PROSECUTION v TWAGIRUMUKIZA

# PROSECUTION v TWAGIRUMUKIZA

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2023-12-22 - Case/document no.: RPAA 00367/2020/CA - Collection: Court of Appeal

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PROSECUTION v TWAGIRUMUKIZA [Rwanda COURT OF APPEAL – RPAA 00367/2020/CA (Rutazana, P.J.) 22 December 2023] Laws relating to the criminal procedure – Precedents – An existing precedent cannot be followed if the law on which it was based was repealed or amended; in such a case, reference is made to the provision of the law that amended it. Facts: This case started in the Intermediate Court of Huye, where the Prosecution indicted Twagirumukiza of child defilement after the accused had spent the night at his home with a 17-year-old girl named K.M. and had sexual intercourse with her; the girl then felt unwell and self-tested positive for the pregnancy. Before that Court, the accused admitted that he had sexual intercourse with K. M. but added that the girl was already a sex worker because he had sexual intercourse with her and paid her money, he also denied that she was a child and that he did not impregnate her. The Court held that the defendant was guilty of defiling the 17-year-old girl and sentenced him to imprisonment for a term of twenty (20) years. The accused appealed to the High Court, Chamber of Nyanza and kept on arguing that the girl with whom he had sexual intercourse, was an adult and that she was already a sex worker, claiming that he had paid her before having sexual intercourse, that based on date and month

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of her birth and the date and month when the alleged offense occurred, she had already turned 18 years old. The Court ruled that when the offence was committed, K.M. had not yet reached the majority age, based on her date of birth as indicated on her birth certificate and confirmed the appealed judgment. The accused appealed again to the Court of Appeal, alleging that as per the appealed judgment, his sentence was not reduced, despite his confession since his arrest and his sincere remorse and he requested for a reduced sentence, that the sentence reduction to align it with the gravity of the crime falls within the jurisdiction of the Court. The Prosecution alleged that that the sentence imposed on Twagirumukiza was appropriate, as it would help him understand the gravity of the offence he committed. Held: 1. An existing precedent cannot be followed if the law on which it was based was repealed or amended; in such a case, reference is made to the provision of the law that amended it, therefore article 2 of Law nº 059/2023 of 04/12/2023 amending Law nº 68/2018 of 30/08/2018 determining offences and penalties in general should be the basis for determining the appropriate sentence including the reduction of the sentence rather than relying solely on the position set

in the cases RS/INCONST/SPEC 00003/2019/SC and RPAA 00032/2019/CA, as well as other cases that followed the position of reducing the sentence up to below the minimum penalty provided for by the law because these cases were decided based on article 60 of Law nº 68/2018

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of 30/08/2018 determining offenses and penalties in general. 2. In criminal cases, when the defendants have no other objection to the appealed judgment, other than claiming that they have not been given a sufficiently reduced sentence, every judge at any stage of the proceedings is permitted to impose a sentence at his/her discretion taking into account the gravity of the offence and its consequences; however at the appellate level, the judge must bear in mind that he/she is only permitted to modify the sentence imposed by the lower court, only after indicating that the court abused the law or its discretion in imposing the sentence. Therefore, the sentence imposed on the defendant should be reduced to match the gravity of the offence. The judgment is reversed only with regard to the sentence. Statutes and statutory referred to: Law N° 68/2018 of 30/8/2018 determining offences and penalties in general as amended to date, article 133. Law Nº 059/2023 of 04/12/2023 amending Law nº 68/2018 of 30/08/2018 determining offenses and penalties in general, article 2. Cases referred to: Prosecution vs. Bimenyimana, RPAA 00048/2020/CA decided by the Court of Appeal on 26/05/2022.

