President Kagame recently derogated his powers to Mushikiwabo illegally when he assigned the Duty of receiving the Tanzanian Ambassador accredited to Rwanda.  Article 114(3) Ambassadors accredited to Rwanda and Special Envoys shall present their Credentials to the President of the Republic.

 

 

Mushikiwabo with President Kikwete

Where is the Rwandan Attorney General to advise the President on this matter? Indeed, this is what the President was talking about in the last concluded retreat (Umwiherero) that some of his officials don’t tell me the truth, either they don’t know or they have an interest in doing wrong things.  Amazingly his Attorney General Mr. Johnston Busingye was quick to tell the President that   the problem they have is the character.  Is Character Incurable? What is the cure for a human character?

In the study of the causes of excuse in criminal wrongdoing, a study of responsibility in legal theory shows that some people tend to argue that they do wrong because of their character or choice.

The question of excusing in law has been the subject of different philosophical theories of responsibility. These theories attempt to shed light on the nature and function of legal or moral excuses to justify the reason why they do such wrongs.

Therefore, the issue of excusing in law comes from two different theoretical standpoints: the character theory and the choice theory of responsibility, these two legal terminologies might have confused the Rwandan president because it’s a legal term used by lawyers to evade criminal responsibility.  His Attorney General and the Minister of Justice Mr. Johnston Busingye being a trained lawyer used the term character knowing what he was doing. The theory of Character excuse holds that a person must not bear responsibility for his character because nobody chooses to be what he/she is.

It follows that  criminal responsibility will derive from the ability to freely choose to do wrong,  Mr. Busingye knows very  that  for someone to be criminally liable, the prosecution will be required to prove beyond reasonable doubt that  some form of mental state  for example intention , knowledge or  awareness  on the part of the wrongdoer was there. On the contrary if the wrongdoer didn’t have the above characteristics will bear no criminal responsibility, in legal terminology, if bad character is the basis of doing wrong, proof of an accompanying of mental attitude is not crucial.

Did the President know this? Of course not, but Mr. Busingye knew that by arguing that way, they will undoubtedly bear no responsibility.  That’s why as an Attorney General, he would  have legally advised the President that by derogating his constitutional duty to his Foreign Affairs was not only morally wrong, but was  also illegal and in breach of the Rwandan Constitution that the President swore to protect and defend.

The President is not a lawyer neither a scientist, however, he is always let down by his technocrats, For example the Rwandan Laws give the Police and the Prosecution 5 days each to arrest and interrogate a suspect, if in the course of their investigations they find that the days are not enough, they apply for their extension from the court.

 

However, we still see people arrested and detained for more than a month without trial for even petty issues?  Or keeping people in prison after serving their sentence? Could we say that this is character and should be exonerated? To a lay person and including the president, they might not know they terminologies used by Mr. Busingye but make no mistake with his vast experience in judiciary; he knows that the criminal liability will not derive from character. Indeed, the President seemed confused by saying that should we be a hostage of character of some individuals? Little did he know that Mr. Busingye being a lawyer knew what he was doing and saying, unfortunately the President’s legal team doesn’t help him either for reasons I don’t Know?

I would there advise the president to seek legal advice for some of his actions because some might be carrying legal responsibility unknown to him, would be legally detrimental to him as a person or the state in the future.

Jacqueline Umurungi

Brussels.