By The Rwandan Analyst
The fight against corruption today is meant to be effective. States are looking for the necessary means to combat the phenomenon. Rwanda has often been less criticized than other African states in terms of measures against the practice of corruption and enjoys a tolerable rank but this betrays the reality because the illicit enrichment is committed by the big fishes and what is published is these are the crumbs collected by the little fish which are published in embellished reports so that corrupt practices are still a reality especially the illicit enrichment which is reflected by disproportional balance between what the civil servant receives officially as income and what he really possesses. The various incriminations and sanctions provided for in the Rwandan penal code (which dates from 1977; 2012 and 2018) to combat corruption behavior have proved ineffective. The present article analyses the situation tackling real facts and shortcomings raised on legal, institutional and political levels as well.
1. Factual issues
Once we know that he only has his income linked to the function he occupies, one wonders how he acquired these assets. There is no writing defect, no denounced acts of corruption or declared embezzlement. Yet more and more corruption has plagued the daily life of populations. It is to put an end to these acts that the international community has decided to criminalize “ illicit enrichment. Rwanda, from the above-mentioned criticisms, is party to several conventions which prohibit acts of corruption in general and illicit enrichment in particular. Since several people cannot be arrested or prosecuted for lack of proof while suspicions and indications of inexplicable fortunes by legal income are visible. This is why illicit enrichment was prohibited. This notion is defined by various international conventions to which Rwanda is a party.
The simple fact where a customs officer who barely a year of service rolls in a Jeep Land cruiser V8 costing 100 millions of Rwandan francs and possessing five sumptuous villas without credit in banks, settling in an upscale neighborhood. The civil servant monthly paid 800 thousand of Rwandan francs who detail one billion on his/her bank account and whose all schooling children study abroad; a minister paid 3 million of gross salary having erected 100 apartments with several floors.
This situation overtly shock the conscience but cannot give place to sanction by lack of proof. The principle of legality then became an obstacle to the materialization of rights which for an authorized doctrine is greater than the formal sources of law, which would mean that illicit enrichment was a popular criterion which preceded legislation. In short, the desire to make the law prevail and to break with impunity are justified reasons for combating illicit enrichment.
One can therefore wonder about Rwanda’s criminal policy vis-à-vis the offense against illicit enrichment under the law in force. It would be a question here of seeing all the means implemented before the commission of the offense until the sanction. We will not be able to forget that the criminal policy is “the set of the various means implemented to fight against the criminal phenomenon” FEUERBACH defined it as “all the repressive procedures against which the State reacts against crime. Delmas Marty, she considers it as “the set of processes by which the social body organizes the response to the criminal phenomenon. Besides, there should be wondered whether Rwandan adherence to the various international conventions sufficient to say that this country is effectively fighting against this phenomenon. Furthermore, laws and sanctions are enacted but their implementation by judicial institutions does not assure efficiency in the fight against this fleeting offence which is sometimes trans-boundary.
The choice of such a topic takes on a double interest. The first concern is that a new offense may change the legislative landscape, in the sense that new standards of behavior are enacted. This would allow us to see if the phenomenon long decried can be combated by the means available to the Rwandan state.
The second concern that would arise from the first is of a social order and will allow us to see from then on the behavior of individuals will change in the management of public affairs.
There is therefore noted that beyond the official discourse, this fight against illicit enrichment is characterized by a mixed record. This can be seen in the context of a timid implementation of preventive measures coupled with reluctance in the adoption of curative measures.
From the foregoing, a series of legal and political issues deserve to be highlighted in fourfold. First, even if those civil servants comply with the duty of declaration of patrimony, the latter are not sincere because they declare known property especially in the country while they hide huge amounts outside on anonymous accounts or belonging to far relatives. Second, the investigators encounter the challenge of detecting such economic criminals and content themselves on what is locally accessible. Third, the strict application of the rule of burden of proof does not facilitate the prosecution and the reversal of this rule is internationally illegal and infringes fundamental rights. Fourth, the law does not allow the civil servants to publicly declare their property while it is the public who specifically know their real possessions. Beyond the instantaneous aspect of the official speech and the strict respect of declaration of patrimony, can we say that the fight against illicit enrichment is effective in Rwanda? What are the legal and political hindrances of the prosecution the crime of illicit enrichment?
2.Analysis of legal, institutional and political weaknesses
There is hereby assessed abilities of Rwandan legislation; policies and institutions to deter the perpetrators of this crime of illicit enrichment.
2.1. Legal issues
The law n° 54/2018 of 13/08/2018 on fighting against corruption deserves to be assessed on its capacity to fight the targeted crime.
