In a meeting held in Kigali on November 8-10, 2002, the
commission on the constitution, led by Mr. Tito Rutaremara, presented a proposed
constitution of the Republic of Rwanda.
The
Executive Committee of AMAHORO People's Congress appointed a commission to study
and evaluate the constitution (CSEC).
This
document outlines the findings of that commission. It is our hope that the Kagame government will take into
account these findings before moving forward with the approbation of the new
Rwandan constitution. It is equally
our hope that the international community, which is funding the drafting of the
said constitution and the 2003 elections, will take notice of the paramount
findings in this report and insure that it is funding democracy, stability, and
progress, instead of yet another dictatorship in disguise.
This
document consists of:
For
any clarifications or comments, please write to CSEC at AMAHORO_CSEC@yahoo.com
or isangano@spruce.he.net (include
“CSEC” in the subject).
Sincerely,
The
commission to Study and evaluate the proposed constitution.
AMAHORO
People's Congress
AMAHORO
People's Congress
Commission
to study and evaluate the proposed constitution (CSEC)
The
CSEC’ report
This
report was drafted by the CSEC, reviewed and approved by the Executive committee
of AMAHORO People's Congress. It is
the official reaction of AMAHORO to the proposed constitution issued by the
Rutaremara commission in Kigali, Rwanda in November 2002.
AMAHORO
People's Congress believes that only through peaceful and democratic dialogue
can Rwandans find lasting solutions to the problems facing our country.
For the past two years we have been advocating for a lawful nation-state
in Rwanda, where human rights are respected and people are free to participate
in the affairs of their country without fear of persecution.
This is the only way we can insure stability, security, and prosperity in
our country and for all our people. As
such, the importance of a sound constitution cannot be overstated.
It is the foundation upon which a truly lawful nation-state is built.
It is in this spirit that the leaders of AMAHORO People's Congress appointed the CSEC, and that the CSEC very carefully studied and weighed the constitution to determine if it guaranties and safeguards the principles of democracy, addresses the specific issues facing Rwanda, and promotes the basic rights of the Rwandan citizens.
1.
Is there a need for a new constitution?
Based
on the current constitutional state of affairs in Rwanda, the CSEC agreed with
the assessment of the current government that a new constitution was/is indeed
needed to serve as a foundation for a true democratic system in our country.
The CSEC also agreed with the initiative to set up a commission on
constitution, with the mandate to consult with the population, in Rwanda as well
as abroad, and to draft a new constitution, which would then be approved by the
people through a referendum. AMAHORO
People's Congress commends the government for undertaking this endeavor.
2.
The Rutaremara commission (commission on constitution)
The
CSEC found that the Rutaremara commission was entirely composed of supporters of
the Kagame regime and devoid of any representation from the growing opposition.
It also found that inputs were only sought from those who either back the
regime in place, or cannot freely voice their opinions for fear of persecution. As a deliberate result, the commission drafted a constitution
tailored to the current regime.
3.
The innovations (“ les nouveautes”).
The
Rutaremara commission introduced a series of provisions in the constitution, in
order to achieve the fundamental principles listed in article 9 of the proposed
document. The analysis of these
innovations constitutes the essential of this report, as they are the most
telling of the entire proposal, the rest being standard provisions in the
majority, if not all, of constitutions. In
order to be of service in the effort of drafting the constitution, and to
effectively critique the proposed draft, the CSEC opted to comment on those
provisions that most serve or hinder the advent of democracy, freedom of
expression, and the respect of human rights in Rwanda.
i.
The mission, the organization, and the new guidelines on the workings of
political parties and institutionalization of the Forum of political parties.
In
its articles 55-62, the proposed constitution outlined the rules governing the
political parties, and institutionalized the Forum of political parties.
The CSEC found this section of the proposed constitution to be
particularly troubling. These
provisions are unacceptably intrusive in the internal affairs of political
parties, making it impossible for them to fulfill their role of vehicles of
opinion and ideology. The articles
have been purposely designed to render the political parties powerless and
maintain them under the grip and control of the current regime, thereby securing
the ruling party’s unhindered victory at the polls.
Article
59 institutionalizes the forum of political parties as an entity, with
significant constitutional powers, making it a super party and literally
transforming the proposed system into a one-party system similar to the MNRD of
the 1978 constitution. Article 59,
in essence, voids and nullifies article 55, which proclaims a multiparty system!
ii.
The Senate: Its composition
and its mission.
The
proposal to setup a two-chamber parliament in Rwanda is not new.
It has been debated in the Rwandan opposition for years.
However, the Senate, as defined in the proposed constitution, differs
significantly from any other considered to date.
Traditionally, the two-chamber parliament exists to
safeguard the representation of a segment of the population (or member state to
a federation) in such a way that all segments (or states) are afforded a say in
the governing of their country. For
example, the Senate in the USA was created to guaranty smaller states a
significant say in the legislation of their country. Without the existence of the Senate in the USA, smaller
states would have their rights trampled upon by bigger States.
Likewise, the Senate in Rwanda would be justified if it were to, say,
address the ethnic problems that we have been facing since the 1950’s.
