Re MIRONKO

# Re MIRONKO

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2025-03-07 - Case/document no.: RS/INCONST/SPEC00005/2023/SC - Collection: Supreme Court

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Re MIRONKO [Rwanda SUPREME COURT – RS/INCONST/SPEC00005/2023/SC (Hitiyaremye, P.J., Cyanzayire, Muhumuza, Kalihangabo and Kazungu, J.) March 07, 2025] Constitution – Due process of law – Contempt of court – The accused has the right to be informed of the nature and cause of the charges, the right to defence and legal representation – It cannot be assured that the principle of due process of law is observed when a judge orders to a security officer to take out a person accused of committing an offence of contempt of court and immediately imposes a sentence without first giving that person the opportunity to present his/her defence and to be represented by counsel. Constitution – Functioning and jurisdiction of courts – The Constitution allows the legislator to confer jurisdiction on the courts through legislation – By enacting Article 81, paragraphs one and two, of Law no 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure, the legislator intended to ensure security during court proceedings and uphold respect and reverence for judicial services. Law on court procedures – Contempt of court – This is any act committed by persons present in the courtroom which interferes with the proper conduct of the proceedings, and is intended to belittle and disrespect the

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court and may result in a disturbance of order within the courtroom. Law on court procedures – Contempt of court – The court in which the contempt is committed has jurisdiction to decide the matter in order to restore order and ensure the continuation of the proceedings - The judge in front of whom the offence is committed has the power to expound what he/she personally witnessed and to impose sanctions on the offender in accordance with the law. The Constitution – Principles of judicial system – Nobody may be a judge in his or her own cause – Contempt of court – When a judge is subjected to an offense of contempt of court and subsequently imposes a sanction on the offender, this is not considered a prohibited act of self- judgment, as contempt of court is not an offense against the judge personally, but rather an offense against the administration of justice as a whole, which is represented by the judge in that proceeding. Constitution – Principles of judicial system – Principle of conducting court proceedings in public – Contempt of court – Taking out a person charged with contempt of court, while the other persons present remain in the courtroom and the court deliberates, cannot be considered a violation of the principle of conducting court proceedings in public, as the expelled person reappears in the courtroom and the court publicly announces the decision rendered against that person. Constitution – Due process of law – Right to presumption of innocence – Contempt of court – By enacting Article 81, paragraph 2 of Law no 22/2018 of April 29, 2018,

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relating to the civil, commercial, labour and administrative procedure, the legislator intended to ensure that any individual committing contempt of court is held accountable. However, this provision contradicts the principle of due process of law enshrined in Article 29, paragraph 1(a) of the Constitution, particularly regarding the right to be informed of the nature and cause of the charge, to present the defence, and to legal representation – To prevent a legal vacuum resulting from the absence of a statutory provision sanctioning offenses of contempt of court, Article 81 of Law no 22/2018 of April 29, 2018, may be supplemented with a second paragraph as follows: "In such a case, the judge suspends the hearing and calls the public in the hearing to order. The court registrar takes minutes of what has happened. The judge informs the accused of the offence committed and instructs the registrar to read aloud the recorded minutes to the accused. The judge then asks the accused and his/her counsel, if present or immediately available, to retort to the charges. If the accused behaves in a manner that disturbs order, the judge orders the security officers to take him/her out of the courtroom. The judge then immediately writes the judgment, reads the decision taken, and resumes the hearing." This supplement would ensure that such article is not inconsistent with the Constitution. Facts: Mironko filed a petition before the Supreme Court, seeking to declare that Article 81, paragraphs 1 and 2, of Law no 22/2018 of April 29, 2018, relating to the civil, commercial, labour and administrative procedure, as amended to date, is inconsistent with Article 29,

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paragraph 1(a), (b), and (c), and Article 152, paragraph 1(a) and (c) of the Constitution. Before examining the case on the merits, the Court first examined whether the Applicant had a legitimate interest in filing the petition. The Court ruled that he indeed had such an interest, as the impugned legislative provision applies to all Rwandan citizens, including the petitioner. The hearing proceeded with the merits of the case, the petitioner explained the grounds for his claim. He stated that on February 22, 2023, during the hearing of the case RS/INJUST/RCOM00001/2019/SC, the Supreme Court, relying on the impugned article, suspended the proceedings and subsequently rendered the judgment RP00001/2023/SC, imposing a penalty on him for the offense of contempt of court. He asserted that his punishment was based on Article 81 of the aforementioned Law, which provides that a person who, during the hearing, commits an offence punishable by a maximum sentence of imprisonment for five (5) years, the court may immediately sentence the perpetrator even if in practice the court has no jurisdiction to hear such an offence in the first instance. In such a case, the judge adjourns the hearing and orders security personnel to take the perpetrator out of the courtroom and calls the public in the hearing to order. The court registrar takes minutes of what has happened. The judge immediately writes a judgement basing on the facts and violated legal provisions, then gets the person having been expelled back to courtroom and reads to him/her the judgement rendered against him/her in all its provisions, and re- opens the hearing. No other formalities take place and the parties are not allowed to take the floor with regard to the

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offence committed. The petitioner argues that this provision violates a litigant’s right to due process of law and therefore requests this Court to declare this article unconstitutional, in order to ensure that the injustice he experienced in that case does not recur either against him or against any other individual. The petitioner claims that his right to a fair trial, as enshrined in Article 29 of the Constitution, has been violated, in particular his right to be informed of the acts constituting the offence for which he has been punished, in order to be able to defend himself, and his right to be tried by a competent court. He argues that, since he was tried before the Supreme Court, which is the highest court, he was deprived of his right to appeal against the decision taken against him. This means that Article 81 of the aforementioned Law effectively denied him the right to appeal against the judgement in case RP00001/2023/SC. The petitioner further argues that Article 81, paragraph one, of Law no 22/2018 of 29/04/2018, as referred to above, is also inconsistent with Article 29, paragraph one, of the Constitution, as it provides for the immediate punishment of an accused person without affording him/her the opportunity to be informed of the charges against him/her and to present the defence. He asserts that this article provides for the punishment without granting the accused the right to legal representation, as guaranteed by the Constitution. He submits that another reason for which he requests that this article should be repealed is that it creates a legal vacuum, as it does not specify what should happen when the last court imposes a sanction on a person without informing him/her of the offense,

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without pleading, and without the possibility of appeal, while the appeal procedure for offense of contempt of court had been provided under the law. The petitioner further argues that this article should be repealed because it violates the principle of the presumption of innocence until proven guilty by a final court decision. This means that it confers jurisdiction on the court which it does not have to take up a case on its own initiative, this implies that such a court cannot administer fair justice because it decides to take up a case after convicting a person without first verifying whether the elements of the offence are fully established. He also submits that the fact that the accused is punished immediately and definitively when the offence is committed before the Supreme Court deprives him of the right to appeal, whereas if the same offence was committed before other courts, the offender would have the right to appeal. The petitioner concludes that the Supreme Court thereby deprives the accused of certain rights and that this defect must be remedied. The petitioner further asserts that Article 81, which he challenges, is inconsistent with the principle enshrined in Article 152, paragraph 1, subparagraph (a) of the Constitution, which stipulates that justice is rendered in the name of the people and nobody may be a judge in his or her own cause. Additionally, he argues that it also contravenes the principle that court proceedings are conducted in public, as provided for in article 152, subparagraph (b) of the Constitution. The petitioner concludes by stating that it is unreasonable for a judge who has been the victim of an offense to then preside over

