By The Rwandan Lawyer
The principle of proportionality is a concept in law. The term has many meanings according to the legislation but is generally a principle of adequacy of means to a desired purpose. The requirement for proportionality of sentences stems from Article 8 of the Declaration of 1789, which states that the law must establish only strictly and obviously necessary penalties. In criminal law, the principle of proportionality implies that the sentence imposed depends on the seriousness of the offence; the offender’s situation and his or her rehabilitation capacity.
When it comes to sentencing, sentencing must be based on the legality of the existing laws, which implies that penalties must never exceed the maximums provided by criminal law in the given country and must not exceed the legal maximum. This is to protect the offender from the arbitrariness of certain magistrates who may be angered by a given situation and impose a non-sentence sentence on an offender. This is the principle of criminal legality of sentences.
In European criminal law, the principle of proportionality limits its action to the means necessary to carry out its action and it also requires to check whether there is a need to resort to criminal law because the European Union must not resort to the law only when other means are insufficient to remedy it. The present study elected the purpose to apply the principle of proportionality on the Rwandan criminal legislation to insure its effectiveness.
Indeed, the legal relationships between penalties and offences committed remain a concerning challenge in Rwandan criminal law so that a given offence is severely punished without proportion with its heaviness and another one is lightly sanctioned while it seems very serious in terms of its consequences not only on the victim but also on the society in general. As outstanding illustrations, Use of narcotic drugs and psychotropic substances and other prohibited products is Any person who, in any way, eats, drinks, injects himself/herself, inhales or one who anoints oneself with psychotropic substances, commits an offence. Any person convicted of any of the acts mentioned in Paragraph One of this Article is liable to imprisonment for a term of not less than one (1) year and not more than two (2) years or subject to a penalty of community service. Any person who, unlawfully produces, transforms, transports, stores, gives to another or who sells narcotic drugs and psychotropic substances commits an offence. Upon conviction, he/she is liable to: 1º life imprisonment and a fine of more than twenty (20.000.000 FRW)million Rwandan francs and not more than thirty million (FRW 30,000,000) Rwandan francs in regard to severe narcotic drugs; 2º imprisonment for a term of not less than twenty (20) years and not more than twenty five (25) years and a fine of not less than fifteen million (FRW 15,000,000) Rwandan francs and not more than twenty million (FRW 20,000,00000) Rwandan francs in regards to severe narcotic drugs; 3º imprisonment for a term of not less than seven (7) years and not more than ten (10) years and a fine of not less than five million (FRW 5,000,000) Rwandan francs and less than ten million (FRW 10,000,000) Rwandan francs in regard to simple narcotics. If acts mentioned in Paragraph 2 and 3 of this Article are performed to a child or if they are performed at the international level, the penalty is a life imprisonment and a fine of not more than thirty million (FRW 30,000,000) Rwandan francs and not more than fifty million (FRW 50,000,000) Rwandan francs. An Order of the Minister in charge of health establishes a list of narcotic drugs that constitute each category. While they are globally abusively qualified as such notably spirits which are assimilated to drugs while they are just drinks in other states like Uganda, Tanzania, DRC and western countries; some facts like adultery are crimes punished while in other countries they just constitute the breach of marriage contract. Indeed, Article 136 of Law nº 68/2018 of 30/08/2018 determining offences and penalties in general provides that “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. Furthermore, in 2009, Health Development Initiative, a local NGO that advocates for human rights, embarked on a campaign advocating for the decriminalization of abortion so that it ceases to be a barrier to women’s health. Abortion continues to be incriminated therefore violating the fundamental rights of women. To remedy this issue, abortion may benefit from a total exemption to insure rights of women on their bodies as guaranteed in western world; penalties inflicted against people aged of 14 to 18 years should be cancelled given that they are children and immature as enshrined by the article 1 of the international convention on rights of children of 1989 and therefore are censed to not validly reason as adults as they are considered as such in other matters like marriage, conclusion of contracts, etc.To what extent the adequation between penalties and crimes is assured in Rwandan criminal law? What strategies to insure such harmony between sanctions and incriminated facts?
The study consists of two parts. The first part analyzes the extent of the inapplicability of the principle of proportionality in Rwandan criminal law. The second part proposes on the legal and political mechanisms proposed to establish adequate linkage between crimes and penalties.
I. Critical analysis of issues arising from the lack of proportionality
Overtly, the principle of proportionality is not applied in Rwandan criminal law so that some crimes apparently soft and not having any bad effect on the society are severely sanctioned while others really prejudicing people are tolerated by the legislator as we will demonstrate it through cases study within the present chapter.
1.1. Study of cases
There hereby is dealt with some offences which are deemed not deserving the penalties provided for them by the law or even the criminal nature they were attributed.
1.1.1. Issue of criminalization of adultery
While overtly adultery is a breach of marital obligations as well as other obligations to do or to not do are infringed, adultery is still considered as an offence in Rwanda.
126.96.36.199. Adultery in Rwandan criminal law
Article 136 of Law nº 68/2018 of 30/08/2018 determining offences and penalties in general provides that:“ 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. The prosecution of adultery is initiated only upon complaint of the offended spouse. In that case, the prosecution is initiated against the accused spouse and the co-offender. The offended spouse may at any stage of the procedure request that the proceedings be terminated when he/she retracts and withdraws the complaint. However, if the matter is already brought before court or if a decision thereon has been taken, retraction does not stop the consideration of the case or the execution of the judgment. The judge considers the case after which he/she can accept or refuse such a retraction upon justification. If a judge accepts the retraction of the offended spouse, stopping the proceedings or the execution of the judgment has effects on the co-offender
At the moment, the penal code provides that if someone commits adultery, the offence, if proved, can be prosecuted, and the penalty is six months to one year in prison depending on what the judge decides.
