Avoid haste in reviewing Penal Code

Since July last year, the Ministry of Justice through the Rwanda Law Reform Commission (RLRC) commenced the process of reviewing the current Penal Code which proved to have some intricacies and loophole in the new crime trend. In general, the purpose of the ongoing review exercise is to ensure that emerging situations that are unregulated can be accommodated in current Penal Code. As the society evolves, it becomes crucially important to review and subsequently amend unnecessary provisions and incorporate the new ones that would match with the changing society. On this note, it’s important to articulate that the safety of the people shall be the highest law. Reviewing the current Penal Code is on the agenda of justice sector. However, two questions can be raised: why is Penal Code reviewed at this time, yet the previous amendment was done in 2012, in such a shortest period of time? What can be done to avoid putting the Penal Code in a state of flux? At this juncture, it seems inexplicable to imagine that the previous amendment was made in 2012 and now another one is ongoing – just within a period of three years since the review process commenced last year. The problem is not because there are new emerging crimes after the previous amendment, the problem was that during the review process for the previous amendment might have been done hurriedly without doing enough consultations with all stakeholders. Thus, one cannot shy away from wondering whether the technicians from the relevant institutions couldn’t have done enough in terms of consultations; rather, they did it in the way that seemed convenient to them. The lapse of time since 2012 to date is too short to describe that the new crime trend changed dramatically. In spite of such shortcoming in the previous review process, at this point in time, as Aristotle rightly put it, ‘the law is reason free from passion’, the amendment of the Penal Code is vitally important. Of course, there are various intricacies that need to be elucidated and gaps that need to be filled. A few examples are worth mentioning in that respect. Proper Penal Code is the foundation for the investigation and prosecution of cybercrime. Today, there is an emerging panoply of internet development-related crimes missing out in the Penal Code probably due to lack of the recognition of potential abuses of new technologies and monitoring the effectiveness of existing provisions and necessary amendments to the national criminal law. The current Penal Code contains provisions virtually on computer-related crimes but short of internet-related crimes, such as phishing. Therefore, a comprehensive review and research of offline-related and online-related crimes is paramount. In particular, there is a need for clarity on three categories of cybercrime: Offences against the confidentiality, integrity and availability of computer data and systems; Content-related offences; and Computer-related offences. Cybercrimes have been identified as one of the greatest threats to every country’s economy. The other thing is to scrap the press offences from Penal Code in particular defamation. Defamation is involving in two harms, libel and slander. The current Penal Code provides excessive penalty in form of a fine for defamation. Though convictions for criminal libel and defamation do not always result in imprisonment, they still produce a serious chilling effect. Rwanda, as a country that embraces freedom of expression and access to information as well as open data, should decriminalise defamation, to be a civil action that can filed an individual whose reputation is infringed, as a means of recovering monetary damages. Because the right to reputation is regarded as an important, though not necessarily fundamental, right, international conventions and treaties generally do not reject libel suits as necessarily violating the right of freedom of expression and the public’s right to know. However, the above decriminalisation shouldn’t apply to press offence committed with the intent to undermine public order and territorial integrity. On this note, journalists have a social responsibility and they’re part and parcel of the society. Moreover, journalists should acknowledge that they should not overstep the boundaries of freedom of expression since it’s not absolute. Over and above, some of environment crimes contained in the Organic Law n° 04/2005 of 08/04/2005 determining the modalities of protection, conservation and promotion of environment in Rwanda were left out in the Penal Code. And, yet, there’s a steady increase of environment-related crimes which are not accommodated in the Penal Code. Turning to the review of Penal Code that is seemingly in a state of flux, the Rwanda Law Reform Commission (RLRC) ought to take ample time and do enough consultations with various stakeholders, namely law enforcers, individual experts, law firms as well as civil society organizations. In essence, a wide diversity of opinions would contribute to predicting probable crimes. In fact, a proper and comprehensive Penal Code would address criminality in society for a long-time. It’s quite important to avoid hasty review process that may be regrettable. Penal Code, more specifically, governs the punishment of people and thus need to have huge support of various groups of people. The writer is an international law expert and lecturer.

Opinions

Avoid haste in reviewing Penal Code