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Prosecution vs. Nsabimana alias Sankara et.Al., RPA 00060/2021/CA decided by the Court of Appeal on 04/04/2022. Prosecution vs. Shirimpaka Jean Claude, RPAA 00145/2021/CA decided by the Court of Appeal on 30/10/2023. Judgment I. BACKGROUND OF THE CASE

On 21/11/2018, in Rwabuye Village, Gatobotobo Cell, Mbazi Sector, Huye District, a person named Twagirumukiza Innocent Réponse spent the night at his home with a 17-year-old girl named K.M. and they had sexual intercourse; then the girl went back home but a few days later she felt unwell and she self-tested positive for pregnancy, when she told to Twagirumukiza Innocent Réponse that she had impregnated her, the latter denied it; this led to the disclosure of news that she had been defiled by Twagirumukiza Innocent Réponse and the latter was arrested and handed over to the Investigation Bureau, for alleged child defilement; after the completion of the investigation, the Prosecution filed the case before the Intermediate Court of Huye.

Before that Court, Twagirumukiza Innocent Réponse admitted that he had sexual intercourse with Kubwimana Marie, alias Aline, however added that the girl was already a sex worker because he had sexual intercourse with her and gave her money, and that he does

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not believe that she was a minor and that he never impregnated her.

In the judgment RP 00411/2018/TGI/HYE, rendered by the Intermediate Court of Huye on 18/01/2019, it declared that Twagirumukiza Innocent Réponse was found guilty of child defilement against a 17-year-old girl named Kubwimana Marie alias Aline, based on his confession before the Investigation Bureau and before the Court, which was highlighted by the statements of the minor who accused him before the Investigation Bureau and her birth certificate issued by the Executive Secretary of Ruhashya Sector on 18/12/2018, which indicates that she was born in Kaduha on 25/04/2001; and was sentenced to the imprisonment for a term of twenty (20) years.

Twagirumukiza Innocent Réponse appealed against the judgment to the High Court, Chamber of Nyanza, alleging that the girl with whom he had sexual intercourse was adult and sex worker, so he first paid her before having sexual intercourse and his legal counsel also emphasized that Kubwimana Marie, alias Aline, was adult because, based on her date and month of birth and the date and month of the commission of the alleged crime, she had already turned 18 years old, so he notes that no crime had been committed.

The Prosecution submits that this ground of appeal is unfounded because, based on the date indicated on the birth certificate of Kubwimana Marie, alias Aline, which indicates that she was defiled when she was still a minor because she was 17 years old, and that this ground of

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appeal is contrary to the arguments of Twagirumukiza Innocent Réponse at first instance as he pleaded guilty and requested for a reduced sentence; it concludes by praying the Court to confirm the sentence imposed on him.

In the judgment RPA 00154/2019/HC/NYZ rendered on 30/12/2019, the High Court, Chamber of Nyanza, found that the grounds of appeal submitted by Twagirumukiza Innocent Réponse were unfounded as when the offence was committed, Kubwimana Marie, also known as Aline, had not yet attained the majority age, based on her date of birth indicated on her birth certificate, confirmed the appealed judgment, upheld the imprisonment for a term of twenty (20) years imposed on Twagirumukiza Innocent Réponse.

Twagirumukiza Innocent Réponse also appealed against this decision before the Court of Appeal, the case was registered under nº RPAA 00367/2020/CA, and its hearing was held in public on 07/12/2023, the accused represented by Counsel Umugwaneza Diane, while the Prosecution was represented by Ninahazwa Roselyne, National Prosecutor.

In the appeal submissions that Twagirumukiza Innocent Réponse submitted to the Court, he alleged that in the appealed case, his sentence was not reduced even though he admitted that he had committed the offence since his arrest and had already expressed remorse. He requested for a reduction of the sentence, claiming that he was a first-time offender, based on the precedent set in the case decided by this Court.

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In its submissions, the Prosecution argued that Twagirumukiza Innocent Réponse's appeal should not be upheld because he does not indicate what he criticizes about the judgment of the High Court as his claim that he pleaded guilty is not true; that he pleaded not guilty because the child he is alleged to have defiled was over 18 years old, and requested an acquittal.

