Introduction to Rwandan Law

Jean-Marie Kamatali

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000025149
• Edition: 1
• Topic: Droit
• Subtopic: Droit comparé

This book explores key innovations in Rwandan law, exploring how the homegrown legal system with the civil law and common law legal systems.

The author explores the history of Rwandan law through pre-colonial, to colonial and post-independence periods, examines the homegrown legal and justice approaches, such as Gacaca, Abunzi and Imihigo, introduced in post genocide Rwanda to deal with legal problems that could not be dealt with using the western legal system; and highlights the innovative Rwandan approach to incorporating international law in the domestic legal system. The book also covers the evolution of the Rwandan Constitutional Law and Constitutionalism since independence; the development of family law from a legal system that oppressed women to one that promotes girls and women rights. Finally, the book explores the contribution of common law in the transformation of the organization, jurisdiction and functioning of Rwandan Courts.

This book will be of interest to scholars and students of African law, international law and the legal system in Rwanda.

1 History of Rwandan law

Introduction

Ubi societas, ibi ius. Wherever there are human activities and wherever there are politically organized societies, there are rules and laws: meaning regimes that order “human activities and relations through systemic application of the force of politically organized society, or through social pressure, backed by force, in such a society.”¹ This applies to both contemporary and ancient Rwanda.

A number of authors have observed that before colonialism in Africa, “territories occupied by communities organized in kinship followed legal rules that derived from rules of law issued by indigenous authorities by either jurisprudence or customs.”² More specifically, it is said that powerful pre-colonial kingdoms and empires, such as Monomotapa, Ashanti, Buganda, Rwanda, and Burundi, had well-organized state structures.³ According to Vanhove, an attaché at the Belgian Ministry of Colonies who studied Rwandan customary law, Europeans who analyzed the early customary organization and laws of Rwanda were surprised by how similar they were to the European feudal system. This was particularly the case with land and cattle tenure, and customs regulating persons and families, which were governed by thorough, stable, and predictable regulations.⁴

There is no requirement that a rule must be written to qualify as law. Laws have existed and continue to exist in both literate and illiterate societies. Rwandan law might have evolved, been updated, and been modified throughout key phases of the country’s history, but it did not start with the introduction of literacy in Rwanda, or with colonization. To understand the history of Rwandan law, one must examine its development through the four key phases of Rwandan history: (1) the pre-colonial period, (2) the colonial period, (3) the periods encompassed by the first and second republic, and (4) the period post-1994 genocide against the Tutsi.

It should be noted that each of these periods was governed by a specific legal regime. However, the end of a period did not necessarily mean the end of the legal regime that governed it. Sometimes, as we will see in the following sections, elements of one legal regime remained applicable beyond their corresponding historical period, creating layers that overlapped both new and old legal regimes. For example, some colonial and even pre-colonial laws particularly regarding family matters, continued to be applicable in the post-independent Rwanda.

With this in mind, this chapter explores how what we know as Rwandan law has evolved from pre-colonial Rwanda up to the present day. Further, it examines the contribution of colonialism, independence and post-independence dictatorship, and the post-1994 genocide regime toward the development of existing Rwandan law.

Section 1. Pre-colonial Rwandan law

Although its modern-day borders were drawn in the early 1900s, Rwanda formed as a politically organized society around the tenth and eleventh centuries, when it was known as the Nyiginya Kingdom.⁵ The starting point of the kingdom was a tiny territory known as Rwanda rwa Gasabo (Rwanda of Gasabo), located on the shore of Lake Muhazi, near the present capital city of Kigali. Its initial extension started as a confederation between Rwanda rwa Gasabo and four other small territories: Bwanacyambwe, Buriza, Busigi, and Busarasi. In this confederation, the King of Rwanda, the Umwami, was the unifier of those autonomous territories governed by abatware (chiefs). In 1378,⁶ King Cyirima Rugwe put an end to the confederation by removing the autonomous chiefs of the federation from their respective offices and replacing them with his own appointed chiefs. After this, Rwanda became an authentic autonomous state and entered its phase of military expansion by conquering other kingdoms around it. Where military occupations were impossible, alliances were made with powerful kingdoms through negotiations and marriages. In the five centuries that followed, Rwanda became a large kingdom. By the eighteenth century, the initial tiny territory of Rwanda rwa Gasabo was three times the size of present-day Rwanda, stretching in the north to include a sizable territory of what is now Uganda; in the west, it included a large portion of the present-day Democratic Republic of the Congo; and in the east, it included small portions of land that are today located in Tanzania.⁷

