INTRODUCTION
Idamange is facing six charges which include inciting insurrections or public uprising, denigrating genocide commemoration artifacts, publication of rumors, assault and causing bodily harm, obstructing the work of law enforcement organs and issuing a bouncing cheque.
The 42-year-old mother of four pleaded not guilty to all the charges, claiming that she made the remarks and posted the videos out of depression brought about by the lockdown.
Indeed, the activist disclosed to the public various infringements of fundamental rights committed by Rwandan authorities against citizens. In a nutshell, she denounced crimes committed under covered order of the state against political opponents who were mostly genocide survivors such late Kabera Assiel, then advisor at president office; Kizito Mihigo musician then arrested for having attempted to flee the country without formal authorization, Rwisereka Andrew Kagwa then deputy chairman of green party, Mucyo senator; Karegeya Patrick colonel who had got asylum in South Africa, Father Karekezi Dominic then rector of Kibungo University, all but a few. Besides, she criticized the mismanagement of COVID-19 by the Rwandan government; the economic exploitation of genocide committed against Tutsi in a sort of marketing to get money which does not benefit to the survivors. Furthermore, she deplored the misery of the Rwandan population during the breakdown due to COVID-19 and illegal expropriation which expelled people residing at KANGONDO and BANNYAHE in Kigali City without prior compensation of their houses in profit of big fishes.
I. Charges of the prosecution and defense of the accused
During the hearing which was held virtually, Prosecution detailed how Idamange, in various videos deliberated propagated rumors or falsehoods with the intention of inciting people to go and protest at the Office of the President of the Republic and the accused objected by striving to legally and factually refute those charges.
1.Charges of the public prosecution
Prosecution mainly relied on evidence from the videos which were posted on Youtube before her arrest and a bounced cheque worth Rwf 400,000 which she allegedly issued to one Emmanuel Nsabimana.
On inciting insurrections, Prosecutors said Idamange made false and disparaging claims with a purpose of inciting people to rise up against the government and deliberately made claims about the life of the President of the Republic, well knowing that they were false.
In one of the videos, Idamange claimed that the Head of State ‘died long ago’ and citizens should go to Village Urugwiro and protest, demanding to see his body. Idamange further referred to the government as a ‘bunch of bandits.’
Court also heard how Idamange said that COVID-19 had become a new tool the government was using to repress people, replacing the 1994 Genocide against the Tutsi, further claiming that the Government had turned Genocide memorial sites into tourist attractions.
“The government is selling the bodies of our loved ones” claimed Idamange. Prosecutors said that most of her remarks were insulting, derogatory and false in every sense.
Prosecution further said that Idamange deliberately refused to cooperate in a law enforcement exercise, by refusing to open for Police officers when they came to arrest her on February 15. When they eventually gained access, she reportedly attacked one of the officers with a bottle, injuring him in the process.
Prosecutors said that Idamange was facing charges of a serious nature, some carrying up to more than six years in prison and that she should be kept in custody, to allow investigations to continue.
2.Objections of IDAMANGE
Idamange on her part told the court the manner in which she was arrested, insisting that the officers were lucky the dogs had not been released, otherwise they would have bitten the officers.
She said she was handcuffed by RIB officers upstairs after she refused to come down. On injuring an officer, Idamange denied ever injuring him, claiming that it could have been a door or his colleague who injured him.
On undermining genocide evidence, Idamange said that she would not have done anything to trivialize the 1994 Genocide against the Tutsi because she is a ‘genocide survivor’.
On the charge of interfering with government programmes, Idamange denied inciting people to reject measures against the New Coronavirus, claiming instead that she was urging people to adhere to them.
On the charge of issuing a non-secured cheque, Idamange said that the recipient was aware that there was no money on the account before bouncing it.
Despite not pleading guilty, Idamange apologized to anybody who might have been affected by her utterances. She also confirmed to court that the videos on Youtube are hers and she is the one in the videos.
II.ANALYSIS OF THE CASE
The declarations made by the activist translate a certain political dissidence that Rwandan state intends to stop by incriminating them as per law nº68/2018 of 30/0/2018 governing offenses and penalties in general.
1.What is really a political crime?
A political crime or political offense is an offence involving overt acts or omissions (where there is a duty to act), which prejudice the interests of the state, its government, or the political system. It is to be distinguished from state crime, in which it is the states that break either their own criminal laws or public international law.
States will define as political crimes any behavior perceived as a threat, real or imagined, to the state’s survival, including both violent and non-violent oppositional crimes. A consequence of such criminalization may be that a range of human rights, civil rights, and freedoms are curtailed, and conduct which would not normally be considered criminal per se (in other words, that is not antisocial according to those who engage in it) is criminalized at the convenience of the group holding power.