1)Inaccessibility of evidence
The Law n° 54/2018 of 13/08/2018 relating the punishment of the crime of corruption and related offences appears very general in so far as it just defines the understanding of the illicit enrichment and its penalties while there lack a number of specifications which may facilitate the investigator and the prosecutor seeking evidence of such a crime especially the veracity of facts constituting this crime. In this regard, the fact that someone holds huge amounts on foreign accounts exculpates him while those judicial institutions failed to countercheck such a phenomenon of exporting patrimony in a bid to escape from the control. This loophole will benefit to Mutsindashyaka who pretended that the funds saved abroad was aimed to pay tuition for his schooling children while really those amounts were scattered in different countries of Europe and America and that their number exceeded these limited tuitions. Besides, the secret nature of the declaration of patrimony prevents the public to access and denounce lies declared. Indeed, according to article 39 of the law no 76/2013 of 11/9/2013 determining the mission, powers, organization and functioning of the office of the ombudsman, the declarations of property shall be kept confidential and the information contained in the declaration shall only be known to the filer and their relevant custodians. Where necessary, the President of the Supreme Court or the Prosecutor General, after making an official request to the Ombudsman or the Bureau of Senate, may be allowed to access the declaration information of the person suspected to have committed an offence, for the investigation’s purposes. However, if the concerned person is the President of the Supreme Court or the Prosecutor General, the request shall be made by their deputies.
2)The difficult application of the burden of proof
Besides, the principle of burden of proof enshrined by the article 107 of law nº 027/2019 of 19/09/2019 relating to the criminal procedure according to which the burden of proof is on the public prosecution or, in case of a claim for damages or private prosecution, on the victim of an offence or his or her rightful beneficiaries. An accused is always presumed innocent until proven guilty by a final court decision. An accused is not obliged to prove his or her innocence unless his or her guilt has been established. Unless provided otherwise by Law, the production of evidence is made in accordance with the Law relating to the production of evidence.
This rule is not applicable in the specific prosecution of the illicit enrichment given that the investigator ignores the real assets of the suspect apart from those officially declared and the very person who is aware of such compromised movables and immovables is the owner and the law limits the reversal of this duty only when the prosecuting party provided sufficient charging proofs whereby the defendant has to refute them. Indeed, the third paragraph of the same article states that where evidence to support the offence is sufficiently presented, the accused or his or her legal counsel may present all the defences available to him or her, raise a plea of inadmissibility or show that the allegations against him or her do not constitute an offence or he or she is innocent and present all the facts challenging the veracity of incriminating evidence. Whereas, unfortunately, the prosecutor is likely to sufficiently avail such proofs so called sufficient facing patrimony sophistically hidden by the civil servant sued thereon.
3)Resort to disloyal proofs
the investigators have often recourse to disloyal evidence such as intercepting communications especially in case of allocation of public tenders to catch promises of corruption in exchange of such a market or preparing banknotes and copying them in a sort of provoking the offender to address difficulties encountered to get proof of cheating facts in this domain. The investigator and even the prosecutor gets the expected facts but there are obtained illegally. Indeed, the provisions of articles 38;39 and 40 of the Rwandan law relating to criminal procedure allowing and organizing the interception of communication in investigations and prosecution overtly infringe the constitution especially its article 23 according to which the privacy of a person, his or her family, home or correspondence shall not be subjected to interference in a manner inconsistent with the law; the person’s honor and dignity shall be respected. a person’s home is inviolable. no search or entry into a home shall be carried out without the consent of the owner, except in circumstances and in accordance with procedures determined by the law. confidentiality of correspondence and communication shall not be waived except in circumstances and in accordance with procedures determined by the law.
4)Issue of detection of facts constituting the illicit enrichment
Detecting cases of illicit enrichment can limit the damage by blocking and eradicating all attempts or actions in progress. These detections would be a means of recovering the cases that the preventive actions would not have been able to intercept. We would cut off any inclinations for illicit enrichment. The sense of the relations between the different partners is essential here. If they are conflicting, it would be difficult to achieve detection; on the other hand, if collaboration is at the center of said relations, detection would be better assured. We could limit the cases. It would be a boon to prevent one from trying, and others might repent knowing they would be detected. And this could be done through the cooperation that can manifest itself both internally or nationally and internationally.
Their role has been presented and it complements the request of the competent authorities. The bank or financial institutions could therefore denounce suspicious transactions. All this would allow the participation of these institutions in the strengthening of the rule of law, especially since inopposabilities would allow better progress in detection. The commission for declaring goods and assets when it is set up could then receive suspicious reports from banks and financial organizations. The ombudsman office would already be ready to receive them since it is already up and running. We can then count on the manifest will of the competent services and organizations to ensure the effectiveness of this cooperation.
