A brief Rwandan Legal History

By On

                                          


Ubi societas, ibi ius. “Wherever there is society, there is law.” For centuries, Rwanda existed as a centralized monarchy under a succession of kings from one clan, who ruled through cattle chiefs, land chiefs, and military chiefs. The king was supreme but the rest of the population, Hutu, Tutsi, and Twa, lived in symbiotic harmony. In 1899, Rwanda became a German colony and, in 1919, the system of indirect rule continued with Rwanda as a mandate territory of the League of Nations, under Belgium.[1]

Because the pre-colonial Rwandan legal system was based on oral tradition, its laws can not be examined independently from the institutions that created it, preserved it, or applied it. The pre-colonial Rwandan politico-legal system finds its source in Ubwiru, comparable to the constitutional codes in the modern states; the king’s decrees and precedents; and the Umuco or ‘’custom’’.

The Abiru, they were the depositories of the ‘’esoteric code’’ known as Ubwiru, which was the fundamental law of the dynasty.

Before going further, we cannot ignore the King’s decrees and precedents. The king in pre-colonial Rwanda was an extremely powerful and absolute monarch, only bound by an exoteric code. He incarnated the supreme legislator, the supreme administrative chief, and the supreme judge. Insofar as legislative power was concerned, the king exercised it alone. The king could adopt a new law, abrogate any law, and suspend or order an exception to any law. His legislative power was exercised through the mechanism of Guca iteka, meaning a solemn and special ceremonial act by which he introduced a new custom or abrogated an old one. The decision was announced in public; kukarubanda, while the king was surrounded by chiefs. The chiefs had the obligation to disseminate the law to their communities. Iteka (king’s decree) could be permanent or temporary. The oral tradition made sure that the king’s decrees were kept and enforced throughout the country and throughout successive reigns, ensuring the continuity and predictability of the rule of law. The bulk of the judicial system of pre-colonial Rwanda was introduced by the decrees of King Cyirima I Rugwe, who reigned between 1345 and 1378. It was through the decrees that the hierarchy of courts made of family mediation, Gacaca hearing, Abunzi mediation, and the royal court were introduced, guaranteeing everyone to appeal, from the lowest level (family mediation) to the highest level (Royal court). It was also a decree of Cyirima I Rugwe that introduced the system of witness known in Kinyarwanda as gutanga umugabo or ‘’presenting evidence’’, putting an end to the old practice that sought truth through different traditional rituals.[2]  

 

Another point worth mentioning is custom or Umuco. The term umuco or umuco karande could be defined as ‘’custom’’ in the sense of an old practice that, through common adoption and long, unvarying habit, has come to have the force of law. A person who ignores customs is stigmatized as an outlier. It is the fear of this psychological stigma that makes one observe umuco and gives it the opinio juris that makes it binding. Customs can come from practices that are started by the higher authorities of the country, region, or community, creating something like public customary law. They can also emerge and evolve horizontally in a community that accepts and applies them broadly as law. Rwandan customary law has evolved from both these sources.[3]

We can’t talk about the legal history of Rwanda without mentioning the prosecution in the history of Rwanda. In pre-colonial Rwanda, if there was a crime committed, the accuser would be the[4] victim, the witness, or the family representative of the victim. The complaint was presented to the Assembly of the Family of the perpetrator or another assembly mentioned above, and all those who had something to say were given a platform to prove the truth of how the crime was committed and the role of the accused.  This system of judging and prosecuting crimes continued until around 1917 when the Indigenous Jurisdictions (les juridictions indigenes) were established and assisted in the trial of certain criminal cases under modified laws. It made Rwanda's Justice institutions gradually deprived of help until they were completely removed.

