In 2019, 19-year-old Gilbert Barakagwira, a resident of Nyanza District, was handed life imprisonment by the Intermediate Court of Huye after convicting him of defiling and impregnating a 16-year-old girl, and the two teenagers mutually decided to cohabit as a husband and wife, according to a court judgment that The New Times accessed.

But, the High Court – at the appeal level – reduced the sentence against Barakagwira to 20 years of imprisonment, as cited in an article published in Rwanda Law Journal, Issue No 2 of November 2021. The Journal is a publication of the Institute of Legal Practice and Development (ILPD).

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The sentence reduction was possible after a landmark ruling by the Supreme Court in a case where lawyer Florida Kabasinga petitioned it seeking to declare unconstitutional one of the provisions of article 133 of the law determining offences and penalties in general, which was enacted on August 30, 2018.

The provision in question reads that "if child defilement is followed by cohabitation as husband and wife, the penalty is life imprisonment that cannot be mitigated by any circumstances.”

This applies to any person who has reached the age of consent – which is 18 years in Rwanda – in case they are convicted of child defilement (a child being a person under the age of 18).

In its ruling on lawyer Kabasinga’s case of December 4, 2019, the Supreme Court declared that the fact a judge cannot consider mitigating circumstances in such a case was unconstitutional as it violates the right to fair justice provided for in article 29 of the Constitution of Rwanda, and article 151 of the Constitution which provides that the judiciary is independent.

Also, the Court recommended that the government analyse other articles of the existing penal law that provides for sentences that cannot be reduced even in case there are mitigating circumstances, to allow judges’ discretion in determining fair penalties.

Indeed, this ruling is among the reasons that the government put for the amendment of the current law determining offences and penalties in general.

The bill, which is in parliament for consideration and approval, seeks to give more flexibility to judges to reduce a penalty in case of mitigating circumstances – to the extent that life imprisonment can be replaced by a penalty of imprisonment of not less than 15 years.

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While justifying the relevance of the draft law to Members of Parliament, Soline Nyirahabimana, Minister of State in charge of Constitutional and Legal Affairs at the Ministry of Justice, said that the existing law is so strict that it provides for some offences that cannot be mitigated by any circumstances, even if the judge believes there are reasonable grounds for mitigating circumstances.

This situation, she said, limits judges in exercising their discretion in determining fair penalties as the law prevents in some cases, consideration of mitigating factors which would benefit the defendant, hence infringing on the right to a fair trial.

Tom Mulisa, a lecturer of constitutional law at the University of Rwanda told The New Times that considering mitigating circumstances is a justice principle all over the world, pointing out that judicial principles emanate from international court practice.

These, he said, include the former International Criminal Tribunal for Rwanda (ICTR) that tried crimes committed during the 1994 genocide against Tutsi, and the International Criminal Tribunal for the former Yugoslavia which dealt with war crimes that took place during the conflicts in the Balkans in the 1990’s.

For him, considering mitigating circumstances in all cases should not be an issue.

"Mitigating circumstances as a principle of fair justice must be applied on every case,” he said, pointing out that it has been applied by international [UN] courts which usually set precedence for other courts of member nations.

On the proposal in the bill to lower sentences including life imprisonment to at least 15-year jail term, Mulisa said justice is not about heavy punishments or heavy sentencing, "justice is about providing equity and fairness before the courts of law.”

"When you talk about justice, you are looking around justice on behalf of the victim, but also you are looking around the sentence for the suspect. And, 15 years is not a light sentence because even international courts have done this,” he said, pointing out that penalties can be lowered according to the appreciation of the court.

He said that the argument within a judgment explains why a court decides a given sentence and the judiciary sets the limits and guidelines that judges should comply with, pointing out that what would be unfair is lowering a sentence without a position and argument.