By The Rwandan Lawyer
The youtuber Cyuma Hassan Dieudonné was recently sentenced to 7 years of imprisonment for 4 charges including forgery, impersonation, and criminal obstruction of security officials and humiliating state officials. As per Article 9 of law nº 69/2019 of 08/11/2019 amending law nº 68/2018 of 30/08/2018 determining offences and penalties in general dealing with the crime of Humiliation of national authorities and persons in charge of public service Article 233 of the Law nº 68/2018 of 30/08/2018 determining offences and penalties in general is repealed.The prosecution based on this provision to lodge a second appeal and not the defence attorney in favor of the journalist.The present lines analyze those considerations.
The National Public Prosecution Authority (NPPA) has appealed against the recent ruling of the High Court where Dieudonné Niyonsenga alias Cyuma Hassan, the owner of a YouTube channel known as Ishema TV was handed seven-year sentence and slapped with Rwf5 million fine.
The Prosecution has announced plans to file an appeal few days following the sentence handed to Niyonsenga.
The young man was convicted of four crimes including forgery, impersonation, and criminal obstruction of security officials and humiliating state officials.
“Prosecution has lodged a 2nd appeal in the case against Niyonsenga Dieudonné alias Cyuma Hassan. The grounds for appeal is to correct an error convicting Cyuma for the crime of humiliating public service officials, a crime that was repealed in 2019,” reads the statement released by NPPA on Tuesday 16th November 2021.
The Prosecution has requested that the other three charges, related to assault and criminal obstruction of security officials, practicing journalism without the required permit, forgery and presenting forged press cards as well as the sentence remain unchanged.
The crimes were committed on 15th April 2020 when he declined to obey security officials that requested him to comply with COVID-19 preventive measures.
At the time, he was arrested and later acquitted by Gasabo Intermediary Court. The Prosecution appealed against the verdict whereafter, he was handed seven-year sentence by the High Court which also ordered his arrest. He was detained on 11th November 2021 one day after court delivered the verdict.
Nemo auditur propriam turpitudinem allegans
the rule “Nemo auditur propriam turpitudinem allegans” means that No one shall be heard, who invokes his own guilt.The maxim represents a rejection for those who seek to rely upon their own turpitude to face justice, because immoral acts should not be protected by law.It is applied in most legal systems and prevents anyone asserting a right acquired by fraud. In accordance with the legal principle ” nemo auditur propriam turpitudinem allegans”, however, it was not permissible for any party, in this case the appellant, to benefit from an omission of its own, since this would be unjust to the opposing parties.
With the case of Cyuma Hassan, there is wondered why the prosecution admits its errors while requesting to maintain the same penalties. We would therefore wonder if the public prosecution is concerned about the pure and simple rectification without effect on the sentence while, in principle, it is called upon to plead for the prosecution and the defense; which would have logically pushed him in this last alternative to request mitigating circumstances in favor of Cyuma Hassan but his recourse does not bring anything concrete.
Complicity of the defence attorney
There is wondered why the defence advocate did not find out the illegality to defend his client till the accusation decides to ask the rectification of the error while this was one of arms offered to the accused to prove the injustice he is encountering and thus the arbitrariness and abuses of rights daily committed by the Rwandan investigatory and prosecutorial organs.
If it is not a human error, the defence advocate did not legally and dually assisted his client either due to intimidation by security services or bribed to fall accomplice.
Cumulation of penalties vs. application of the severe penalty
There is a concurrent offense when an offense is committed by a person before the latter has been definitively convicted for another offense. In this case, it does not matter whether these acts were committed almost simultaneously or at different times.
Secondly, there may be a combination of offenses when an individual has committed only one act if this act is covered by several texts. It is a single act which falls under the scope of two different texts. Ex: an individual commits an imprudence which injures two people; one is disabled for more than three months (offense art. 222-19), the other for less than three months (offense). Ex: a rape is committed in a public place; this act is targeted by the text which suppresses rape, but also by the one which suppresses the sexual exhibition imposed in the sight of others. If we say that there are two offenses, there will be a combination of offenses.
In principle, there is only one offense because only one act has been performed. The most serious offense is taken into account. This is the solution in principle. The Court of Cassation said that “the same fact, otherwise qualified, cannot lead to a double conviction “.As an exception, the single act covered by two different texts constitutes two offenses, which are competition offenses. Some offenses occur when the two texts protect different values. Ex: one text protects property, the other physical integrity, or people.
When, during the same procedure, the accused person is found guilty of several concurrent offenses, each of the penalties incurred may be pronounced. However, when several penalties of the same nature are incurred, only one penalty of this nature may be pronounced within the limit of the highest legal maximum. Each sentence pronounced is deemed to be common to the offenses in competition within the limit of the legal maximum applicable to each of them.
In certain exceptional cases, the infringements in competition are regarded only as a single infringement but the penalty applicable to this infringement is aggravated.
if the court applied the cumulation of penalties, it has to remove the penalty applied against the offence which was repealed or in accordance of the principle fraus omnia corrumpit which seems to be the effect of the rule nemo auditur propriam turpitudinem allegans cancel the judgment and consequently release the journalist.
As twittered Jeffrey Smith, the abject farce continues in the case the youtuber Cyuma Hassan in Rwanda. It is like a page straight from a dystopian novel. A case among many others testifying that crackdown on opposition and media goes on in Rwanda. Overtly, Rwandan judiciary ridicules itself until it dares to violate the principle of legality of offences and penalties by sentencing someone for an offence which is no longer punished because the text incriminating it is repealed. Will we still consider for Rwandan magistrates the rule “curia novit jus”(the court knows the law) if the very recent criminal law is ignored by the judge in charge of the case file?