Furthermore, in the colonial period, starting from 1917, the President of the Tribunal and his Deputy (Le President du Tribunal ou son Suppliant) were the ones who were given the authority to work with the Prosecutor's Office. separate from the Court. The prosecution was led by the Attorney General who lived in Leopoldville which is now Kinshasa, in Rwanda there was a Deputy Attorney General, the last one was called De Rode. Ruanda-Urundi (Procureur aupres du Tribunal de premiere Instance du Ruanda-Urundi). The prosecution performed its duties in all the Courts of Rwanda and Burundi, (Tribunal de premiere Instance, Cour d'Appel et Conseil de Guerre), except the local courts (Tribunal de Police) where the head of the Court continued to be The Prosecutor. The prosecution was led by the Governor of Rwanda and Burundi (autorite de tutelle) who was also controlled by the Minister who had the colonies in his duties in the State of Belgium. Although the headquarters of the Rwanda-Urundi Park was Usumbura, there is a Urundi Park based in Gitega and a Rwandan Park based in Kigali, both of which are managed by the First Vice-Chancellor of the King (of Belgium) ) were prosecuting crimes under the law that set the basic punishment of imprisonment from six months to above, once they made the charges and sent them to the Viceroy of Umwami Usumbura to ask the Courts to be given a trial date; because other minor crimes were under the jurisdiction of the Territorial Administration. Here one would be reminded that appeals on cases decided by the Court of First Instance of Rwanda-Urundi were conducted by the Chief Prosecutor in the Court of Appeal of Elizabethville (Lubumbashi). Shortly before independence (Between July 1, 1960 and June 30, 1962) Rwanda's first court of first instance was housed in the IRSAC (Institut de Recherche Scientifique en Afrique Centrale) building[5] in Mamba-Butare. and a Belgian judge. At that time, the headquarters of the Prosecutor's Office was in Kigali and was then moved to Butare City in the IRSAC building. (Extension Universitaire) which was also led by the first deputy of the Prosecutor of the King of Belgium. The law of August 1962 establishes the structure and powers of the Courts; and the law of July 30, 1964, establishing the Statute of the Prosecutor's Office, which established the Prosecutor's Office in Rwanda, but did not change the structure and support; except for the aid based on the territory because the country had already gained independence. In 2003, Rwanda adopted a new constitution that respects the principle of separation of powers. It established a judiciary that was independent and separate from parliament and law enforcement agencies. At the same time, and for the first time in the history of Rwanda's justice system, the work of the prosecution was assigned to one level: the General Prosecutor's Office is responsible for investigating and prosecuting crimes committed on Rwandan soil or committed by Rwandans.[6]

In the legal history of Rwanda, it is worth mentioning the Constitutional history and its development. Like many former colonies, Rwanda - before 1994 - had never had a constitution that can truly be described as autochthonous. Many reasons account for this. For instance, existing constitutions were based on foreign models that never took into account the sociological configuration and peculiarities of the Rwandan nation. Secondly, Rwandans never participated in the making of these constitutions as they were simply imposed on them by the foreign occupiers.[7]

Rwanda's constitutional development can be divided into three phases: the independence or decolonization phase, the post-independence phase, and the 1990s.

To understand deeply we have to tackle constitution building and decolonization in different phases;

The 1961 Constitution

This constitution was established in the context of the decolonization processes and transition to independence. It was essentially a product of the Hutu Revolution that eclipsed Belgian-supported Tutsi dominance. Increasing ethnic violence between the Hutus and the Tutsis who wanted independence from Belgium based on the prevailing Tutsi Monarchy eventually forced Belgium to organize elections in 1960. The result was a massive Hutu win which saw a dramatic shift in the power structure in favor of the Hutus. Following a Belgian-supported constitutional referendum in 1961, a constitution that effectively abolished the Tutsi monarchy, and established a republic was adopted with Dominique Mbonyumutwa as head of the transitional government.

 

The Constitution of 1962

In November 1962, a new constitution was adopted. Its main objective was to consolidate the republic and establish a multiparty regime. The de facto situation, however, was a one-party system in which the Rwandan Democratic Movement (MDR Parmehutu) dominated the political scene and ruled alone. In 1973, Juvenal Habyarimanna took power in a military coup, arguing that the old regime had become corrupt, ineffective, and riddled with favoritism. The constitution was suspended and he effectively ruled by decrees until 1978 when a new charter was drawn up.

The constitution was modified several times like in the Post-independence or One-party State Constitutional Development

The Constitution of 1978

This constitution replaced the 1962 constitution and made very few improvements in terms of democratic governance. It formally replaced the pluralist regime established by the previous charter with a one-party system. According to Article 40 of this constitution, only the National Revolutionary Movement for Development (MNRD) and its chairman could run for president.

The other time is in the Post Cold War or Multi-Party Constitutional Development[8]

The 1991 Constitution

The end of the Cold War and the disintegration of the Soviet Union in 1990 provoked a massive wave of democratization in Eastern Europe that eventually spread, amongst other places, to Africa. With Soviet competition out of the picture, Western donor governments started adopting conditionalities to their development support programs, as aid became tied to the rule of law, good governance, and democratic reforms. Within Rwanda, other dynamics were taking place that would combine with this to force the regime to reform. In October 1990, the Uganda-based, and Tutsi-dominated RPF invaded Rwanda and demanded a share in power. These dynamics combined to force Habyarimanna to introduce liberal reforms. In 1991, a constitutional revision reintroduced multi-party politics. It upheld the principle of separation of powers and the rule of law. This constitution however was never effectively applied because a civil war that had been going on since 1990 provoked a parallel process that supplemented the internal reforms with a negotiated settlement of the war between the main actors. This was the Arusha Peace Accords of August 1994, which together with the 1991 constitution and additional protocols on the rule of law, constituted the fundamental law of Rwanda during the transitional period from 1994 to 2003.