The Kingdom of Rwanda could not have survived for more than eight centuries without strong institutions and legal tools to cement them. As Alexis Kagame put it in his compilation of the laws of the pre-colonial institutions of Rwanda, the early legal system had two key objectives: (1) to create a strongly hierarchized society with an absolute monarchy at its summit, and (2) to create a customary law that balances the requirements of the “social army” and those of a community justice that transcends kinships.⁸ Under this system, no one was above the law, not even the king. As one Belgian governor of Ruanda-Urundi conceded, “[the Rwandan] Royal institution relied entirely on custom and tradition. The king himself was in a way a slave of tradition because what the ancestors had declared had to be respected.”⁹

Because the pre-colonial Rwandan legal system was based on oral tradition, its laws cannot be examined independent of the institutions that created it, preserved it, or applied it. The pre-colonial Rwandan politico-legal system finds its sources in (1) Ubwiru, comparable to the constitutional codes in modern states; (2) the king’s decrees and precedents; and (3) the umuco or “custom.”

1. Ubwiru

The Abiru, comparable to the Egyptian priests at the time of Pharaohs,¹⁰ had a very important role. They were the depositories of the “esoteric code” known as Ubwiru, which was the fundamental law of the dynasty. The Ubwiru contained all the secrets about the rituals and traditions that dictated how the king was chosen, enthroned, exercised his powers, and was removed. As Jacques Maquet has observed:

the traditional body was not unlike a constitution in a modern state, and the Abiru institution can be said to have had a role similar to that of a supreme court judging whether a new rule is compatible with the fundamental charter of the country.¹¹

This is also confirmed by many other authors, who observed that the Ubwiru was a code, comparable to a constitution in modern state, and the Abiru played the role of a constitutional court.¹² As Paul Del Perugia has argued, the institutions and constitutionalism of pre-colonial Rwanda functioned so well because, mainly, of the wisdom and knowledge of the Abiru.¹³

The following section on Ubwiru is mainly based on Kagame’s unique inside knowledge of their contents and procedures.¹⁴ The Abiru were placed above any civilian or military authorities in the country’s hierarchy. Also, unlike those authorities, who were appointed and removed by the king, the position of Abiru was hereditary. Before assuming their functions, the Abiru had to take a special oath as a guarantee to keep the secrets of the esoteric code. After the oath, they had to swallow a special mixture known as igihango or “compact of blood.” The brew was believed to be a strong and efficient guarantee against any indiscretion. Indiscretions, even those committed inadvertently, constituted gutatira igihango or “serious betrayal of the compact,” and this breach automatically triggered the punishment provided in the sibylline formula pronounced during the swallowing of igihango.¹⁵ The fact that Ubwiru were kept secret may be puzzling in today’s legal philosophy, which teaches that laws have to be public. However, in a legal system based on oral tradition, this was an effective method to protect the fundamental rules against any potential challenges and amendment, and to guarantee the separation of powers between the ruler, on the one hand, comprising the king and his court, and the guardians of the constitution, on the other. The Abiru’s role as the sole repository and enforcers of the Rwandan fundamental law can be compared to a situation in which the knowledge of a constitution is entrusted only to Supreme Court judges, who can only reveal and interpret its provisions when called to prevent or resolve a constitutional issue.

Some authors have argued that the entire content of the esoteric code entrusted to the Abiru had to be kept secret from everyone, including the king and the queen mother.¹⁶ However, Father Kagame, the only researcher who was ever entrusted with the responsibility of transcribing the records of Ubwiru, argued that the king was the only person to whom the Abiru could reveal the contents of Ubwiru. It was, however, forbidden for an Umwiru to talk to the king about these contents alone. At least one Umwiru witness had to be present during any such conversation.¹⁷

The content of the esoteric code was categorized into three parts: (1) the irage ry’abami or “the kings’ last permanent wills or legacies,” (2) the umurage w’ingoma or “the testament on the succession of the throne,” (3) the Inzira z’Ubwiru or “the esoteric procedures.” In addition to these three parts there was the intekerezo z’ubwiru or the “history and comments on the previous three parts.” Ubwir...