Bank secrecy (a) and the confidentiality of securities (b) can lead an institution not to cooperate. These conditions are unenforceable here.
The various conventions against corruption contain provisions in this direction. Articles 9 and 10 of the law on the declaration of assets go in this direction. We can therefore think that no financial institution could oppose banking secrecy. This measure, which would already be effective in the context of classic economic crime, may prove useful in the context of the fight against illicit enrichment.
It could in no way be difficult for a bank to serve the data necessary for the materialization of the truth. Rather, these banks may be suspected of engaging in illicit activities, for example embezzlement (in complicity) or money laundering. This could be seen as a limit to the confidentiality of transactions.
Confidentiality of titles
Illicit enrichment covers all heritage. What to be interested in goods other than those entrusted to banks. The titles relating to intangible property, donations and bequests received by the taxable person must be known. A notary, for example, cannot refuse to collaborate to justify himself by confidentiality. It is in a way an invitation from everyone to get involved in the fight against illicit enrichment.
This fight is not therefore reserved for a single category of person, it would concern all the actors involved in the management of funds, in the exercise of the public service (directly or indirectly). Detection would then be effective, efficient and even crucial in the context of this fight. The argument shows that legal persons cooperate in the detection of infringements. This should not obscure the role of natural persons in the same direction.
5)The absence of substitution measures (ineffectiveness)
It is important to specify that the fight against illicit enrichment is one means among many others of protecting the fortune and allow the harmonious functioning of the public service. We will be able to take two offenses which would be closest to illicit enrichment, namely corruption and embezzlement.
As far as corruption is concerned, it could be of great help because it would prevent everyone from getting rich at the expense of those who would like benefits from the administration. But the difficulties related to the proofs and the exposure of the corrupters and the corrupted to the sanctions would not make it possible to punish. In short, corruption here could not make it possible to fill the deficit in the fight against illicit enrichment.
With regard to embezzlement, it could make it possible to catch up with delinquents depending on whether or not the illicit enrichment has caused damage to the State coffers. In the first case, one could sue the individual for embezzlement and face the difficulties of proof which, we know, is not often easy to prove here. In the absence of damage to the State, it would be utopian to say that an individual would be punished. Which means that the fight against illicit enrichment would be futile.
From what precedes, the internal order does not allow to repress illicit enrichment, which is also the case in the international order.
It would be useful to recall that imperfect incrimination is that which prohibits behavior without providing for the sanction, which means that the criminal law recognizes a fact as an offense, but does not propose any sanction. This is the case of the illicit enrichment provided for by article 20 of the United Nations Convention or article 8 of the African Union Convention. No sanction is therefore also foreseen as in the internal order. The situation is not too surprising because it would be a classic in international law. We would speak here of international criminal law since no penal sanction has been enacted. But we wonder about such an opportunity since one of the motivations of the fight against illicit enrichment is “the fight against impunity”. This would be fulfilled if the law and internal law decreed the sanctions, hence the referral by the international order.
2)Reference to the internal order for the sanction
The conventions relating to the fight against illicit enrichment proceed by reference to the internal order to sanction cases. Article 65 (1) of the United Nations Convention provides: “Each State Party shall take the necessary measures, including legislative and administrative, in accordance with the fundamental principles of its internal law, to ensure the fulfillment of its obligations under this convention. We could say that the United Nations convention would lead States to reinforce measures more stringent or more severe than those provided for in the convention. This is a hypothesis which allows us to observe a will of the international community to punish and repress the authors of illicit enrichment, but all this is difficult to apply with the predominance of internal law because States are jealous of their sovereignty. This leads the researcher to think that the Rwandan legislator would have to get more involved. Observing that sanctions are impossible to be inflicted by lack of criminal legality, we can think that the legislator would have violated international law.
6)Violation of international law by the Rwanda legislator
This violation could be summed up in the failure to respect international provisions and the incompatibility between Rwanda law and the aims of international conventions.
1°Failure to comply with international provisions
The preamble of the Rwanda constitution provides for the trial and punishment of individuals by virtue only of laws published and promulgated before the punishable act. This expresses that the law has provided for the offense in advance. Rwanda law has neither criminalized nor sanctioned illicit enrichment as required by the United Nations convention. The Rwanda legislator would fail to fulfill its obligation of result and this would be manifested by a non-prohibition of illicit enrichment.
2°The non-prohibition of behavior
The principle of criminal legality means that no fact can be qualified as an offense if the law does not provide for it. This is the legal precondition for the offense. It is a driving or essential principle of criminal law. Illicit enrichment is therefore not recognized as an offense under Rwanda criminal law. We know that international conventions are a source of criminal law with express primacy of international law over domestic law according to the constitution of 2003 as revised in 2015.