The law currently provides that if the aggrieved spouse who has been wronged decides to stop the prosecution, then the cheating spouse is released. My humble proposal is that the law should remain the way it is but the new thing we are adding is that if a spouse goes to court and says that they forgive their wife or husband, it’s not going to continue to be an absolute stop to prosecution as it has been. The move intends to protect Rwandan families, which the country’s laws see as the foundation of the nation and deserve to be protected by the state. We have a Constitution which makes family the basis of the Rwandan nation and which enjoins the state to protect the family and one of the protections of the family include trying to save it from destruction and one of the things that can destroy the family is adultery.
188.8.131.52. Adultery management worldwide
Historically, many cultures considered adultery a very serious crime, some subject to severe punishment, usually for the woman and sometimes for the man, with penalties including capital punishment, mutilation, or torture.Such punishments have gradually fallen into disfavor, especially in Western countries from the 19th century. In countries where adultery is still a criminal offense, punishments range from fines to caning and even capital punishment. Since the 20th century, criminal laws against adultery have become controversial, with most Western countries decriminalizing adultery.
However, even in jurisdictions that have decriminalized adultery, adultery may still have legal consequences, particularly in jurisdictions with fault-based divorce laws, where adultery almost always constitutes a ground for divorce and may be a factor in property settlement, the custody of children, the denial of alimony, etc. Adultery is not a ground for divorce in jurisdictions which have adopted a no-fault divorce model, but may still be a factor in child custody and property disputes.
International organizations have called for the decriminalizing of adultery, especially in the light of several high-profile stoning cases that have occurred in some countries. The head of the United Nations expert body charged with identifying ways to eliminate laws that discriminate against women or are discriminatory to them in terms of implementation or impact, Kamala Chandrakirana, has stated that: “Adultery must not be classified as a criminal offence at all”. A joint statement by the United Nations Working Group on discrimination against women in law and in practice states that: “Adultery as a criminal offence violates women’s human rights”.
184.108.40.206.2. Discrimination against women
Opponents of adultery laws argue that these laws maintain social norms which justify violence, discrimination and oppression of women; in the form of state sanctioned forms of violence such as stoning, flogging or hanging for adultery; or in the form of individual acts of violence committed against women by husbands or relatives, such as honor killings, crimes of passion, and beatings. UN Women has called for the decriminalization of adultery. A Joint Statement by the United Nations Working Group on discrimination against women in law and in practice in 2012, stated:
The United Nations Working Group on discrimination against women in law and in practice is deeply concerned at the criminalization and penalization of adultery whose enforcement leads to discrimination and violence against women.
Concerns exist that the existence of “adultery” as a criminal offense (and even in family law) can affect the criminal justice process in cases of domestic assaults and killings, in particular by mitigating murder to manslaughter, or otherwise proving for partial or complete defenses in case of violence. These concerns have been officially raised by the Council of Europe and the UN in recent years. The Council of Europe Recommendation Rec(2002)5 of the Committee of Ministers to member states on the protection of women against violence states that member states should: (…) preclude adultery as an excuse for violence within the family”. UN Women has also stated in regard to the defense of provocation and other similar defenses that “laws should clearly state that these defenses do not include or apply to crimes of ‘honour’, adultery, or domestic assault or murder.”
220.127.116.11.Use of limited resources of the criminal law enforcement
An argument against the criminal status of adultery is that the resources of the law enforcement are limited, and that they should be used carefully; by investing them in the investigation and prosecution of adultery (which is very difficult) the curbing of serious violent crimes may suffer.
18.104.22.168.4.The importance of consent as the basis of sexual offenses legislation
Human rights organizations have stated that legislation on sexual crimes must be based on consent, and must recognize consent as central, and not trivialize its importance; doing otherwise can lead to legal, social or ethical abuses. Amnesty International, when condemning stoning legislation that targets adultery, among other acts, has referred to “acts which should never be criminalized in the first place, including consensual sexual relations between adults”. Salil Shetty, Amnesty International’s Secretary General, said: “It is unbelievable that in the twenty-first century some countries are condoning child marriage and marital rape while others are outlawing abortion, sex outside marriage and same-sex sexual activity – even punishable by death.”The My Body My Rights campaign has condemned state control over individual sexual and reproductive decisions; stating “All over the world, people are coerced, criminalized and discriminated against, simply for making choices about their bodies and their lives”.
1.1.2. Issue of severe punishment of drugs
If you are in Rwanda and plan to sell drugs, traffic humans or attempt to embezzle funds meant for the public, just know that could attract a 50-year prison sentence once found guilty. The ministry of Justice (MINIJUST) has tabled a new bill seeking to completely overhaul the current penal code – with tougher and tighter punishment and deter citizens from getting involved in such crimes.
Currently, article 594 of the Rwandan Penal Code states that; any person who unlawfully makes, transforms, imports, or sells narcotics and psychotropic substances within the country, shall be liable to a term of imprisonment from three to five years and a fine of between Rwf500, 000 and Rwf5m.
