By The Rwandan Lawyer
On 15th July 2021, the Primary Court of Nyamabuye in Southern Province has ruled a provisional detention for some students of secondary school of Kabgayi A who are prosecuted for having expressed a RIP for the president of the republic and other offences. The present article assesses the legality of this case in terms of the respect of the procedure, the qualification and interpretation of facts by the different judicial institutions which dealt with the case.
On 14th July 2021, the pretrial audience was scheduled for the four students of the secondary school of Kabgayi A who are suspected of having committed five offences namely the divisionism; formation of or joining a criminal association; genocide ideology; causing uprising or unrest among the population; and damaging or plundering another person’s property.
The crimes they are charged with were committed at the school of Kabgayi they were attending whereby there is reported they mentioned acronyms RIP under the picture of Paul Kagame, the Head of State which was on a page of a book; this acronym is normally put on the cross used in the burial of Christians deceased. It is also reported that they wrote words reflecting a public indecency under the picture of the first lady which is also on a page of a school book. The audience was conducted in camera on the request of a counsel of one suspect; the public prosecution requisitioned a provisional detention against the accused in order to fulfill the case file with additional proofs. Even if the media were not allowed to attend the session, we succeeded to know that the suspects denied 4 from the 5 charges; two suspects admitted the offence of damaging or plundering another person’s property.
The Head master of the school of Kabgayi A Nshimiyimana Alphonse told the Intyoza.com that those students were arrested Nshimiyimana Alphonse on 21 june 2021 after a meeting in which were parties the mayor of Muhanga District, Kayitare Jacqueline, the responsibles of RIB at Muhanga District; teachers and students from which the denounced faults were finally qualified as crimes by the investigators of RIB.Furthermore, one of the suspects who has been sentenced to 30 days of provisional detention has a father and an uncle who committed genocide
Some parents suggest that the management of the school has to be deeply advised because it seems laxist about the suspected divisionism committed by some of these students. Those students had chosen a nickname of Pawa which was written on that book in which they mentioned those criminal words. The court reminded the detainees that they have the right to appeal before the examination of their case on the merits.
This pretrial session intending to decide on the provisional detention or provisional liberty occasioned some interrogations which deserve to be rethought hereby.
I am bringing up here a case of compromising qualification, which deserves to be the subject of mockery but which unfortunately reflects most of the qualifications to which our investigative and prosecutorial bodies undertake, especially when the affairs prosecuted border on political sensitivity as is the case in the dossier of these students of Muhanga.
In 2008, a female prosecutor of primary court had arrested a peasant of Kayonza where the second residence of the president is located, who had kicked one of his cows which was grazing on his plantation. She described the facts as an Assault or violence against the President of the Republic as if this cow represented the president himself. She was probably interpreting a Rwandan maxim which says that whoever hits a dog is angry with his owner. Fortunately, the judge did not retain the qualification and will release the peasant.
This case, which deserves to be the object of mockery, reflects most of the qualifications to which our investigative and prosecution bodies engage, especially when the cases border on political sensitivity.
When facts are politicised, the Rwandan judicial institutions become so active at the disposal of the regime in power that they begin to concoct unimaginable qualifications of facts to the point of pure fabulation.
Two simple words i.e. “pawa” and “RIP” pushed the investigative and prosecutorial organs to decide an idea concurrence of 5 offences while seeing clearly it is nothing serious. Indeed, four students were apprehended for having written those words while in the logic of things one can wonder how four people would have held a single pen to write in order to qualify the offenses of criminal participation. Besides, apart from the fact that among them, there was one who has family ties with genocidaires, those investigators and prosecution did not determine who exactly wrote those words. Besides, there can be wondered whether a terrorist organization is built up by only two persons; how they incited people to upraising and where to objectively locate ideology of genocide and divisionism in the two words. If I am not mistaken, the investigators must have been based their appraisal on the ethnicity of these children while the ethnic groups are legally banned in Rwanda. and they were facilitated in their shameful speculation by the fact that among them there is one who has relatives accused of genocide
One student was inflicted with 30 days; one 15 days and the 2 remaining immediately released. The judge who dealt with the detention of the 4 students seems having implicitly disqualified the case but, in a bid to calm down the political tension, he made a medium decision. Indeed, the student whose detention will last 30 days is that with family links with parents who committed genocide. His provisional release would have led the local public especially genocide survivors and other extremists to distrust of justice and the judge would be compromised. But in general, everything leads to believe that the merits of the case will not produce any criminal liability because after 15 days the second student will be released and there will be only the one who is sentenced to the 30 days who cannot logically found and join a criminal organization built up by one person; there is nothing to prove that it was he who actually wrote these words without excluding that the president’s death was publicized in such a way that the damaging imputation did not originally come from him. Without dwelling on this point, the qualifications of our investigators and public prosecutors are only the result of a trial of intent where we anticipate possible harmful effects of two simple words. It is shameful on the part of our lawyers thus instrumentalized by politicians.
Without dwelling on this point, the qualifications of our investigators and public prosecutors are only the result of a trial of intent where we anticipate possible harmful effects of two simple words. It is pitiful on the part of our lawyers thus instrumentalized by politicians
Criminal law applies the strict interpretation, a method which consists in seeking the meaning and the limits of the law while remaining exclusively attached to the text of the law; prohibits to distinguish where the text does not distinguish, the exclusion of anything not mentioned in the legal text). This literal method is motivated by the need for rigorous protection of individual freedom against the arbitrary of the judge. It is also justified by the principle according to which “odiosa sunt restrigenda” meaning that the most serious things (= penal) must be construed restrictively. Consequently, analogy is not acceptable in criminal law; if we consider the case of these students of the secondary school of Kabgayi A, it is analogical to take into account the crimes committed by relatives of a person and assimilate them to his current criminal behavior if any while those crimes were committed long time before his birth. This is indeed the reason why this group of students were apprehended and the ethnic origin of that one whose parents are involved in genocide was automatically taken into account. Is criminality absolutely hereditary or genetical?
To sum up, compelled to incriminate anything which risks or not to disturb to the governing regime in Rwanda, judicial institutions are progressively losing their credibility. Besides, involvement of schooling youth in this political game is not advisable because it harms their mental development and unexpectedly may contribute to exacerbate their mistrust vis-à-vis the regime whose policies of unity and reconciliation become then useless and purely demagogic.