Advanced Legal Knowledge and Practices - ALKP

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HIERARCHY OF LAWS (Part 2): Practical cases and position of case laws in hierarchy of laws in Rwanda

In our last discussion, we have generally talked about hierarchy of laws in General and In Rwanda, in particular and we have promised to take slight look on the practical cases showing how hierarchy of laws is enforced in Rwanda and later on we will try to see the position of case laws/ decided cases in hierarchy of laws in Rwanda.

With regard, to the practical cases, we simply base our discussion on the cases relating to the violation of the provisions of the constitution of the Republic of Rwanda of 2003 revised in 2015 by the laws of lower level in hierarchy; here we have to remember that any decision or any act contrary to the Constitution is without effect.

In Rwanda like in many other countries, there may happen the cases where the constitution can be violated through some provisions of enacted laws/ legislative acts. For the particular cases of Rwanda, the following cases were selected to be used in this part of discussion:

- Mugisha Richard vs. the Government of Rwanda (see Urubanza N° RS/INCONST/SPEC 00002/2018/SC, published in Official Gazette No. Special of 10/05/2019). In this case, Mugisha Richard requested the Supreme Court of Rwanda to confirm that the articles 136, 138, 139, 154, 233 and 236 of the Law Nº68/2018 of 30/08/2018 determining offences and penalties in general (Penal Code) are contrary to the Constitution of the Republic of Rwanda in its articles 15, 18 and 38. From examination of the case, the Supreme Court of Rwanda confirmed that some of the articles and or its paragraphs challenged by Richard are unconstitutional and decided to remove them from the Penal Code mentioned above. In this regard, the articles 154 and article 233 were removed from the penal code due to their contradiction with the articles 15 and 38 of the Constitution;
- Murangwa Edouard vs. the Government of Rwanda (see Urubanza N°SC/INCONST/SPEC 00001/2019/SC published in official gazette no 48 of 09/12/2019). In this case, Murangwa Edouard requested the Supreme Court of Rwanda to confirm unconstitutionality of articles 16, 17, 19 and 20 of the Law N° 75/2018 of 07/09/2018 determining the sources of revenue and property of decentralized entities vis-à-vis 15, 16, 34 and 35 of the Constitution of the Republic of Rwanda. From examination of this case, the Supreme Court of Rwanda decided that the article 19 the law n° 75/2018 of 07/09/2018 is contrary to the 15 of the constitution and it has no legal effect as per article 3 of the Constitution of the Republic of Rwanda in its article 3;
- Kabasinga Florida vs The Government of Rwanda (see Urubanza RS/INCONST/SPEC 00003/2019/SC, published in Official Gazette No 48 of 09/12/2019). In this case, Kabasinga Florida requested the Supreme Court of Rwanda to confirm that the 133 (par.5) of the Law Nº68/2018 of 30/08/2018 determining offences and penalties in general, is contrary to the Constitution of the Republic of Rwanda in its articles 29 and 151. The supreme Court after hearing this case confirmed that the paragraph 5 of 133 the Penal Code mentioned above is contrary to the Constitution and has no legal effect as per art. 3 of the Constitution of the Republic of Rwanda.

From the above-mentioned cases, it is clear that the hierarchy of laws is observed and enforced even by courts and the legislators and initiators of laws are required to make a deep research and consultation before adopting a certain legal acts in order to safeguard and comply with the hierarchy of legal laws.

With regard to the position of case laws in hierarchy of laws in Rwanda, it seems like not considered as having legal value in the hierarchy may be basing on the legal system that the country has adopted, but the above mentioned cases show a clear value and role of decided cases as it some extent they were used to amend or remove some provisions from the law (legislative act).

With this above-mentioned aspect of case law, we may ask ourselves where we can place the decided cases in the order of hierarchy of laws in Rwanda ….. Can it be higher than ordinary laws or be put on equal footing??? Your ideas and contributions on this issue are welcome...
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