4 December 2018

Rwanda: Why Top Lawyer Is Challenging New Penal Code in Supreme Court

The Supreme Court is set to deliberate on whether provisions in the new penal code that criminalise adultery and publishing of cartoons is unconstitutional, among other articles.

According to the recently-revised penal code, any married person found guilty of adultery risks a jail sentence of up to one year.

The same law provides for sentences of up to two years and a fine of Rwf1 million for anyone who publishes writings or cartoons deemed to humiliate public officials on duty.

The same law prescribes a seven-year sentence and a fine of Rwf7m for a person who defames the President of the Republic.

The case was filed by a top city lawyer, Richard Mugisha, a senior partner and co-founder of Trust Law Chambers.

Mugisha filed a constitutional petition challenging the provisions in the penal law that came into force in August 2018.

Through his lawyers, Moise Nkundabarashi and Florida Kabasinga, the petitioner argued that some of the provisions in the new penal law are against the letter and spirit of the constitution and some conventions to which Rwanda is signatory.

The hearing was presided over by Chief Justice Prof. Sam Rugege on a bench that comprised four other senior judges of the Supreme Court, including former Chief Justice Aloys Cyanzaire.

Mugisha, who is the current president of the East African Law Society, said that he picked interest in the case for two main reasons.

"I am a practicing lawyer and a Rwandan who loves his country," he said.

"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," Mugisha said.

"However, I am a Rwandan who feels duty bound to have an active role in the governance of my country," Mugisha told court.

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," Kabibi argued.

Mugisha's lawyers asked court to dismiss the State's argument saying that every Rwandan has interest in the letter and spirit of the constitution, irrespective of whether they are directly or personally affected.

"It is in the interest of the general public and rule of law," Nkundabarashi further argued.

Mugisha's other lawyer, Kabasinga, the managing partner of Certa Law, pointed out that the submission by the State Attorney was narrowly focused and that this issue was in fact under the mandate of the Attorney General's Office, which should have challenged the provisions before the law was promulgated.

"The State Attorney should have been on our side. The provisions not only contravene the constitution, but also several international conventions to which Rwanda is a signatory," Kabasinga said.

Following the submissions by both parties, Chief Justice 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 on every objection raised. We have, therefore, decided to deliberate on this and rule on it on January 11, 2019," Rugege said.

Before the Supreme Court hears whether the laws in contention are unconstitutional or not, it will rule on the legality of the petition.

The dispute arises from the context in which Mugisha filed the case as raised by the Principle State Attorney.

The five articles in contention are:

Article 233: Humiliation of national authorities and persons in charge of public service: Any person who, verbally, by gestures or threats, in writings or cartoons, humiliates a member of Parliament when exercising his/her mandate, a member of the Cabinet, security officers or any other person in charge of a public service in the performance or in connection with the performance of his/her duties, commits an offence.

Article 236: Insults or defamation against the President of the Republic: Any person who insults or defames the President of the Republic, commits an offence.

Article 136: Adultery, its prosecution and punishment: Any spouse who has sexual intercourse with a person other than his/her spouse, commits an offence.

Article 139: Desertion of the marital home: A spouse who, without serious reasons, deserts his/her marital home for more than two (2) months and evades his/her obligations, commits an offence.

Article 154: Public defamation of religious rituals: Any person who publicly defames religious rituals, symbols and religious cult objects by use of actions, words, signs, writings, gestures or threats, whether carried out at the place where rituals are intended to be performed or where they are normally performed; commits an offence.

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