Thus, there may be a question of the morality of a law which simply criminalizes ordinary political dissent, even though the majority of those who support the current regime may consider criminalization of politically motivated behavior an acceptable response when the offender is driven by more extreme political, ideological, religious or other beliefs.
Normally, we are accustomed with crimes like treason, terrorism, sedition; rebellion, espionage which are overtly political because they represent a direct challenge to the government in power and prosecuted on complaint of political powers. The issue which probably challenged the officials of Rwandan state is the real criminal qualification of crimes that have allegedly committed this activist.in the first temptation, the coordinator of CNLG Dr BIZIMANA Jean Damascene relayed reactions of Tom NDAHIRO who qualifies himself as a genocide researcher even if he does not academically fulfills the requirements of a so called researcher by accusing the activist as genocide ideologist. Further to the other declarations of the activist, the state minister in charge of culture would have visited the activist to ask her to stop her declarations under payment of some amount offer which was rejected by the activist. Finally, the Rwanda Investigation Bureau arraigned her, arrested her and started her case file which is now transmitted to the public prosecution for instruction and criminal action.
2.Clues of the challenges incurred by the prosecution in the legal interpretation and their qualification of the alleged facts
During the audience of provisional detention held at the primary court of Gasabo in Kigali City, the prosecutor in charge of case file asked the activist to reproduce her YouTube statements seemingly in a bid to help him to get some elements susceptible to be incriminated and the suspect replied that it is not up to her to repeat what she publicly stated.
Regarding the count of political rebellion, she objected that she is not a political and does not head any political party and that her statements were just a sort of advocacy in favor of the Rwandan citizens suffering from hunger and violations of their fundamental rights by Rwandan state.
Legally reasoning, the public prosecution is undergoing difficulties to qualify and prove the facts retained against the activist which reflect a mi-political and mi-advocacy so that under political pressure the prosecution is tasked to criminalize facts which are not offences objectively speaking especially as evidence of those state crimes she raised can be availed even if they are under state secret.
3. Violations of law by law enforcers
from the case of this activist, a series of legal observations deserve to be made. Firstly, lawyers the charge of spreading rumors is not criminal in nature and shouldn’t be a reason to keep their client in detention. Besides, her rights were violated during arrest because there were no local leaders present. Furthermore, the charge of issuing a bounced cheque was unfounded because the alleged incident happened in 2018, more than four years ago, making the charge legally absolute, wondering also how it is connected to her current charges. Simply, Idamange only exercised her constitutional right and spoke what was on her mind and that is what it should be -freedom of speech and expression and non negative effects were produced if not the Prosecution should present victims and also that her videos were cut into small snippets to mean something else, rather than viewing them as a whole. The prosecution however maintained that the impact of what Idamange said or posted deliberately cannot be underestimated and more details will be shared when the trial goes into substance and in the same line, no proof is provided to affirm that she injured a policeman
It is noteworthy to maintain that there is no strong evidence to suggest that Idamange committed the crimes she prosecuted for. In fine, Idamange should be released on bail because there are no serious charges and also to allow her to go and attend to her children as she was also depressed due to the COVID-19 lockdown.
4..The fleeting character of political crimes
If we focus on the heavy charge consisting in incitation to public disorder, it is provided for by Article 204 of the Penal Code which stipulates that any person who publicly, either by a speech, writings of any kind, images, or any symbols, whether displayed, distributed, purchased or sold, or published in any manner, incites the population to reject the established Government, or who causes uprising in the population with intention to incite citizens against one another or disrupts the population with intention to cause unrest in the Republic of Rwanda commits an offence. Upon conviction, he/she is liable to imprisonment for a term of not less than 10 years and not more than 15 years.
The issue residing here is to know whether statements expressed by this lady constitute really the crime of inciting to public disorder. In my view, the investigation organ and the public prosecution strived to search for a qualification fitting with those declarations and failing they just predicted the possible effects of those declarations which actually emit what all Rwandans think silently to avoid the repression of the regime into power. Indeed, apart from prosecuting preventively this activist alleging that she was inciting population to uprising, there is no tangible evidence that her declarations should provoke such effects especially as she talked of matters which are not new but she “dared” to disclose what is hushed up by precaution. Then there remain the issue of distinguishing political statements and offences and dictatorial regimes exclude the former preferring to consider opponents as pure criminals.
