By The Rwandan Lawyer
Even though laws are regularly adopted and enforced, they can be judicially challenged and their effects made void especially in States comprising ours that decided to apply the control a posteriori over norms. By experience, we have noted that some laws partially declared unconstitutional are still applicable notably we should cite the law n°42/88 of 27th october 1988 whose various provisions seem violating the gender balance principle constitutionally recognized. Moreover, according to article 29 of the Organic Law N° 03/2012/OL of 13/06/2012determining the organization, functioning and jurisdiction of the Supreme Court as amended to date the Supreme Court detains the ability to judge unconstitutionality of laws.
In 2007, a criminal case whereby a woman was previously sentenced to one (1) year of imprisonment penalty for adultery was declared unconstitutional by Rwandan Supreme Court repealing provisions of article 356 of the then penal code due to violation of the gender balance principle legalized by the constitution and committed discrimination based on sex where men prosecuted for adultery are punished by a fine of 1000 Rwandan francs while women were sentenced of one year of imprisonment.
Similarly, in the case RS/INCONSTITUT/PÉN. 0001/07/CS, the same court amended article 121 of the law n°13/2004 of 17/05/2004 relating to the code of criminal procedure, that wasgranting to the criminal court’s powers of judge, prosecutor and even judicial police compromising the principle of separation of powers. From the above considerations arise the legal issues that are worded as following. First, there occurs a certain confusion or legal loophole between the Supreme Court unconstitutionality ruling and the next legislative amendment or abrogation of the concerned text by the legislator as such judgment is not automatically followed by the parliament session for opportunity and adoption of a new legislation taking into account the pronounced court decision. Second, parties in courts are disoriented because they have to choose between the caselaw and the contested law not yet repealed. Worse, the option of control a posteriori causes a series of challenges all amounting to a juridical insecurity given that all laws are passed comes what may, consistent or not. Finally, means of vulgarization for such a caselaw are poor by comparison with the law process. Carrying out such a study we intend to focus on the confusion or gaps noted between the laws’ unconstitutionality ruling from the Rwandan Supreme Court and the legislator’s action i.e the modification of such a legal text. These threefold issues seem to be a challenge due to various political, institutional and legal reasons that will be clarified and discussed throughout the following lines.
2.Critical analysis of law weaknesses and loopholes
Constitutional Court’s fundamental powers are no longer entrusted to a specific court as by the past but are exercised by the supreme court in general. They consist in examining compliance with the Constitution of all laws and international treaties concluded by Rwanda prior to their ratification. Along the present part, I intend to assessment of gaps that are noticeable in the legislation governing that control since it is carried out afterwards.
2.1. Lack of precision in the procedure
When the Rwandan Supreme Court declares a given provision unconstitutional, there no procedural precision on how this ruling will have an effet on the existing law i.e the law whose provision was judged not complying with the fundamental law.
Consequently, the attacked norm continues its effective enforcement notwithstanding the rendered court decision invalidating some its provisions.
In this perspective, the challenging judgment should be considered as a reference, just a caselaw that should be evoked by future parties in other similar cases where the compromising provision should be randomly raised and that does not determine the consideration of the judge in his decision-making process. The judicial decisions can involve questions of interpretation based on the constitution and legislation, or they can be more direct law making, establishing norms in areas where there is no applicable legislation. There are broad areas in American law which are still relatively free of legislation, especially in areas of private law obligations (contracts and torts), and personal and real property. This law-making power is also important in settling disputes in areas new to the law, such as surrogate parenting, before the legislature has had a chance to enact a statutory regime applicable to the situation. Case law in this sense means the written opinions of appellate courts deciding a point of law. When judges have to make decisions on matters of law they must follow the decisions of their predecessors and superiors. This principle of stare decisis is crucial to maintain the element of predictability in juridical relations. Courts work to avoid contradicting themselves, and can never contradict a court which is higher in that jurisdiction’s hierarchy than the court itself. The written decisions indicate which previous cases are being followed, and show why this case should follow the logic of those particular cases. The earlier cases are called “precedent”. When an attorney is presenting his case to the appellate bench, he is basically arguing which cases and which logic should be used in the situation in dispute.
2.2. Parliament miss-informed
The judicial procedure of our country does not indicate how and in which circumstances the ruling that made the law partially inapplicable is transmitted to the chambers of the Parliament so that legislators should take it into account in the eventual modification of the targeted legal text or its possible repealing.
As known, judicial decisions have relative character to mean that they bind and concern only litigants who were opposed parties in the specific case. In general, once a judgment is pronounced, it is said that it becomes the authority of res judicata. It’s “all of the effects attached to the judicial decision, such the force of legal truth”.