With the proposed amendment of the bill – which is already under review by the Ministry, culprits may serve sentences ten times the current penal code provisions. This means that if the new proposed bill is approved, anyone convicted of above crimes will serve a sentence between 40-50 years in prison. This is such a hefty prison sentence – normally handed over to convicts of serious crimes.
22.214.171.124. Massive impounding of drugs
Not even a day passes by without Police impounding and arresting people involved in selling narcotics across the country. Regionally, Police says, this is considered a serious challenge facing law enforcement agencies. According to Police in Rwanda, cannabis and contrabands especially crude gin (Kanyanga), and other illicit gin packed in plastic sachets under different brands are a threat to community safety and social welfare.
These contrabands are classified among the psychotropic substances under article 24 of the law governing narcotic drugs, psychotropic substances and precursors in Rwanda, which categorize all drinks with alcoholic content exceeding 45 percent, as ‘narcotics.
According to experts, such illicit gins interfere with legal economic activity in many different ways, as do other types of crime. The consequences stem largely from the direct and indirect influences of the large amounts of money in illegal trades. The suspects have no age limit or gender. For instance, last week, Police arrested a woman with 400kgs of narcotics inside her house in Nyarugenge district in the capital Kigali.
The ministry of justice says that the increase of crimes such as drug abuse, human trafficking and corruption among others require such a tough approach, but there will be chance for a first-time convict get one last chance.
According to the current penal code in its article 78, there is a provision for modalities for reduction of penalties in cases of mitigating circumstances, but this is mostly to be considered with the number of times a similar crime is committed. In the proposed bill, suspects could have a chance for lesser punishment or set free in case they were lured into the crime. However, they will not get a similar chance if they commit the same crime twice or thrice.
“Those who have turned drug deals and human trafficking into business empires will not get a chance. They may get a bail opportunity but the bail guarantee will be costly and more than the equivalent of the cost of the crime committed so that others may learn from this,” Busingye told KT Press. Meanwhile, the current penalties for anyone convicted of corruption range between two and seven years with a fine of up to ten times the value of illegal benefit demanded as stipulated under articles 633 and 651 of the Rwanda penal code.
1.1.3. Arguments for abortion rights
According to article 123 of the law determining offences and penalties in general, any person who self-induces an abortion commits an offence. Upon conviction, she is liable to imprisonment for a term of not less than one (1) year and not more than three (3) years and a fine of not less than one hundred thousand Rwandan francs (FRW 100,000) and not more than two hundred thousand Rwandan francs (FRW 200,000). This provision is inconsistent with women ‘rights as evidenced by the arguments below.
126.96.36.199. Bodily rights
An argument first presented by Western Thomson states that even if the fetus is a person and has a right to life, abortion is morally permissible because a woman has a right to control her own body and its life-support functions. Thomson’s variant of this argument draws an analogy between forcing a woman to continue an unwanted pregnancy and forcing a person to allow his body to be used to maintain blood homeostasis (as a dialysis machine is used) for another person suffering from kidney failure. It is argued that just as it would be permissible to “unplug” and thereby cause the death of the person who is using one’s kidneys, so it is permissible to abort the fetus (who similarly, it is said, has no right to use one’s body’s life-support functions against one’s will).
Critics of this argument generally argue that there are morally relevant disanalogies between abortion and the kidney failure scenario. For example, it is argued that the fetus is the woman’s child as opposed to a mere stranger; that abortion kills the fetus rather than merely letting it die; and that in the case of pregnancy arising from voluntary intercourse, the woman has either tacitly consented to the fetus using her body, or has a duty to allow it to use her body since she herself is responsible for its need to use her body. Some writers defend the analogy against these objections, arguing that the disanalogies are morally irrelevant or do not apply to abortion in the way critics have claimed.
Alternative scenarios have been put forth as more accurate and realistic representations of the moral issues present in abortion. John Noonan proposes the scenario of a family who was found to be liable for frostbite finger loss suffered by a dinner guest whom they refused to allow to stay overnight, although it was very cold outside and the guest showed signs of being sick. It is argued that just as it would not be permissible to refuse temporary accommodation for the guest to protect him from physical harm, it would not be permissible to refuse temporary accommodation of a fetus.
Other critics claim that there is a difference between artificial and extraordinary means of preservation, such as medical treatment, kidney dialysis, and blood transfusions, and normal and natural means of preservation, such as gestation, childbirth, and breastfeeding. They argue that if a baby was born into an environment in which there was no replacement available for her mother’s breast milk, and the baby would either breastfeed or starve, the mother would have to allow the baby to breastfeed. But the mother would never have to give the baby a blood transfusion, no matter what the circumstances were. The difference between breastfeeding in that scenario and blood transfusions is the difference between using your body as a kidney dialysis machine, and gestation and childbirth.
188.8.131.52.Freedom and equality
Margaret Sanger wrote: “No woman can call herself free until she can choose consciously whether she will or will not be a mother.” From this perspective the right to abortion can be construed to be necessary in order for women to achieve equality with men whose freedom is not nearly so restricted by having children.
184.108.40.206. Impacts of criminalization
Some activists and academics, such as Andrea Smith, argue that the criminalization of abortion furthers the marginalization of oppressed groups such as poor women and women of color. Sending these women into the prison system would do nothing to address the social/political/economic problems that marginalize these women or, sometimes, cause them to require abortions.
