Today the Rwandan Senate passed the proposed draft constitution that will be presented for Referendum to the Rwandan Public in the coming days, after being passed by the Cabinet.
Apart from the amendments on term limits, one inconspicuous change operated therein was to permute the hierarchy of norms, putting ‘Organic Laws’ above ‘International Conventions’ to which Rwanda is a party. I have commented on the disadvantages of discrepant term limits in a previous blog: Link here: http://bit.ly/1MUBeHp
Today, I would like to comment on the disadvantages of placing international treaties under organic laws in the hierarchy of Norms.
Rwanda being traditionally a ‘Monist’ country means that our Constitution is the highest law of the land. However, international conventions come just after and then follows ‘Organic Laws’ – and that for an important reason.
From an international law perspective, putting our ‘Penal Code’ – which is an Organic Law above international law, is somewhat establishing a permanent state of emergency in Rwanda – which, given our current security status makes no sense.
Sovereignty of a state stems from two equally important things:
- Its capacity to define its own system of governance and legislation: Which it does through its Constitution; and
- Its capacity to enter into agreements with other nations, thereby acceding to the community of civilized nations; done through adherence to international norms.
The constitution will establish national interests and inform which international agreements to enter into, and which not. International norms entered into, will bound the state against others and vice-versa.
However national laws, applicable only among nationals may not be imposed to supra-national entities and normes.
For instance, European Union’s law supersedes (is above) the French normative framework. As a result, many decisions of the European Court of Justice or the European Court of Human Rights have led to the revision of French laws, including the French Constitution. Accordingly, as much as the last two governments in France have attempted to expel the Roma people (Gypsies), they have been consistently thwarted by the European Convention on free movement and establishment of citizens of the Union.
Austria as a ‘Dualist’ country has international treaties at the same level as its own constitution; Recently, a Judge of the Supreme Court in Canada found that international conventions to which the country is party, were opposable to Canadian authorities even before they are domesticated by an organic law, provided that they have been signed by the State.
Now, the debate on international double standards – whereby some states preach international law but do not adhere to it is genuine and pertinent. It is just not to be factored in in this case, even though I suspect it is the reason for the Rwandan legislator to place our Organic Laws above international norms.
A case in point: The United States of America have not ratified most international conventions, including the Convention Against Torture (the only non-derogable principle) and the Convention on the Elimination of Discrimination Against Women (CEDAW – Part of the International Bill of Rights) – the USA are frequently criticized for that.
Switzerland has passed in its recent constitution – the prohibition of construction of Minarets (Mosques); in violation of the Freedom of religion a norm of Customary International Law.
These are two examples of blatant violation of International Law. Equally, many countries including Rwanda have refrained from ratifying the Rome Statutes – recognizing the International Criminal Court (ICC). This however, may not be considered a violation of international law, since, indeed there are many non-signatory states.
In any event, for a constitution to be legitimate, it has to be seen as compliant to international standards. For that it shouldn’t provide that Rwanda’s Penal Code which is an Organic Law, goes above international treaties, whose object and purpose, would be precisely to provide a minimum guarantee of rights that would be taken away by an authority – through such penal code. It is like when a policeman in Burundi justified his shooting on the vehicle of an ambassador, whose immunity is protected by the Vienna Convention (International Treaty), because the latter allegedly refused to stop when asked to – which is a mere traffic offense…
There are exceptions to that: they include reservations made by States while adhering to international conventions; There is also the case of ‘state of emergency’, which is declared by states in the advent of a disaster – such as recently in France, following Paris attacks, by suspending some privileges of individuals guaranteed by international law.
Not least, the ‘Patriot Act’ in the United States of America is a similar measure taken after 9/11, which gives to America’s secret service a set of prerogatives of violating individual privacy – to guarantee national security.
However, a state of emergency isn’t extended to a lengthy period of time and may not derogate from international humanitarian law (Right not to be tortured, etc.)
All said, there are no grave consequences to what our parliamentarians did; as is always the case when a country violates principles of international law or refuses to adhere to them; a part maybe from undermining the image reflected abroad by our future constitution and being regularly embarrassed during Universal Periodic Reviews – Which America doesn’t seem to care about, yet Rwanda sort of does.
Locally however, we’ll have a blockade every time an organic law differs from international standards, and especially when our Penal Code tries to take away rights guaranteed by international law.