‘Under no circumstances’ clause is inviolable

A systematic move to drop presidential terms limit to allow the incumbent Paul Kagame to run for the same office after his two constitutional terms expire in 2017 has gained momentum in Rwanda. Top Kagame regime officials are on a crusade to ‘popularize’ dropping terms limit from the constitution arguing that no Rwandan but Kagame is capable of leading the country. It appears the Kagame regime wants to give an impression that ‘the people’ are begging Kagame to stay in power, yet the people passed their verdict in the 2003 constitution, Article 101, that ‘Under no circumstances shall a person hold the office of President of Republic for more than two terms’.

WRONG ARGUMENT, SELFISH MOTIVE

The gist of the Kagame regime argument is that ‘the people’ have powers to change any provision of the constitution at any time ‘the people’ believe a provision, or a combination of provisions, in the constitution has/have been overtaken by events. The common stanza in Kagame’s camp is that no Rwandan is capable of leading the country; Kagame cannot go just because the constitution dictates so. The constitution must be amended to save Kagame for the country’s First Office.

It appears to me that the First Office is Kagame’s shield from prosecution for his alleged crimes of international concern in Rwanda and in DR Congo. In addition, Kagame has allegedly butchered both the Hutu and Tutsi way too much that he believes – and rightly so – that no Rwandan, Hutu, Tutsi or otherwise, would take power and keep him as a free man. Kagame has harassed, tormented and incapacitated his predecessor, President Bizimungu. President Kagame probably fears that if he leaves the First Office, his successor will treat him in the same way he has treated his predecessor. It is evident that the Presidency is to President Kagame what water is for fish in the pond. Kagame will probably stop at nothing to hold on to power as long as it is possible for him to hold on to power. Kagame took power by the gun and he rules by the gun. It is obvious that his preoccupation is not rule of law.

It is my submission that regarding presidential terms limit, under Rwanda’s constitution, Kagame has only two options: either to abide by the Article 101 provision that ‘Under no circumstances shall a person hold the office of President of the Republic for more than two terms’, or overthrow the constitution and his government, which would allow him to write a new constitution.

STRATEGY TO OVERTHROW THE CONSTITUTION

Article 101 of Rwanda’s constitution provides that: ‘The President of the Republic is elected for a term of seven years renewable only once. Under no circumstances shall a person hold the office of President of the Republic for more than two terms’. This constitutional provision is categorical on three major things:

(a) No circumstance – external or internal, political or social, present or future by any institution or individual - may be the basis for allowing any person to be president if that person has served two terms. Clearly stated, no amendment to this provision is possible because any reason or ground to amend the two terms cap under Article 101 would amount to ‘circumstances’ hence triggering the ‘under no circumstance’ clause of Article 101.

(b) Whether one serves two presidential terms uninterrupted or interrupted, two terms is the cut-off point; no person can hold that office beyond two terms under the 2003 Rwanda constitution.

(c) Serving more than two terms is as prohibited as amending Article 101. Consequently, as long as the 2003 constitution is in force, no circumstance – including ‘the people’s’ zeal to keep Kagame - is permitted to modify this provision.

ARTICLE 101 CANNOT BE AMENDED USING ARTICLE 193

Article 193 provides that: ‘The power to initiate amendment of the Constitution is vested concurrently in the President of the Republic upon the proposal of the Cabinet and each Chamber of Parliament upon a resolution passed by a two-thirds majority vote of its members. The passage of a constitutional amendment requires a three quarters majority vote of the members of each chamber of Parliament. However, if the constitutional amendment concerns the term of the President of the Republic or the system of democratic government based on political pluralism, or the constitutional regime established by this Constitution especially the republican form of the government or national sovereignty, the amendment must be passed by referendum, after adoption by each Chamber of Parliament…’ Apparently, the Kagame regime wrongly believes that the constitutional amendment procedure under Article 193, including a referendum, applies to Article 101 on presidential terms limit as well.