220.127.116.11. Abortion safety
Even where abortions are illegal, some do take place. However, they are generally done unsafely, both because the need for secrecy tends to be more important than the woman’s safety, and due to the lack of training and experience the doctor performing the abortion. When done correctly by properly trained doctors, abortion is generally safe.
1.1.4. The minimum age of criminal responsibility
18.104.22.168. Legal basis
CRC article 40(3)(a) requires “the establishment of an age below which children shall be presumed not to have the capacity to infringe the penal law”. While the Convention does not state explicitly at what age this should be set, in its General Comment No. 10 on Children’s rights in juvenile justice, the Committee urges States not to set this age at too low a level and to continue to raise the age to an internationally acceptable level, and that a minimum age below the age of 12 years is not considered…to be internationally acceptable. It has consistently urged States to raise this age33 and criticized any State which has lowered its minimum age of criminal responsibility, whatever the lower age. In addition, the Committee has consistently made clear to States in its recommendations that under-18s should never be tried as adults. (The Convention is also explicit about the kind of treatment all children are entitled to receive in the justice system.). While this international convention on child rights of 1989 considers a child anyone aged of under 18 as well as national law on the rights of children, Article 54: Punishment of a person aged between fourteen (14) and eighteen (18) years.If the convict was at least fourteen (14) years of age but less than eighteen (18) years of age at the time of the commission of the offence, the following penalties apply: imprisonment for a term of not less than ten (10) years and not more than fifteen (15) years if he/she would be subjected to a life imprisonment; a penalty which cannot exceed half (1/2) of the penalty he/she would receive if he/she would be subjected to a fixed-term imprisonment or a fine. Penalties provided under Paragraph One of this Article also apply to an accomplice if the accomplice was at least fourteen (14) years of age but less than eighteen (18) years of age at the time of the commission of the offence. This overtly violates the international commitments.
22.214.171.124. The legal issue
The minimum age of criminal responsibility means the age below which a person cannot be charged with an offence and processed in the criminal justice system. However, in practice, the definition of the age of criminal responsibility is often blurred. This is because many States establish such an age, but then make exceptions e.g. for more serious crimes, or for situations where children are involved in these kinds of offences with adults. Indeed, evidence suggests that a number of States in all regions are criminalizing more and younger children. But even where a MACR is in place States can establish a separate juvenile justice system below the minimum age of criminal responsibility which allows punitive sentencing including custody. Worse still, in some States the age of criminal majority (the age at which children are treated as adults, tried in adult courts and put in adult prisons) remains below 18 years.
Indeed, researchers have long been pushing for a debate around juvenile justice that moves beyond pragmatism and compromise. In particular, there is intended to provoke a debate about the setting of minimum ages of criminal responsibility. The researcher supports those who believe the way forward is to separate the concept of responsibility from that of criminalization-to stop criminalizing children. This debate isn’t possible without understanding what “the minimum age of criminal responsibility” means around the world.
In its basic sense, the minimum age of criminal responsibility is a simple concept: the age at which a person can be charged with a criminal offence and processed within the criminal justice system. In practice, though, the many features of a national legal system interact to determine this age and comparative information on the minimum age of criminal responsibility can be misleading when it applies a figure without explaining the criminal justice system that lies beneath.
1.2. Critical analysis of the weaknesses in the matter of proportionality
Missing out the rule of proportionality entails a series of irregular effects in the regulation of crimes as far as their correspondence with their sanctions in terms of weight is concerned.
1.2.1. Proportionality and respect of human rights
A proportional norm will be: adequate to the end; the least restrictive of the human rights among all the adequate options that could be applied; and, finally, proportional stricto sensu, that is, it must keep the balance between the costs and the its benefits. In my opinion, and this is the thesis of the present article, this conception of proportionality does not necessarily prevent the legislator from violating the human rights, at least in some cases.
In other words, if the principle of proportionality were just a balance between the “weight” of the right and that of the reasons that have led the legislator to decide to restrict such right, then, ultimately, that human right could lose its characteristic of impassable barrier for the state. Indeed, the invocation of a more or less convincing raison d’état could justify the sacrifice of some human rights. We can find an example of this in the excesses of the de facto governments in some Latin American countries during the 1970s and 1980s. The consequences of this viewpoint cannot be more disastrous for the general theory of human rights: at best, the rights will depend on consensus; in all cases, they will never be called victories in front of the majorities. The risk mentioned above can be clearly seen in the following formula: If M4 r 3 and if F a, then the norm would seem to be proportional. However, M4 restricts the norm (N4) so much, that it causes the violation of the essential content of the human right involved. Therefore, it would be sufficient to find an end which is important enough and a means that can be justified by that end to transform the principle of proportionality in a mere formal criterion, that is, without the capacity to guarantee the supremacy of human rights.
1.2.2. Difficulties posed by the proportionality principle
There are several problems arising from the concept of proportionality, and four particular issues shall be considered in this section: The vague definitions and theories of proportionality in the law, the irreconcilability of other sentencing goals with the proportionality principle, the inherently different natures of crime and punishment, and the underlying character of the proportionality principle as a manifestation of mere opinions and sentiments.
