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The lawfulness of the decision of the Court of Appeal setting aside a statutory minimum mandatory sentence


Yves Sezirahiga

Abstract

In February 2020, the Rwandan Court of Appeal (CoA) set aside a provision of the penal code prohibiting judges from meting out  punishments below the minimum set by the law.In doing so, CoA held that that provision should not be applied because it is contrary to  the principles of fair trial and independence of the judiciary.CoA opined that its judgment in this case was in line with the spirit of the  Supreme Court’s decisions, in the Kabasinga cases, which found articles 92 and 133(3) and (5) of the penal code, setting life  imprisonment as a compulsory penalty in case of conviction, inconsistent with Articles 29 (on the Right to due process of law) and 151 (on  the principles of the judicial system) of the Constitution of the Republic of Rwanda of 2003 revised in 2015. From the period that  decision of CoA was taken, some judges in various courts in Rwanda drew inspiration from it by increasingly their prudence in the imposition of statutory mandatory minimum sentences set by law. It is against this background that the present article seeks to analyse  whether CoA’s decision to set aside Article 60 (2º) of the penal code of Rwanda was in conformity with the principle of the rule of law. At  the core of the argument put forward in this article, is the argument that statutory provisions containing mandatory minimum sentences,  not yet declared unconstitutional by the Supreme Court may still be applied as long as they are not (yet) abrogated through  appropriate procedures provided by the law 


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eISSN: 2788-435X
print ISSN: 2618-1525