In 2003, Rwanda adopted a new constitution. What was the main reason behind adopting a new constitution and what political processes preceded its adoption?
Rwanda had had an old constitution since its independence in 1961, which had been changed over time. The previous constitution was not very modern. Given the massive abuse of human rights that took place in 1994 during the genocide, people felt the need for a new constitution that included a political disposition acceptable to all the people. There was a need for a constitution that would be inclusive, democratic and that would ensure institutions to protect the rule of law, especially the separation of powers and an independent judiciary. The 2003 constitution includes a chapter on human rights, a chapter on democracy and democratic processes as well as the separation of powers and parliamentary rights. The purpose of the new constitution was to incorporate a new political disposition that would protect human rights, which was a novelty in Rwanda.
Would you say that the most important feature was the principle of separation of powers and an independent judiciary, to ensure that human rights would be respected?
Yes, but beyond an independent judiciary, a comprehensive set of checks and balances was the real innovation. Some of the human rights provisions were already present in the old constitution, like the principle of equality. But they did not mean anything; they weren’t observed, and there were no processes that would have guaranteed their implementation. In the new constitution, you have provisions ensuring the implementation of these rights. For instance, the new constitution does not only proclaim the principle of gender equality, but also created the Gender Monitoring Office as a public institution. Similarly, the National Human Rights Commission was also created by the constitution. These are just two examples of ensuring institutionally that human rights are respected and implemented. Another important provision relates to the government. The Cabinet (Council of Ministers) cannot be formed by more than 50 % of the ruling party. Previously, Rwanda was essentially a one-party state. The new constitution ensures political pluralism.
The chapter on human rights starts off with Article 10, proclaiming that the human person is sacred and inviolable. To what extent is this provision also an expression of a new understanding of human rights?
It marks a clear departure from the atrocities that happened in 1994. You will find several provisions in the Constitution, including the preamble, that refer directly to the genocide and that commit to never allowing genocide to happen again, that stand against a genocidal ideology, that provide for the crimes of genocide and crimes against humanity to be imprescriptible. This marks a new beginning that clearly marks a departure from impunity for the genocide and other serious crimes against humanity.
You were also part of the preparatory commission that drafted the new constitution. How did the commission work?
I was not a member of the Commission but came in at some point as a legal consultant. The commission itself comprised lawyers, politicians and other representatives – it was not an exclusive matter for lawyers, because the endeavor was designed as an inclusive one, where people could see themselves reflected in the text of the new constitution. The consultative process spanned several years: the commission would meet and consult with different groups, such as academia, members of churches, members of non-governmental organizations, they were all invited to make submissions to the preparatory commissions. Sometimes, their agreement was also sought on some specific questions. After a draft had been produced, the commission organized meetings in various communities, where local people were invited to discuss various parts of the constitution. And ultimately, the constitution was adopted through a referendum in 2003.
The constitution contains quite extensive provisions on the role of the Supreme Court – the Court does not only act as the highest instance, but also has the power to rule on the constitutionality of laws. To what extent was the role of the Supreme Court subject of debate before the constitution was adopted?
There was quite a bit of discussion on the role of the judiciary, because the system changed quite radically. After the Constitution entered into force, the judiciary was thoroughly reformed. Before the new constitution was adopted, Rwanda had the French system of cassation. The cour de cassation was the highest court, but it did not decide cases on the merits. It was confined to procedural matters and then had the possibility to send the case back to lower instances. This created many problems, most notably lengthy proceedings that seemed never-ending, with many cases being sent back and forth between different courts of appeal and the cour de cassation. So there was a deliberate act to change the structure of the judiciary and to create a Supreme Court that could decide not only on legal matters or procedure, but also on facts and dispose of cases finally on the merits. The current system is a complete departure from the old system in terms of procedure.
The constitutionality review is also new. Under the old system, there was only the possibility of an a priori review, i.e. a review before the draft was enacted into law. Nowadays, the constitutionality of a law can only be reviewed a posteriori, in other words, after it has been enacted, and every individual that has a personal interest can put forward that challenge. If a lower instance court finds itself in a situation where it cannot decide the case unless there is a ruling on the constitutionality of the law, proceedings are suspended and the matter is referred to the Supreme Court to determine the constitutional issue. This procedure was, I believe, borrowed from the South African constitution which served as one of the models in the drafting process. Many countries’ constitutions were consulted in the drafting process, but the South African constitution played a key role, because it was both an African constitution and a recent and modern one. The South African constitution played a paramount role especially for the provisions on fundamental rights because of its very contemporary Bill of Rights that was aimed at addressing problems of discrimination and abuse of rights in South Africa’s recent past in a way similar to Rwanda. The Rwanda Constitution of 2003 also aimed at ensuring that the abuses of rights that characterized its past would not be tolerated.
To what extent did the constitutional process play into the greater context of transitional justice in your country?
I believe it played a very important role. The entire process of drafting a constitution, of debating it and then ultimately adopting it through a referendum, played an important role in reconciliation and nation-building. You find in the constitution provisions on the resolution of conflicts through dialogue, on power sharing, greater decentralization, Gacaca Courts, Abunzi Mediation Committees (Article 159), on promotion of involvement of women and youth in public affairs etc. These provisions are all intended to foster inclusion, accountability and avoidance of conflict through the resolution of conflict through peaceful means. The Constitution is a strong symbol, but also the foundation of all the laws and activities that foster reconciliation. The National Unity and Reconciliation Commission in Rwanda is maybe the best example of constitutional preoccupation with reconciliation and nation-building. It is a constitutional creature and so are the National Human Rights Commission and the National Dialogue Council (Inama y’Igihugu y’Umushyikirano). The constitution has had a very concrete impact on the reconciliation process in my country and has been a foundation for social integration and national renewal. As a result, Rwanda has not only risen from the abyss after the Genocide but is growing faster than most states in Africa.
Questions by Hannah Birkenkötter. German Translation: here.