126.96.36.199. Conflicting theories and poor definition in the law
Despite the obvious importance of the proportionality principle in criminal sentencing, the concept of proportionality itself is poorly defined in the law and the theories concerning it are the subject of much unresolved debate. This vague definition is a glaring gap in the criminal justice system. For instance, although the Canadian Criminal Code provides that sentences ‘must be proportionate’ to the severity of the crime and the culpability of the criminal, it does not proceed to elaborate on what ‘proportionate’ might mean with respect to gravity of offence and degree of responsibility, or how such a ‘proportionate’ sentence may be determined. Similarly, although the United States Supreme Court clearly professes to apply the proportionality principle in criminal sentencing, it has been observed that through its judicial decisions, it ‘has never made clear what it means by proportionality in the context of prison sentences.’
It is possible that proportionality is assumed to be so self-evident a principle that it does not necessitate elaborate expositions and definitions of its precise meaning and operation. However, to hold such a view would be to overlook the large amount of ongoing debate over the different theories of proportionality. It is more likely, then, that the reason for this lack of clarity concerning the concept of proportionality is that there is a lack of consensus over what the ideal form of proportionality is, what the purposes of punishment (which proportionality is meant to be a means to fulfil) are, and how to derive both of these. Consequently, the ideal form of proportionality and its role in punishment have been the subject of much academic discussion, and several theories have emerged, including that of retributive proportionality, utilitarian proportionality, and the concerns of ordinal and cardinal proportionality. Retributive proportionality concerns the history of the offender and considers proportionality as a means to the punishment goal of retribution by measuring a sentence according to the offender’s blameworthiness.. He must first be found guilty and punishable before there can be any thought of drawing from his punishment any benefit for himself or his fellow citizens. The penal law is a categorical imperative; and woe to him who creeps through the serpent-windings of utilitarianism to discover some advantage that may discharge him from the justice of punishment, or even from the due measure of it, according to the Pharisaic maxim: ‘It is better that one man should die than the whole people should perish.’ For if justice and righteousness perish, human life would no longer have any value in the world. Retributive proportionality is manifested in two forms. Firstly, ‘defining retributivism’ determines the punishment as precisely as possible to the severity of the offence, leaving little room for other punishment purposes.
The purpose of retribution thus informs the sentencing judge to formulate a punishment which is proportionate to this intended end result. Secondly, ‘limiting retributivism’ allows other sentencing goals to be considered, merely placing retributive outer limits on the range of possible sentences. This way, the sentencing judge formulates a punishment in order to meet the various goals of punishment, such as social deterrence and denunciation, but then reins in the sentence to conform to the principle of proportionality. In contrast, utilitarian proportionality is prospective rather than retrospective, with proportionality measured against sentencing goals which concern the future rather than the past, such as deterrence, rehabilitation, and cost to society.
There are two aspects of utilitarian proportionality: proportionality’, which concerns whether the costs of pursuing the goals of the criminal sentence outweigh the benefits to be derived from it (to both society and the individual offender). The other aspect of utilitarian proportionality is ‘means proportionality’, which assesses whether alternative less costly sanctions are available for achieving the same intended benefit. As the 18th Century philosopher Cesare Beccaria argued, sanctions should be proportional to the gravity of the offences, as measured by the harm done to society.
188.8.131.52. Inconsistencies between proportionality and the objectives of punishment
Secondly, there is difficulty in reconciling the various goals of punishment with the proportionality principle. Logically, where two different forces direct a criminal sanction, a judge deciding the sentence needs to choose between one and the other in determining the appropriate sentence. Even if we accept the premise that proportionality is an inherent good in the sentencing process, the disparate goals of punishment necessarily lead to different penalties from that produced through applying the proportionality principle. Several policy objectives of criminal punishment seem to demand sentences decidedly disproportionate to merely what the severity of the crime and the culpability of the offender would attract. Such a statement is made with the acceptance of the premise that a ‘proportionate’ sentence can be objectively determined from the severity of a crime and the culpability of an offender. As will be explained later in this paper, such a premise is flawed but is what drives sentencing regimes in the criminal justice system today. For instance, in seeking to expressly ‘denounce’ a crime, a sentence will often need to exceed what is simply ‘proportional’ to the offence because there would be no discernible denouncement if a ‘denouncing sentence’ were exactly the same as a ‘proportionate sentence’. Similarly, the objective of ‘separating offenders from society, where necessary’, implies that a criminal should be incarcerated for a period likely longer than what is merely proportionate to his offence.
Although there admittedly will be much overlap between what is a ‘proportionate’ sentence and what is a ‘deterring’ or ‘incapacitating’ sentence, there will also be instances where they differ. Where proportionality prescribes one form of punishment while other policy objectives requires a different and irreconcilable one, the sentencing judge will have to choose one or the other, and cannot fulfil both. Compounding this problem, there remains considerable disagreement over the different justifications for punishment and, by extension, between the various sentencing goals. For example, John Kleinig describes the contention concerning whether criminal punishment should be utilitarian or morally informed, a manifestation of the larger debate underlying utilitarian and retributivist proportionality.
Punishment is undeniably for the public good, but what is disputed is whether this public good consists in punishing for certain utilitarian goals or for moral concerns of what is ‘right’, either of which leads to a 32 18 USC § 3553 (a)(2)(C). Furthermore, consideration of ‘proportionality’ differing from the other. Similarly, the competing ideas of rehabilitative and retributive punishment disagree with regards to how punishment should consider the offender: either the evaluation of blameworthiness is a pointless exercise and so punishment should only be meted out for the purpose of rehabilitating the individual, or the punishment should seek to inflict upon the offender a sentence which manifestly reflects the gravity of his or her personal culpability. If the evaluation of blameworthiness is recognized as a means of retributive punishment, then proportionality will rightly find its place in assessing the wrongfulness of conduct. It has been argued that the concept of proportionality ‘only has meaning in relation to retributive sentencing goals and that a proportionality requirement makes no sense if the Court is not going to require states to adopt a retributive theory’.