Articles 101 and 193 of Rwandan constitution are distinguishable. First, Article 101 has two distinct parts (sections). The first part deals with the number of years each term lasts: ‘The President of the Republic is elected for a term of seven years renewable only once’. This part is clearly amendable under Article 193 because Article 193 provides that, ‘The power to initiate amendment of the Constitution is vested concurrently in the President of the Republic upon the proposal of the Cabinet and each Chamber of Parliament […] However, if the constitutional amendment concerns the term of the President of the Republic or … the amendment must be passed by referendum, after adoption by each Chamber of Parliament…’. The second part (section) of Article 101 deals with the number of terms a person can be in office, thus, ‘Under no circumstances shall a person hold the office of President of Republic for more than two terms’. Therefore while Article 193, which provides for the 2003 constitution amendment procedure, provides for amendment to the number of years per presidential term, Article 193 does not tamper with the presidential terms limits (the two terms) because Article 101 itself sealed off presidential terms limit from amendment with the “under no circumstance…” clause as long as the 2003 constitution is in force. In Article 193, like Article 101, the word term (singular form) refers to the number of years per presidential term while the word terms (plural form) refers to the number of terms a person can be a president.

Second, whereas under Article 193 the president and parliament may initiate an amendment to the constitution, Article 101’s ‘under no circumstance’ clause prevents the president or parliament from initiating amendment to Article 101 section on presidential terms limit because any reason(s) and/or circumstance(s) for such amendment would trigger Article 101 ‘under no circumstances …’ clause.

Third, whereas Article 193 provides for amendment of other provisions of the constitution for the constitution to adopt to changing circumstances, using any circumstance thereof would be inconsistent with Article 101 ‘under no circumstance’ clause. Consequently, any law that seeks to amend Article 101 to reflect changing circumstances (political or social) - to the extent that it is inconsistent with Article 101 ‘under no circumstance’ clause - is null and void under Article 200 of Rwanda’s constitution, which provides that: ‘The Constitution is the supreme law of the State. Any law which is contrary to this Constitution is null and void’.

REFERENDUM TO AMEND SECTION ON TERMS LIMIT WOULD BE ILLEGAL AND A NULLITY

Article 101 of Rwanda’s constitution cannot be amended by referendum because such a referendum or circumstance leading to it would amount to circumstance which Article 101’s ‘under no circumstance …’ clause prohibits.

A referendum on Rwanda’s constitution is provided for to amend, inter alia, the number of years one presidential term can last as provided for under Article 193: ‘… if the constitutional amendment concerns the term of the President of the Republic or the system of democratic government based on political pluralism, […] the amendment must be passed by referendum, after adoption by each Chamber of Parliament…’.

Therefore, while one presidential term can be increased or decreased to any number by referendum, the two presidential terms limit under Article 101 can never be changed under the 2003 constitution because ‘Under no circumstances shall a person hold the office of President of Republic for more than two terms’.

Article 193 of Rwanda’s constitution is wrongly cited by the Kagame government as the basis for overriding Article 101 which slaps a complete ban on a person’s stay in power after serving two terms. The Kagame government’s appreciation of the two articles of the country’s constitution is erroneous because the two articles address different issues. There is no inconsistence between Article 101 and Article 193. In any case, the framers of Rwanda’s constitution could not have intended that one article of the constitution invalidates another provision of the same constitution.

Article 101 of Rwanda’s constitution cannot be amended. The framers of Rwanda’s constitution worded the article in such a way that any reason or circumstance anybody or a group of people might have against the presidential terms limit cannot be used to amend Article 101 because the article foresaw all those possible ‘reasons’ and circumstances and concluded that ‘under no circumstance…’ and, accordingly, Article 200 puts it clearly that any law or act to tamper with Article 101 or any other provision of the constitution is null and void.

The intention of the framers of the 2003 Rwanda constitution in sealing off presidential terms limit from amendment was to make sure that no Rwandan is president for an indefinite period of time and, possibly, for life. Rwandans are aware of the dangers of one group of people holding on to power indefinitely. Rwandan’s political history is characterized by extreme violence and militant rulers loading it over their subjects indefinitely. This has always led to wars and horrific crimes.

* Charles KM Kambanda, PhD, is Attorney and Counsel-at-law, New York, US.

* THE VIEWS OF THE ABOVE ARTICLE ARE THOSE OF THE AUTHOR/S AND DO NOT NECESSARILY REFLECT THE VIEWS OF THE PAMBAZUKA NEWS EDITORIAL TEAM

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