.INTRODUCTION I.i. Suspect A suspect is a person whom the prosecutor has reasonable grounds to believehe/she committed a crime within the jurisdiction of the tribunal. I.ii.
Accused An accused is a person who has been formally charged by the prosecutor witha crime within the jurisdiction of the tribunal. This means that the indictmenthas been confirmed by the pre-trial judge in accordance with the law.II. RIGHTSOF SUSPECT AND ACCUSED UNDER RWANDAN LAW II.i. Right to know his /her charges Right to know his/ her charges.
It is a common misapprehension that policeofficers are required to tell you why you’re being arrested or what offenseyou’ve committed when you’re being arrested. this means that any person whoheld in custody of judicial police shall be informed of his/her charges1 as it is provided by the law of criminal procedure article 38 Law nº30/2013 of 24/5/2013 . II.ii. Right to legal counselRight to legal counsel it provided by provision of criminal procedure art.39 para 1&2 it states that any person who are suspected has the right tohave and talk to his/her legal council and if a suspect is unable to get legalcounsel the judicial police officer informs the chairperson of the barassociation in order he/she assigns the legal counsel for suspect. II.
iii. Right to privacy Right to privacy The right to privacy refers to the concept that one’spersonal information is protected from public scrutiny as it provided by the Rwandanconstitution of 2003 as revised in 2015, it states that The privacy of aperson, his or her family, home or correspondence shall not be subjected tointerference in a manner inconsistent with the law; the person’s honor anddignity shall be respected2. II.iv. Right to public trialRight to public trial this refers to the right which is allowing the accusedto be trailed publically from the district wherein the crime shall have beencommitted, which district shall have been previously ascertained by law, and tobe informed of the nature and cause of the accusation; to be confronted withthe witnesses against him to have compulsory process for obtaining witnesses inhis favor, and to have the Assistance of Counsel for his defense. II.
v. Right to custody facilities Right to custody facilities according to article 40 of Rwandan criminalprocedure law states that no one will be held in detention by the JudicialPolice in any place other than the relevant custody facility located within thejurisdiction of the Judicial Police Officer or the Military Police Officer formembers of the military and their co-offenders and accomplices. II.vi.
Right to physical andmental integrityRight to physical and mental integrity this means that suspect or accused shall be granted the right to physicaland mental integrity no one shall be subjected to torture, experimentation without his /her consent. II.vii. Right to be presumed innocent untilproven guiltyRight to be presumed innocent until proven guilty: The presumption of innocence, sometimes referred to by the Latinexpression ei incumbent probatio qui dicit, non qui negat (the burden of proofis on the one who declares, not on one who denies), is the principle that oneis considered innocent unless proven guilty3. according to article 29 Para 1,20Rwandan constitution of 2003 as revised 2015 give power to the suspect andaccused to be innocent untill to thelast process when they proven their guilty.
II.viii.Right to not be prosecuted a crimewhich has reached its statute of limitations: According to article 29 par 1, 80 Rwandan constitution of 2003as revised 2015. Basing on this article and other rules of differentcommunities it is also protected. E.g.
Legislative bodies in common law systems toset the maximum time after an event within which legal proceedings may beinitiated. When the period of time specified in a statute of limitationspasses, a claim might no longer be filed, or, if filed, may be liable to be struckout if the defense against that claim is, or includes, that the claim istime-barred as having been filed after the statutory limitations period4. II.ix.
Right to not to be held liable for anoffence he or she did not commit According to article 29 Para 1,50Rwandan constitution of 2003 as revised 2015 basing on this article thesuspect and accused persons are supposed to be held liable to the crime thatthey commit or the crime that has criminally liable . Basing on therights of the bill of rights of South Africa section 36, it provides thelimitations to rights mentioned above which reasonable and justifiable in thedemocratic society is based on human dignity, equality and freedom. II.x. Rights of modalities ofconducting hearings The accused has the right to be given the lastopportunity to be heard, and the court registrar reads out particulars of theaccused and the offence alleged against him/her5 ,this is the way of obeying the provisions provided by the law concerningcriminal procedure in Rwanda. II.xi. Right to liberty and security of person Every person has the right to liberty and security asit provided by the state and no one shall be subjected to prosecution, arrest,detention or punishment unless provided for by laws in force at the time the offence was committed6.
II.xii. Right to beprotected from discrimination The accused and suspect persons shallbe protected from discrimination as the constitution states that all Rwandanare equal in rights and freedom so the “Discrimination of any kind or itspropaganda based on, inter alia, ethnic origin, family or ancestry, clan, skincolour or race, sex, region, economic categories, religion or faith, opinion,fortune, cultural differences, language, economic status, physical or mentaldisability or any other form of discrimination are prohibited and punishable bylaw”7.