If, however, as Jeremy Bentham argues, this evaluation of blameworthiness is pointless, and that punishment should instead seek to rehabilitate the offender to change his or her ways and to deter potential offenders in society, then the proportionality principle takes on a fundamentally different role, viz. one of assessing the utility of the penalty. It is these unsettled disputes over the underlying dynamics of criminal sentencing which lead to fundamental uncertainty over how to sentence. Again, either idea will result in a disparate conception of the ‘proportionality’ to be applied in formulating the criminal sanction. Thus, the principle of proportionality is founded on vague definitions and unsettled debates over the purposes of punishment that determine the relevance of the principle in the first place. Consequently, if even the very basis of criminal sentencing – why sentence, and how to sentence – are at the centre of such current and open debate, it is difficult for sentencing judges to reconcile all these theories in order to satisfy each of them. Indeed, ‘[t]he practice of punishment…rests on a plurality of values, not on someone value to the exclusion of all others’. As such, a judge under a legal system which purports to dispense punishment in accordance with a range of sentencing goals such as deterrence and denunciation will, at certain points of irreconcilability, have to decide to either mete out a sentence based on proportionality contrary to other policy goals (i.e. ‘defining retributivism’) or choose other goals contrary to proportionality. Additionally, legislative involvement in sentencing, such as through the prescription of mandatory minimum prison terms, elevates these problems by reducing the scope of judicial discretion in applying the principle of proportionality in criminal sentencing.Therefore, it is clear that proportionality is, in certain cases, necessarily a defining principle of the judicial sentencing process and may thus be irreconcilable with other sentencing goals. As such, its application in criminal punishment conflicts with the requirement that judges take into account other sentencing objectives and legislative prescriptions on judicial sentencing.
II.Mechanisms to insure proportionality between crimes and penalties
Within this chapter, there is matter of suggesting a series of law reforms to make effective the principle of proportionality in Rwandan criminal law given that there is accused a certain discrepancy between the two realties crimes vs. sanctions in terms of correspondence of seriousness or softness between them respectively.
2.1. Alternatives for the implementation of the principle of proportionality to the crimes pointed out
Abortion, drugs consumption and traffic, adultery and responsible minority have been discussed in the precedent chapter and now there is matter of how to apply on them the proportionality.
2.1.1. Advocacy for decriminalization of abortion
The State acts on behalf of the potentially vulnerable. The law has always sought to protect women from physical harm and from unscrupulous abortion providers while recognizing the public value in the life of the child. This concern for both lives. These laws gave a public value to the life of mother and child. In almost any area of criminal law one could point to situations where the ‘accused’ was found to be in incredibly vulnerable and difficult circumstances. The law already allows for a degree of discretion and mitigation. The criminal law system has a series of inbuilt checks and balances. For instance, take a recent controversial case where a young woman received a three-month suspended sentence for illegally aborting her baby which was found by her housemates in their bin. The PSNI had discretion to decide whether there was enough evidence upon investigation to send a file to the PPS. The PPS have two tests to complete before they proceed with a prosecution. Is there enough evidence and is there a public interest? The Judge then has considerable discretion in sentencing. In this case the young women had subsequently become a mother to a born child. She was discharged with a suspended three-month sentence. We would contend that an element of justice was shown in that the illegally ended life of her unborn child was acknowledged by the law.
2.1.2. Mainstreaming adultery as tort
Critics of the adultery-centered torts frame the torts as being far outside the mainstream of American law. The low standing of these torts in the national legal community has precluded a serious look at the continuing merits of these adultery-based actions. North Carolina’s stubborn willingness to continue to entertain alienation of affections and criminal conversation claims proves mystifying to most interested observers, which explains the contempt from the legal community directed toward North Carolina in the wake of the Hutelmyer case and others like it. For those convinced that all of the heartbalm torts are beyond redemption, North Carolina’s position seems awfully archaic and backwards. The defense mounted in this Article confronts and rejects this claim of outdated isolation. Far from being some strange relic from another time, adultery as tort-both in terms of its goals and mechanics-is well within the bounds of conventional legal doctrine. In support of this argument, I juxtapose adultery-based torts with three areas of discrete legal interest: the gay marriage debate, claims for interference with commercial relationships, and claims for loss of consortium. The comparisons that follow highlight that the premises underlying adultery-focused torts-when applied to other legal issues-find great support from courts and scholars alike. These areas of support include the role of the state in the formation and protection of marriage, the interest of tort law in protecting relationships from third-party interference, and the law’s willingness to compensate injured tort plaintiffs for damage to the marital bed. By placing the adultery torts in this broader context, the door opens for claims such as alienation of affections to once again join the ranks of respectable legal discourse.
