Making sense of the Rwandan Law Relating to Serving Life Imprisonment with Special Provisions

Jamil Ddamulira Mujuzi

Post-Doctoral Fellow, Faculty of Law, University of the Western Cape, South Africa

SUMMARY

In October 2010, the Rwandan Law Relating to Serving Life Imprisonment with Special Provisions came into force. As the name suggests, the law is applicable to offenders sentenced to life imprisonment with special provisions. This article highlights the gaps in that law and suggests ways through which those gaps could be eliminated.

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* LLB (Hons) (Makerere), LLM (Human Rights and Democratisation in Africa) (Pretoria), LLM (Human Rights Specialising in Reproductive and Sexual Health Rights) (Free State), LLD (Western Cape); djmujuzi@gmail.com. I am indebted to the anonymous referees for their constructive comments. The usual caveats apply.
¹ Organic Law Relating to the Abolition of the Death Penalty 31/2007 of 25 July 2007.
² See JD Mujuzi 'Issues surrounding life imprisonment after the abolition of the death penalty in Rwanda' (2009) 9 Human Rights Law Review 329-338.         [ Links ]
³ See JD Mujuzi 'Steps taken in Rwanda's efforts to qualify for the transfer of accused from the ICTR' (2010) 8 journal of International Criminal justice 237-248.         [ Links ]
4Law Relating to Serving Life Imprisonment with Special Provisions, Law 32/2010 of 22 September 2010, Special Official Gazette 14 October 2010.
5 n 4 above, art 1.
6 Law 38/2006 of 25 September 2006 Establishing and Determining the Organisation of the National Prisons Service.
7 See Preamble, para 5.
8 For a discussion on the meaning of recidivism, see G Hallevy 'The recidivist wants to be punished: Punishment as an incentive to reoffend' (2009) 5 The International journal of Punishment and Sentencing 120-145. See also MD Maltz Recidivism (1984).
9 Art 1 of the CAT defines torture to mean 'any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.' For the drafting history of art 1, see M Nowak & E McArthur The United Nations Convention Against Torture: A commentary (2008) 27-86.
¹⁰ In some African countries, such as Uganda and South Africa, where the respective states ratified CAT without making reservations on art 1, courts have relied on the definition of torture under art 1 although these countries are yet to domesticate CAT. See Attorney-General v Susan Kigula & 17 Others (Constitutional Appeal 3 of 2006) UGSC 6 (21 January 2009) (Supreme Court of Uganda); S vMthembu [2008] 4 All SA 517 (SCA) para 30 (South Africa Supreme Court of Appeal).
¹¹ See Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, United Nations Treaty Series Vol 1465 85 Ratification Status http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-9&chapter=4&lang=en (accessed 1 March 2011).
12 The CAT Committee has recommended that '[s]erious discrepancies between the Convention's definition [of torture] and that incorporated into domestic law create actual or potential loopholes for impunity. In some cases although a similar language may be used, its meaning may be qualified by domestic law or by judicial interpretation and thus the Committee calls upon each state party to ensure that all parts of its government adhere to the definition set forth in the Convention for the purpose of defining the obligations of the state. At the same time, the Committee recognises that broader domestic definitions also advance the object and purpose of this Convention so long as they contain and are applied in accordance with the standards of the Convention, at a minimum.' See CAT Committee General Comment 2 (implementation of art 2 by state parties) CAT/C/GC/2/CRP 1/Rev 4, 23 November 2007, para 9.
¹³ Prosecutor v Dragolvjub Kunarac, Radomir Kovac andZoran Vokovic Case IT-96-23 and IT-96-23/1-A (judgment of 12 June 2002) para 146.
14 Nowak & McArthur (n 9 above) 540.
¹⁵ See generally Nowak & McArthur (n 9 above) 540-576.
16 Nowak & McArthur (n 9 above) 539-540. The USSR delegates, during the drafting of the definition of 'torture' under CAT, argued that the institution of punishment is legally applicable to persons who have committed an offence'. See Nowak & McArthur (n 9 above) 32.
17 Nowak & McArthur (n 9 above) 540-576.
18 M Nowak UN Covenant on Civil and Political Rights: CCPR Commentary (2005) 157192.
19 Nowak & McArthur (n 9 above) 543-448. See also Nowak (n 18 above) 167-172.
20 Nowak (n 18 above) 159.
