Gara calls for embezzlement to be classified as corruption

The Rwanda Law Reform Commission (RLRC) has embarked on reviewing the country’s Penal Code with the aim to make it more effective in deterring crimes, punishing convicts, and rehabilitating offenders. But what does the process mean for highly controversial topics like abortion, prostitution, adultery, genocide ideology, press offences like libel and defamation, as well as corruption among others? The commission’s chairperson, John Gara, spoke to The New Times’ Eugene Kwibuka about the code’s review. Below are the excerpts: A Penal Code is a set of laws relating to crimes and the punishments for those crimes. Why do we need to review Rwanda’s Penal Code at the moment? First of all, any law or laws have to be revised as time passes. You need to keep making sure that they are still relevant to a particular period of time. So, that’s why all laws will always sooner or later be amended or revised or reviewed. In the case of the penal code, you have to go back first of all to the decree of 1977 which was dealing with crimes and punishments which then evolved into the Penal Code of 2012. But one thing which was important when the penal code was first put together in 2012 is that it had to conform to a particular article in the Constitution which said that all crimes and punishments have to be in an organic law. Now, that was article 20 of the Constitution before it was revised. The result of that is that many people interpreted it as meaning that all crimes and offenses had to go in one organic law. So, in preparing the Penal Code then, all crimes and punishments which were previously in different laws were all put in this Penal Code. That’s why we ended up with a voluminous, huge law of over 700 provisions. Now, that also meant that many of the provisions were brought in almost verbatim from the other laws. So, you ended up having sometimes some contradictions, sometimes some provisions which overlapped each other. Originally when we first wanted to review the penal code there were two purposes. One was to try and come up with a new penal code which took account of the issues of drafting and clarity. Another reason for reviewing the penal code was about offenses and penalties themselves. As time evolves there are new things which come to face society which require that certain offenses are new offenses or some offenses become more dangerous to society that they require higher punishments. Tell us about the timeframe for this process, when did the review begin and when is it supposed to be completed? The review started around July last year or soon after that. We started by looking at the structure as I said. We also started looking at it article by article. But one thing also changed the process as we were reviewing the penal code. The Constitution itself was revised. Article 21 which I talked about was changed so that now it doesn’t say anymore that offenses and penalties have to be in an organic law. It now says in a law. So, we had to again look at something else which is to say that we might now want to take certain specialised offenses and the penalties back to the laws where they fit better so that when you read a certain law you also will find relevant offenses and penalties without having to read this law and then go to the penal code.Since then we’ve done that and we’ve reached to a point where at least the Kinyarwanda version is almost complete. So, once we do that we will then go to the translations. But remember one thing; we don’t have the final say. We are a law reform commission; we engage stakeholders. So, when we come up with a draft and proposals we engage all of them and we have been engaging them and they have contributed ideas for the proposals we have so far. But isn’t it going to be problematic putting some sanctions in a specific law and then having some in the penal code; which one is going to be consulted? No, it’s not problematic at all. In fact that’s something you find in most countries in the world. In the penal code you have certain specific provisions like things to do with murder, theft, and so on. Then there are certain provisions which are very specific and they are not on a particular aspect. For example if there is something in a mining law which says that we give you a license to mine and that if you mine without a license you commit an offense; something like that you put it in the mining law. That’s something very specific to a particular field that you don’t need to put it in the penal code. There are a few controversial topics on which the public keep complaining and one wonders if the review is going to touch on them. For instance, is the review going to make it easier for women to carry out abortion? Let me first start off by saying that whether it’s controversial or not, sometimes it depends on the individual. But in reviewing the penal code, our main focus is actually on the bigger things like terrorism, corruption, gender-based violence, and so on. So, the others that you call controversial, we can also go through them, but they may not be as controversial as people think. Let’s start with abortion. Currently there are certain grounds in the penal code that say that abortion is not criminal in certain particular circumstances. For example in the case of rape, forced marriage, incest, and when it could be dangerous to the health of the baby or the mother. In those cases under the current law abortion is allowed and that’s something related to the Maputo protocol which provides almost exactly the same reasons. The only difference here is that there is a requirement that the person who says they fall under these conditions has to go to court to prove it. Now, the result is, for example, if a girl or a woman was subjected to rape and wanted to abort the child she would have to go to court and first prove that she was raped. That might take a year and remember the man may even appeal and by then the child is born. So, rather than looking at it from that point of view, of saying go to court since it’s even victimising the victim with the court process and all the advertising that goes with it, the issue is that if these conditions are there that is a fundamental thing. But what if we remove that (court