During the hearing, Twagirumukiza Innocent Réponse and his lawyer told to the Court that, upon review, the appeal submissions did not challenge any aspect of the appealed judgment. Rather, they were merely requesting the Court to reduce his sentence, based on the position set in the case RPAA 00039/2021/CA in the Prosecution vs. Shakabatenda Jean de Dieu as he now fully understands the gravity of the crime he committed. The Prosecution, on its part, maintained that the sentence of imprisonment for a term of 20 years imposed on Twagirumukiza Innocent Réponse was appropriate, as it would help him understand the gravity of the offense he committed.

The disputed issue in this case is to determine whether Twagirumukiza Innocent Réponse deserves a reduced sentence at this instance

I. ANALYSIS OF THE LEGAL ISSUE

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 Determine whether Twagirumukiza Innocent Réponse deserves a reduced sentence at this instance

Twagirumukiza Innocent Réponse and his lawyer allege that they pray the Court of Appeal to reduce his sentence on the grounds that he is a first-time offender, in addition to that he has already fully understood the gravity of the crime he committed and expressed remorse; they allege that reducing the sentence to match the gravity of the offence is within the court's jurisdiction, based on the decisions taken in the case RPAA00039/2021/CA involving the Prosecution v. Shakabatenda Jean de Dieu.

The Prosecution avers that the sentence of imprisonment for a term of 20 years imposed on Twagirumukiza Innocent Réponse is appropriate as it will help him understand the gravity of the offence he committed. DETERMINATION OF THE COURT

The Court finds that the request for a reduced sentence was made by Twagirumukiza Innocent Réponse in his submissions to the Court when filing the appeal, and himself and his lawyer reiterated it during the hearing.

A similar issue was resolved in the case n0 RPA 00060/2021/CA decided by the Court of Appeal on 04/04/2022, in the Prosecution vs. Nsabimana Callixte alias Sankara and others. In that case, the Court of Appeal

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explained that, in criminal matters, when the appellants do not raise any other ground of appeal apart from claiming that the sentence was not sufficiently reduced, any judge, at any level, is permitted to impose a sentence at his/her discretion, in accordance with the gravity of the offence and its consequences, as provided under article 49 of Law n0 68/2018 of 30/08/2018 determining offences and penalties in general; however, during the appeal, a judge is only permitted to modify the sentence imposed by the judge of the lower court after demonstrating that the lower court either abused the law or discretion in sentencing. This position has been applied in various subsequent decisions of the same Court, including the case n0 RPAA 00145/2021/CA decided on 30/10/2023, wherein the parties were the Prosecution vs. Shirimpaka Jean Claude.

The child defilement that Twagirumukiza Innocent Réponse was convicted of is punishable with a term of imprisonment for a term of not less than 20 years and not more than 25 years, based on the provisions of article 133 of Law nº 68/2018 of 30/08/2018 determining offences and penalties in general as amended to date; while he was sentenced to imprisonment for a term of 20 years.

While this case was still pending for pronouncement before this Court, the Law nº 059/2023 of 04/12/2023 amending the Law nº 68/2018 of 30/08/2018 2018 determining offences and penalties in general was promulgated, its second article provides that: “If the judge approves mitigating circumstances, he or she may reduce penalties as follows: … (b) a fixed-term imprisonment

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from 6 months and above may be reduced but it cannot be less than a half of the minimum sentence provided for the offence committed”.

The Court finds that this provision should be based on in determining the extent to which is appropriate to reduce the sentence in case it approves mitigating circumstances, rather than relying on the position set in the case RS/INCONST/SPEC 00003/2019/SC and the case RPAA 00032/2019/CA as well as other cases that followed this position of reducing the sentence up to below the minimum sentence provided for by law, because these cases were decided in accordance with article 60 of Law n° 68/2018 of 30/08/2018 determining offences and penalties in general, and this article was amended by article 2 of Law n° 059/2023 above mentioned.