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the trial of that offense, as this constitutes a serious flaw equivalent to acting as a judge in his or her own cause. The State Attorney in this case argues that the article 81, paragraph one of Law no 22/2018 of 29/04/2018, as referred to above, establishes a mechanism for a court to initiate proceedings on its own motion, provides for an expedited procedure for the sanctioning of offenses, and grants jurisdiction to other specialized courts to adjudicate offenses committed during judicial proceedings; the second paragraph of this article clarifies the procedural framework governing the adjudication of such offenses. The State Attorney submits that, for the offences of contempt of court, the court in which the offense occurs automatically acquires jurisdiction, either by virtue of legal provisions or by necessity, to ensure order and decorum in the proceedings. He contends that Article 81 does not contradict the Constitution, as the latter does not expressly designate a specific court with jurisdiction over such offenses; rather, Rwandan law provides that the court where the offense is committed has the jurisdiction to adjudicate it. The State Attorney explains that the statement of the claimant about the offences of contempt of court, that the judge takes up and adjudicates a case on its own motion, while such procedure contravenes the Constitution, is untrue, as the offense committed in court is not considered an offense against the judge personally but rather against the public. She further explains that such offenses disrupt public order, necessitating immediate judicial intervention to impose swift sanctions and ensure the security of court proceedings. Thus, she

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maintains that the procedure set forth in Article 81 does not violate articles 29 and 152 of the Constitution. With regard to the Petitioner’s argument that article 81 deprived him of his right to appeal, the State Attorney asserts that this claim is unfounded. She avers that the Supreme Court, as the highest court in the country, has the jurisdiction to adjudicate certain offenses at both the first and final instances, depending on the specific nature of the accused individuals. Therefore, she contends that this is not an exceptional circumstance concerning the offense for which the Petitioner was convicted. Furthermore, the State Attorney acknowledges that an accused person generally has the right to appeal but clarifies that this right is not absolute, particularly concerning the decisions rendered by the superior courts, as the right to appeal has legal limitations. Regarding the Petitioner’s statement that he was denied the right to be informed of the charges against him and to present his defence, the State Attorney concurs with him, because the fact that the judge orders to the security officer to take the accused out of the courtroom, immediately writes a judgment basing on the facts and violated legal provisions, then gets the person having been expelled back to courtroom and reads to him/her the judgement rendered against him/ her in all its provisions, without affording the accused an opportunity to plead about the charges, is inconsistent with the principle of due process of law, specifically, concerning the right to be informed of the nature and cause of the charges and the right to defence and legal representation, as provided for

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in Article 29, paragraph one, subparagraph (a) of the Constitution. Basing on the foregoing elucidations, the State Attorney concludes by requesting that as regards the impugned article 81 of Law no 22/2018 of April 29, 2018, the words that are inconsistent with the Constitution should be suppressed and replaced so that the unconstitutionality issue is settled without maintaining the legal vacuum. Held: 1. The accused has the right to be informed of the nature and cause of the charges with which he is charged, the right to defence and legal representation. It cannot be assured that the principle of due process of law is observed when a judge orders to a security officer to take out a person accused of committing an offence of contempt of court and immediately imposes a sentence without first giving that person the opportunity to present his/her defence and to be represented by counsel. 2. By enacting Article 81, paragraphs one and two of Law no 22/2018 of 29/04/2018 relating to the civil, commercial, labour, and administrative procedure, the legislator intended to ensure security during court proceedings and to uphold respect and reverence for judicial services. 3. Offence of contempt of court consist of any act committed by persons present in the courtroom which interferes with the proper conduct of the proceedings, and is intended to belittle and disrespect the court and may result in a disturbance of order within the courtroom.

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4. The court in which the contempt is committed has jurisdiction to decide the matter in order to restore order and ensure the continuation of the proceedings. The judge in front of whom the offence is committed has the power to expound what he/she personally witnessed and to impose sanctions on the offender in accordance with the law. 5. When a judge is subjected to an offense during a hearing and subsequently imposes a sanction on the offender, this is not considered a prohibited act of self- judgment, as contempt of court is not an offense against the judge personally, but rather an offense against the administration of justice as a whole, which is represented by the judge in that proceeding. 6. The removal of a person charged with contempt of court, while the other persons present remain in the courtroom and the court deliberates in chambers, cannot be regarded as a violation of the principle of conducting court proceedings in public, provided that the removed person is reinstated in the courtroom and the court publicly announces the decision rendered against that person. 7. The fact that a judge writes a judgment basing on the facts to which he/she personally witnessed during the hearing and subsequently pronounces a ruling convicting the accused for contempt of court cannot be considered a violation of the right to presumption of innocence until a competent court has lawfully found him/her guilty, since the accused remains presumed innocent at all times until the judge has issued the judgement on the alleged offence.

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The petition seeking to declare that the legal provision is unconstitutional has merit in part. Statutes and statutory instruments referred to: Constitution of the Republic of Rwanda of 2003 revised in 2015, articles 3, 29, 152 and 153. Universal Declaration of Human Rights of 1948, articles 10 and 11. International Covenant on Civil and Political Rights, article 14. Protocol no 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, article 2. The African Charter on Human and Peoples' Rights, article 7. Law N° 30/2018 of 02/06/2018 determining the jurisdiction of courts, articles from 66 to 80. Law Nᵒ 012/2018 of 04/04/2018 governing organisation and functioning of the Judiciary, article 50. Law No 27/2019 of 19/09/2019 relating to criminal procedure, article 137. Law No 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure, articles 81, 82, 103 and 104. Cases referred to: RS/INCOST/SPEC 0001/2022/SC, Re Murangwa Edward rendered by the Supreme Court on 16/12/2022. RS/INCONST/SPEC00004/2020/SC, Asiimwe Frank v. the Government of Rwanda, rendered by the Supreme Court on 26/03/2021.

