Green Party's term limits case: The glaring loopholes in the 'amicus curiae' brief

Yesterday, the Supreme Court of Rwanda flatly spurned a submission by the Centre for Human Rights represented by Kevin Gatete to act as a ‘friend of the court’ (known as amicus curiae) in support of an earlier petition filed by the Democratic Green Party of Rwanda against the constitutional amendment with respect to the proposed removal of presidential term limits. In a prompt ruling, the Supreme Court elegantly summarised two key reasons for which it declared the inadmissibility of friend of the court’s submission. First, the ‘friend of the court’ didn’t have in-depth knowledge in the subject matter which would be different from that of the Green Democratic Party of Rwanda. Second, no relevant research has ever been carried out by the ‘friend of the court’ on the subject matter to help the Court to be able to reach a credible decision. The Centre for Human Rights – Rwanda was offering pro bono (a professional work undertaken voluntarily and without payment) support to the Democratic Green Party of Rwanda in their endeavour to request the Supreme Court to give a legal opinion on the current discourse relating to the amendment of the constitution and the parliamentary consultative meetings seeking public opinion on a potential referendum for the modification of Article 101 of the Constitution of the Republic of Rwanda. This case perfectly refers to my earlier piece entitled ‘amendment of the constitution is not an international taboo’. In this particular case, let me say I had a chance to go over the friend of the court’s submission and picked two key arguments, among others, that I would like to rebut. I quote, the ‘Friend of the Court,’ said “‘We the People of Rwanda’ in the preamble of the Constitution does not refer solely to the current public opinion, but to the Rwandan people; past, present and future, whom all have a stake in our Constitution, and it is our submission that it is the role of the Supreme Court of the Republic of Rwanda to safeguard their interests.” The ‘Friend of the Court’ further said “a strong Constitution is immutable in principle. Opinio juris define constitutions as aspirational, foresighted monuments that serve to enlighten citizens, and, at times trump public opinion in the interest of highest common values.” By saying “We the people of Rwanda”, as contained in the Constitution, refers to Rwandans who have basic institutional arrangements and practices and express the nation’s most enduring values. An amendment is not a denial of Rwandans their status and citizenship, instead an amendment formula can be considered as a ‘healing principle’ that would allow the constitution to stand the test of time. Indeed, an amendment of the constitution with respect to the presidential term limits acknowledges people’s will in determining present needs without compromising the ability of the future generations to meet their needs. In my view, ‘We the people of Rwanda’ refers to these rhetorical questions: what do people believe? How do they feel about something? And in what way will they act? There are three vitally important arguments to make in support of the foregoing view in relation to amending the constitution. First, a constitution ought to be sufficiently flexible to allow future generations to respond to various political, economic, social, and other changes, as well as changes in the society’s system of values. Second, ‘We the people of Rwanda’ have the inherent right to amend the constitution, including other laws, in fulfilling our right to alter our form of government, and by providing a peaceful method for change without recourse to a forcible revolution, which serves as the safety-valve to a nation. Third, the amendment process preserves the government’s legitimacy, for an un-amendable constitution established in the past can hardly be regarded as manifesting the consent of the governed. The second argument raised by ‘Friend of the Court’ is that a strong constitution is immutable in principle. In as much as I believe that constitution is the Supreme law of the land, it is made for people, it’s not the people who are made it. Unamenability of the constitution is not a norm of international custom. This is a mere belief premised on theory or literature, nor a normative rule codified in any international instrument. Society should abide by a set of values that it believes in. At the same time, it should not accept any set of values as taken for granted, but critically examine them and modify them if it believes that some elements are either unjustified or ought to be changed with developments of the society. When a change in a society’s world-view of values takes place without the ability to accordingly amend the constitution, the constitution does not then protect the values that that society believes in, but simply binds the current generation to the values of previous generations. This is a known problem according to which present (and future) generations are ruled by the ‘dead hand’ of their ancestors. The writer is a Lecturer and International law expert based in Kigali. Frednkusi88@gmail.com

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Green Party's term limits case: The glaring loopholes in the 'amicus curiae' brief