Regarding the reduction of the sentence based on the position set before the law in force was elucidated by this Court in the case Nº RPAA 00048/2020/CA1 whereby it established that the existing precedent cannot be followed since the law on which it was based was repealed (or amended), which is consistent with this case as it cannot follow the position which was based on the provision of the law that was already amended.

1 Judgment RPAA 00048/2020/CA rendered by the Court of Appeal on 26/05/2022, in the Prosecution v. Bimenyimana, paragraph 26.

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Based on the position2 set in the case RPA 00060/2021/CA above mentioned in paragraph 15, the following paragraphs shall examine whether the sentence of imprisonment for a term of twenty (20) years imposed on Twagirumukiza Innocent Réponse for the offence of defilement of a seventeen (17) years old girl should be reduced to this extent to match the gravity of the offence committed.

In previous cases, both before the Intermediate Court of Huye and before the High Court, Chamber of Nyanza, Twagirumukiza Innocent Réponse admitted that he had sexual intercourse with Kubwimana Marie, alias Aline, but he alleged that the girl was already a sex worker because he had paid her to have sexual intercourse with her, and that he does not believe that she was a minor and that he did not impregnate as she alleged it.

The Court finds that, although Twagirumukiza Innocent Réponse committed the child defilement against a 17-year-old girl, being fully aware of the consequences of the crime due to his age during the commission of the

2 It established that in criminal cases, when the defendants have no objection to the appealed judgment, other than claiming that they were not given a sufficiently reduced sentence, every judge at any stage of the proceedings is allowed to impose a sentence at his/her discretion taking into account the gravity of the offence and its consequences, in accordance with the provisions of article 49 of Law n0 68/2018 of 30/8/2018 determining offenses and penalties in general, but that in an appeal, the judge must bear in mind that s/he is only allowed to modify the sentence imposed by the judge of the previous court, only after demonstrating that that court abused the law or its discretion in imposing that sentence..

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crime (32 years), and although he pleaded not guilty in the previous courts as he claimed that he did not believe that the girl with whom he had sexual intercourse was a minor, the sentence of imprisonment for a term of 20-years imposed on him is excessive compared to the fact that the contents of the case file indicate that since his arrest he had admitted that he had had sexual intercourse with the girl, the only thing he did not admit was her age, and that he was a first-time offender; this sentence should be reduced to match the gravity of the crime.

The Court finds that the reasons mentioned in the previous paragraph were not taken into account in the previous courts, which prevented Twagirumukiza Innocent Réponse from receiving an appropriate reduced sentence; therefore, based on these reasons and on the provisions of article 2 of Law n0 059/2023 above mentioned, as well as on the position set3 in the case RPA 00060/2021/CA also mentioned above, the Court finds that Twagirumukiza Innocent Réponse deserves a reduced sentence, and he shall be sentenced to imprisonment for a term of thirteen (13) years instead of the imprisonment for a term of 20 years imposed on him in the appealed case.

3 Whereby, in criminal matters, the defendants' criticism of the appealed judgment is that they were not sentenced to a sufficiently reduced sentence, each judge at any stage is allowed to impose a sentence at his/her discretion to match the gravity of the crime and its consequences, in accordance with the provisions of article 49 of Law n0 68/2018 of 30/8/2018 determining offenses and penalties in general, but that in an appeal, the judge must bear in mind that s/he is only allowed to modify the sentence imposed by the judge of the previous court, only after demonstrating that that court abused the law or its discretion in imposing that sentence.

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II. DECISION OF THE COURT

Holds that the judgment n° RPA 00154/2019/HC/NYZ decided by the High Court, Chamber of Nyanza, on 30/12/2019, is reversed with regard to the sentence.

Orders that Twagirumukiza Innocent Réponse shall be sentenced to the imprisonment for a term of thirteen (13) years for child defilement against a seventeen (17) year old girl.

Declares that the court fees are borne by the Public Treasury, as Twagirumukiza Innocent Réponse appealed when he was in prison and is therefore exempted from paying them.