21 Hart, eg, was of the view that for any treatment to qualify as punishment, it must have the following five elements: (i) It must involve pain or other consequences normally considered unpleasant. (iii) It must be for the offence against legal rules. (iii) It must be for an actual or supposed offender for his offence. (iv) It must be intentionally administered by human beings other than the offender. (v) It must be imposed and administered by an authority constituted by a legal system against which the offence is committed. See HAL Hart Punishment and responsibility: Essays in the philosophy of law (1968) 4-5. Pincoffs is of the view that legal punishment is an institution with the following three features: (i) There must be a system of threats, officially promulgated, that should given legal rules be violated, given consequences regarded as unpleasant will be inflicted upon the violator. (ii) The threatened unpleasant consequences must be inflicted only upon persons tried and found guilty of violating the rules in question, and only for the violation of those rules. (iii) The trial, finding of guilt, and imposition and administration of the unpleasant consequences must be by authorised agents of the system promulgating the rules. See EL Pincoffs The rationale of legal punishment (1966) 55-56.
²² See F Kimenyi 'Death penalty: Recidivist to have special imprisonment' 27 January 2007 http://allafrica.com/stories/200701250767.html (accessed 30 March 2011).
23 The African Commission on Human and Peoples' Rights held that 'prolonged ... solitary confinement could be held to be a form of cruel, inhuman or degrading punishment and treatment'. See Zegveld & Another v Eritrea (2003) AHRLR 84 (ACHPR 2003) para 55. See also Malawi African Association & Others v Mauritania (2000) AHRLR 194 (ACHPR 2000) para 124, where the African Commission held that holding people in solitary confinement in a manner that deprives them of their right to see their family members violates art 18(1) of the African Charter. See also Achutan & Another (on behalf of Banda & Others) (2000) AHRLR 143 (ACHPR 1994), where the African Commission held that some forms of solitary confinement violate art 5 of the African Charter. For a discussion of the UN bodies and the European of Human Rights jurisprudence on solitary confinement, see UNVFVT Interpretation of torture in the light of the practice and jurisprudence of international bodies http://www.ohchr.org/Documents/Issues/Interpretation_torture_2011_EN.pdf (accessed 24 March 2011) 10-12.
24 As is the case in Rwanda, in some African countries such as Uganda and Ghana, the laws do not specifically stipulate that a prisoner will be entitled to medical treatment at the state's expense. See sec 35(1)(e) of the Ghanaian Prisons Service Act 1972, NRCD 46, which provides that '[t]he Director-General shall ensure that a prisoner is promptly supplied with the medicines, drugs ... or any other things prescribed by a medical officer of health as necessary for the health of the prisoner'. Sec 57(f) of the Uganda Prisons Act 17 of 2006 provides that a prisoner is entitled to the following . (f) have access to the health services available in the country without discrimination of their legal status'.
²⁵ Sec 35(2)(e) of the South African Constitution provides that '[e]veryone who is detained, including every sentenced prisoner, has the right to conditions of detention that are consistent with human dignity, including ... the provision, at state expense, of ... medical treatment'.
²⁶ Sec 9(3) of the Malawi Prison Bill 2003 provides that '[e]very prisoner shall at the expense of the state be given adequate medical treatment for potentially life-threatening conditions and care where possible for other medical conditions that are not life threatening'.
27 Eg, in International Pen & Others (on behalf of Saro-Wiwa) v Nigeria (2000) AHRLR 212 (ACHPR 1998), where Mr Ken Saro-Wiwa was denied medical care by the Nigerian government while in detention, the African Commission held, amongst other things, that 'the responsibility of the government is heightened in cases where an individual is in its custody and therefore someone whose integrity and wellbeing is completely dependent on the actions of the authorities. The state has a direct responsibility in this case. Despite requests for hospital treatment made by a qualified prison doctor, these were denied to Ken Saro-Wiwa, causing his health to suffer to the point where his life was endangered. The government has not denied this allegation in any way. This is a violation of article 16 [of the African Charter on Human and Peoples' Rights].' See para 112. See also Achutan (n 23 above), where the African Commission found that the prisoners had been denied adequate medical care (paras 3 & 7).
28 'Detainee' is defined in art 3(7) of the Establishing and Determining the Organisation of the National Prisons Service to mean 'any person incarcerated in a prison in accordance with a legal decision taken by a court but who has not been tried for a definitive sentence'.
²⁹ See Kimenyi (n 22 above). See also 'Rwanda death penalty: Recidivist to have special imprisonment' http://www.afrika.no/noop/page.php?p=Detailed/13399.html&print=1&d=1 (accessed 30 March 2011).