I would like to weigh in on the Prosecutor General’s decision to freeze assets of suspects while being investigated for embezzlement, tax-evasion, misuse of public funds and other forms of fraud. The prosecutor further indicated that they will be going after unjustified assets owned by the suspect’s relatives and close proxies. When the decision was announced during a press conference, many reacted that such action would be in violation of the constitutional right for a suspect to be presumed innocent until proven guilty. In this article I will attempt to demonstrate, using Rwandan positive law, international law and jurisprudence from other countries that freezing assets of persons under investigation is in no way a violation of the principle of Ei incumbit probatio qui dicit, non qui negat (the burden of proof is on he who declares, not he who denies), commonly known as ‘Innocent until proven guilty’, nor is it a violation of the right to private property. In Rwandan law: The Fourth Chapter of the Rwandan Constitution guarantees Human Rights and Freedoms from Article 12 to Article 40. Article 41 however defines limitations to those rights and freedoms. Presumption of innocence is guaranteed by Article 29(2): Everyone has the right to due process of law, which includes the right to be presumed innocent until proved guilty by a competent Court. The right to private property is guaranteed by Article 34(2): Private property, whether owned individually or collectively, is inviolable. Interestingly, the constitution allows for the state to encroach upon private property in certain circumstances: Art. 34(3): The right to property shall not be encroached upon [except in public interest and in accordance with the provisions of the law] – our emphasis. Quoting Art. 29 (2) of the Universal Declaration of Human Rights (UDHR), verbatim, the Rwandan Constitution in Art. 41 defines Limitation of rights and freedoms. In exercising rights and freedoms, everyone is subject only to limitations provided for by the law aimed at ensuring recognition and respect of other people’s rights and freedoms, as well as public morals, public order and social welfare which generally characterize a democratic society. Ordinary laws too, justify the prosecutor’s decision to freeze assets of suspects: The Code of Criminal Procedure, Art. 57: Seizure and caveat of objects: An investigator or a prosecutor may seize objects or put caveat on immovable asset wherever they are and in any way if the confiscation is carried out in accordance with the Law […] [He/she] may also, for the purpose of conducting investigation on committed offence or preventing the offence from being committed, freeze bank accounts, business shares or their interests in order to collect evidence on the offence. The seizure provided for under this Paragraph cannot exceed a period of thirty (30) days unless the prosecutor extends such a period to a maximum of additional thirty (30) days. The prosecutor also indicated that he will be going after assets of family and friends of the suspects. This is easily justified by the Law N° 54/2018 of 13/08/2018 on fighting against corruption: Art. 9 On Illicit enrichment which stipulates: Any person who cannot justify the source of his or her assets compared with his or her lawful income commits an offence and he/she is liable to imprisonment for 7-10 years and a fine of 3-5 times the value of the property which, he/she is not able to justify. While only public servants are required to declare their wealth to the Ombudsman annually which would later constitute the starting point of the investigation into embezzlement, private citizens may be asked at any time to justify the source of their income too. Other ordinary laws further canvass these rights and their limitations… In international Law: The UDHR recognizes the two rights: Art. 11: Everyone charged with a penal offence has the right to be presumed innocent until proved guilty […] Art. 17. (1) Everyone has the right to own property alone as well as in association with others. (2) No one shall be arbitrarily deprived of his property. However, Art. 29(2) of the UDHR provides for lawful limitations in the same words as in the Rwandan Constitution. Limitations to fundamental rights is a standard practice in each country’s constitution, because human rights are not absolute and may be contravened in certain legally acceptable circumstances. The only non-derogable rights, as I discussed in a previous article, known as jus cogens are: Genocide, including ‘the genocide perpetrated against the Tutsi’, piracy, slavery (including slave trade), wars of aggression and territorial aggrandizement, torture and réfoulement. For instance the right to life, which may appear absolute in most countries of the world, including in Rwanda, is rather weak in the United States of America, China, and other countries with the death penalty. Other international laws further canvass these rights and their limitations… Enforcement of asset freeze in practice: There are exceptions to the practice of freezing bank accounts: in the event that such accounts constitute the source of sustenance, school fees, healthcare, etc., of the family, the prosecutor is required to allow access on said accounts for the withdrawal of a reasonable amount. The same exceptions apply when the frozen accounts belong to a company and contain the funds to remunerate employees. In any event, we must draw a difference between freezing the suspect’s accounts with exceptions, and seizure of one’s funds. By freezing accounts, the state merely restricts the suspect from alienating their funds during the legal procedure, in order to guarantee the suspect’s solvability should they be found guilty and ordered to reimburse the public. The same principle is applied when a suspect is provisionally detained during investigation to avoid flight risk and tampering with the evidence. However, in this case too, they are allowed movements for medical treatment and family visits, within reasonable means. Enough with the law, I know what excites you; let’s talk football and Neymar! In September 2015, the FC Barcelona’s sensation Neymar da Silva Santos Júnior faced a similar fate as the one awaiting Rwandan suspected looters, when a Brazilian court froze his family assets worth $50 million over alleged evasion of $16m in Brazil taxes. The judge froze three times that amount to cover potential interest and fines, according to a judicial order explaining the seizure, reports said. In France, in the infamous ‘Affaire Cahuzac’, one Jérôme Cahuzac, Minister in Francois Hollande’s government in charge of fighting tax fraud was convicted of the same crimes for which he was in charge of preventing, thereby negating an old Rwandan saying: ‘if you do not want to be swindled, put a swindler in charge…’ The Frenchman, it was discovered, held secret bank accounts in the Seychelles and offshore companies in Singapore. The French judge in charge of investigating the case froze some 685.000Euros on an undeclared bank account in Singapore belonging to Mr. Cahuzac, as a form of guarantee, should he be found guilty, which he was eventually and sentenced to three years in prison.