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RS/INCONST/SPEC00003/2019/SC, Re Kabasinga rendered by the Supreme Court on 04/12/2019. RS/INCONST/PEN0001/08/CS, Murorunkwere Spéciose, rendered by the Supreme Court on 26/09/2008. The Contempt of Courts Act, 1971, 14 (1). Cooke v. US, 267 U.S. 517 (1925), United States Supreme Court, No. 311, Argued: March 20, 1925. Decided: April 13, 1925. Supreme Court of India, inherent jurisdiction Contempt Petition (CIVIL) no. 196-197 of 2024 in special leave petition (CIVIL), no 12081-12082 of 2023. Case of Allen v. The United Kingdom (Application no. 25424/09) Judgment Strasbourg 12 July 2013. Article 6 § 2. Authors quoted: Charles Chauncey, Contempt of Court, Texas Municipal Courts Education Center, 2023, p.1. S., Jajati Keshari, Contempt of Court as Defined in Contempt of Courts Act 1971. Journal of Advance Research in Social Science and Humanities (ISSN 2208-2387), 2017: 9-14. David J. Bodine, The Nature and Function of Contempt in Modern Legal Systems, 2019, p.36. Justice Natalie Adams and Belinda Baker, sentencing for Contempt of Court, National judicial college of Australia and the Australian national university sentencing, conference, 29 February, 2020, §. 80. Judgment

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I. BACKGROUND OF THE CASE

On 13/09/2023, Mironko François Xavier filed a petition before the Supreme Court seeking declaration that Article 81, paragraphs one and two, of Law no 22/2018 of 29/04/2018 relating to civil, commercial, labor, and administrative procedure as amended to date, as well as Article 137, paragraph one, of Law no 27/2019 of 19/09/2019 relating to criminal procedure, are inconsistent with Article 29, paragraph one, subparagraphs (a), (b), and (c) and Article 152, paragraph one, subparagraphs (a) and (c) of the Constitution.

Mironko François Xavier states that the reason for filing this petition is that on 22/02/2023, during the trial of case RS/INJUST/RCOM00001/2019/SC, the Supreme Court based its decision on the provision he is challenging, suspending the trial and then issuing judgment RP 00001/2023/SC, which imposed on him a penalty for an offense claimed to have occurred during the hearing.

The Government Representative states that these provisions are not inconsistent with the Constitution in any way, however, if the Court finds that there are areas where they may be misunderstood, it can provide a broader explanation to ensure they are interpreted in a manner consistent with the Constitution.

The case was heard in public on 05/11/2024, with MIRONKO François Xavier represented by Counsel

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Ngezahayo Bernard and the Republic of Rwanda represented by Counsel Kabibi Spéciose. The first issue addressed was the question of the interest that Mironko François Xavier holds in this case. With regard to whether Mironko François Xavier has a legal interest in this case

After examining the statements made by Mironko François Xavier in his submissions regarding his interest in the case, the Court made a decision on the bench based on the precedent in the case RS/INCOST/SPEC00001/2022/SC, which was decided by the Supreme Court on 16/12/2022 involving Murangwa Edward. The Court explained that in assessing the petitioner's interest, the following factors must be considered, and the presence of at least one of them is sufficient for the Court to affirm that the petitioner has a legitimate interest: a. Whether the law alleged to be unconstitutional is specifically relevant to the petitioner or the category to which they belong, giving them a personal interest in filing the case. An example is a law affecting journalists, doctors, teachers, and others; b. Whether the law alleged to be unconstitutional affects the general public in such a way that it may impact their rights, which provides anyone who may be affected with the interest to challenge it for its constitutional compatibility; c. Whether the person filing the case is an advocate, who, as part of their professional interest in justice,

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is authorized to file a case to promote the law or the rights of those affected by the law, even if they have no personal interest in the case.

Regarding this case, the Court found that Article 81 of Law no 22/2018 of 29/04/2018 relating to civil, commercial, labor, and administrative procedure, as amended up to date, and Article 137 of Law no 27/2019 of 19/09/2019 relating to criminal procedure, as amended up to date, which Mironko François Xavier seeks repeal on the grounds that they are inconsistent with the Constitution, as they apply to all citizens, including himself. For this reason, he has an interest in this case.

With regard to the merits of the case, Counsel Ngezahayo Bernard, representing Mironko François Xavier, after hearing various opinions on the impugned article, informed the Court that the second issue he had raised for consideration was withdrawn because he found that Article 137 of Law no 27/2019 of 19/09/2019 relating to criminal procedure, as amended up to date, is not inconsistent with the Constitution. The issue analysed in this case is whether Article 81, paragraphs one and two, of no 22/2018 of 29/04/2018 relating to civil, commercial, labor, and administrative procedure, as amended up to date, is inconsistent with Article 29, paragraph one, subparagraphs (a), (b), and (c), and Article 152, paragraph one, subparagraphs (a) and (b) of the Constitution.

At the end of the hearing, the parties were notified that the judgment would be pronounced on 29/11/2024. However, on that date, it was not pronounced because certain issues were still under review, and the

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pronouncement was postponed to 20/12/2024. Prior to that date, it became necessary for one of the judges in the jury to withdraw, which led to the reopening of the case, and the hearing was rescheduled for 13/01/2025 to allow for the jury's adjustment. After the hearing, the parties were informed that the judgment would be pronounced on 13/02/2025, but on that day, it was also not pronounced as the case had not been concluded, and the judgment pronouncement was further postponed to 07/03/2025. II. ANALYSIS OF THE LEGAL ISSUE IN THIS CASE Whether Article 81, paragraphs one and two, of Law no 22/2018 of 29/04/2018 relating to civil, commercial, labor, and administrative procedure as amended to date, as well as Article 137, paragraph one, of Law no 27/2019 of 19/09/2019 relating to criminal procedure, are inconsistent with Article 29, paragraph one, subparagraphs (a), (b), and (c) and Article 152, paragraph one, subparagraphs (a) and (c) of the Constitution

Counsel Ngezahayo Bernard, representing Mironko François Xavier, states that the petition filed requests the Supreme Court to repeal Article 81, paragraphs one and two, of no 22/2018 of 29/04/2018 relating to civil, commercial, labor, and administrative procedure, as it is inconsistent with the Constitution. The article in question provides that a person who, during the hearing, commits an offence punishable by a maximum sentence of imprisonment for five (5) years, the court may

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immediately sentence the perpetrator even if in practice the court has no jurisdiction to hear such an offence in the first instance. In such a case, the judge adjourns the hearing and orders security personnel to take the perpetrator out of the courtroom and calls the public in the hearing to order. The court registrar takes minutes of what has happened. The judge immediately writes a judgement basing on the facts and violated legal provisions, then gets the person having been expelled back to courtroom and reads to him/her the judgement rendered against him/ her in all its provisions, and re-opens the hearing. No other formalities take place and the parties are not allowed to take the floor with regard to the offence committed.

He states that the reason for challenging the aforementioned article is that he was sentenced in judgment RP00001/2023/SC and was imposed a penalty under that article, without the due respect for the right to due process of law. He requests that the article be repealed in order to prevent the injustice he experienced in that case from recurring, or to prevent it from affecting any other individual. He bases this request on Article 3, paragraph two, of the Constitution, which stipulates that any law, decision or act contrary to the Constitution is without effect.

He states that article 29, paragraph one, subparagraphs (a) and (c), of the Constitution provides that everyone has the right to due process of law, which includes the right to be informed of the nature and cause of charges and the right to defence and legal

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representation and the right to appear before a competent Court; whereas article 152, paragraph one, subparagraphs (a) and (b), of the Constitution provides that Court proceedings are conducted in public unless the Court determines that proceedings be held in camera in circumstances provided for by law.