III. LIMITATIONS OF THE RIGHTS Limitation issynonym for infringement, Justifiable infringement this means that the Infringementwill not be unconstitutional if it takes place for justifiable reason it isrecognized as justification of infringing rights in an open and democraticsociety based on human dignity ,equality and freedom means not all infringement of fundamental rightsare un constitutional. Infringement can happenunconstitutional if there is infringing of right without any justifiable reasonthe reason for limiting a right need to be exceptionally strong.8 The limitationof constitutional rights for a purpose that is reasonable and necessary in ademocratic society involves the weighing up of competing values and ultimatelyan assessment based on proportionally9.
Makwanyane has become a standard reference when the constitutional courtconsiders the legitimacy of limitation10.Section 36 contains are set of relevant factors to be taken into account by thecourt when considering reasonableness and justifiability of the limitationincluding; the nature of the right, the importance of the purpose of limitation,the nature and extent of limitation, the relation between the limitation andits purpose and less restrictive means to achieve the purpose 11. III.i. Thenature of the rightTheproportionally enquiry weighing up the harm done by a law. The infringement ofa fundamental right against the benefits that the law seeks to achieve thepurpose. Some rights weighs more heavily than others it is difficult to justifythe infringement of such right than other less weight.
A court must assessimportant particular right is overall constitutional scheme in order ofexercising balancing rights against justification for their infringement12. Example of S v Makwanyane wasconcerning the constitutionality of the death penalty. This death penaltyinfringing up right to life to life, human dignity and freedom from cruel13.In order to qualify this as reasonable and justifiable we have to look oflimitation of this three rights the purpose of death is this achieve anypurpose to the person who commit a harm it would have to be balanced againstthe harm it did.
Right to life anddignity are the most important of all human rights and the source of all otherpersonal right in our society we have to require the values of these two rightsabove the others and this must be demonstrated by state in punishing criminalsthis means that very compelling reason would have to be found to justify thelimitation of such important rights14III.ii. Theimportance of the purpose of limitationIn fact,reasonableness requires the limitation of right to serve some purpose. Justifiabilityrequires to be one that is valuable and important in a constitutional democracy15.A limitation of rights that serves a purpose that does not contribute to anopen and democratic society based on freedom and equality and human dignitycan’t there be justifiable. This means that a limitation must serve the purposethat all reasonable citizens agree and compiling.
For this reason the survey ofthe constitutional court jurisprudence indicates that court have to considerthe following as legitimate purpose in context of limitation analysis: Theprotection of the interests of the administration of justice at its broadest.16Theprovision, detection, investigationand prosecution of crime generally, educationof un employment among the south African citizens, Protection of rights ofothers.The purposewhich is not justifiable and reasonable does not contribute to the open anddemocratic society based on human dignity, equality and freedom.Basing on caseof S v makwanyane as an example the death penalty violate three importantrights :right to life ,human dignity and freedom from cruel punishment but thestate justify this infringement of rightdeath penalty as reasonable to serve purpose in an open and democratic societybasing on freedom and equality. consider this infringement as most importantaccording to the state, the death penalty serve these purpose: deterrent toviolent crime, it served to prevent the recurrence of violent crime, the deathpenalty serves as fitting retribution of violent crime, but is this only realway to achieve to the purpose in an open and democratic society based onequality and freedom? This infringement life could be not be used to serve thepurpose of the deterrence there is other ways can be used but not death penaltybecause it cannot serve any purpose if a person had already passed away thereshould be other means like life imprisonment but not this death penalty becauseit does not serve any purpose in an open and democratic society based on humandignity, equality and freedom17.
III.iii. The natureand extent of the limitationThis factorrequires the court to assess the way in which the limitation this assessment isnecessary part of proportionality enquiry because proportionality means theinfringement of rights should not be more extensive than is warranted. A lawthat limits the right should not use sledgehammer to crack nut to determinewhether the limitation does more damages to the right than it’s reasonable forachieving its purpose.Wirthreference to the Makwanyane case the state argued that the limitation servesthe purpose of deterrence and prevention of reoccurrence and violent crimes.
The constitution court enquired to assess whether proportionality between theharm done by death penalty to the infringement of right to life, human dignityand freedom from cruel and purpose itsought to achieve. After realizing that the limitation violets the rights ofprovided by constitution the court found that the limitation has serious andsevere effect to the right to life, human dignity and freedom from cruel18. III.iv. Therelationship between the limitation and rights In fact, the lawthat infringes the right must be reasonable and justifiable19.This means that there must be a good reason and proportionality between harmdone by the infringement. Logically these requires there to be causal linkbetween the law and its purpose, the law must tend to serve the purpose that isdesigned to serve, if it is not serving the purpose the limitation of theright cannot be reasonable for theinfringement of fundamental rights. According to theS v Makwanyane case, the state takendeath penalty as the way of serving the purpose of deterrence and prevention ofviolation crime and the court considered it to be legitimate justification forthe infringement of right to life, human dignity and freedom from cruelpunishment.
