Supreme Court

Re INGABIRE (PETITION FOR THE REPEAL OF LEGAL PROVISIONS INCONSISTENT WITH THE CONSTITUTION)

[Rwanda SUPREME COURT – RS/INCONST/0002/12/CS (Kayitesi Z., P.J., Mutashya, Mukamulisa, Nyirinkwaya, Mukandamage, Kayitesi R., Rugabirwa, Hatangimbabazi and Munyangeri N., J.) October 18, 2012]

Law determining the jurisdiction of courts – Petition aiming at repealing the provisions of laws – The competent court – The Supreme Court hears all petitions relating to the partial or complete repeal of an organic law, ordinary law, decree law due to their unconstitutionality – Organic Law Nº 03/2012/OL of 13/06/2012 relating the organization, functioning and jurisdiction of the Supreme Court, article 53.

Civil procedure – Petition aiming to repeal the provisions of law – Respect of procedures for the admissibility of these petitions – Deposition of the court fees – When applicant is under detention he/she must not pay the court fees and required formalities for the action for repeal the provisions of the law are abided by when the applicant instituted the petition in writing, bearing the date and her signature, showing the subject matter of the action as well as submissions claiming the repeal of articles of laws and he/she must have the interest in the subject matter as well – Law nº 21/2012 of 14/06/2012 relating to civil, commercial, labor and administrative procedure, article 361(3) – Organic Law Nº 03/2012/OL of 13/06/2012 relating the organization, functioning and jurisdiction of the Supreme Court, article 53(3), 54.

Constitution Law – Unconstitutional legal provisions – Petition aiming to repeal the provisions of law – The effect of the loss of binding force of the law or its provision while the petition for its repeal for unconstitutionality was filed and is pending before court – Fate of the provisions that may not be clear enough or require further interpretation – For the unconstitutionality of the law or an article to be examined that law or article has to be still in force; therefore the fact that the law or its provision have been already abrogated renders the petition objectless and cannot thus be admitted – These articles of the law should not be taken as if they are contrary to the constitution because they are not clear enough or require further interpretation since the article cannot be considered unconstitutional because of the mere fact that it needs further interpretation or complement; rather this can be done by the legislator in case they may deem it necessary – Organic Law nº 01/2012/OL of 02/05/2012 instituting the penal code in Rwanda, article 765.

Constitutional Law – The freedom of opinion – Limitation to the freedom of opinion – The freedom of opinion does not allow every person to express whatever he/she wants, rather that freedom can be limited by the laws of each country especially to safeguard the security and sovereignty of the State, public order or good morals – Law nº18/2008 of 23/07/2008 punishing the crime of genocide ideology, article 2, 3.

Facts: Ingabire filed a petition to the Supreme Court arising from the pending case no RP 0110/10/HC instituted by the prosecution against her before the High Court where she is prosecuted for the crime of minimization of genocide and genocide ideology, therefore she prays that article 2 to article 9 of Law n°18/2008 of  23/07/2008 punishing the crime of genocide ideology and article 4 of Law nº 33 bis/2003 of 06/09/2003 punishing the crime of genocide, crimes against humanity and war crimes should declared void because they are contrary to article 20, 33, and 34 of the Constitution of the Republic of Rwanda of 04/06/2003 as amended to date because they are uncertain and confusing to the extent that they prejudice individual rights provided under the constitution to express one’s opinion especially when talking about the genocide, and these may be subject to different individual interpretations.

Held: 1. The Supreme hears all petitions seeking the partial or total repeal of an organic law, ordinary law, and decree law due to their unconstitutionality.

2. When the applicant is under detention he/she must not pay the court fees and also all required formalities of the petition for the repeal of the provisions of the law are abided by when the applicant instituted an action in writing, bearing the date and her signature, showing the subject matter of the action as well as submissions claiming the repeal of articles of laws and he/she has an interest in the subject matter as well.

3. A law or its article must be still in force for their unconstitutionality to be examined. Therefore, the fact that the law or its provision has been already abrogated renders the petition objectless.

4. These articles should not be taken as contrary to the constitution because they are not clear enough or require further interpretation since an article should not considered unconstitutional because of the mere fact it needs further interpretation or complement, but rather this can be done by the legislator in case they may deem it necessary.