He states that the violation of the right to due process of law includes the right to be informed of the charges he was penalized for in order to defend himself, as stipulated in Article 29, paragraph one, subparagraph (a) of the Constitution. It also includes the right to be appear before a competent court, as he was tried before the Supreme Court, which is superior to other courts, thus depriving him of the right to appeal the decision made. He also mentions that this is in contradiction with the African Charter on Human and Peoples' Rights, which Rwanda has ratified, specifically in Articles 7, 10 (A), and (C), which provide the right of every individual to access competent courts when their fundamental human rights, as defined by laws, international agreements, and similar legal frameworks, are violated. It includes the right to defend oneself against criminal charges and to be represented in court.

Regarding the definition of due process of law, Counsel Ngezahayo Bernard states that in the case RS/INCONST/SPEC00003/2019/SC decided by the Supreme Court on 04/12/2019, in paragraph 13, the Court defined it in the following terms: Due process of law is explained in various ways. There is due process of law based on the procedural aspects, meaning that due process

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of law is a series of principles that must be respected in the conduct of a trial based on legal provisions. There is also due process of law based on legal provisions that prohibit the enactment of laws or other measures that are unreasonable and violate the rights of citizens.

With regard to the right to due process of law, he also mentions the right to appeal, stating that the Supreme Court explained this in the case RS/INCONST/SPEC00004/2020/SC decided by the Supreme Court on 26/03/2021, in the case of Asiimwe Frank vs. the Government of Rwanda, in paragraph 18, where it was stated that Article 14, paragraphs 1 and 5, of the International Covenant on Civil and Political Rights outlines the right to be tried before a competent court and the right to appeal as part of the right to due process of law.

He further states that legal scholars relied upon by the Supreme Court explained that the right to appeal is the right of any party dissatisfied with the court's decision to request a higher court to review or correct that decision. In paragraph 19 of the judgment, the Supreme Court stated that the principle of appeal is based on the right of both the defendant and the prosecutor to have the opportunity to appeal a first-instance judgment to correct any errors that may have been made by the court. This right affirms the parties’ entitlement to the principle of dual-level litigation. He argues that the provisions of Article 81, paragraphs 1 and 2, of Law no 22/2018 of 29/04/2018, as mentioned above, deny the defendant the right to appeal the decision made against them, contrary

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to Article 29 of the Constitution regarding the right to due process of law.

He also submits that Article 81, paragraph 1, of Law no 22/2018 of 29/04/2018, as mentioned above, is also inconsistent with Article 29, paragraph 1, of the Constitution because it provides that a suspect is immediately punished without being notified of the charges against them to allow them to defend themselves, and they are punished without the right to legal representation as guaranteed by the Constitution. For this reason, since such provisions are detrimental to the citizens by depriving them of the right to due process of law, this paragraph should be repealed. He further argues that another reason for requesting the repeal of this provision is that it creates a gap as it does not specify what should happen when a final court decision is made to convict a person without informing them of the crime, without a trial, and without the right to appeal, even though an appeal process is provided for crimes of contempt of court.

He further states that the aforementioned provision grants the court jurisdiction it does not possess to adjudicate a case it has taken up sua sponte, implying that such a court cannot dispense justice since it reaches a verdict of guilt without first assessing whether all elements of the offense are satisfied. He argues that this contradicts the principle that a person is presumed innocent until proven guilty by a court of last instance, as emphasized in the European Convention on Human Rights, particularly in its Article 5, paragraph 3, which

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guarantees the right of an individual to be promptly informed of the nature of the offense, to have adequate time to prepare a defense against the charges, and to present such defense or be represented before a court1.

He also argues that the fact that an accused person is immediately punished, both at first and last instances, when the offense is committed before the Supreme Court deprives them of the right to appeal, whereas if the offense had been committed before other courts, the offender would have the right to appeal. He thus finds that a right is being denied before the Supreme Court, and that this defect must be corrected. He further adds that the absence of the right to appeal violates the principles enshrined in international instruments to which Rwanda is a party, such as the Universal Declaration of Human Rights of 1948, particularly Articles 102 and 113 thereof.

Counsel Ngezahayo Bernard states that in the aforementioned case on which MIRONKO François

1 Toute personne arrêtée ou détenue, dans les conditions prévues au paragraphe 1.c du présent article, doit être aussitôt traduite devant un juge ou un autre magistrat habilité par la loi à exercer des fonctions judiciaires et a le droit d’être jugé dans un délai raisonnable, libérée pendant la procédure. La mise en liberté peut être subordonnée à une garantie assurant la comparution de l’intéressé à l’audience. 2 Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. 3 Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which [they have] had all the guarantees necessary for [their] defence.

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Xavier based his petition, there was also a violation of the principle that justice must be rendered in the name of the people, and that no one may be a judge in their own cause, as provided under Article 152, paragraph one, subparagraph (a), of the Constitution, as well as the principle that all trials must be held in public as set out in subparagraph (b) of the same provision, because the accused was removed from the courtroom and later summoned only to be read the judgment pronounced by the judge without having been tried publicly, thereby depriving him of a fair trial.

Referring back to the principles he previously mentioned, he concludes by stating that it is incomprehensible how a judge who is the victim of an offense could then preside over the trial concerning that same offense, arguing that this constitutes a serious irregularity because it resembles a situation where one acts as both party and judge in their own case. He asserts that the offense is not committed against the Court itself, as the Government's representative attempted to imply, because it is well understood that the Court is represented by judges, and thus it is the judges who are the actual victims of the offense.

Counsel Kabibi Spéciose, representing the Government of Rwanda, argues that the first paragraph of Article 81 of Law no 22/2018 of 29/04/2018, as previously mentioned, sets out the procedure for a court to seize itself of a matter on its own initiative ("saisine d’office"); it establishes a framework for summary sentencing; and grants special jurisdiction to other courts to prosecute

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offenses committed during a hearing. She further explains that the second paragraph of this article details how the trial of such offenses should be conducted.

Regarding the claims made by Mironko François Xavier that Article 81 mentioned above deprived him of the right to be tried before a competent and impartial court, Counsel Kabibi Spéciose argues that for offenses of contempt of court, the court where the offense occurs automatically acquires jurisdiction derived from statutory inherent powers or from its duty to maintain order during proceedings (auxiliary inherent powers). She states that, specifically in Rwanda, the law provides that the court where such offenses are committed has the authority to adjudicate them (statutory inherent jurisdiction), and that the Constitution itself does not specify which court has jurisdiction over such offenses, so that this Article cannot be said to be inconsistent with the Constitution.

With regard to claims by Mironko François Xavier that the Article he is challenging provides for the court to have the power to adjudicate offenses of contempt of court, amounting to self-adjudication and self-sentencing, which he argues violates the Constitution, Counsel Kabibi Spéciose states that this is not correct, arguing that an offense of contempt of court is not considered as being committed against the judge personally, but rather against the public, which is different from a situation where the offender would intentionally commit acts aimed at harming the judge in their personal capacity.

He elucidates that offenses of contempt of court are offenses that disrupt public order, thus the Court must

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take swift action to address them in order to ensure a prompt mechanism for sanctioning acts that threaten the security of the hearing, and that such a procedure does not in any way contradict Articles 29 and 152 of the Constitution.