The two-chamber parliament as stipulated in the proposed constitution is not justified, as the single unique characteristic of the Senate is that of being appointed. While all its functions are parliamentarians in nature. The Senate as defined the Rutaremara commission is afforded overwhelming powers for an un-elected body.
The composition of the Senate
. The
President of the republic appoints 12 Senators.
. The
provincial district councils and the district council of the city of Kigali
select a Senator each. It must be
noted that the constitution fails to indicate whether or not these councils will
be elected or appointed in the first place.
One must wonder if this omission be intentional on the part of the
Rutaremara commission, given that, should these councils be appointed, it would
further consolidate President Kagame’s control of the Senate.
. The
National Council for women selects four Senators.
Once again, it is not stated whether this council will be elected or
appointed.
. The
professors of government-owned universities and higher learning institutions
will select two Senators among themselves, and so will their counterparts in the
private sector. The CSEC found no
justification for making these professors “super citizens”, placing them
above the rest, other than the attempt of the current regime to circumvent the
democratic process.
. “The
Forum” of political parties, the super party, selects 4 Senators.
In addition, the Supreme Court has to screen and approve
the potential Senators, with the exception of the President’s nominees, who
are not subjected to the screening. Not
only should all the Senators be treated equally, the judicial branch should not
meddle into the composition of the legislative branch, at least not in a
democratic system.
The CSEC concluded that the composition of the Senate is
in fact, controlled by the President of the republic. And, for the President to appoint (directly or indirectly)
the Senate, which is part of the legislative branch, is to violate the principle
of separation of powers and to maintain the country in the state of
dictatorship.
The powers of the Senate.
The powers of the Senate as listed in article 89 of the
proposed constitution are too great to be assigned an un-elected body.
The composition of the Senate outlined above, combined with its allocated
powers, should concern any advocate of democracy in Rwanda.
If the proposed constitution were enacted, Rwanda would become a
constitutional dictatorship.
iii.
The Supreme Court; The high legal council; The office of the protector
of Citizen; The high court of the republic; The national investigative
authority;
The
SCEC found the judicial system to be unnecessarily complex and to have
redundancies that could negatively affect the application of a fair and
impartial justice. The system as
defined, leads to confusions and conflicts within the legal system and can
therefore foster corruption and miscarriage of justice.
The CSEC recommends that the legal system be revisited and simplified.
The
CSEC would like to point out that the Rutaremara commission continued the
politics of the Kagame government of denying justice to the victims of the 1994
genocide and the massacres committed in the period of October 1st
1990 to December 31st 1994, choosing to confine them all to the
spectacularly failing Gacaca system.
iv.
Committee of mediators.
The
CSEC found this to be an excellent provision, one that might indeed contribute
to the healing of the local communities. This
is where Gacaca might be able to succeed and actually make a positive
contribution to the judicial system.
v.
The Semi Presidential system
The
CSEC failed to understand why the Rutaremara commission called the proposed
system “semi-presidential”. It
is clear that the Executive branch of the government is under the control of the
President of the republic. The
President chooses, names, and dismisses the Prime minister (PM) and the cabinet
(Article 118). The PM and the
cabinet serve at the pleasure of the President; they implement the political
program of the President (Article 119). With
these two articles, the President, single handedly controls the Executive branch
of the government. In addition, the
President controls the Senate (See the comments on the Senate), and, through the
Supreme Court, controls the list of candidates to the Parliament.
One wonders then, how such a system is a “semi-presidential” one.
Whatever semi-presidential means! The
Rutaremara commission proposed a system that only serves to strengthen the
current regime’s hold on power. In
addition, one ought to be concerned about the power afforded the President to
declare war without any check from the Parliament, particularly with the track
record of the current President on this matter.
4.
Conclusions and Recommendations
After careful analysis of the constitution as proposed by the Rutaremara
commission, the AMAHORO People's Congress Commission to Study and Evaluate the
Constitution (CSEC) found the proposed constitution to be wanting.
As demonstrated in this report, a report that is by no means exhaustive,
the proposed text is explicitly tailored to fit the dictatorial tendencies of
the Kagame regime, in the same manner the 1978 constitution was to the
Habyarimana regime.
It establishes a scheme were there is no separation of powers among the
branches of the government, thereby creating a situation which will foster
corruption. As shown in this
report, the President controls all three branches of the government.
This type of system is the one that has devastated our country and many
other countries throughout Africa. Clearly,
the Rutaremara commission sought to propose a constitution that fits the current
regime, instead of a system that will bring peace and stability to our country.
It is therefore the opinion of the CSEC that the constitution as proposed by the Rutaremara commission be rejected, and that a new commission, an inclusive one, be setup to draft a new constitution. This commission should include Rwandans who are opposed to the Kagame regime. Furthermore, we recommend that the elections planned for this summer, be postponed until a new constitution has been drafted. The CSEC also recommends that the ban on political activities of political parties throughout the country be lifted and that new ones be allowed to be setup. We call upon the Kagame regime to release all political prisoners and allow them to exercise their natural duty to freely express their opinion on the affairs of their country.