5. The freedom of thought does not allow every person to express whatever he/she wants; rather the right to express one’s opinion can be limited by the laws of each country especially to safeguard the security and sovereignty of the State, public order or good morals. Therefore, the articles for which repeal is sought are not intended to prevent people from exercising their freedom of opinion; but rather they intend to limit whoever can abuse that right granted by the law and incite to perpetration of genocide or minimize the committed one, therefore those articles are not contrary to the constitution. 

The petition aiming at the repeal of article 4 of Law nº 33 bis/2003 of 06/09/2003 punishing the crime of genocide, crimes against humanity and war crimes is inadmissible,

The action aiming at the repeal of article 4-9 of Law n°18/2008 of 23/07/2008 punishing the crime of genocide ideology has no merit,

With the Court fees to public treasury.

Statutes and statutory instruments referred to:

Constitution of the Republic of Rwanda of 04/06/2003 as amended to date, articles 33 and 34.

Law nº18/2008 of 23/07/2008 punishing the crime of genocide ideology, articles 2 and 3.

Law nº 21/2012 of 14/06/2012 relating to civil, commercial, labour and administrative procedure, article 361(3).

Organic Law nº 01/2012/OL of 02/05/2012 instituting the penal code in Rwanda, article 765.

Organic Law Nº 03/2012/OL of 13/06/2012 relating the organization, functioning and jurisdiction of the Supreme Court, articles 53 and 54.

Cases referred to:

Re Mugesera Léon, RS/INCONST/PEN 0002/12/CS rendered on 28/09/2012.

Re Ntawuburintimba Alivera, RS/INCONST/0002/10/CS rendered on 27/04/2012.

Judgment

I. BRIEF BACKGROUND OF THE CASE

[1]            The action of Ingabire Umuhoza Victoire arises from case n^o RP 0110/10/HC instituted against her by the prosecution pending before the High Court, where she is prosecuted for the crime of minimization of genocide and genocide ideology.

[2]               Ingabire Umuhoza Victoire instituted the action before the Supreme Court on 16/05/2012 requesting to declare void articles  2 to 9 of Law n°18/2008 of  23/07/2008 punishing the crime of genocide ideology and article 4 of Law nº 33 bis/2003 of 06/09/2003 punishing the crime of genocide, crimes against humanity and war crimes because they are contrary to articles 20, 33, and 34 of the Constitution of the Republic of Rwanda of 04/06/2003 as amended to date. She asserts that they are uncertain and confusing to the extent that they prejudice individual rights enshrined in the Constitution to freely express one’s opinion especially when talking about the genocide that happened in Rwanda, and they may be subject to different individual interpretations.

[3]               The hearing for this case was fixed on 19/07/2012 but it was not heard because Counsel Gatera Gashabana assisting Ingabire Umuhoza Victoire requested the time to respond to the court submission of the State attorney in writing because he alleged that he belatedly received it. The hearing was postponed on 03/09/2012and on that day it was held in public where Ingabire Umuhoza Victoire was assisted by Counsel Gatera Gashabana and also appeared the State Attorney Counsel Mbonera Théophile.

II. JURISICTION OF THE COURT AND ADMISSIBILITY OF THE CLAIM

The Jurisdiction

[4]               Article 53, paragraph 2 of Organic Law Nº 03/2012/OL of 13/06/2012 relating the organization, functioning and jurisdiction of the Supreme Court provides that “the Supreme Court shall hear petitions regarding the partial or complete repealing of an organic law, an ordinary law, or a decree-law on account of non-conformity with the Constitution”.

[5]            Ingabire Umuhoza Victoire brought her petition before the Supreme Court requesting the repeal of articles 2 to 9 of Law n° 18/2008 of  23/07/2008 punishing the crime of genocide minimization and genocide ideology and article 4 of Law nº 33 bis/2003 of  06/09/2003 punishing the crime of genocide, crimes against humanity and war crimes because they are contrary to articles 20,33 and 34 of the Constitution of the Republic of Rwanda of 04/06/2003 as amended to date.

[6]               Pursuant to the foregoing arguments, the Supreme Court has jurisdiction to examine the merits of this case.

With regard to admissibility of the petition.

[7]               Pursuant to article 361, 3º of Law  nº 21/2012 of 14/06/2012 relating to civil, commercial, labor and administrative procedure, Ingabire Umuhoza Victoire has not to pay the court fees because she in detention. The petition was submitted in writing, bearing the date and her signature, showing the subject matter of the action as well as submissions claiming the repeal of articles of laws.  She has attached in annex to her petition copies of articles of laws of which she requests repeal. It is clear that article 54 of Organic Law nº 03/2012/OL of 13/06/2012 relating to the organization, functioning and the jurisdiction of the Supreme Court relating to requirements for admissibility of the petition was complied with.