Regarding the claims by Mironko François Xavier that the article he is challenging deprived him of the right to appeal simply because the matter occurred before the Supreme Court, Counsel Kabibi Spéciose states that such claims are unfounded because the Supreme Court is the highest judicial authority in the country, and its decisions are not subject to appeal or review, except for matters concerning presidential pardon or the Court's own initiative to review its decision in the interest of the law4. She adds that the fact that the Supreme Court tries cases at both the first and last instance is not unique to the offense for which Mironko François Xavier was punished, as the Court normally has jurisdiction to adjudicate certain offenses at the first and last instance due to the privileged status of those accused (privilege of jurisdiction)5. She further explains that although Article 82 of the aforementioned Law no 22/2018 of 29/04/2018 provides that appeals against offenses of contempt of court should be submitted to the court hierarchically superior to the one that rendered the decision, this does not apply to offenses of contempt of court committed before the Supreme Court because it is the superior court in the country. However,

4 Article 50, 1 of the Law no 012/2018 of 04/04/2018 governing organization and the functioning of the Judiciary. 5 An example is given by article 66 of the Law no 30/2018 of 02/06/2018 determining the jurisdiction of courts.

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she acknowledges that a party has the right to appeal except when it concerns decisions made by courts that have no higher judicial authority, since the right to appeal has its limits.

She further reminds that, similar to Article 29 of the Constitution, the Universal Declaration on Human Rights, the African Charter on Human and Peoples' Rights, and the European Convention on Human Rights, upon which the defendant has based his arguments, none of these instruments specify the right to appeal as an indicator of due process of law. Instead, Article 2 of Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms indicates that the right to appeal has limits, especially in cases decided by a court of last resort. For these reasons, she argues that Article 81, paragraph 1, of Law no 22/2018 of 29/04/2018 is not, in any way, inconsistent with the Constitution.

With regard to statements made by Mironko François Xavier about the provisions in paragraph 2 of Article 81 of Law no 22/2018 of 29/04/2018, which he argues deprived him of the right to be informed of the charges against him and to defend himself, Counsel Kabibi Spéciose agrees, noting that when a judge orders the security officer to remove the offender from the courtroom, and then proceeds to issue a judgment based on the acts and the laws violated, before calling back the removed person to read the verdict in its entirety, without allowing the accused an opportunity to address the charges, this contradicts the principle of due process of law. This is especially true with regard to the right to be

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informed of the nature and cause of the charges, to defend oneself, and to be legally represented, as stipulated in Article 29, paragraph 1, subparagraph (a) of the Constitution.

In concluding on this issue, Counsel Kabibi Spéciose states that, based on the foregoing, the provision should not be entirely repealed but instead the wording that contradicts the Constitution should be removed and replaced, ensuring consistency with the Constitution without leaving any gaps in the law. On behalf of the Government of Rwanda, she suggests that the paragraph should be written as follows: “at that time, the judge suspends the hearing and asks those present to maintain order. The court clerk prepares a written record of what has transpired. The judge informs the accused of the charges against him/her and instructs the Registrar to read the minutes of the hearing to the accused. The judge then asks the accused and their counsel if they have anything to say regarding the charges. The judge proceeds to write the judgment based on the facts and the laws violated, then reads the judgment to the accused in all its details, and then resumes the hearing”. He continues by noting that this is not a new approach, as this method was used in the case RS/INCONST/PEN0001/08/CS of Murorunkwere Spéciose, which was decided by the Supreme Court on 26/09/2008. DETERMINATION OF THE COURT

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Mironko François Xavier argues that the first and second paragraphs of Article 81 of Law no 22/2018 of 29/04/2018 relating to civil, commercial, labor, and administrative procedure, as amended up to date, should be repealed on grounds that they are inconsistent with the Constitution, specifically Articles 29 and 152. He criticizes them for failing to respect the following rights: a. Not granting the accused the right to be informed of the nature and cause of the charges against them, to defend themselves, and to have legal assistance; b. Not granting the accused the right to be presumed innocent until proven guilty by a competent court; c. Not granting the accused the right to appear before a competent court; d. Not granting those convicted the right to appeal. He further criticizes the impugned article for failing to uphold the following principles : a. Justice is rendered in the name of the people and nobody may be a judge in his or her own cause; b. Court proceedings are conducted in public unless the Court determines that proceedings be held in camera in circumstances provided for by law.

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The provision being challenged stipulates the following: a person who, during the hearing, commits an offence punishable by a maximum sentence of imprisonment for five (5) years, the court may immediately sentence the perpetrator even if in practice the court has no jurisdiction to hear such an offence in the first instance. In such a case, the judge adjourns the hearing and orders security personnel to take the perpetrator out of the courtroom and calls the public in the hearing to order. The court registrar takes minutes of what has happened. The judge immediately writes a judgement basing on the facts and violated legal provisions, then gets the person having been expelled back to courtroom and reads to him/her the judgement rendered against him/ her in all its provisions, and re-opens the hearing. No other formalities take place and the parties are not allowed to take the floor with regard to the offence committed.

The provision discussed implies the following: a. The court where the crime was committed immediately acquires the authority to adjudicate the case; b. The offender is immediately removed from the courtroom by security personnel under the order of the judge; c. The court registrar prepares a minutes of what happened; d. The judge writes the judgment based on the facts and applicable laws;

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e. The offender is summoned and re-enters the courtroom to be read the judgment in its entirety; f. The parties are not given an opportunity to speak regarding the crime committed.

Article 29, paragraph 1, sections (a), (b), and (c) of the Constitution of the Republic of Rwanda, which Mironko François Xavier, the petitioner, claims has not been adhered to, provides the following: Everyone has the right to due process of law, which includes the right: a. to be informed of the nature and cause of charges and the right to defence and legal representation; b. to be presumed innocent until proved guilty by a competent Court; c. to appear before a competent Court; d. […..]

And Article 152, paragraph 1, subparagraphs (a) and (b) of the Constitution, which the petitioner also claims has not been respected, stipulates that the judiciary shall be governed by the following principles: a. Justice is rendered in the name of the people and nobody may be a judge in his or her own cause; b. Court proceedings are conducted in public unless the Court determines that

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proceedings be held in camera in circumstances provided for by law. c. […..] The provisions of these articles are also stipulated in the international covenants to which Rwanda is a signatory, including the following: a. The Universal Declaration of Human Rights, in Article 106, provides that everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. In Article 11, paragraph 17, it states that everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. b. The International Covenant on Civil and Political Rights, in Article 148, paragraphs 2,

6 “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”. 7 “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence”. 8 “Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law”. “In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language

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3(a), (b), and (d), and paragraph 5, provides the following: i. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law (paragraph 2); ii. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: a. To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; b. To have adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing; c. [….]; d. to be tried in his presence, and to defend himself in person or through

which he understands of the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing; (d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.

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legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it. iii. Any person who has been convicted of a crime by a court has the right to appeal to a higher court to review whether the crime was substantiated and to examine the sentence imposed, as provided by law (paragraph 5). c. The African Charter on Human and Peoples' Rights, in Article 7, paragraph 1, subparagraphs (b) and (c), provides the following: i. Every individual has the right to be presumed innocent until proven guilty by a competent court or tribunal9; ii. Every individual has the right to defence, including the right to be defended by counsel of his/her choice.10

9 Every individual shall have the right to have his cause heard. This comprises: […] T he right to be presumed innocent until proved guilty by a competent court or tribunal”. 10 Every individual shall have the right to have his cause heard. This comprises: […] The right to defence, including the right to be defended by counsel of his choice”.

