By Didas Gasana
Since her release from prison on a presidential pardon alongside Kizito Mihigo, as well as more than two thousand other convicts but on different legal grounds; the media (both local and int’l) have been misreporting the facts surrounding the case. Social media has been awash with questions about whether Ingabire Victoire asked, in writing, for clemency, thereby pleading guilty. Social media pundits have even questioned the veracity of her letter to the President, dated June 25, 2018, asking for clemency. Some, even I considered abit reasonable, attributed the letter to DMI operatives! Misleadingly and more confusing, responses from the government officials suggest that Ingabire pleaded guilty and asked for clemency, which isn’t the case. Well, let me in summary clarify on the issues at law surrounding this case.
Article 109 of the Rwandan Constitution states: “The President of the Republic has the authority to exercise the prerogative of mercy in accordance with the procedures provided for by law and after consultation with the Supreme Court.” The Procedure mentioned in this article are laid down in the Rwandan Code of Criminal Procedure (Law No 30/2013 of 24/05/ 2013 relating to the code of criminal procedure).
Article 236 of the Rwandan Code of Criminal Procedure provides that: “The power to grant collective or individual pardon shall be exercised by the President of the Republic at his/her sole discretion and in public interests.” This Presidential pardon shall remit in whole or in part penalties imposed or commute them to less severe form of penalties.
Under article 238 of Criminal Procedure Code, “The Application for Presidential pardon shall be in writing and addressed to the President of the Republic with a copy to the Minister in charge of justice.” The article further states that: “Application for individual Presidential pardon shall be lodged by a convicted person or his/her representative. The application shall indicate justifying reasons, whereas “Application for collective Presidential pardon shall be lodged by the Minister in charge of justice and indicate justifying reasons.”
At this point, we realize that as a matter of law, Ingabire Victoire herself or her representative had to write to the President asking for clemency and CC the Minister for Justice. At this state, the question of whether she wrote the above-mentioned letter is out of question. She did as such, and as required by law.
The letter, whose copy I am in possession, doesn’t mean she accepted criminal responsibility or asked for forgiveness for the crimes she was convicted for as some Rwandan government officials and media seem to suggest. Not at all. That the Minister for Justice’s letter informing her that her request for clemency was granted enumerated the crimes she was convicted for doesn’t in any way alter the contents of her original letter she wrote to the President.
The Presidential order releasing Ingabire Victoire and Kizito Mihigo put 3 conditions that they must fulfill after release, including seeking permission of the Minister of Justice should they want to travel abroad. Confusion arose as to whether it is legal for a person pardoned by a president to be conditioned upon release. The Short answer is yes. Whether the conditions are desirable, appropriate, just or even proportionate is a different subject altogether.
Article 241 of the Code of Criminal Procedure states that: “Presidential pardon may be granted unconditionally or subject to conditions indicated in the decision. If the conditions are not complied with, Presidential pardon shall be automatically revoked, and execution of the penalty resumed.” In other words, imposing the restrictions is with in the legal powers of the President accruing from this article.
However, article 5 of the Presidential Order exercising the prerogative of mercy, No 13/01 of 14/09/2018, provides that those conditions may be changed or lifted depending on the conduct of the beneficiary, if either Ingabire Victoire or Kizito Mihigo requests it, by writing to the President and CC to the Minister for Justice. Failure to abide by the conditions, as seen above, warrants revocation of the pardon.
Release on Parole
On the other hand, the rest of the released were released under “Release on Parole.” Article 245 of the Code of Criminal Procedure states that a person who is sentenced to one or several imprisonment penalties or placed under the Government’s custody may be granted release on parole on the following conditions:
1° if he/she sufficiently demonstrates good behaviour and gives serious pledges of social rehabilitation;
2° if he/she suffers from serious and incurable disease approved by a medical committee composed of at least three (3) recognized doctors;
3° if he/she has already served his/her penalty for a period of time provided for under Article 246 of this Law depending on the offences of which he/she was convicted.
Article 246 stipulates that Release on parole may be granted to the applicant under the following conditions:
1° if he/she was sentenced to a term of imprisonment not exceeding five (5) years and has served at least one third (1/3) of the penalty;
2° if he/she was sentenced to a term of imprisonment more than five (5) years and has served at least two-thirds (2/3) of the penalty;
3° if he/she was sentenced to life imprisonment or life imprisonment with special provisions, he/she may be granted release on parole only after serving at least twenty (20) years.
This precisely is the reason why Kizito Mihigo could not be released on Parole but rather under Presidential pardon because he had served 4 years out of 10.
On the other hand, under article 247, applications for release on parole are addressed to the Minister in charge of justice while for presidential pardon, the applications are addressed to the President (under article 238). Most importantly, grounds for revoking a presidential clemency are stricter than revoking a release on parole ministerial order.
Political repercussions of conviction
Ingabire’s conviction certainly poses a legal threat to her political career. Pursuant to Rwanda’s electoral law No 004/18 of 21/06/2018, article 24, Ingabire Victoire can not even contest for an electoral post at a village level in Rwanda now. Equally, she can not lead or register a political party in Rwanda.
However, that is not the end of the story. Like said on this platform days ago, Rosa Parks, Martin Luther King and Mahtama Ghandi influenced their nations none had ever done before without occupying any electoral or political post. Consequently, the battle for democracy shouldn’t be narrowed to what post one occupies but rather a collective effort.
Besides that, there are legal openings. One is that these laws cutting off some convicted people are amended, especially in light of the fact that the African Court on Human and People’s Rights ruled in Ingabire’s favor. Secondly, articles 259- 266 of the Code of Criminal Procedure provides for rehabilitation. Upon rehabilitation, one’s criminal record is expunged, and the person regains his/her full civil and political rights. Note that I have deliberately left out the political measures that could as well be possible- that is a separate topic I hope will return to next time!