 

The 2003 Constitutional reform process[9]

The Arusha Accords provided for a broad-based power-sharing government and the drafting of a new constitution that would govern the post-transition period. As a result, a constitutional Commission was established with a three-year mandate to drive the process which had to be participatory and grounded in the aspirations of the Rwandan People. The Commission was charged to:

Train, consult, and sensitize the people on the process of constitution making; prepare and validate the draft bill; Organize a referendum on the text when approved by parliament, and, Harmonize all laws in the new constitution.

The Rwandan process has been criticized for being mostly driven by the Kagame-led government following its victory in the civil war that claimed the lives of over 800,000 Rwandan Tutsis together with that of President Juvenal Habyarimanna. This notwithstanding, the process is credited for producing the first true constitution written by Rwandans and based on their common aspirations and interests. It was adopted in a constitutional referendum in 2003 and remains in force. Innovative features of the constitution include: a National Unity and Reconciliation Commission set up to reverse the effects of bad governance through education and to fight against the genocide ideology. Similarly, institutions (Commissions for Women, Youth, Civil Service, Genocide Fighting, Education High Council, etc.) promoting good governance were provided for, as a response to the long period of bad governance that led to genocide. The Gacaca judicial system was instituted in the Constitution. The writing of the Rwandan constitution was also engendered not only in the process but also in its substance. It introduced a strong gender policy based on principles of equality and human rights, requiring at least 30 percent representation of women in all decision-making processes.

The journey of the change of the constitution posed in 2015 up on the revision made in 2015, This revised Constitution, which was passed by referendum on 18 December 2015, came into effect upon promulgation by the President of Rwanda, H. E. Paul Kagame, and publication in the Official Gazette of the Republic of Rwanda.[10] Finally, it was published in the Official Gazette n° Special of 24/12/2015. Not only the Constitution, but even other laws went through a lot of changes till today.

The Rwandan legal history was marked by the role of different players among them; Abiru, kings, colonial administration, and the republics to mention a few. Also, Rwandan legal history has transformed since pre-colonial Rwanda till today we still hear the changes like the proposed amendments by the president to synchronize both the parliamentary and presidential elections for efficiency in the organization of both elections. The Rwandan legal history is a wide topic, as it was introduced by Professor Kamatari Jean-Marie in his book INTRODUCTION TO RWANDAN LAW, this article is here to serve as a quick pick to the Rwandan legal history.

I'm here to shed light on; Law, History, and Politics.

Comments

Post a Comment

Popular posts from this blog

So, you want to be the president.

By On
Image
                                                          You who’s reading this article you might be the president in the future. To be the president it has a lot of requirements to fulfil, be it age, having Rwandan nationality as the sole nationality and other requirements that are honestly not easy to get.  So, you still wanna be the president. Let’s go deep into the subject. In brief the president of the Republic is the Head of State. The President of the Republic is also the defender of the Constitution and the guarantor of national unity. In addition to that, the President of the Republic is elected for a five (5) year term and may be re-elected once. [1] Let’s go back in time to understand how the system of presidency came and we analyze it till today. Before presidency Rwanda was ruled under the absolute monarchy.  Rwa...
Read more

The concept of ubunywarwanda from a legal & historical perspective.

By On
Image
                    Rwandans have existed for centuries. After deciding to have a common country, they distinguished themselves from other kingdoms and became abanyarwanda. Through the expansion of the territory, different clans joined the country and also became abanyarwanda.  To have a country requires a territory, people and a name. As any other project it requires people to move it forward. Those people who got a sovereign territory establish rules that govern them in their territory. Through those rules and laws, they decide how outsiders might be integrated in their society. The time of conquering territories has ended, but conquering minds and hearts has never stopped. In those outsiders who may want to be in the society here we mean a country they follow laws established so as to be accepted. A country not only expands territorially but also in population size. Before independence Rwanda had never had any regulation on n...
Read more

Rethinking War: The Burden of Conflict on a New Generation

By On
Image
  My knowledge of war is primarily based on documentaries, movies, books and now news. The first book I read that walked me through the image of war in the book by Ishmael Beah, A Long Way Gone. The author tells his story as a forced child soldier in Sierra Leone. Politicians initiate the war; the businessmen finance it and the young ones go to the battleground. In the news we mainly see politicians explaining why the war is happening and analysts in different fields get busy in explaining what really happening.   We don’t need economists to explain to us that the economy is going bad while the prices are raising on a daily basis. People are fighting faraway from your country but the consequences are reaching you. I guess the world being a village isn’t entirely good. Its now close to ten years since I read Africa's World War by Gérard Prunier. Anyone who doesn’t know the cause of what’s happening in the great lakes region, that’s the right book to start with in my h...
Read more