[8]               Moreover, pursuant to article 53, paragraph 3 of Organic Law cited above, Ingabire Umuhoza Victoire has the interest to file the petition seeking repeal of the articles of laws cited above because she has a criminal case against her before the High Court where she is prosecuted for the crime of genocide minimization and genocide ideology.

III. ANALYSIS OF LEGAL ISSUES

[9]               The issues to be examined in this case are those relating to the repeal of article 4 of Law nº 33 bis/2003 of 06/09/2003 punishing the crime of genocide, crimes against humanity and war crimes and the issue to know whether articles 2 to 9 of Law n°18 /2008 of 23/07/2008 punishing the crime of genocide minimization and genocide ideology are unconstitutional.

A. The repeal of article 4 of Law nº 33 bis/2003 of 06/09/2003 punishing the crime of genocide, crimes against humanity and war crimes.

[10]           Gatera Gashabana, Counsel for Ingabire Umuhoza Victoire asserts they request repeal of article 4 of Law nº 33 bis/2003 of 06/09/2003 punishing the crime of genocide, crimes against humanity and war crimes because they realize that it was reproduced in the new penal code in its article 116 which has the same provisions as the one for which they request repeal as they are only different with regard to the emprisonment. He asserts that according to their additional submissions filed after the enactment of the new penal code, the article of which they request repeal is article 116 of Organic Law nº 01/2012/OL of 02/05/2012 instituting the penal code.

[11]        Counsel Mbonera Theophile, the State Attorney argues that article 4 of Law nº 33 bis/2003 of 06/09/2003 punishing the crime of genocide, crimes against humanity and war crimes has already been abrogated; therefore there is no single reason to request the repeal of this article because one cannot repeal the article of the law that has already been abrogated.

[12]           With regard to the argument that the provisions of article 4 of Law nº 33 bis/2003 of 06/09/2003 punishing the crime of genocide, crimes against humanity and war crimes are the same provisions under article 116 of  Organic Law nº 01/2012/OL of 02/05/2012 instituting the penal code in Rwanda, Counsel Mbonera Theophile asserts that there exist proper ways of instituting and hearing different judicial actions, therefore the action seeking the repeal of article 116 should not be examined because it was never instituted.

[13]           With regard to this action relating to article 4 of  Law nº 33 bis/2003 of 06/09/2003 which was punishing the crime of genocide, crimes against humanity and war crimes, it obvious that by the time Ingabire Umuhoza Victoire instituted the action that law was still in force, but after the enactment of Organic Law nº 01/2012/OL of 02/05/2012 cited above, Law nº 33 bis/2003 of 06/09/2003 punishing the crime of genocide, crimes against humanity and war crimes which includes this article 4 of which Ingabire Umuhoza Victoire requested repeal was no longer in force basing on article 765 of Organic Law nº 01/2012/OL of 02/05/2012 cited above. Therefore, the fact that Ingabire Umuhoza Victoire instituted the action requesting the repeal an article of the law that is already abrogated renders her action without object, hence the action relating to the repeal of article of Law nº 33 bis/2003 of 06/09/2003 punishing the crime of genocide, crimes against humanity and war crimes is not admitted.

[14]           This was the opinion of this Court in case nº RS/INCONST/PEN 0004/12/CS where it held that in order for the law or an article to be examined for unconstitutionality that law or article has to be still in force and enforced[1].

[15]           With regard to the repeal of article 116 of Organic Law nº 01/2012/OL of 02/05/2012 instituting the penal code, article 53 of Organic Law nº 03/2012 OL of 13/06/2012 relating to organization, functioning and the jurisdiction of the Supreme Court provides that “...the case shall be referred to the Supreme Court by a petition in writing...” whereas article 54 of that Organic Law provides that “The petition .shall also indicate the subject-matter of the petition as well as the grounds for petition for the repealing of the organic law, ordinary or decree law”.

[16]           Articles stated in the previous paragraph shows how the petition is instituted. Since Ingabire Umuhoza Victoire instituted the petition requesting the repeal of article 4 of Law nº 33 bis/2003 of 06/09/2003 punishing the crime of genocide, crimes against humanity and war crimes for  unconstitutionality, the Court cannot, contrary to this, examine the unconstitutionality of article 116 of Organic Law nº 01/2012/OL of 02/05/2012 instituting the penal code because this is not the petition submitted to the Court in accordance with the procedures provided for under articles stated in the previous paragraph.