But according to constitutional court there was no satisfactoryevidences establishing a connection between death penalty and reduction in theincidence of violation of crime. So the judges realize that the human liveswere at stake and learned that the lives of people may not continue to be destroyingit on the mere impossibility that some good will come of it, in that task thestate was failed20. III.v.
Lessrestrictive means to achieve the purposeAlimitation to be valid must achieve the benefits that are in proportion to thecost of limitation. This means that the limitation will not be in proportionateif other means could be used to achieve the same ends that will either notrestrict rights at all, or will not restrict them in the same extent21. Ifthe less restrictive means exist to achieve the purpose must be favored.According to the case of S. v Makwanyane, they realize that death penaltyviolets the right to life, human dignity and freedom from cruel punishment andit take high cost, the court provides other methods which can achieve the samepurpose of infringing the rights.
But it becomes hard or difficult to claimthat the method chosen is reasonable and justifiable. According to theconstitutional court the goal of deterrence and prevention of violation crimecan be served by sentence of imprisonment for long time or for life. Suchpunishment would also infringe the rights but would not be nearly as extensivean infringement as death penalty. So the absence of clear evidence that thedeath penalty serves purpose than sentence of imprisonment. Life imprisonmentwould be preferred to serve this purpose22.
Accordingto Rwandan constitution law of 2003 as revised in 2015 article 41 providing thelimitation of rights and freedom it states that “In exercising rights and freedoms, everyone is subject only tolimitations provided for by the law aimed at ensuring recognition and respectof other people’s rights and freedoms, as well as public morals, public orderand social welfare which generally characterize a democratic society”23. IV.CONCLUSION Inconclusion therefore, the rights of suspect and accused persons under Rwandanlaw as I have mentioned it above including right to legal counsel, right to beinformed of charges, right to public trial and others, these rights should be exercised with the limitations provided bythe law.
1X, right to know his/hercharges available at http://blogs.findlaw.com/blotter/2013/10/do-police-have-to-inform-you-of-your-charges.html accessed on 28 oct. 20172 See art.
23 of Rwandanconstitution of 2003 as revised 2015,O.Gn° Special of 24/12/2015.3X, “presumed innocent untilproven guilty” available at https://en.
wikipedia.org/wiki/Presumption_of_innocenceaccessed on 28 oct. 20174X, ” Limitation of crime”https://en.
wikipedia.org/wiki/Statute_of_limitations accessed on 28 oct. 20175See article 153 of law no 30/2013 of 24/5/2013, O.G, nº 27 of 08/07/2013.6See art.
24 ofconstitutional law of 2003 as revised in 2015, O.G , n° Special of24/12/20157See, art.16 ofconstitutional law of Rwandan of 2003 as revised in 2015, O.G, n° Special of 24/12/20158DE WALL J, CURRIE I and ERASMUS G the bill ofrights hand book ,JOTA LTD 2001 ,Ed. 4 (Pag.
145).9DE WALL J, CURRIE I and ERASMUS G the bill of rights hand book ,JOTA LTD 2001 ,Ed. 4 (pag 155).10Idem.
11Idem.12DE WALL J, CURRIE I and ERASMUS Gthe bill of rights hand book ,JOTA LTD 2001 ,Ed. 4 (pag. 156)13 Idem.
14 DE WALL J, CURRIE I and ERASMUSG the bill of rights hand book ,JOTA LTD 2001 ,Ed. 4 (pag 157).15Idem 16DE WALL J, CURRIE I andERASMUS G the bill of rights hand book ,JOTA LTD 2001 ,Ed. 4 (pag.
158)17 DE WALL J, CURRIE I and ERASMUSG the bill of rights hand book ,JOTA LTD 2001 ,Ed. 4 ( pag. 159)18DE WALL J, CURRIE I and ERASMUS G the bill of rights hand book ,JOTA LTD 2001 ,Ed. 4 (pag. 160) 19DE WALL J, CURRIE I and ERASMUS G the bill of rights hand book ,JOTA LTD 2001 ,Ed. 4( page.
160)20DE WALL J, CURRIE I andERASMUS G The bill of rights hand book ,JOTA LTD 2001 ,Ed. 4 (pag. 161)21 DE WALL J, CURRIE I and ERASMUSG the bill of rights hand book ,JOTA LTD 2001 ,Ed. 4 (pag.161)22 DE WALL J, CURRIE I and ERASMUSG the bill of rights hand book ,JOTA LTD 2001 ,Ed. 4( pag.
162)23 See,art.20 of the constitution of the republic of Rwanda of2003 revised in 2015, O.G, n°Special of 24/12/2015