About this document

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:

  1. An introduction to the report
  2. The study and evaluation of the proposed constitution
  3. The conclusion and recommendations of the CSEC

 

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

I.                   Introduction

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.

 

II.                The study and evaluation of the proposed constitution

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.