May 3, 2019

President Kagame’s Disagreement With Supreme Court Advances Rule of Law

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August 01, 2018: President Paul Kagame officiates the swearing-in of 17 judges from the Supreme Court, the newly-established Court of Appeal, the High Court, and the Commercial High Court. The session took place in Parliament

As we celebrate World Press Freedom Day today May 3, it’s time to hail the bold decision of Richard Mugisha and his colleagues at Trust Law Chambers for petitioning the Supreme Court on the constitutionality of criminal defamation and adultery Articles in the 2018 penal code.

The two articles are important because, the first─which deals with defamation against public officials undermines freedom of expression and of the press that are critical to holding public officials and power accountable, and the second─on criminal adultery deals with the family─which is the primary institution on which the state and the nation is founded.

Correspondingly, it’s also time to praise President Paul Kagame who, after the Supreme Court ruled that criminal defamation against public officials was unconstitutional but constitutional when it’s against the Head of State, the former disagreed – arguing that he too “is also a public official”.

These two acts together with the Supreme Court’s earlier ruling on procedural matters, that individual citizens have an interest in and a right to petition court on the constitutionality of any Article in the penal code or other laws, sets important precedents that advance rule of law. I will explain why.

First, in our society─in which rumours, backbiting, suspicions and apathy towards criticizing authority still reign, it’s never easy to question the constitutionality of laws or government policy. This is because, doing so is normally perceived or interpreted as “opposition” or “fighting” the government─which can have a crippling effect on whoever does it.

That Mugisha decided to petition the highest court in our land on the two critical matters required courage, confidence and an advanced sense of citizenship, especially that, in doing so, he expected no monetary benefit except contributing to enacting good and consistent laws, and accountable governance.

As he told the media, Mugisha petitioned court because: “there are issues that I feel so strongly about” and those issues include accountability that would be undermined by criminal defamation and the stability of the family, that he posits is undermined by criminal adultery despite the law’s good intentions.

Applying as a Private Citizen, Mugisha sought the nullification of a number of articles in the penal code that criminalize defamation, insults and cartooning public officials as well as those that criminalize adultery and abandoning the marital home for spouses.

These articles include 154, 233, and 236 that relate to defamation broadly – as well as articles 136, 138, and 139 of the 2018 penal code that deal with adultery broadly and relations between spouses.

Article 154 criminalizes “public defamation of religious rituals”, and Article 233 criminalizes “Humiliation of national authorities and persons in charge of public service”, while Article 236 criminalizes “Insults or defamation against the President of the Republic”.

In its ruling, the Supreme Court nullified Articles 154 and 233 as unconstitutional but upheld 236 as constitutional─because it concerns the head of state; who in the wisdom of our Justices, deserve legal protection by virtue of the office he holds and the responsibility he shoulders.

By the way, contrary to the pedestrian understanding that is sometimes peddled by some, decriminalizing defamation or humiliation of public officials doesn’t mean that it’s right and allowed. It only means it’s a civil matter that can be handled by complainants and courts as such.

After the ruling, the biggest story, especially in the international media, wasn’t the decriminalization of “humiliation” of public officials or defamation against religious rituals or upholding criminal adultery as the Supreme Court had done, but the story was that “It’s criminal to insult President Kagame”!

A few days after that, on April 26, the President’s office issued a statement informing Rwandans and the world that while the President welcomed the ruling and respected the independence of courts, he believes insults to or defaming a Head of State should be a civil, rather than a criminal matter.

The statement told us, in part: “The President of the Republic respects the independence of the judiciary and the recent Supreme Court decision to decriminalise the offences related to humiliation of public officials”.

And then added: “The President, however, takes issue with the decision to retain as criminal offences, insults or defamation against the Head of State, who is also a public official. His position has always been that this should be a civil, not a criminal matter”.

In a few minutes following this statement, social media was abuzz with praises to the Head of State with many arguing, rightly, that this disagreement was inspired leadership on the part of Kagame since, as the most powerful office in the land, the presidency should be scrutinized more and not less.