The authority of res judicata has a double effect: A positive effect that allows that the right has been recognized by a judgment may rely on the authority of res judicata (which applies to the judgment and the effects that it produces) in other proceedings. And a negative effect: prevent the parties resume a retrial focusing on a dispute that would have been already held, under the condition of a triple identity (identity of parties, requested thing and cause, and subject to the exercise of remedies). The authority of res judicata is relative, that is, it cannot be opposed unless there is the triple identity of parties, object and cause. Thus, according to article 1351 of the french civil code: “the authority of res judicata a place solely for the purpose of which was the subject of the judgmentt. The requested thing must be the same; that the request is based on the same cause; the request to be between the same parties, and formed by them and against them in the same quality.
Similarly, even for Supreme Court rulings for unconstitutionality of laws the erga omnes character is not explicitly indicated neither in the Constitution of the Republic of Rwanda nor in laws governing procedure.
Furthermore, in compliance with the principle of separation of powers, there is no provision urging the parliament to enforce orders from the judiciary especially as Rwanda opted for the control a posteriori after adoption of laws. Indeed, the a posteriori constitutionality control is a procedure or set of procedures to ensure the supremacy of the Constitution by cancelling or paralysing the application of any Act [usually a law], which would be contrary or violating the constitution; otherwise, in other words when the constitutionality of a law already enacted is challenged.
2.3. Litigants confused
When an isolated provision of a legal text is constitutionally invalidated, citizens who are supposed being the addressees of the law are not aware especially as it is known that norms are classically issued by the parliament through the official gazette. In this regard, ways by which this provision becomes void and inapplicable to all the future litigations are not appropriate in terms of publicity purposes and are not accessible as well as laws.
Indeed, few people, legal researchers at least, hardly resort to courts to check rulings, and this proves enough that information on decisions rendered by a court is rarely consulted by citizens as determining source of law.
Consequently, litigants continue to use the same law whose provisions were judged unconstitutional because any law has not yet been adopted and published to replace the irregular norm and it seems visibly thorny to detect any time eventual judgments delivered and disqualifying some laws.
2.4. Legal insecurity due to control a posteriori
The Rwandan state shifted from the prior control of norms into force before the constitution of 2003 to the control a posteriori involving that all laws are passed without any pre-examination by the supreme court and this is meant that their consistency is not all guaranteed. Indeed, the control a posteriori poses risks to legal security to the extent that it opens up the possibility of permanent questioning of the standards to which it applies. It deals with texts that have been into force for years and which have spawned a multitude of secondary acts. “If you ever see, when it has been into force for three or four years, that a law is unconstitutional, it is an unfathomable mess: everything that happened before was unconstitutional… “,” said Jean Rivero, who concluded that “this system presents a great danger of legal uncertainty for everyone: for the citizen, for the judge… »
Moreover, no one dares to imagine the chaos that could result, in diplomatic and legal terms, from the annulment of a treaty several years after its entry into force. In the light of the experiments, however, the disruptive effect of control a posteriori deserves to be seriously put into perspective. In the case of an appeal to protect fundamental rights against an act of application, the decision of unconstitutionality produces only an inter-partes effect. With regard to the litigation of norms, the most common formula is that of repeal, which least undermines legal certainty since the unconstitutional act disappears only for the future, its past effects not being questioned (except in criminal cases).
The formula of annulment (removal of retroactive legal ordering), practiced in Portugal, Germany, Italy and Belgium (in the case of remedy by action), is rarer. Moreover, even where retroactive cancellation is the principle, every effort is made to mitigate the disruption it may cause: definitively acquired legal situations are not called into question; Total cancellations are rare; The judge tries to limit the effects of a decision by targeting unconstitutionality as it applies to a particular situation or class of persons; it avoids declarations of unconstitutionality by making interpretive reservations; it may finally decide that an unconstitutional provision remains into force on an interim basis (time for the legislature to remedy the unconstitutionality noted) or, more exceptionally, definitive.
2.5. the motives of Rwandan regime
Even if Rwanda does not hesitate to fiddle with the constitution for any interest by cutting it off; the modification of this fundamental text is still frowned upon for any country that declares itself democratic and stokes the demands of political oppositions who find it as a plus in denouncing the bad governance of such a state. In the system that required prior control of laws where the government had some interests to legalize, the latter risked being blocked even if the judges are part of the regime, but you never know that there are a few reasonable justices who are not easily fooled. The case of Justice Bwiza Blanche who dared to release Mr. KALISA Alfred while the state wanted to jail him is not a good souvenir for the RPF regime and the President Kagame blamed her comparing her to Bruguière who issued warrant against criminal RPA officers. Thus, under the coverage of control a posteriori unconstitutional texts are passed and these often shady interests are safeguarded and anyone who dares to initiate an exception after the fact is intimidated in such a way that all threatening actions are already countered.
Conclusion: an overall juridical insecurity
The basis of all types of decision is the Constitutional Court’s task to preserve the constitutionality of the legal system and to enforce the legislative power’s commitment to the Constitution. The role of constitutional court is effective when there is practiced the control a priori whereby laws are examined before their promulgation to confirm their consistency with the constitution.it is therefore deplorable that Rwandan state opted for a control a posteriori which is scarcely triggered given that people generally fear to attack the state field and the rare who dare that are covered by public powers.