B. Whether articles 2 to 9 of Law n°18/2008 of 23/07/2008 punishing the crime of genocide minimization and genocide ideology are contrary to the constitution.

[17]           In the applicant’s court submission before this Court and during the hearing of this case, Ingabire Umuhoza Victoire and Gatera Gashabana her Counsel assert that articles 2 to 9 of Law n°18/2008 of 23/07/2008 punishing the crime of genocide ideology are contrary to the Constitution in its articles 20, 33 and 34. Counsel Gatera Gashabana explains that a criminal law must certainly show the elements of the crime and he backed his argument by the scholarly legal writing and foreign decided cases.

[18]           They further asserts that being prosecuted uncertainly for an offense contravenes the principle enshrined in 20 of the Constitution that no one shall be punished for acts or omissions that were not criminalized by the law at the time of commission or omission; and no one shall be subject to heavier punishment than the one that was applicable under the law at the time that the crime was committed because they find that article 2 and 3 do not indicate the elements of the crime.

[19]           They further argue that articles 2 and 3 focus on words uttered or acts performed in the public (expressions orales et écrites) and do not give any explanation to the extent that the person who is going to express their opinion about genocide cannot know the limits in order to express their opinion freely without any fear of being prosecuted. They, therefore, find that these articles prejudice individual right to expression granted by the Constitution and have to be repealed.

[20]           Counsel Mbonera Theophile, the State Attorney, asserts that articles 2 and 3 of Law n°18/2008 of 23/07/2008 punishing the crime of genocide ideology for which the repeal is requested are certain, they do not contain unclear or confusing terms that can be subject to various individual interpretations. He further argues that should it be the issue of interpretation, the law is written in three languages, which means that one may use one language or another; but this should not be confused with unconstitutionality.

[21]           With regard to articles relating to freedom of opinion and expression, the State attorney finds that article 2 and 3 of Law n° 18/2008 of 23/07/2008 punishing the crime of genocide ideology are not contrary to articles 33 and 34 of the Constitution since the freedoms provided under these should be exercised notwithstanding others’ rights. He adds that the law sets limits but does not prevent any person from saying what they know about genocide. What the legislator prevented are the expressions aiming at inciting genocide or minimizing the genocide that was committed.

[22]           In examining the petition of Ingabire Umuhoza Victoire with regard to articles 2 to 9 of Law n° 18/2008 of 23/07/2008 punishing the crime of genocide ideology, the Court finds that articles 2 and 3 of the Law stated above are still in force, therefore the action based on them can be admitted and examined on its merits. However, the petition based on articles 4 to 9 of that Law has no object because those articles relating to penalties provided under the new penal were repealed. Therefore, it cannot be admitted and examined on its merit.

[23]           Article 33 of the Constitution of the Republic of Rwanda provides that “the freedom of thought, opinion, conscience, religion, worship and the public manifestation thereof is guaranteed by the State in accordance with conditions determined by law. Propagation of ethnic, regional, racial or discrimination or any other form of division is punishable by law” whereas its article 34 provides that “Freedom of the press and freedom of information are recognized and guaranteed by the State. Freedom of speech and freedom of information shall not prejudice public order and good morals, the right of every citizen to honour, good reputation and the privacy of personal and family life. It is also guaranteed so long as it does not prejudice the protection of the youth and minors. The conditions for exercising such freedoms are determined by law”.

[24]           Article 2 of Law nº18/2008 of 23/07/2008 punishing the crime of genocide ideology defines the genocide ideology as follows: “The genocide ideology is an aggregate of thoughts characterized by conduct, speeches, documents and other acts aiming at exterminating or inciting others to exterminate people basing on ethnic group, origin, nationality, region, color, physical appearance, sex, language, religion or political opinion, committed in the normal periods or during or war”. As for article 3 of that same law states that “The crime of genocide ideology is characterized in any behavior manifested by facts aimed at dehumanizing a person or a group of persons with the same characteristics in the following way:

1° threatening, intimidating, degrading through defamatory speeches, documents or actions which aim at propounding wickedness or inciting hatred;

2° marginalizing, laughing at one’s misfortune, boasting, defaming, mocking, , despising, creating confusion with the intent to negate the genocide that was committed, stirring up ill feelings, taking revenge, distort testimony or evidence for the genocide committed;

3° Killing, planning to kill or attempting to kill of someone for purposes of furthering genocide ideology”.

