual consequences of the non- resolution on the general interests pursued.

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It is also in the finding of the court that each of the four parts mentioned in the preceding paragraph has reasonable grounds for its establishment which must be complied with by the petitioner: a. The study report must be prepared by the expert. This implies that it is not any kind of a study report. It is a study report done professionally, by an expert, based on substantiated information, to evidence the existence of the issue that a solution thereof must be sought. b. To be demonstrating the gravity of the issue impugned by the applicant. This implies that such a study report does not stop at raising the issue only, but it should also professionally demonstrate the gravity (the magnitude) of the issue in proportion to the general interest expert/ the maker of the report wants to defend. c. To demonstrate the petitioner’s resolution attempts in cooperation with the government institutions that failed. This connotes that the petitioner demonstrates how he/she personally or on behalf of the persons that he/she represents attempted by all means possible to unsuccessfully address the issue in cooperation with the government institutions. d. To demonstrate the eventual consequences of the non- resolution: the eventual consequences alluded to herein are not those that the petitioner thinks might occur just because he/she thinks so. Rather, they should be premised on a critical analysis of the events and substantial examples demonstrating that the issues he/she seeks to solve are to a certain degree, consequential on the general interests he/she seeks to defend.

The file of the instant case shows that the study report that ASSAR attached to its action, which it claims was made by MIFOTRA, is of July 2018. It examines the establishment and the determination of the minimum Guarantee wage (MGW/SMIG) per occupational categories9. Such study intended to make a research on a national level on matters related to the establishment and computation of the minimum wage per occupational

9 A Study on the Establishment and the Determination of the Minimum Guarantee Wage (MGW/SMIG) per Occupational Categories, Last Version, July 2018. ASSOCIATION DES ASSUREURS DU RWANDA (ASSAR) v. GOVERNMENT OF RWANDA (MIFOTRA)

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categories and the preparation of draft Ministerial Order determining the minimum wage per every occupational category revealed. Based on different examples as well as common practices showing the applicable procedures in setting the minimum wage, the following are the main objectives the research focused on: i. Doing deep research on the nature of the salaries in different categories of the profession on the Rwandan labour market taking into consideration of categories of occupation; ii. Analyzing different universal procedures applied in determining minimum wage; iii. Making research that draws a comparison between the salary and the product like Gross Domestic Product per capita and Gross Domestic Product; iv. To analyze the effects of a minimum wage on the distribution of the resources, poverty reduction, economic inequality in occupational categories; v. Based on the research results on the minimum Guarantee wage, to prepare a draft of the ministerial Order determining the minimum wage based on the categories of occupations in Rwanda.

In analyzing the document mentioned hereinabove that ASSAR submitted to the court, the court finds that it seems to be an incomplete document that was not yet published, given that in its preliminary pages, some parts were incomplete to wit the Disclaimer, Inquiries, Acknowledgments, Abstract and thus leading to a conclusion that the study report was still a draft as submitted by the State attorney. Furthermore, page one of this document features the statement: “Minisiteri y’ Abakozi ba Leta n’Umurimo’, Ministry of Public Service and Labor”. With regard to the expert who carried out the study, learned counsel Butare Emmanuel submitted that it was MIFOTRA and accordingly, it is in the stance of the court that such is not sufficient enough to declare that the foregoing study was carried out by an expert as described under Article 80 of the Law no 30/2018.

The court also finds that the main objectives in the study report mentioned hereinabove purposed not to demonstrate the problem of the lack

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of minimum wage in Rwanda, as on the contrary, they examined the basis for the determination of the minimum wage in different categories of occupation. Neither does such study report demonstrate the eventual effects occasioned by lacking a minimum wage whether in general or in particular to insurance companies which, according to ASSAR, is the part of the citizens whose rights it is defending. As demonstrated by the court in the preceding paragraphs, ASSAR only claims that the minimum wage vacuum has triggered the consideration of the minimum wage that was set by the Supreme Court and thus caused it a loss but fails to explain the nature of such loss, its magnitude and the effects thereof on those companies. Had it conducted a study report on such an issue, it might have proved to the Court the gravity thereof and the reason it should be solved that it might not prejudice the rights of the part of the citizens to which the insurance Companies which ASSAR pursues and the citizens in general especially the insurance policyholders. For the submitted report does not meet all these requirements, we find it to fall short of the conditions of article 80 of the Law no 30/2018 stated above.