Yet, criminalizing insults to or defamation against the Head of State, while probably well intended, serves to shield this office and the person who holds it from accountability, which, in the case of President Kagame has put at the forefront of his leadership.

In fact, even Mugisha, the complainant, told the media that he had been inspired by the need for accountability which criminal defamation undermines.

On the importance of accountability, Mugisha told the media that: “As a society, we made a choice that accountability is what will characterize us. It’s that fundamental…Accountability is extremely important…It would be unfortunate if we have a constitution which undermines the spirit. All of us -including the very leaders who might think that this legislation is protecting them will lose if we provide a breeding ground for absence of accountability”.

I agree entirely. Criminal defamation undermines accountability as journalists and the media have to think twice before exposing corruption for example or abuse of power on the part of public officials since they have to weigh prison against informing the public before publishing or airing anything.

There is no way accountable governance and the fight against corruption can be advanced when professional mistakes by journalists are criminalized.

That said however, I should add that the Supreme Court’s ruling, surprisingly, suggests that the Judges believe that Rwandans aren’t equal before the law and could be categorized to enjoy legal protections according to the offices they hold! That’s what upholding, as constitutional defamation against the Head of State but unconstitutional against other public officials, means.

It’s difficult to understand why the Justices could rule thus considering that, than any other office in the land, the office of the President does not only have more power than any other institution─that need to be scrutinized─but is the only office where its holder is directly elected by the people and therefore accountable to them.

Criminalizing defamation against the holder of this office therefore underlines holding this office accountable and, in the process, the whole constitutional order since he is also its custodian and the President of the ruling Rwanda Patriotic Front (RPF) party. The three offices are indivisible since they are held by a single individual.

The good news is, the Head of State doesn’t agree that he should have special legal protection when it comes to how public officials appear in the media.

It’s therefore probable that even article 236 on this matter is likely to be scrapped from our penal code; an outcome that would advance media freedom; accountable governance and equality before the law.

On the issue of adultery─which received little media attention, the petitioner and his colleagues have by far, convincing grounds to decriminalize the vice than prosecution; despite the court ruling in favour of the latter─perhaps on conservative grounds.

On decriminalizing adultery, Mugisha told the media: “Prescribing criminal punishment for it, even though the legislators had very good intentions with it, its consequences are not protecting the family unit. The more I read about it and the more I thought about it, it occurred to me that while the politicians could have had the best of interest, the impacts is going to run counter to the objectives we have set for ourselves”.

I share Mugisha’s belief─that criminalizing adultery doesn’t advance the interests of the family but, in most cases─for example when one of the parents is imprisoned, the family disintegrates and children suffer as a consequence.

In addition, there is no evidence that criminalizing it is a deterrent and since there are other remedies─like counseling, it would be in the interest of families to make it a civil rather than a criminal matter, and in the process, saving government money and time that is spent prosecuting such cases.

But as our justices determined, adultery remains criminal as well as concubinage and abandoning one’s marital home.

Specifically, Article 136 on Adultery says: “Any spouse who has sexual intercourse with a person other than his/her spouse, commits an offence. Upon conviction, he/she is liable to imprisonment for a term of not less than six (6) months and not more than one (1) year”.

On the other hand, Article 138 on “Concubinage” says: “A person who lives as a husband and wife with a person other than his/her spouse while one or both of them are married, commits an offence. Upon conviction, he/she is liable to imprisonment for a term of more than one (1) year and not more than two (2) years”.

And article 139 on “Desertion of the marital home”, which the Supreme Court also upheld as constitutional says: “A spouse who, without serious reasons, deserts his/her marital home for more than two (2) months and evades his/her obligations, commits an offence. Upon conviction, he/she is liable to imprisonment for a term of not less than three (3) months and not more than six (6) months”.

In summary, while the petitioner lost on adultery clauses and insults to the President, in broad terms, Rwandans won since this court decision not only sets critical precedence, but also brought these issues to the public square for debate.

In the long, medium to long term therefore, I have no doubt that Article 236 will also be deleted from our laws as well as Articles on criminal adultery that unintentionally undermine the family’s wellbeing and stability.

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