I read with amazement, the article published by the New Times on Wednesday, January 20, 2010 entitled: “Supreme Court names and shames over graft.”
I read with amazement, the article published by The New Times on Wednesday, January 20, 2010 entitled: "Supreme Court names and shames over graft.”
The article was confirming that the Supreme Court has put into the public domain a list of 94 persons who had been convicted for corruption and are currently serving their respective sentences. The Court cited the reasons for this act as "…put the names of those convicted in public so that they are known everywhere” and the plan to submit this list to the Ministry of Public Service and Labour as well as to other potential employers in the country-NGOs to ensure they do not get employed upon completion of their jail terms”.
Well, this is a very unfortunate decision, especially considering that it has been taken by the supreme guardians of the law and citizens’ rights in the country.
It is also unfortunate because it takes us a big step back as a country that is now known worldwide as a hope of Africa in terms of good governance, the Rule of Law and promoting its citizens’ rights and interests.
Our government has built an excellent reputation of fairness; this decision should be reversed in the interests of justice, human rights and respecting the rule of law rather than sentimentalism. I am saying this for the following reasons:
1. Blacklisting corruption convicts amounts to Double sentencing/punishment
First of all, what is criminal sentencing? Definitions may vary; but I would define it as a judicial determination of a legal sanction upon a person convicted of an offence.
In a judicial process, sentencing forms the final act of a judge-ruled process; it is the final act of a judge’s evaluation of the case and the accused and it is usually accompanied by reasons for its content. After sentencing, the case is out a judge’s hands.
Like most, if not all, judicial actions, sentencing and the criminal procedure as a whole follows certain principles. One of the major principles of this process is that no one can be punished twice for the same offence for which s/he has served a sentence or has been acquitted.
For lawyers, this is commonly referred to as the principle of double jeopardy.
International Human Rights Instruments such as the Covenant on Civil and Political Rights (under fair trial realm; article 14(7)) which is binding on Rwanda, double jeopardy is clearly prohibited.
I am aware that some lawyers may say that publishing a list does not amount to sentencing, so the double jeopardy principle does not apply.
But we have seen in the article in The New Times I cited above, the ultimate aim of publishing this list is to incapacitate the convicted offenders from getting employed upon completion of their jail terms.
It should be remembered that the core objectives of criminal sentencing are: Punishment, deterrence and rehabilitation.
Denying these individuals the right to obtain employment after they have served their jail terms amounts to a cruel form of life punishment (life sentence of another form- thus double jeopardy) and contradicts one of the aims for which they were sent to prison: Rehabilitation.
There could have been some sense in the Supreme Court’s decision if, it had clarified to the public, that it has been proven (in a judicial process, with evidence beyond reasonable doubt), that corruption convicts have a high degree of probability to be recidivists (habitual offenders; persons likely to commit same crimes after first conviction) and so they are very likely to commit the same offence if trusted with any responsibilities upon release.
After all, are we going to have lists of all criminally convicted offenders-murderers, robbers; impostors; rapists, etc…?
2. It is a breach to their human rights
A number of these individuals’ human rights can be said to be breached by this act; but I will cite just a few.
The Supreme Court’s decision violates the principle of proportionality. Remember I said above that a judge renders a sentence after careful evaluation of the facts and the character of the offender; so the punishment s/he gives is proportional to the offence.
It therefore means that the jail terms these individuals are serving, are infact the exact equivalence of their harm to the society. Now, what is the justification for handicapping them again, upon paying their dues to the society? This infringes on their rights to freedom and dignity.
Secondly, any offender; once sentenced has a right to finality of sentence (in case of a non-life prison term, which is the case here).
On the basis of my arguments above, I think that the Supreme’s Court’s decision is non-judicial and falls short of consideration for the human rights of the rehabilitated offenders. For purposes of fairness, justice and respect for the rule of law, it should be rescinded.
Frank Kayitare is a concerned Rwandan and human rights lawyer