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The Court finds that, both under the Constitution and the International Treaties Rwanda has signed, for a litigant to receive a fair trial, at least the following conditions must be respected in their case: a. The person charged with a crime must be informed of the charges against them and given the opportunity to defend themselves; b. They must be allowed to appear personally in court and either defend themselves or be represented by a legal counsel of their choice. If they do not have a counsel, they must be informed of their right to legal assistance; c. The person charged must be presumed innocent until proven guilty; d. Every person has the right to be tried by a court established by law, which is independent and impartial, in accordance with the principle that no one can judge their own case; e. Court proceedings are conducted in public unless the Court determines that proceedings be held in camera in circumstances provided for by law, the reasons for this must be explained.

Before analysing the criticisms raised by the petitioner regarding Article 81, paragraphs one and two, of Law no 22/2018 as mentioned above, based on the legal provisions outlined, the Court finds it necessary to first

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explain the concept of crimes of direct contempt of Court as referred to in that article.

Crimes direct contempt of Court, as referred to in the aforementioned article, are all actions taken by those present in the courtroom that disrupt the proper conduct of the trial, with the aim of undermining or disrespecting the court, which can lead to a loss of order in the courtroom. In such cases, judges have the authority to take immediate measures to restore order, ensuring that the court's proceedings can continue properly without hindrance.

Charles Chauncey, a legal scholar, defines direct contempt of court as an act which occurs in the judge's presence and under circumstances that require the judge to act immediately to quell the disruption, violence, disrespect, or physical abuse and maintain order. In many instances, direct contempt is punished summarily by the offended court at the time the act occurs11.

Jajati Keshari, who is also a legal scholar, says that direct contempt of Courts means any act that interferes and obstructs in the process of administration of Justice or undermines or lowers the authority and dignity of the courts and bring them into disrespect and disrepute. It is therefore, necessary that courts are vested with the power

11 Charles Chauncey, Contempt of Court, Texas Municipal Courts Education Center, 2023, P.1.

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to punish for committing the offence of contempt of court12.

Another legal scholar named David J. Bodine, also explained that when individuals openly challenge or disrespect the authority of the court in hearing which is called, direct contempt of court, they threaten the legitimacy of the legal process itself. If courts fail to act against such behaviour, it might signal a breakdown in the credibility of the justice system, to punish direct contempt is seen as a tool to maintain the dignity of legal proceedings13.

Based on the foregoing elucidations, the Court finds that by enacting Article 81, paragraphs one and two, of Law no 22/2018 of 29/04/2018 mentioned above, the Legislator intended to provide that an offence of direct contempt of court is to be immediately punished and also set out the procedure for such punishment, with the aim of maintaining order during hearings and ensuring respect for and the dignity of the functions performed by the court.

Regarding the claim that the contested provision does not grant the accused in a case of an offence of direct contempt of court the right to be informed of the nature and cause of the charge against them, to present a defense,

12 S., Jajati Keshari. "Contempt of Court as Defined in “Contempt of Courts Act 1971”. Journal of Advance Research in Social Science and Humanities (ISSN 2208-2387), 2017: 9-14. 13 David J. Bodine, The Nature and Function of Contempt in Modern Legal Systems, 2019, p.36.

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and to be legally represented, the Court finds that the Government Representative concurs with the petitioner that the provision in question, which allows the judge to order the removal of the offender by security personnel and immediately proceed to draft the judgment without granting the accused an opportunity to respond to the alleged offence, is contrary to the principle of due process of law, particularly with respect to the right to be informed of the nature and cause of the accusation, to defend oneself, and to be legally represented, as provided under Article 29, paragraph one, subparagraph (a) of the Constitution referenced above.

In Singapore, article 25, paragraph one, of the Administration of justice (Protection) Act 201614, stipulates that Where it appears to a court (other than a Small Claims Tribunal and an Employment Claims Tribunal), that a person has committed contempt in the

14 “Where it appears to a court (other than a Small Claims Tribunal and an Employment Claims Tribunal), that a person has committed contempt in the face of the court, and that court is satisfied that it is necessary for immediate steps to be taken for the protection of the due administration of justice, that court may cause such person to be detained in custody, and must as soon as practicable (a) cause the person to be informed in writing of the contempt with which he or she is charged; (b) afford the person an opportunity to make his or her defense to the charge; (c) after taking such evidence as may be necessary or as may be offered by the person and after hearing the person, proceed, either immediately or after adjournment, to determine the matter of the charge; and (d) make such order for the punishment or discharge of the person as may be just”.

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face of the court, and that court is satisfied that it is necessary for immediate steps to be taken for the protection of the due administration of justice, that court may cause such person to be detained in custody, and must as soon as practicable a. cause the person to be informed in writing of the contempt with which he or she is charged; b. afford the person an opportunity to make his or her defense to the charge; c. after taking such evidence as may be necessary or as may be offered by the person and after hearing the person, proceed, either immediately or after adjournment, to determine the matter of the charge; and d. make such order for the punishment or discharge of the person as may be just.

In France, direct contempt of court Offences of contempt of court are judged, ex officio or at the request of the public prosecutor, in accordance with the following provisions: If a police offence is committed during the hearing, the tribunal or court shall draw up a report of the offence, hear the accused, the witnesses, the public prosecutor and, where applicable, the defence counsel, and shall immediately apply the penalties prescribed by law15.

15 Article 676 du Code pénal de la République française.

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In India, procedure where contempt is in the face of the Supreme Court or a High Court. — (1) When it is alleged, or appears to the Supreme Court or the High Court upon its own view, that a person has been guilty of contempt committed in its presence or hearing, the Court may cause such person to be detained in custody, and, at any time before the rising of the Court, on the same day, or as early as possible thereafter, shall— a. cause him to be informed in writing of the contempt with which he is charged; b. afford him an opportunity to make his defense to the charge; c. after taking such evidence as may be necessary or as may be offered by such person and after hearing him, proceed, either forthwith or after adjournment, to determine the matter of the charge; and d. make such order for the punishment or discharge of such person as may be just16.

The few examples previously presented illustrate how the prosecution of offences of contempt of court is conducted in other countries, showing that the accused is informed of the nature and cause of the offence they are charged with, given an opportunity to present a defense, and granted the right to legal representation. This contrasts with the provisions of Article 81, paragraphs one and two, of Law no 22/2018 referenced above, which allow the court where the offence of contempt of court to

16 The Contempt of Courts Act, 1971, 14 (1).

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immediately impose a sentence on the alleged offender without first affording them the opportunity to defend themselves or the right to legal representation.

Based on the explanations provided above, the Court finds that Article 81, paragraph one, of Law no 22/2018 of 29/04/2018 referred to above is inconsistent with the Constitution, particularly regarding the right to be informed of the nature and cause of the offence being charged, the right to a defence, and the right to legal representation, as provided under Article 29, paragraph one, subparagraph (a) of the Constitution.

