4 December 2018

Rwanda: City Lawyer Challenges Provisions of New Penal Law at Supreme Court

Supreme Court on Tuesday heard a petition in which Richard Mugisha, a senior lawyer in the country, filed a constitutional petition challenging provisions in the new penal law that went into force at the end of August this year.

Mugisha, through his lawyers Moise Nkundabarashi and Florida Kabasinga, claims in his petition that some of the provisions in the new penal law are against the letter and spirit of the constitution and other conventions to which Rwanda is signatory.

Appearing before a Supreme Court bench led by Chief Justice Prof Sam Rugege, Mugisha, who is the current President of the East African Law Society, said that he picked specific interest in the case because of not only being a Rwandan, but also a practicing lawyer in the country.

He is challenging the provisions under 133; which criminalises the humiliation of public officials through writings and cartoons, article 136 that criminalises adultery and 156 penalises insulting the President of the Republic, among others.

"I didn't file this petition because I had the intention to defame or insult anyone nor, as a married man, do I intend to commit adultery. However I am a Rwandan who feels he is duty bound to have an active role in the governance of my country," Mugisha told court.

This was reiterated by Nkundabarashi, who said that every Rwandan has interest in the letter and spirit of our constitution, adding that one should not necessarily have been directly or personally affected by the provisions his client is challenging.

"It is in the interest of the general public and rule of law," said Nkundabarashi, who is a partner at Trust Law Chambers, where Mugisha is also Senior Partner.

Appearing on behalf of the state, Principal State Attorney Speciose Kabibi challenged the legitimacy of Mugisha's petition on grounds that he was not directly affected by any of the articles he is challenging.

"Mugisha is not a journalist to have been a party directly affected by the provisions. The fact that he is a lawyer should not arise. If this is the case, he should have gone through the Bar Association," said Kabibi.

This was however rebuffed by both Mugisha and his lawyers, saying that the submission was narrowly focused and that this was in fact under the mandate of the Attorney General's Office which should have challenged the provisions before the law was promulgated.

"Actually, I believe the State Attorney should have been on our side challenging this. The provisions not only contravene the constitution, but also other international conventions to which Rwanda is signatory," said Kabasinga, who is managing partner of Certa Law, another law firm.

Following the submissions by parties, Rugege said that they would deliberate on the objections by the Principal State Attorney concerning the legality of Mugisha presenting the petition and rule on that before the case can proceed in its substantive phase.

"Given the seriousness of this petition and the fact that its outcome is likely to have jurisprudential precedence, caution is required to every objection raised. We have therefore decided to deliberate on this and rule on it on January 11, 2019," Rugege ruled before dismissing the petitioners.

The five-person bench also included former Chief Justice Aloysia Cyanzayire.

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