Adultery is officially defined as “sexual acts between a married person and someone who is not that person’s spouse.” Acts of infidelity and cheating on one’s spouse are inherently controversial. Many people have speculated about the potential underlying roots of adultery and what prompts individuals to cheat on their spouses. However, before the causes of adultery can be examined: marital unhappiness; boredom/need for something new; revenge; sheer narcissism; lack of sexual satisfaction; falling out of love/falling in love with someone else
2.1.3. Combating drugs requires going beyond punishment
Drug abuse continues to be the biggest contributor to mental health challenges in the country. Figures from the National Neuropsychiatric Hospital, Ndera, indicate that in 2009, some 440 patients with alcohol and drug induced illnesses made consultation as compared to the 2804 in 2016. Between 2013-2014, 3,920 files related to drugs were received and, from 2014-2015, the numbers went up to 4,308 files. From 2015-2016, 4,715 files were received while 5,659 files related to this crime were received in 2016/2017.The meeting sought to establish mechanisms for oversight, direction and implementation of the sector strategy; to ensure universal access to justice; to eradicate genocide ideology; promote reconciliation, rule of law, accountability and human right; and maintaining law and order.
2.1.4.Addressing the issue of criminal liability age
Legislators of all states parties to the CRC including Rwandan ones may rather believe that there is needed to move beyond the idea of minimum ages, protect children from the negative process of criminalization, and separate it from the concept of responsibility and enact consequently as well. Therefore, any juvenile justice system should be purely directed at rehabilitation and reintegration – and this should apply to all under-18s, not just to some. This position is in line with that of Thomas Hammarberg as former Commissioner for Human Rights of the Council of Europe and Paulo Pinheiro in a report published in his role as Special Rapporteur on the rights of the child for the Inter-American Commission on Human Rights. Both assert that the only justification for the detention of a child should be that the child has been assessed as posing a serious risk to public safety. No child should ever be treated as an adult in the justice system. Even in extreme cases, children should not be detained in penal settings. This runs contrary to CRC article 3 establishing that the child’s best interests must be a primary consideration and the child’s right to maximum possible development (art. 6). The rights contained in the Convention on the Rights of the Child extend to all human beings below the age of 18.
2.2. Applying the proportionality principle
It is clear that proportionality can only ever be strived towards as an ideal, rather than attained completely. The practical application of the proportionality principle therefore raises several issues. Firstly, given that proportionality in criminal sentencing is a reflection of sentiments, legislators and judges have a large discretion in determining which punishments are ‘proportional’ to different crimes, giving rise to potentially arbitrary results in legislation and judgments. Besides, while the legislature and judiciary will undoubtedly take into consideration all factors that are possible to be assessed, ultimately, however, these are estimates at best, and will require the input of norms and values which can be callously arbitrary and unreflecting of the prevailing social sentiments
2.2.1. Meeting crime with punishment – comparing wholly different matters
Also, crime and punishment are inherently separate concepts of entirely different natures, making it impossible to simply compare the two on a scale of ‘proportionality’ against each other on their own. Thus, they require a preceding separate a priori judgement on their values from which ideas of ‘proportionality’ can then be scaled. The definition of crime has been the subject of much intense debate,39 and it is not the ambition of this paper to produce a definitive resolution to it. What it seeks to highlight, however, is the fact that the nature of crime is fundamentally different from the nature of punishment. Descriptively, crime is ‘the point of conflict between the individual and society’ 40 because it ‘is fundamentally a violation of conduct norms which contain sanctions, no matter whether found in the criminal law of a modern state or merely in the working rules of special social groups.’41 However, the nature of crime is immensely complicated, and involves several approaches in understanding it.
2.2.2. Possible Solutions
There are two alternatives to make the principle of proportionality more meaningful. The first one is to evaluate whether the norm respects the principle of proportionality stricto sensu or not, and subsequently, whether the essential content is also respected in a given case. Those who defend this opinion should accept that it is possible for a proportionate norm—in spite of its being so—to be unconstitutional if it affects the essential content of a human right.The second alternative completely rules this possibility out.
On the one hand, it does not seem appropriate to accept the proportionality of a norm that violates a human right, both from a theoretical point of view (because it would be contradictory) and from a pragmatic point of view (as it would give place to bad interpretations). On the other hand, the evaluation of the proportion between costs and benefits cannot be satisfactorily done without considering the content of the human rights involved in the case.
Consequently, from this second perspective, a norm can only be proportionate if it does not affect the essential content of the involved rights. For example, this is the position held by the
Argentinean Supreme Court. For this court, the principle of proportionality is the technical instrument it uses to apply article 28 of the Argentinean Constitution, which prescribes that human rights cannot be affected.The position of the Argentinean Supreme Court does not transform the two steps explained in the first alternative into one.
In fact, the court admits the existence of the two steps, as the evaluation of the proportionality of the norm is different from the evaluation of the essential content. However, the court changes the order in which it performs the evaluations. First, the tribunal must check if the content of the right has been affected. Then, it must examine if the norm preserves a proportional relationship between the advantages and the cost that it produces.
As a preliminary conclusion, we may say that the proportionality of a measure (3) presupposes: a) that the measure does not alter the content of the involved human rights; and b) that the measure which does not alter the human rights restricts the norms about human rights in an acceptable degree, taking into account the importance of the pursued end. Then, there are two possible types of violation of the principle of proportionality: disproportionality due to the alteration of the human rights involved and disproportionality due to the lack of justification of the restriction .