With regard to ASSAR's attempts in solving the issue of lack of minimum guarantee wage in cooperation with the government institutions that failed, the case file shows that before the publication of the Law no 66/2018 governing labour, the National Bank of Rwanda wrote to MIFOTRA on 14/11/2016 pointing out that the lack of a minimum wage is prejudicial to Insurance Companies on grounds that the compensation for injuries due to accidents caused by motor vehicles are awarded based on the precedent set by the Supreme Court in case No RCAA0202/07/CS of 09/04/2009 where it determined 2,500Frw as the minimum wage per day, and other courts have determined even a higher amount. In the letter dated 23/01/2017, MIFOTRA responded to the National Bank of Rwanda letter informing it that the establishment of an Order of the Minister in charge of labour determining the minimum wage is awaiting the publication of the new labour law which will replace law no. 13/2009 of 27/05/2009. The Law no. 66/2018 of 30/08/2018 regulating labour in Rwanda was published on 06/09/2018 but before that on 27/08/2018, MIFOTRA wrote to ASSAR and the Insurance Companies inviting them in a consultative meeting on a draft Ministerial Order determining the minimum wage. The meeting was supposed to be held on 06/08/2018. After that, on 29/08/2018 the CEO-ASSAR wrote to MIFOTRA informing them that following the consultative meeting they held with MIFOTRA on 06/08/2018, he would like to appreciate the Hon. Minister in charge of labor for having presented to them the draft Ministerial Order ASSOCIATION DES ASSUREURS DU RWANDA (ASSAR) v. GOVERNMENT OF RWANDA (MIFOTRA)

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determining the minimum wage, and requested that the following content should be annexed to the Order: the occupation categories based on the economic activities; the minimum wage per category; the monthly working days; employees working level of registered occupations who do not fall in the scope of the Ministerial Order.

It is also evident that on 05/06/2019, the CEO-ASSAR wrote to MINECOFIN a transmission letter of the draft law on the compensation for personal injuries due to accidents caused by motor vehicles, and pointed out that one of the obstacles faced by the Insurance Companies is the increase of the compensations determined in the discretion of the court given that there is no determined minimum wage.

The court finds that following the analysis of the letters mentioned in the preceding paragraphs, it is evident that before the publication of the new law governing labor in Rwanda, there is no evidence to prove that ASSAR made some attempts to refer to MIFOTRA, as the competent organ to establish an Order determining the minimum wage, the issue of lack of minimum wage and the eventual consequences thereof. Following the publication of the new law, the letter ASSAR wrote to MIFOTRA on 29/08/2018 was an appreciating letter for sharing them the draft Ministerial Order determining the minimum wage, and consequently gave its opinion thereon on the possible content to be annexed to the Order.

In the view of the arguments in the preceding paragraphs, the court finds that apart from one letter that ASSAR wrote to MIFOTRA on 27/7/2018 thanking it for sharing them the draft Ministerial Order determining the minimum wage and as a result gave its inputs it desired to be annexed thereon, there is no other letter that it wrote to MIFOTRA concerning the determination of the minimum wage. In expounding how ASSAR attempted to solve the issue of the minimum wage, ASSAR raises the letter of the National Bank of Rwanda of 14/11/2016 as the supervisor of all insurance companies. The Court finds this elucidation unsubstantial enough because the National Bank of Rwanda is not a party to the instant case that is required to show the efforts made to solve the issue. In addition, it is this context that ASSAR could not rely on the letter it addressed to MINECOFIN on 05/06/2019 because, despite that it was not requesting MINECOFIN to determine the minimum wage, it was rather transmitting to it the draft laws relating to compensation for body

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injuries, and nothing was likely to prevent it to write to the competent Ministry namely MIFOTRA.

It is in the finding of this court that MIFOTRA had already started the procedures of establishing the Ministerial Order determining the minimum wage and ASSAR was notified of the same and it even gave its opinions and accordingly, it has no basis to adduce that MIFOTRA did nothing about this issue nor that it did not prioritize it most especially that the Law no 66/2018 governing labour did not set the deadline for establishing such Order.

In the premises, the court finds that the fact that at the time of filing an action seeking for the preservation of general interest or elimination of hindrances that ASSAR claims to jeopardize the general interest, it was not able to demonstrate the legitimate general interests pursued and did not submit a study report made by experts demonstrating the gravity of lack of minimum wage, its attempts to remedy the issue that failed and the eventual consequences thereof to Rwandans in general and on the Insurance Companies in particular; its action is inadmissible since it does not fulfil the requirements provided under the law. III. THE DECISION OF THE COURT

Holds that the petition initiated by Association des Assureurs du Rwanda (ASSAR) is inadmissible as it does not fulfil the requirements provided under the law.

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