This administrative directive which actually appears a by-law poses three serious issues:
a) Whether the Executive Secretary’s order prohibiting people from harvesting their maize crop for subsistence purposes is constitutional
b) Whether the fines set in the Executive Secretary’s order prohibiting people from harvesting their maize crop for subsistence purposes are legal
c) Whether this Executive Secretary’s “order” is actually Rwanda’s public policy
1. Whether the Executive Secretary’s order prohibiting people from harvesting their maize crop for subsistence purposes is constitutional:
The 2003 Rwandan constitution as amended of to date, Article 29 provides that: “Every person has a right to private property, whether personal or owned in association with others. Private property, whether individually or collectively owned, is inviolable. The right to property may not be interfered with except in public interest, in circumstances and procedures determined by law and subject to fair and prior compensation. Article 200 of the same constitution provides: “The Constitution is the supreme law of the State. Any law [or order] which is contrary to this Constitution is null and void”. Article 9 provides: “The State of Rwanda commits itself to conform to […] building a state governed by rule of law …”
The apparently administrative order and seemingly a by-law prohibit people from harvesting their maize for subsistence purposes. They are ordered to not to harvest their crop until it is dry and thereby sell it for commercial. Maize is fructus industriale and effectively a personal property. By prohibiting a person from harvesting his own crop for any purpose at anytime of his choosing is flagrant violation of the inviolability of private property. Prohibiting a person to harvest his crop at the time he wishes to harvest it for the purposes he /she grew the croup, amounts to “taking” which must be compensated. The minister of Local governments appoints the executive secretary. The Executive Secretary signed the order. The “order” is Rwanda’s public policy. To the extent the Executive Secretary’s “order” is an abridgement of the constitution, it is null and void and. The order is, effectively contrary to the spirit and respect of the rule of law as required by the constitution.
2. Whether the fines set in the Executive Secretary’s order prohibiting people from harvesting their maize crop for subsistence purposes are legal:
Any fine that targets a constitutionally protected right is void abnitio. A fine is a form of punishment. Any punishment must be proportional and legally justifiable. Punishment cannot be arbitrary.
The 20,000 fine for anyone found with his/her harvested comb of maize is subjected to 20,000 Rwandan francs. The market price of comb of maize is about 05 Rwandan francs. Needless to mention, a person is disproportionally fined for harvesting his/her own maize for the purpose he/she planted the maize. The executive Secretary arbitrarily set the 20,000 Rwandan francs fine. There is not legal justification of such a fine.
3. Whether this Executive Secretary’s “order” is actually Rwanda’s public policy
Public Policy is a decision government official, jointly or individually, takes over an issue of public concern. It is immaterial that the government officials or officer made the decision in his individual capacity. In this case, the minister of Local Government appoints the Executive Secretary. The executive secretary is effectively a government official. Prohibiting people from harvesting their maize at the time of their choice for the purpose they planted the maize is undoubtedly an issue of public concern and certainly a constitutional issue. The Executive Secretary’s directive is Rwanda’s public policy.
Dr Charles Kambanda