III. Issues of interpretation and qualification
When a criminal matter arises, the first duty of the judge is to determine whether the facts brought to him meet the first legal requirement i.e. to see whether those facts constitute a crime. This intellectual operation is called qualification of the facts. It is defined as an intellectual process enabling the judge to apply the abstract rule contained in a criminal provision to a concrete and particular case submitted to him. There are two types of qualifications: legal qualification and judicial qualification.
a. Legal qualification
The legal qualification is that which is embodied in a legal provision defining a crime in an abstract way. Therefore this legal provision defining a specific crime and its specific penalties is considered the legal element of that crime. It is the legal qualification which enables us to distinguish between theft, rape, murder, arson, etc. The legal qualification is made by legislative or regulatory bodies.
b. Judicial qualification
The judicial qualification is a judicial operation by which a judicial authority links the facts brought to him and considered as antisocial with their legal qualification so as to determine the legal basis for application of penal sanctions. In other words, it is an operation by which a judicial authority matches the facts presented to him with the law in order to single out the legal provision applicable to the case in hand.
The judicial qualification has two important advantages:
1o no act which does not constitute a crime can be criminally prosecuted and punished even if in the eyes of the people it appears antisocial.
2o the selected qualification determines procedural rules to be applied as well as the penalty to be inflicted to the offender.
In order to achieve the exact qualification, the judge must follow a certain number of methods and principles. Some of them are applicable to all the qualifications, while others apply only in case of several possible qualifications.
(i) Method of successive qualifications
This method suggests that any qualification is subject to successive modifications by the judicial authority to which the facts are submitted for qualification. In other words, when the criminal acts are submitted to the judicial authority, this one can temporarily choose a legal qualification which appears to be suitable for the case and enabling him/her to start and direct his/her investigation, to collect the evidence and ensuring the instruction of the case.
During the investigation process and as he/she collects more evidence about the case he/she can give up the first qualification to adopt another one which is more suitable according to the new evolution of the case. As the investigation continues, this authority can give up this new qualification and reconsider the previous one or adopt another if he/she estimates that it suits better to the facts.
This operation will continue until the concerned legal authority is convinced that the chosen qualification really matches with the facts in hand. This exercise will go on until he/she reaches the exact legal qualification excluding all other qualifications.
(ii) The principle of continuous modification of the qualification throughout the penal-process
As long as the court decision did not become irrevocable, any qualification can be subject to change at any stage of the procedure. Thus, the prosecutor can modify the qualification proposed by the investigators in his case file or the one proposed by the complaint or the victim. In the same way, the judge is not bound by the qualification suggested either by the prosecutor or by the victim who directly brought the claim to the court (citation directe).
Consequently, the court can completely disregard the proposed qualification, retain less serious qualification or even seek for a new and appropriate qualification to the facts in hand. By so doing, the judge does not proceed in an arbitrary manner. He/she refers to the new elements presented in the court but he may also modify the qualification if the selected one is erroneous. This exercise should be carried out in total conformity with legal rules and regulations and the rights of defense. Thus, the principle “No pejorare” applies.
As the court is not bound by the qualification suggested by the prosecutor, in the same way, the judge of appellate court is not bound by the qualification retained by the first instance judge.
On this point, it should be noted that when judge modifies the qualification of the facts to the extent of retaining the new one, time must be granted to the offender to prepare his/her defense.
This requirement is not considered in case where the judge has retained the less serious qualification than the one proposed previously or where the qualification is of the same gravity with the previous qualification. In the case of disqualification it is considered that retaining the less serious qualification is favorable to the defendant. It is worth mentioning however that even in those two cases, the accused should be given time to update him to the new qualification no matter how favorable it would be.
CONCLUSION
Overtly, the investigators and prosecutors were challenged when charged to arrest, incriminate and prosecute the activist IDAMANGE IRYAMUGWIZA Yvonne due to facts which are not really offences if literal interpretation of criminal rules is strictly applied. Analogical interpretation is not allowed in general and in Rwandan law specifically given that Rwandan law nº68/2018 governing offences and penalties in general does not provide specific facts which should be qualified as incitation to public disorder, rebellion or even political crimes. As the judge is not bound by the qualification submitted by the prosecutor, in the same way, the judge of appellate court is not bound by the qualification retained by the first instance judge. Likewise, may we expect that seized courts will reject these manufactured qualifications and release our activist? This option requires from the judge an full independence from the judicial hierarchy and from extrajudicial authorities, which is unthinkable in a country like Rwanda where law and courts are instruments of the political regime to oppress and intimidate dissidents.
By The Rwandan Lawyer
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1Fiona Ross, Beyond Left and Right’: The New Partisan Politics of Welfare, in Governance, an international journal of policy, administration and institutions,17 December 2002
2ibidem