requirement) it doesn’t mean that you’ve made abortion more legal because you still have the same conditions and if you are to abort a child in circumstances other than those allowed by the law you still commit an offense and the law will still catch up with you. So, the only thing that is actually being proposed is putting away that condition of going to court because it doesn’t really accomplish what was probably intended before. The point is, let’s not encourage it and in those circumstances if you do it and it’s not done according to the exceptions, then you commit a crime. How about prostitution and adultery, are there any changes in our laws regarding those things been thought about? Contrary to what perhaps many people might think, prostitution under our current law is not a crime, and I don’t know if many people actually know that. What the penal code provides about prostitution is what they call conditions for prostitutes to work under. The penal code actually seems to say you can carry out prostitution but gives out certain conditions; for example it gives conditions that you have to carry it out in a territorial area that has been approved by court. That you might be subject to surveillance as provided for by the court. That you might not be allowed to go to certain places, that you have to go for medical check-up at specific periods, so it simply gives conditions for engaging in prostitution. Then it says if you carry out prostitution without fulfilling those conditions then you commit a crime.What we are proposing to do is actually to particularly criminalise people who get girls to engage in prostitution; what they call pimps in some other countries. We are proposing to make it heavy because these are people who sometimes engage our youths for themselves to become rich by using young ladies to be prostitutes. Those are the ones we have proposed that the law should go for, but we are not legalising prostitution although currently it’s not a crime. But we are very concerned about people who use especially young ladies to get into prostitution so that they build mansions and hotels and get rich using girls. How about adultery? In most parts of the world adultery is not a crime; it’s more of a civil matter. After all what Rwanda recognises is a civil marriage, although in some countries the religious marriage is more important. At the moment the penal code provides that if someone commits adultery, the offence, if proved, can be prosecuted, and the penalty is six months to one year in prison depending on what the judge decides. The law also provides that if the partner of the wife or husband of the person who has committed adultery decides to say no it’s okay, then they can’t be prosecuted. The result is an anomaly, in that one spouse in one family can decide to say no there is no problem, and that person will go free. We have noticed something; that it tends to be men who never forgive and insist that their wives go to prison. Women often are more tolerant. It’s also unfair sometimes because for many women, the men tend to be the bread winners. So they forgive not because they have actually forgiven, but because they are forced to, because they feel that if they don’t forgive they are the ones to lose out. So it’s a provision which simply doesn’t create a balance in society. We have also heard that there are cases where people use it to entrap others in order to make money. And then the other thing is people think it’s a deterrent, but six months is not a deterrent for many men and women who are actually planning to engage in adultery. Many don’t even know that it’s six months, or that it’s a crime. So, you feel that this should be repealed? It should be a civil matter. An important reason we are proposing to remove the Penal Code imprisonment provision with respect to adultery is that it contravenes article 29 of the Constitution that provides that “everyone has the right to due process of law, which includes the right not to be imprisoned merely on the ground of inability to fulfil a contractual obligation”. Since marriage is a civil arrangement, inability to fulfil one of its commitments should not lead to imprisonment but rather to civil action. Now, there have been complaints that the country’s laws against genocide ideology are vague.. Is the review of the penal code going to touch on the issues of punishing genocide ideology and revisionism? We might touch it in one way, which is that we might actually have those provisions instead of being in a separate law. There might be a proposal to put them in the penal code. But I don’t think they are vague like most people perceive them, because when you look at the conditions of genocide ideology, it has some things which are very specific. That it has to be a deliberate act. It has to be committed in public. The aim has to be the commission of genocide or support of the genocide. These are elements which are very, very clear in that provision. Let’s talk about press offences. Libel and defamation were struck off the media law but they are still catered for in the Penal Code. Are you going to remove libel and defamation from the Penal Code? I want to put this in context; and that is that libel and defamation are not something specific to the media. Even me who is not a media person, you could accuse me of defamation. It’s also a fact that in many countries libel and defamation have over time been decriminalised and made a civil matter, and that’s something for debate. The issue is this; that when you make it civil you have to make sure that on the civil side there is a penalty that can still ensure that people do not do it. Right now people are scared of defaming others and of libel because they are scared they might go to prison for it. So if I come and say it’s now civil, and that if you commit it you’ll pay a fine of Rwf1,000, believe me, many people would do it because they have nothing to lose. What I’m saying is that when you make it a civil matter, then you go to sue for damages. Now if those damages don’t damage you enough, you’ll probably find libel and defamation on the rise in society, so it’s a question of balance. The Chief Ombudsman recently said that our laws don’t include embezzlement in corruption-related offenses, which