The evaluation concerning the alteration should come before the evaluation concerning the justification because the latter requires determining the degree in which the involved right is being restricted. Thus, it is necessary to learn which the limits and the characteristics of the rights are, the relationship between the specific human rights involved and other human rights, and the relationship between such human rights and the common good. The first one is to evaluate whether the norm respects the principle of proportionality stricto sensu or not, and subsequently, whether the essential content is also respected in a given case. Those who defend this opinion should accept that it is possible for a proportionate norm—in spite of its being so—to be unconstitutional if it affects the essential content of a human right.
The second alternative completely rules this possibility out. On the one hand, it does not seem appropriate to accept the proportionality of a norm that violates a human right, both from a theoretical point of view (because it would be contradictory) and from a pragmatic point of view (as it would give place to bad interpretations). On the other hand, the evaluation of the proportion between costs and benefits cannot be satisfactorily done without considering the content of the human rights involved in the case.
Consequently, from this second perspective, a norm can only be proportionate if it does not affect the essential content of the involved rights. For example, this is the position held by the Argentinean Supreme Court. For this court, the principle of proportionality is the technical instrument it uses to apply article 28 of the Argentinean Constitution, which prescribes that human rights cannot be affected.
The position of the Argentinean Supreme Court does not transform the two steps explained in the first alternative into one. In fact, the court admits the existence of the two steps, as the evaluation of the proportionality of the norm is different from the evaluation of the essential content. Such knowledge may only be acquired if the contents of the human rights are analyzed. Moreover, it is necessary to inquire about the degree of public interest inherent to the norm under consideration.
In fact, the temporal sequence above described is not lineal. There is a circle of comprehension that involves both the examination of the alteration and of the justification in a process of mutual feedback. For this reason, the degree of importance given to the norm in relation to the common good can influence on the determination of the precise content of the human right involved in the case. However, we can conclude, too, that examining the alteration is the starting point and the key to proportionality stricto sensu. The light shed by examining the alteration transmits its clarity to the darkness of the exam of justification and thus, the temptation of utilitarianism may be avoided.
Now a question arises: how should the examination of the alteration be carried out? To determine if a measure alters a human right or not, the inquiry about the essential content of such right should be performed. Once the essential content has been established, it is necessary to determine if the measure interferes with it or not. Thus, the most important point is to identify which is the inalterable content. This is a task to be performed by the constitutional interpreter, especially by the judges with constitutional competence. It will be done “in the light of the constitutional norms, through a systematic and specific interpretation of the Constitution, and through an understanding of each human right in relation to its underlying moral values and concepts, and to the objectives to be achieved through its protection.”
In my opinion, the decisive point will be to make a teleological inquiry of the human rights involved, especially taking into account the goods whose protection is looked for through their
constitutional recognition,and without forgetting about the significant role played by the facts of the case, in the manner in which it has been stated by the Spanish Constitutional Court.
Proportionality in criminal justice is derived not from merely considering crime and punishment on their own, but through taking into account the social sentiments towards them, as well as the values attached to crimes and punishments. The application of the proportionality principle, then, is not an objective measurement to be made of criminal offences and sanctions, but is a comparison of the moral assumption that society harbors towards them. Therefore, proportionality can be reached by first scaling crimes and punishments according to these social values, and then by anchoring these two scales against each other, from which calibrations and meaningful comparisons can then be made, and a practical application of proportionality may then be derived. As such, proportionality is never truly attained, since it is not an objective truth to be discovered from the observation of criminal offences and punishments, but is an enterprise of striving towards the goal of representing the wide-ranging and evolving values of society.
It has been argued here that the Model Penal Code amendment setting blameworthiness proportionality as the dominant distributive principle for criminal punishment is a desirable and important development. Empirical studies suggest that this is in fact the principle that ordinary people use in assessing proper punishment. Its adoption as the governing distributive principle for criminal liability and punishment makes good sense because it promotes not only the classic desert retributivism of moral philosophers but also crime control utilitarianism, by enhancing the criminal law’s moral credibility with the community and thereby promoting deference, compliance, acquiescence, and internalization of its norms. The problem is not solved by reliance upon judicial discretion. The studies show that individual judges commonly have views on mitigation in individual cases that vary dramatically from the views of the community. Instead of suffering the resistance and subversion that is provoked by perceived violations of blameworthiness proportionality. Such a principle has been commonly used as the basis for criticizing improper aggravations, such as the doctrines of felony murder and “three strikes,” but the principle also logically requires recognizing a full range of deserved mitigations, not as a matter of grace or forgiveness but as a matter of entitlement. And given ordinary people’s nuanced judgments about blameworthiness proportionality, maintaining moral credibility with the community requires the criminal law to adopt an equally nuanced system of mitigations. Such a nuanced system ideally would include reform of a wide variety of current law doctrines and, especially in the absence of such specific reforms, adoption of a general mitigation provision that aims for blameworthiness proportionality in all cases. Such a general mitigation ought not be limited to cases of “heat of passion” or limited to cases of murder, as today’s liability rules commonly provide. It ought to be available whenever the offense circumstances and the offender’s situation and capacities meaningfully reduce the offender’s blameworthiness, as long as giving the mitigation does not specially undermine community norms. Adopting a codified general mitigation provision can provide blameworthiness proportionality more consistently, accurately, democratically, and transparently then leaving the mitigation to the unguided exercise of discretion by individual sentencing judges.
Law nº 68/2018 of 30/08/2018 determining offences and penalties in general, Official Gazette nº Special of 27/9/2018
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