Rwanda Law Journal

Precedent as a binding source of law under Rwandan Legal System: Applicability of Stare decisis under Rwandan Law

Célestin Mutabazi — 2024-10-29

Decisions and judgments of the Supreme Court have been and still are beingreferred to as binding precedents on all courts of the country.²This bindingcharacter was, by law, given only to Supreme Court decisions and judgments,but those of lower courts are not binding regardless of their super ruling or their publication in Law reports commonly referred to as “Ibyegeranyo”. On this note, lower courts would be advised to refer to the recent and specific precedent to harmonize the practice of lower courts. Either way, for the sake of justice once the precedent and the law seem to be unfair, the judge can apply the principle of equity and fairness commonly known in a Latin maxim asJurisest ars boniet aecqui.³

One may wonder whether there are certain criteria to be met for a court decision to serve as case law, and as a consequence examine the binding natureof contradicting decisions, since they are supposed to be referred to by other courts. It should be noted here that contradictory court decisions shall lead to a fragile legal environment wherein lower courts may doubt the relevant decision to be referred to. Can lower courts depart from referring to case law irrespective ofthe fact that it may,in the eyes of lower courts judges, be deemed unfair? There is a need to harmonize the practice of lower courts rather than waiting for the instructions of the Chief Justice or any other administrative decision that may be taken to correct some errors. This will also prevent the effects of such contradictions towards the rights of the parties.

In addition to this, the binding character of Supreme Court decisions may sometimes lead judges to refrain from referring to a legal text which can also solve the problem at hand. In this case, one may question this and wonderif such decisions outweigh the law. This work seeks to give a paradigm for the use of case law in the sense that it will give a firm harmony to their use by courts. Otherwise, precedents will be full of imperfections, and sometimes lead to inconsistencies. This article shall be looking at the harmonization of the practice of lower courts in the use of Supreme Court decisions in their daily adjudication of cases. On this note, we shall scrutinize the guiding rules and principle to be followed when the Supreme Court decisions are unjust or contradictory.

The advisory jurisdiction of the East African Court of Justice and the role of advisory opinions in the development of the East African Community law

Alain O. Nsengiyumva — 2024-10-29

The East African Community (EAC) Treaty established the East African Court of Justice (EACJ) as the judicial organ of the Community. The EACJ has contentious and advisory jurisdiction. Over its 15 years of existence the Courthas only been requested to and delivered two advisory opinions. The first onedealt with the application of the principle of Variable Geometry.

The second advisory opinion adressed the extent to which partner states maybe called upon to shoulder the financial responsibility of the Community’s employment contracts. It is in this regard that this article aims at analyzing the scope and application of the Advisory jurisdiction of the EACJ and therole of advisory opinions in the development of the EAC law and the EAC integration process. This article discusses the advisory jurisdiction of theCourt, the question of locus standi with regard to the advisory jurisdiction of this Court, and examines the preliminary conditions for a legitimate and validrequest for advsiory opinion.

It eventually discusses the role of the two advisory opinions that have been delivered by this EACJ so far on the developement of the EAC law. This article concludes by affirming that the request for advisory opinion permits organs of the Community to review from time to time the difficult and important questions of the EAC law. As stated by the EACJ Appellate Division, the singularsignificance of the advisory opinion lies in the overarching role that the Treatyhas carved out for the EACJ in the overall spectrum of the integration processof the Community.

Some aspects of judicial reform in Rwanda from 2004 to 2019

Sam Rugege — 2024-10-29

Like other public institutions that suffered devastation in human and material terms during the Genocide against the Tutsi, the Rwanda Judiciary has been going through a period of rebuilding itself but has also been undertaking reforms aimed at transforming and modernizing the institution since 2004. This article outlines some of the key reforms that have impacted that process.It shows that through capacity building, quality control and application ofa code of ethics, professionalism among judicial officers has been enhanced resulting in an improved quality of justice. Through use of modern court technologies, efficiency in service delivery has greatly improved, and various strategies have been employed to expandaccessto justice. These reforms haveled to a high level of public confidence in the justice system and in the future ofthe country both nationally and internationally.

When the tax administration feels the burn of aggressive tax planning but cannot catch up to its fire

Pie Habimana — 2024-10-29

This paper departs from the global existence of aggressive tax planningpractices by multinational companies through which they minimize their tax bills to the detriment of government fiscal revenues, which in turn failto properly provide adequate public services. While the discussions over the matter have conquered the legal scholarship, the same topic has so far called little attention under Rwandan law. The practice over the same issue also does not stand far from that. In that respect, the key focus of this paper is to analyze the situation of aggressive tax planning in Rwanda, from a regulatory approach to a practical approach.Produced mainly using a doctrinal approach, this paper criticizes the inapplicability of domestic taxation approaches while dealing with the taxation of international transactions.

Medically assisted procreation technologies in Rwanda: Surrogacy as new method of motherhood

Thierry Murangira — 2024-10-29

The evolution of science and technology has attained achievements in countless areas including health and family procreation. Medically assisted reproduction methods which are possible nowadays have wiped away the tears of infertile couples who could not have the chance to have children due to various health problems. The need was felt in Rwandan society and the law regulating Persons and Family was amended to give a chance to those who have been unable to procreate through natural methods to use artificial methods for reproduction. Article 254 of said law states that reproduction occurs naturally between a man and a woman or it is medically assisted. This directs the couple to resort to various medical reproductive methods including In Vitro Fertilization (IVF) and surrogacy.

However, much these technological methods of reproduction are of paramount importance, because their introduction into Rwandan Family Law is likely to open Pandora’s Box. It is likely to raise various issues, not only for the personsdirectly concerned, but also for society in general. There are a series of issuessuch as human rights, social, ethical, and criminal offence connected with this medically assisted reproduction which need to be examined when relyingon Article 254 of the abovestated law. In this regard, this article intends to elucidate on whether surrogacy as an artificial method of reproduction is accepted within the meaning of Article 254 of law Nº32/2016 of 28/08/2016Governing Persons and Family.

It also intends to clarify whether the maternal filiation be established based onproof of genetic kinship or on the act of giving birth. The article also examines if Article 254 is sufficient to regulate all issues and challenges arising from authorizing infertile couples to resort to medical assistance when the natural way of reproduction does not succeed. It suggests that there should be specific legislation and adequate legal mechanisms of controls and regulations of medically assisted technology to deter likely misuse of Artificial Reproductive Technologies.

The problem of determination of arbitrability under Rwandan Law

Daniel Ndayisaba — 2024-10-29

In this article, the author explores the issues pertaining to determination of arbitrability under Rwandan law. In the process of arbitration proceeding the question of arbitrability is of utmost importance because arbitrability determines asto what matter can or cannot be arbitrable. Ifthe subject matter is notfound to be arbitrable,the arbitration agreement remains without effect.

The first issue to explore is the lack of specific criteria to determine whether a matter is or is not arbitrable under Rwandan law. The second issue relates to the appropriateness of having a law with limitation to commercial matters versus having a law on arbitration in general. Lastly, there is a debate on the competent court in the first place to determine the issue of arbitrability between states’ court and arbitral tribunal. In a bid to fully analyse these underlining issues and recommend possible solutions to fill identified gaps, on the one hand, this article critically and comparatively analyses Rwandan, foreign and international arbitration legal texts. On another hand, the article examines how Rwandan and foreign courts have dealt with matter of arbitrability.