makes it impossible for her office to document embezzlement among corruption crimes... For me personally and I think even as Rwanda Law Reform Commission, that is something that I would support. In fact I would put it this way; I wouldn’t even say embezzlement is a corruption-related case. I want embezzlement to be a corruption case, period. Currently the way our laws are drafted is such that corruption is really about bribery. That is what people see when they think about corruption. But for me bribery and embezzlement are two different aspects of corruption. Right now we have embezzlement and bribery, but they are there separately. What is important now is to include embezzlement among forms of corruption so it can be punished as a corruption case. John Gara, the Rwanda Law Reform Commissions chairperson. (Doreen Umutesi) We heard that the revised Penal Code is likely to increase penalties for Gender Based Violence (GBV) and human trafficking offences. How true is this and why the increase? That’s true. I would like to see GBV wiped off the map of Rwanda. Those are things that we should eliminate from our society. If deterrent penalties are to help, I’d love to see them as heavy as possible. Let me also say that current sanctions in our penal code many of them have a wide range where you see something saying like the penalty is between 5 and 15 years. One of the things we are doing is narrowing that so that a judge does not have a lot of leeway to decide that one person gets 5 and another 15 years. But also, some of those offenses which are also currently ranging between 10 years and 15 years, we are pushing them like from 20 to 25 years, there are even those that we are pushing to life imprisonment. Those are terrible crimes, especially crimes against our children and corruption. Any other cases whose sentences were increased in this review? Human trafficking, offences against children, all of them and others like terrorism and cyber security are becoming a problem as our society evolves. Anything that threatens our society that requires that we make you think twice we will make you think twice. How is the commission involving the public to contribute their ideas on how they feel the Penal Code should be revised? There are different ways. One is that any law we are dealing with, we write to the stakeholders, we call for meetings and ask those who are involved to give us their inputs as we draft laws. Secondly, we actually go to the people to explain. We have our legal awareness unit which we created recently who go out not just in Kigali but also to the countryside and universities and talk to the people. We have a toll-free number where people call and ask us questions and it’s through talking to journalists like you, it’s basically engaging. When is the draft of the new Penal Code going to cabinet? The process isn’t always determined by us. When we finish the draft we will invite stakeholders to look at it. Then the minister of justice will look at it and if he is convinced about the proposals it will go to cabinet. If cabinet likes the proposals, then the draft will be sent to Parliament. Throughout that process, people always engage by contacting us, the minister, Members of Parliament, it’s always a question of engagement. Now, let me divert a bit from the penal code. Much as we have the principle that ‘ignorance of the law is no defence’, majority of our citizens have difficulties to know published laws. What plans do you have to make new laws better known to the public? There are two aspects about knowing our laws; the law making process of drafting and promulgation and the other one is when the law is passed and is there in books but people don’t know about it. With regard to the first one, we at the commission are proposing that we start publishing bills so that even at the time when a bill has gone to Parliament it can be checked by people who can suggest their inputs. For the other aspect, we believe that our legal awareness team can do more to make the laws in the books known to the public. I believe we need to do more. Also Rwanda is known for being pro-tech but some documents have to be physical for them to be recognised as legal. For example, e-certificates will not work because the law demands we have physical certificates issued by local officials. What are you doing to make sure the laws are up to date with the digital age? I think our laws have actually been trying to catch up. But technology always moves faster than other things. But certainly there have been attempts to update our laws. I know that a number of laws and orders in that regard have passed here at the commission. Particularly the work being done by Rwanda Online, there are now many certificates which are provided online today and that required that we make many amendments in our laws to allow Rwanda Online to do what it is doing today; providing certificates electronically. Maybe there are some certificates which haven’t been added to the list but I think Rwanda is doing well and we are seeing huge impact. We just concluded local officials’ elections and some people were surprised to discover that the mayor of the City of Kigali must be at least 35 years old. Since we recently reduced the youth age to under 30 and we have people in senior positions who are less than 35, don’t you think it’s unfair for many would-be candidates when the mayor has to be at least 35? The question of age often depends on different things. In our laws you find that you can get a driver’s licence at 16 but you can’t get married at this age. There are different things which are allowed at different ages but I have no idea why the mayor has to be 35, maybe it’s because of experience but I don’t know. There are always minimum and maximum ages provided for different public offices. As we conclude our interview, what is your overall message to the public as you go on with the process to review the Penal Code? In terms of law making, I would say that you need to keep engaged. Feel that it is your own destiny when laws are being changed, so keep in touch with us and try to get as much facts as possible. editorial@newtimes.co.rw

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Gara calls for embezzlement to be classified as corruption