It is constitutional to amend Article 101

The ongoing debate on whether Article 101 of the Rwandan Constitution of 2003 can be amended to allow for the election of the President of the Republic beyond the current two terms limit has attracted a mix of arguments, I am interested in responding to some of those arguments particularly on whether Article 101 is actually amendable under the procedure articulated in Article 193 of the same constitution. Article 101 states, “the President of the Republic is elected for a term of seven years renewable only once. Under no circumstances shall a person hold the Office of the President of the Republic for more than two terms.” Article 193 states, “The power to initiate amendment of the Constitution is vested concurrently in the President of the Republic upon the proposal of the Cabinet and each Chamber of Parliament upon a resolution passed by a two-thirds majority vote of its members. The passage of a constitutional amendment requires a three quarters majority vote of the members of each chamber of Parliament. However, if the constitutional amendment concerns the term of the President of the Republic or the system of democratic government based on political pluralism, or the constitutional regime established by this Constitution, especially the republican form of the government or national sovereignty, the amendment must be passed by referendum, after adoption by each Chamber of Parliament. No amendment to this article is permitted.” There have been arguments to the effect that Article 101 can never be amended not even under Article 193, since any attempt to amend it would antagonise with the “under no circumstances” clause and consequently render the amendment null and void under Article 200 which nullifies any law that is inconsistent with the Constitution. In further interpreting Article 193, there have been arguments that only the amendment altering the number of years the President can serve is permissible, but not any alteration of the number of terms. First of all, it is my view that any interpretation that proceeds on the basis that the people’s rights and powers to amend any provision of the constitution including article 101 reside in Article 193,would be on the wrong premise. The right and powers to amend the Constitution reside in the very basis of the relationship between the People and their Constitution.“We, the People of Rwanda” proclamation that ushers the Constitution is the real and only home of these powers. Article 193 only states the procedure through which these inherent and exclusive powers can be exercised. It also provides safeguards against circumstances under which these exclusive powers of the people can be tempered with. Secondly, it is my view that any interpretation that opens up the possibility of altering the number of years the President can serve in one term but not the number of terms is self-defeating in that it discloses no any logical, possible inference of what could have been the intention of the framers of the Constitution since both ways, the longevity of incumbents in office could be achieved. This approach to interpretation of Article 101, assigns it, against established principles of statutory drafting a duo status of both a hard provision in part and intangible in another. It is my argument that the “under no circumstances” clause embedded in Article 101 was actually meant to emphasise the observance of the Constitution as it stands, as it is in force, particularly on the number of terms the President can serve. It is a hard provision that while it cannot be amended the way soft provisions can be, the People can exercise their powers under Article 193 to amend it to the extent it is lacking in meeting their contemporary needs and changing circumstances. The “under no circumstances” clause intends to prevent extra constitutional assumption of Presidential functions beyond what the Constitution, as it is, provides. The partial admission of the possibility to amend Article 101 to cater for “changing circumstances” as long as it is only on the number of years and not terms, as some commentators have argued, is in my view not based on any logical deduction in interpretation. The solution to changing circumstances, and that may include the people’s positive appraisal of their contemporary circumstances, particularly on the state of delivery of their leadership as well as consideration of their political context, cannot be limited to a number of years the President can serve, it could as well be found in the number of terms. That is the very reason why the People retain powers to decide whether these circumstances exist and what the best solution is. These powers are provided in explicit terms under Article two of the Constitution which; “All the power derives from the people. No group of people or individual can vest in themselves the exercise of power. National sovereignty belongs to the people who shall exercise it directly by way of referendum or through their representatives.” If the intention of the framers of the Constitution had been to prevent any amendment to article 101, they could have employed the same language as we find in Article 193 under the clause “No amendment to this provision is possible”. It would be the case of thinking in extremes, to assign a similar interpretation on two provisions with the kind of language variation we find in them most especially when they are in the same document. Article 193 cited above, in particular the “no amendment to this provision is possible” clause sets the language threshold on issues of amendment of the Constitution which one would expect to find in a uniform appearance in all provisions meant to achieve the same purpose. There is not any such clause in Article 101 and therefore assigning it the same meaning would amount to shifting goal posts in the process of interpreting different provisions of the same constitution. It is equally erroneous to interpret Article 101 in isolation of others. It is an established principle of Constitutional interpretation to treat it as an integrated whole. This is based on the fact that the Constitution is a grand indivisible Peoples idea, and whose details for convenience are crafted in what we refer to as articles of the constitution as a document. This definition, which emphasises the wholesomeness and indivisibility of the People’s grand idea and philosophy, is what makes it possible for some country to opt not to have a written Constitution. This raises a fundamental question to whoever interprets the Constitution to deal with articles as if they were and end in themselves. Lastly, the social contract it is, between the people and their state, the Constitution remain privy to the parties and must serve the best interests of the greatest majority at all times. It won’t be the Constitution worth the name if it loses this quality. The author is a Member of the East African Legislative Assembly. Formerly Rwanda’s Prosecutor General and Special Representative to the International Criminal Tribunal for Rwanda (ICTR)

Opinions

It is constitutional to amend Article 101