NYARUGENGE - The Supreme Court has ruled that it was unconstitutional for Nyarugenge Higher Court of Instance to summon the defunct Bank of Commerce, Development and Industry (BCDI) board members in a case against former bank CEO, Alfred Kalisa.

The ruling was made yesterday following an application by Alfred Mutebwa, who through his lawyer, Serge Kayitare, challenged the summonses that were issued to the board members saying they were contradicting article 160 of the constitution.

The article entrusts the prosecution to carry out investigations and prosecution of all criminal offences carried out on the Rwandan territory.

Other former board members who had been summoned include Egide Gatera, John Nkera, John Bosco Rusagara and Deo Bamurase, Manasseh Simba and Callixte Kajangwe.

Last year, Nyarugenge Higher Instance Court magistrate Chantal Werabe invoked article 121 of the organic law of criminal procedure, which empowers a judge to summon anyone he or she feels should be part of the trial with or without the will of the prosecution.

"Given the judicial reforms that were carried out in the national prosecution service, we feel that prosecution should be entrusted with the duty of investigating and prosecuting anyone they feel is culpable of committing a criminal offence," read the ruling by a nine-member quorum of judges.

The quorum was presided over by Supreme Court Vice President Prof Sam Rugege.

The ruling averred that article 121 of the said law be disregarded specifically the second paragraph which gives the judges such a privilege.

"This should be done to give room fair trial because a judge cannot act in both capacities of prosecutor and judge," the quorum ruled.

The nullification of that paragraph implies that any person who is on trial under the auspices of this law will have no case to answer following yesterday’s ruling.

"The Supreme Court has the right to nullify any law that may prejudice the Constitution meaning that this will not only apply to my client; it applies to all Rwandans," Kayitare said after the ruling.

Giving reference of various sentences that were passed in different countries, the judges found out that the continual existence of that article (121) would not only prejudice the constitution but also other international laws.

Mutebwa together with eight other board members was summoned by magistrate Werabe of Nyarugenge Higher Instance Court as one of the defendants in the ongoing trial of former BCDI boss Kalisa.

Alain Mukurarinda, the prosecutor in the case had refused to prosecute the board members saying they did not have a case to answer.

Kalisa is remanded on six charges, all related to mismanagement of the bank for the ten years he was at the helm of the now defunct bank.

BCDI was last year bought out by Ecobank, a West African banking consortium.

Kalisa had requested that the board members be summoned saying that they were all party to the decisions he made at the bank’s board chairman.

Kalisa is accused of breach of trust, use of falsified documents, favoritism, among other charges.

The Supreme Court decision cannot be appealed against.

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