Regarding the claim that the challenged provision denies the accused the right to appear before a competent court, the said provision, in its first paragraph, provides that a person who, during the hearing, commits an offence punishable by a maximum sentence of imprisonment for five (5) years, the court may immediately sentence the perpetrator even if in practice the court has no jurisdiction to hear such an offence in the first instance. This means that when an offence is committed in a given court but falls under the jurisdiction of another court, the court where the offence occurred acquires jurisdiction to try it. This is what the petitioner challenges, arguing that the accused does not get tried before a competent court.

Article 153, paragraph 5, of the Constitution provides that it is the law that determines the organization, functioning, and jurisdiction of the courts. This implies that the Constitution empowers the legislator to confer jurisdiction upon the courts through legislation. It is within this framework that the legislator, based on the

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authority granted by the Constitution, provided in Article 81, paragraph one, of the aforementioned law that, in relation to an offence of direct contempt of court, the court in which the offence is committed immediately acquires jurisdiction to try the matter, even if it would not ordinarily have jurisdiction to do so at first instance.

Moreover, the fact that the court in which the offence of direct contempt of court is committed immediately acquires jurisdiction to adjudicate the matter is justified by the following key reasons: First, it is necessary to restore order in the courtroom disrupted by the offence, in order for the ongoing trial to proceed without interruption; second, the offence occurs in the presence of the presiding judge who directly witnessed the conduct in question, placing the judge in the best position to assess the situation and impose a sanction in accordance with the law.

The foregoing was explained in the case of COOKE v. United States, 267 U.S. 517 (1925), decided by the Supreme Court of the United States, in which Clay Cooke and J. L. Walker were each sentenced to 30 days’ imprisonment for contempt of court committed during a court proceeding. In that case, it was explained that to preserve order in the courtroom for the proper conduct of business, the court must act instantly to suppress disturbance or violence or physical obstruction or disrespect to the court, when occurring in open court. There is no need of evidence or assistance of counsel

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before punishment, because the court has seen the offense.17

Based on the foregoing elucidations, the Court finds that Article 81, paragraph one, of Law No. 22/2018 of April 29, 2018, as mentioned above, does not contradict the Constitution with regard to whether the accused has the right to appear before a competent court, because such jurisdiction is stipulated by law (statutory powers).

With regard to the claim by the petitioner that the contested provision does not grant the person convicted of an offence of direct contempt of court the right to appeal if they disagree with the decision made, the Court finds that this claim is unfounded because, as explained above, what this provision addresses is the manner in which such a crime is tried; as written, it does not state that a person convicted of that crime lacks the right to appeal.

The issue raised by the petitioner is in cases where the crime was committed in the Supreme Court, where it is claimed that once convicted, the person has no right to appeal. The Court finds that this does not concern the manner in which the contested provision is written, but rather that, since the Supreme Court is the superior court, its decisions are not subject to appeal. Additionally, since there are issues resolved at both the first and last instances by the Supreme Court, making them non-appealable, this

17 COOKE v. US, 267 U.S. 517 (1925), United States Supreme Court, No. 311, Argued: March 20, 1925. Decided: April 13, 1925.

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does not only concern offences of direct contempt of court18.

The fact that a person convicted at both the first and final levels by the highest court in the country does not have the right to appeal is also permitted under international law, where Article 2 of the Protocol no 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms provides that although every person convicted of a crime has the right to appeal to a higher court, this right is limited for those convicted by the highest courts in the country19.

In light of the foregoing explanations, the Court finds that Article 81, paragraph one, of Law no 22/2018 of April 29, 2018, does not deny the person convicted of a crime committed in the courtroom the right to appeal, and therefore, it is not inconsistent with the Constitution.

Regarding the claim made by the petitioner that the provision he challenges violates the principle that justice is rendered in the name of the people and nobody

18 Articles 66 to 80 of Law No. 30/2018 of 02/06/2018 determining the jurisdiction of courts, as amended to date. 19 Protocol No 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 2 – “Right of appeal in criminal matters. 1 Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law. 2 This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal”.

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may be a judge in his or her own cause, he intends to convey that the fact that the court where the crime occurred immediately tries the perpetrator amounts to self-judgment.

Direct contempt of court is not considered an offence against the judge personally, but rather an offence against the judge as part of their judicial duties. For this reason, if the judge follows up on the person who committed the act and takes a decision, it should not be equated to a situation where the judge is the victim of a crime outside of their judicial duties, and where the case is brought before them for adjudication. The legislator has prohibited this in Article 104 of Law no 22/2018 of 29/04/2018 relating to civil, commercial, labor, and administrative procedure, as amended to date, which stipulates that in case a judge finds him/her concerned with one or several of circumstances provided for under Article 10320 of this Law, he /she withdraws from the case by informing the President of the court in writing [...].

With regard to the possibility of a judge being the victim of a direct contempt of court and then turning around to impose a sentence on the perpetrator, which is not considered as “self-judging” prohibited by the Constitution, this was explained in the case European Asian Bank AG vs Wentworth, discussed in an article by Natalie Adams, a Judge in the High Court of New South Wales, and Belinda Baker, a lawyer and prosecutor in that

20 Any judge may be disqualified if: 1° the judge, his/her spouse and their children have a personal interest in the case; 2° […].

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country, titled "Sentencing for Contempt of Court21." In this case, the court explained that When a judge deals summarily with an alleged contempt he may at once be a victim of the contempt, a witness to it, the prosecutor who decides that action is required and the judge who determines matters in dispute and imposes punishment. The combination, in the judge, of four such inimical functions is not only unusual. It is so exceptional that, though it may sometimes be required to deal peremptorily with an emergency situation, those occasions will be rare indeed.

The Supreme Court of India also stated that contempt of court goes beyond from mere defiance of a judge’s authority, but also denotes a profound challenge to the principles that underpin the rule of law. When a party engages in contempt, it does more than simply refusing to comply with a judge’s order, but also directly questions the Court’s ability to uphold the rule of law. It erodes the public confidence in the judicial system and its ability to deliver justice impartially and effectively22.

The explanations provided above clearly demonstrate that an offence of contempt of court is not an offence against the judge personally in such a way that would prevent him or her from adjudicating the matter for

21 Cit. Justice Natalie Adams and Belinda Baker, sentencing for Contempt of Court, National judicial college of Australia and the Australian national university sentencing, conference, 29 February, 2020, §. 80. 22 See, the Supreme Court of India, inherent jurisdiction Contempt Petition (CIVIL) no. 196-197 of 2024 in special leave petition (CIVIL), no 12081-12082 of 2023.

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fear that it may be considered as self-judging, which is prohibited. Rather, it is an offence committed against the judicial system as a whole, which is represented by the judge presiding over that hearing.

Based on the foregoing elucidations, the Court finds that Article 81, paragraph one, of Law no 22/2018 of 29/04/2018 mentioned above is not inconsistent with the Constitution, as it does not in any way violate the principle that no one shall be a judge in their own cause.