Article 4 of the aforementioned United Nations convention insists on the “protection of sovereignty” allowing States to incriminate without others. Our law on the declaration of assets like our penal code does not include any prohibition on illicit enrichment. The Rwanda legislator would therefore not respect the International Convention. It is questionable whether they would one day punish the individuals responsible for this behavior. Because the international order can it sanction when the internal law is silent? This is how we could see the importance of David HUME’s law according to which it would be impossible to logically derive a prescriptive proposition from a descriptive proposition. The law should therefore expressly provide for the anti-social nature of illicit enrichment by criminalizing in domestic law. Even though the criminalization provided for by international law would not be effective since there are no international sanctioning mechanisms.
3°inconsistency with the goals of the United Nations.
Rwanda legislation is said to be incompatible with the aims of international conventions. This can be observed both within the framework of the fight against impunity and through the use of ineffective means.
In the fight against impunity
The African Union convention like that of the United Nations against corruption 150 above insists on the fight against impunity. The first shows that African states are “concerned about the negative effects of corruption and impunity on political, economic, social and cultural stability”. This is to say that they would be to fight all the illicitly enriched. In the same sense, the United Nations Convention expresses that members are “convinced of the fact that the illicit acquisition of personal wealth can be particularly harmful to democratic institutions, national economies and the rule of law” and therefore all those involved in these acts should be punished. We therefore believe that this situation which is not respected in the Rwanda internal order could lead to the decline of the law because “there are legal principles which are linked to our civilization and ensure their maintenance. The law declines if they are ignored. Because it would be pointless to denounce a behavior and neither prohibit nor punish it when it is committed. This means that the managers of the public wealth would do everything to stay there as long as possible to loot with all concern. Those in charge will also seek to access it in order to enjoy these “advantages”. Chaos would therefore be in sight, all the more so as the Rwanda legislator would certainly have provided resources, but these would prove ineffective.
The ineffectiveness of the means used
These resources are only contingent or for others ineffective. Because the declaration of assets or the various or the various actions of the office of the Ombudsman are important. But not all of these actions can have a real impact if the offenders cannot be dissuaded or rewarded. These means are much more preventive and when the preventive and when the smartest fall through the cracks, it is difficult to punish them under Rwanda law. We know that the legal penalty “deprives the offender of the advantage obtained by his non-compliance with the rules and imputing to him a reprimand, a moral reprobation. It would be wise to punish because non-repressive sanctions appear to be insufficient and less dissuasive. The legislator should therefore react to avoid the plundering of the nation’s wealth and the distress of users. If the formality of the offense has been consecrated, it is to catch the hidden corrupt and the hijackings of the last malicious audiences. If no management fault is found, no one will be punished for illicit enrichment. In addition, the non-ratification of the African Union Convention demonstrates a real lack of will on the part of the Rwanda public authorities to combat a harmful fact. This is in addition to the failure to comply with the ratified United Nations Convention, the effects of which on the internal level are being felt.
In view of what has just been said, the absence of repressive measures to combat illicit enrichment would be a handicap.
2.2. Institutional challenges
In Rwanda, there lacks an institution which may be charged of economic crimes as a commission and which would be vested of large powers to undertake investigations as carried out in general by the Rwanda Investigation Bureau, prosecutions before courts of those specific economic offenders. Of course, the public prosecution authority has a unity in charge of those crimes but the powers are not as large as those allocated to similar organs of foreign countries whereby they are commissions in charge of fighting corruption and related crimes. A close example is Burundi and Rwanda where a commission is composed of commissioners playing the role of prosecutors seconded by brigades against economic crimes whose staff fill the functions of investigators and work independently but more technically than in Rwanda where the economic unity which is not by the way scientifically specialized prepare the case files and entrust them to the prosecutors competent ratione loci without any specific skills on the technicality of the commission of those offences.
2.3. Political hindrances
The Rwandan criminal policy is still general and does not yet design strategies to strengthen the means to prevent and fight the economic crimes in general and illicit enrichment in particular. There is high time to conceive a policy that may forecast human resources and funds to avail scientific proofs likely to identify assets hidden by civil servants and track their accomplices and representatives worldwide.
Since the stolen African assets held in bank accounts than abroad are equivalent to more than the half of the continent’s external debt, we can therefore blame African authorities comprising Rwandan public authorities given that all legal and political initiatives against economic crimes committed by civil servants are often covered by those who officially shout loudly to deceive the international community and donors
but theoretically because the practice is quite different; those in the highest positions are the real looters of the country’s wealth.