A proposed amendment to the penal code that life imprisonment may be reduced to a penalty of imprisonment of not less than 10 years based on mitigating circumstances attracted MPs attention and sparking an intense debate on the floor of the August House with diverse views.

Under the bill, the state proposes to give more flexibility to judges to reduce a penalty in case of mitigating circumstances.

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While justifying the relevance of the draft law, Soline Nyirahabimana, Minister of State in charge of Constitutional and Legal Affairs at the Ministry of Justice, said that the existing law 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.

Moreover, Nyirahabimana said that the Supreme Court, in a case of 2019, ruled that the fact the judge cannot consider mitigating circumstances is unconstitutional as it violates the right to fair justice provided (article 29 of the Constitution).

The Court recommended amendment of the law on offences and penalties in general to allow judges’ discretion in determining fair penalties, she said.

The bill’s relevance was presented to the Lower Chamber of Parliamenon June 26. It will later be scrutinised by a responsible parliamentary committee before being voted into law.

MPs argued that the difference between a higher and lighter punishment was small in the current legislation – even in case of mitigating circumstances – which ensured that there was ‘no big breeding ground for corruption’.

"While amending [the law in 2018], MPs set penalties that the judge should not go below or precise penalties as means to combat corruption and any related loopholes,” said MP Jeanne Henriette Mukabikino.

Mukabikino wanted to know what was planned to be done to address the possible loopholes that leads tocorruption where judges might hand lenient punishments to the culprits upon receipt of illicit benefits.

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MP Theoneste Begumisa Safari said that though the proposed amendment was understandable, the Supreme Court ruling of 2019 that indicated that the current law was contravening the provision of the Constitution, punishments should not be reduced to a lenient level.

"After the abolition of the death penalty in Rwanda, you realised that crimes that were punishable by life imprisonment are many. At least you would propose that a judge might reduce the sentence from life imprisonment to about 20 years. But, slashing life imprisonment to 10 years would be lenient,” he said.

MP Jean Pierre Hindura said that the current legislation was in line with addressing the loophole for suspected corruption cases.

"Now, the power is being vested in a judge, who might give a 15-year jail term to a convict who would be liable to life imprisonment. Obviously, he or she might venture into that deal, get money (huge bribe) even though you can dismiss him or her,” he said.

"I think that such a difference is very huge. This provision should not be applicable to convicts liable to life imprisonment because they are grave crime offenders, including treason against the country, and those related to the [1994] genocide against the Tutsi,” he said.

Nyirahabimana said that the move is intended to provide flexibility to the judiciary – as one of the arms of the Government – in terms of dispensing justice, but also and hold it accountable in case anything goes wrong.

"The existence of the flexibility and guidelines, coupled with the fact that the judiciary registered progress in terms professionalism and ethics, we hope that when all that is combined, they will be able to give due penalties, and in case of a corruption crime, it (the judiciary) punishes the culprits,” she said.

"A judge who gives a punishment based on mitigating circumstances must put it in writing, and provide the motive. Also, they [the party that lost the case] have an option to appeal, which the superior court considers. The high council of the judiciary also can consider that,” she explained.

Tougher penalty ‘not a magic bullet’ for crimes

Nyirahabimana said that the law of 2018 provided different heavy penalties for different crimes for deterrence purposes.

"However, it was observed that after five years of the implementation of the law, the crimes increased instead of decreasing,” she said.

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For instance, Nyirahabimana said, in 2018 when the law was enacted, the Rwanda Investigation Bureau (RIB) probed 39,998 cases, while in 2019/2020 (fiscal year), the number increased to 48,869 cases.

She pointed out that what transforms a convict for the better is not the long time spent in prison, but rather the correctional service he/she receives for rehabilitation as well as the support they receive from initiatives such as education, which contribute to their well-being and their reintegration into the community.