In a marathon 10-hour hearing, Supreme Court judges on Monday heard all submissions in the case in which some provisions of the new penal law were challenged.

The ruling was set for April 24.

Court, presided over by Chief Justice Prof Sam Rugege, was hearing the challenge by senior lawyer Richard Mugisha against some five provisions in the penal law, which went into force in August last year.

The new penal law replaced the penal code that had been in force for over 40 years.

The courtroom drama not seen in the recent past, saw three different parties join with their respective lawyers, after they requested to appear as Friends of Court or Amicus Curiae, in legal terms.

Mugisha, a founding partner of Trust Law Chambers, filed the petition late last year.

Among the articles he is contesting include those that criminalise adultery, publication of cartoons deemed defamatory against public officials and insults or defamation against the Head of State. Others include desertion of the marital home, public defamation of religious rituals and humiliation of national authorities and persons in public service. The Friends of Court who intervened included Rwanda Journalists Association and the University of Rwanda’s school of law, both of which support the omission of articles in question. The other is Pro-Femmes Twese Hamwe, an umbrella body for organisations working to promote women rights which want the articles - specifically on adultery - to remain in the current form. The respondent is the government of Rwanda, represented by the Office of the Attorney General. Mugisha, through his lawyers maintains that in conformity with the Constitution, which is the supreme law of the land, these should be better litigated in civil courts or handled by other conflict resolution avenues.

Press freedom

The constitution promotes freedom of press and expression and criminalising the mentioned articles is unconstitutional, the plaintiff alleges.

"Under the media law, if someone is offended, they can seek remedy at Rwanda Media Commission and if not satisfied, petition civil courts, there is no need to put it in the penal code,” said Moise Nkundabarashi, one of Mugisha's lawyers.

On the same provisions concerning journalists, lawyer Valerie Musore Gakunzi, who represented the journalists association, submitted that criminalising the mentioned provisions was against the article 38 of the Constitution that grants press freedom and freedom of expression.

He also alleged that Rwanda Media Commission has professionally handled all cases brought before them emanating from breaching of code of journalism practice. He said that criminalising of drawing caricatures; humiliation of public servants as well as defaming religious rituals only serves to curtail journalists in their cardinal duty of holding those with power accountable. "Journalists have the privilege to get public information no matter how hidden it may be, in respect of their work to hold public servants accountable, such provisions we pray be removed in the penal code,” he said.

Nkundabarashi added that these same provisions also contravene the principle of equality by everybody before the law.

"You cannot have a law that is segregative of the people it protects,” he said.  

However, Speciose Kabibi, the principle attorney who represented government said that public servants are subjected to humiliation and any form be it through cartoons or any other way, should be discouraged. "I think it is the government’s responsibility to protect public servants against any humiliation. Someone should not take on these heavy responsibilities and you expose them to this risk of being humiliated,” she said.

Chief Justice Rugege wondered how a public official could be that vulnerable while under normal circumstances, such protection ought to be accorded to special cases like children, women as well as persons with disability among others.

Kabibi reacted that much as that would be seen as positive discrimination, public officials are at risk of being attacked given their exposure to the public including the media. On matters related to adultery, concubinage and desertion of the marital home, the plaintiff and supporting parties allege that while all those are bad vices, they are personal matters which should be addressed by bother parties through arbitration or as civil matters. They allege that criminalising them would create a vacuum in the family, leaving one party jailed and the other struggling to raise the children in case they have them.

This, they say, will only victimise the children and other dependants.

They also challenged that investigating such cases is very sophisticated and costly for the state, stressing that the resources allocated to that should be used in other development activities. However, the state attorney and her supporter Pro-Femme Twese Hamwe dismissed such allegations as baseless, saying similar matters such as domestic violence and assault between married people are already criminal.

"Most of cases we handle are a result of adultery, concubinage and the victims said they were left by their partners, the law should be kept as it to keep such issues in check,” said Jean d’Arc Kanakuze, the president, Profemme Twese Hamwe who backed the government. Pro-Femme brings together 52 associations working to promote women rights.

editor@newtimesrwanda.com