[25]           The Supreme Court finds that these articles 2 and 3 are by no means contrary to the Constitution especially its article 20, since they have provided for the constitutive elements of an offense which are based on while taking the decision. These articles provide for the example of circumstances in which the crime of genocide ideology is committed and it is up to the judge to examine the acts the accused is prosecuted for and applies the law to them.

[26]           The fact that these articles are not clear enough or require a further interpretation should not be taken as if they contrary to the Constitution as ruled upon by the Supreme Court where it held that the fact that an article needs further interpretation or complement should not be considered to be unconstitutional, but rather this can be done by the legislator in case they may deem it necessary.[2]

[27]           With regard to the argument that these articles are contrary to the provisions of articles 33 and 34 of the Constitution because they prejudice the right to freedom of thought and may prevent a person who may need to express his/her opinion about genocide to do so without any fear of being prosecuted, this is not founded too, because the freedom of opinion does not allow every person to say whatever pleases them, especially that even international law and the Constitution of Rwanda allow some limitations  as provided under 34 of that Constitution and article 19 of International Covenant on Civil and Political Rights in its point 3 b, that the freedom to express one’s opinion can be limited by the laws of each country when it is necessary to safeguard the security and sovereignty of the State, public order or good morals.[3] It is also provided under article 10 of European Convention of Human Rights which provides for the freedom of expression but under its article 17 it prohibits the abuse of that right.

[28]           The fact an individual can prosecuted for speech that contain hatred and discrimination is not to the specialty of Rwanda. For instance in Canada, in its penal code, article 319 of that code punishes whoever disseminates hatred or divisionism.[4]

[29]           Moreover in the case R. v. Keegstra rendered by the Supreme of Canada on 13/12/1990, where James Keegstra, the teacher in secondary school in the province of Alberta was accused of spreading hatred among Jews when he was teaching. By the time the final judgment of the case instituted against him by the prosecution was not yet rendered, James Keegstra brought a case before the  Supreme Court arguing that the offense he is accused of is provided for under article stated in the previous paragraph in point 2 is contrary to the Constitution of that country. The court ruled that it is necessary to protect a given group of people and ensuring the coexistence of individuals with the feeling of equality even if they may have different cultures. The Court stated it in the following words: “……… There is obviously a rational connection between the criminal prohibition of hate propaganda and the objective of protecting target group members and of fostering harmonious social relations in a community dedicated to equality and multiculturalism”.

[30]           Moreover; other countries, predominantly European countries criminalize the minimization of holocaust. For instance in France, the “Cour de Cassation’ and Court of Appeal of Paris held in judgments they rendered that, on justifiable grounds, the freedom of opinion can be subjected to limitations for the protection of public interests of Nazism victims.[5] Other examples showing that this crime is punishable are for instance judgments rendered by European Courts that convicted and punished persons who were accused of this crime[6].

[31]           The Court finds that articles 2 and 3 of Law n°18/2008 of 23/07/2008 punishing the crime of genocide do not intended to prevent people from exercising their freedom of thought or their expression while talking about genocide perpetrated against Tutsis in 1994; but rather they intend to limit whoever can abuse that freedom granted by the law and incite to perpetration of genocide or minimize the one committed. Therefore, those articles are not contrary to the Constitution. 

IV. DECISION OF THE COURT

[32]           It decides to dismiss the petition filed by Ingabire Umuhoza Victoire requesting the repeal of article 4 of Law nº 33 bis/2003 of 06/09/2003 punishing the crime of genocide, crimes against humanity and war crimes because it lacks the object;

[33]           It decides to dismiss the petition of  Ingabire Umuhoza Victoire  seeking the repeal of articles 4 to 9 of Law n°18/2008 of  23/07/2008 punishing the crime of genoicide ideology because it lacks the object;

[34]           It decided to admit the petition of Ingabire Umuhoza Victoire  seeking the repeal of articles 2 and 3 of Law n°18/2008 of 23/07/2008 punishing the crime of genocide ideology, because it was instituted in accordance with the law;

[35]           It, however, decides that it has no merit;

[36]           It orders that court fees equal to 11,600Frw be borne by the public treasury.