The petitioner challenges the article in question, alleging that it contravenes the principle that court proceedings are conducted in public unless the Court determines that proceedings be held in camera in circumstances provided for by law. A public hearing refers to a situation where the courtroom is open and anyone can enter and follow the proceedings. This differs from a hearing in camera, where the judge orders all persons present in the courtroom to leave, leaving only the parties to the case and their legal representatives, if any.

In light of the foregoing elucidation, the Court finds that, as per its wording, the article being challenged does not in any way provide that a person prosecuted for an offence of contempt of court is tried only after the courtroom has been cleared. Rather, the procedure is that the person accused of the offence is the one removed from the courtroom, while those present remain; the court then deliberates in private, after which the removed individual is brought back in and the court publicly announces the decision taken against them.

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Based on the explanation provided above, the Court finds that Article 81, paragraph two, of Law no 22/2018 of 29/04/2018, which is the subject of the applicant’s criticism, does not contradict the principle that court proceedings are held in public, and therefore, it is not inconsistent with the Constitution with regard to that principle.

The petitioner further criticizes the aforementioned provision for allegedly violating the right to be presumed innocent until proven guilty by a competent court. The said provision stipulates that the judge shall immediately draft the judgment based on the facts and the law that was violated, then summon the person who had been removed, read to them the full judgment rendered, and thereafter resume the hearing.

The presumption of innocence, in principle, means that an accused person is not punished without a trial establishing their guilt. In the case of Allen v. The United Kingdom (Application no 25424/09) decided by the European Court of Human Rights, the Court explained that, viewed as a procedural guarantee in the context of a criminal trial itself, the presumption of innocence imposes requirements in respect of, inter alia, the burden of proof; legal presumptions of fact and law; the privilege against self-incrimination; pre-trial publicity; and premature expressions, by the trial court or by other public officials, of a defendant’s guilt23.

23 Case of Allen v. the United Kingdom (Application no. 25424/09) Judgment Strasbourg 12 July 2013. Article 6 § 2 safeguards the right to be “presumed innocent until proved guilty according to law”.

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As previously explained, the impugned article states that the judge writes the judgment based on what they personally witnessed, and then reads the rendered decision to the accused who committed the offence during the hearing. This means that, until the judge reads the verdict to the person being prosecuted for an offence of contempt of court, that person is still presumed innocent.

Based on the explanations provided above, the Court finds that the manner in which Article 81, paragraphs one and two, of Law no 22/2018 of 29/04/2018, which is the subject of the petition, is drafted does not, in any way, contravene the Constitution with respect to an individual's right to be presumed innocent until proven guilty by a competent court.

In light of the laws and international treaties ratified by Rwanda, and considering all the explanations provided—particularly those drawn from court decisions and laws of other countries—the Court finds that the provisions of Article 81, paragraphs one and two, of Law no 22/2018 of 29/04/2018 relating to civil, commercial, labor, and administrative procedure, as amended to date, are not inconsistent with the rights set forth under Article 29, paragraph one, subparagraphs (b) and (c), as well as the principles enshrined in Article 152, paragraph one, subparagraphs (a) and (c) of the Constitution.

However, the Court finds that, based on the laws and international treaties ratified by Rwanda, and considering all the explanations provided—particularly those based on decisions by courts and legislation from other countries—the provisions of Article 81, paragraph

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two, of Law no 22/2018 of 29/04/2018 relating to civil, commercial, labor, and administrative procedure, as amended to date, are in some respects inconsistent with the principle of due process of law as guaranteed under Article 29, paragraph one, subparagraph (a) of the Constitution, with respect to the right to be informed of the nature and cause of the accusation, the right to defense, and the right to legal representation. Therefore, this paragraph is deemed to have no legal effect pursuant to Article 3 of the Constitution.

In order to avoid a legal vacuum in case the Court declares that a statutory provision is inconsistent with the Constitution, in case RS/Inconst/Pén.0001/08/CS, the Supreme Court, relying on precedents from other jurisdictions, held that it has the authority to repeal the portion of a legal provision that is inconsistent with the Constitution, and to add wording to the remaining part. It explained that the removal of a portion of the law and the addition of words must be exercised with caution and restraint, with the Court refraining from interfering in political matters, and instead striving to respect the intent and purpose of the legislator in enacting the contested provision with regard to the structure of the law following the Court’s intervention24.

Based on the foregoing, the Court finds that in enacting Article 81, paragraph two, of Law no 22/2018 of 29/04/2018 referenced above, the legislator’s intention was to ensure that a person who commits an offence of

24 Judgment RS/Inconst/Pén.0001/08/CS rendered on 26/09/2008, Murorunkwere Spéciose, paragraphs 34 and 35.

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contempt of court is held accountable, and even the petitioner agrees that such conduct must be punished, though they object to the manner in which it is implemented.

After finding that the second paragraph of the aforementioned article is inconsistent with the Constitution, as explained above, and in order to avoid a legal vacuum, the Court finds that Article 81 of Law No 22/2018 of 29/04/2018 referenced above shall be supplemented with a second paragraph drafted as follows: “In such a case, the judge adjourns the hearing and orders security personnel to take the perpetrator out of the courtroom and calls the public in the hearing to order. The court registrar takes minutes of what has happened. The judge informs the accused of the offence committed and instructs the registrar to read aloud the recorded minutes to the accused. The judge then asks the accused and his/her counsel, if present or immediately available, to respond to the charges. If the accused behaves in a manner that disturbs order, the judge orders the security officers to remove him/her from the courtroom. The judge then immediately writes the judgment, reads the decision taken, and resumes the hearing”. III. DECISION OF THE COURT

Holds that the petition filed by Mironko François Xavier, seeking declaration that Article 81, paragraphs one and two, of Law no 22/2018 of 29/04/2018 relating to civil, commercial, labour, and administrative procedure, as amended to date, on the grounds that it is inconsistent

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with the Constitution of the Republic of Rwanda, has merit in part;

Declares that paragraph one of article 81 of Law no 22/2018 of 29/04/2018 relating to civil, commercial, labour, and administrative procedure, as amended to date, is not inconsistent with articles 29 and 152 of the Constitution of the Republic of Rwanda;

Declares that paragraph two of article 81 of Law no 22/2018 of 29/04/2018 relating to civil, commercial, labour, and administrative procedure, as amended to date, is inconsistent with articles 29, paragraph one, subparagraph (a) of the Constitution of the Republic of Rwanda, and that paragraph is thus without effect.

Orders that of article 81 of the aforementioned Law no 22/2018 of 29/04/2018 be supplemented with a second paragraph written as follows: “In such a case, the judge adjourns the hearing and orders security personnel to take the perpetrator out of the courtroom and calls the public in the hearing to order. The court registrar takes minutes of what has happened. The judge informs the accused of the offence committed and instructs the registrar to read aloud the recorded minutes to the accused. The judge then asks the accused and his/her counsel, if present or immediately available, to respond to the charges. If the accused behaves in a manner that disturbs order, the judge orders the security officers to remove him/her from the courtroom. The judge then immediately writes the judgment, reads the decision taken, and resumes the hearing”;

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Orders that this judgment be published in the Official Gazette of the Republic of Rwanda.