As a scientific subject or discipline, Administrative law is an autonomous branch of public law comprising the special rules concerning the organisation and functioning of the administration, the activities of the administration and also litigation should be understood as the processe of taking claims to court in non-criminal cases.
Private law rules don’t govern controversies (disagreements) within the jurisdiction of administrative law. The reason of this independence of administrative law is that the administration, serving a public interest, can’t be subject to the same rules as individuals. This is why there are special rules different from those applied to private individuals and in some countries; administrative disputes are adjudicated by special courts called ‘administrative courts’.
SECTION 2. SEPARATION OF POWERS
The State is composed of three branches which are the following:
- The Legislature
- The Executive
- The Judiciary
According to article 60(2) of the Constitution of the Republic of Rwanda, these three branches are separate and independent from one another but are all complementary.
The Legislative branch: the Rwandan Parliament
According to article 62 of the constitution, it is stated that legislative power is vested in a parliament consisting of two chambers:
– The chamber of Deputies, whose members shall have the title of ‘Deputies’ – The Senate, whose members shall have the title of “Senators”.
Parliament deliberates on and passes laws. These may be ordinary laws or organic laws. Within the hierarchy of laws, an organic law ranks immediately beneath the constitution. Organic laws are adopted with a view to specifying or completing provisions of the constitution. Parliament legislates and oversees executive action in accordance with the procedure determined by the Constitution (art. 62 const.).
Every member of the Parliament represents the whole nation and not just those who elected or nominated him or her or the political organisation on whose ticket he or she stood for election. (Art. 64(1)) before taking office, members of parliament shall take oath before the President of the Republic and, in case of his or her absence, before the president of the Supreme Court. (Article 65(1))
The Bureau of each chamber of parliament is made up of the president and two vicepresidents. This is in conformity with the constitution (art. 65(5) const.)
The office of a Parliamentarian shall not be compatible with being a member of the Cabinet.
An organic law determines offices which are incompatible with the office of a
parliamentarian. (article 68(2 & 3) const. but see Art 116 Const. and below) It isalso stipulated that no one shall at the same time be a member of the chamber of Deputies and of the senate (Article 68(1) const.). The chamber of Deputies shall be composed of 80 members. The members of the chamber of Deputies shall be elected for a five year term. Candidates may be presented by a political organisation or may stand independently.
The Senate shall be composed of twenty six (26) members serving for a term of eight (8) years and at least 30% (thirty percent) of whom are women. Note should be made that the sittings of each chamber of parliament are public.
The right to initiate legislation shall be concurrently vested in each Deputy and the Executive acting through the cabinet (art. 90 const.). The law is sovereign in all matters (art. 93(1)) Organic laws govern all matters reserved for them by the constitution as well as matters that require related special laws (art 93(2) const.).
An Organic law cannot contradict the constitution neither may an ordinary law or decree law contradict an organic law nor a Decree contradict an ordinary law. (Article 93(3) const.).
In voting a bill, there must be a separate vote on each article as well as a vote on the entire bill (article 93(4) const.). A vote on the entire law is conducted by calling each parliamentarian by name and the parliamentarian votes by replying in a loud voice.
The Executive branch
The President of the Republic is the Head of state. He or she is the guardian of the constitution and guarantees national unity. He or she guarantees the continuity of the state, the independence and the territorial integrity of the Country and the respect of international treaties and agreements. (Article 98 const.)
The President of the Republic has the right to address the nation. (Art. 98 const.).
According to article 101 of the constitution, the President of the Republic is elected for a term of seven years renewable only once. This means that under no circumstances shall a person hold the office of the president of the Republic for more than two terms. (art 101 (const.) If the office of the President is vacant before the term expires, elections are organised within a period not exceeding ninety days (Art . 107(3) const. ).
In case the President dies or is permanently unable or otherwise chooses not to assume office, new elections are held. In that case, the acting president will be the president of the senate, in the absence of the president of senate, the speaker of the Deputies and in the absence of both, the duties are assumed by the Prime Minister (art. 105(3) and 107(1) const.)
The office of the President is incompatible with the holding of any other elective public office, public function or any other civilian or military employment or professional activities (art. 106 cons.)
The President of the Republic is the commander–in–chief of the Rwanda Defence Forces (Art. 110 cons.). He can declare war from his own initiative and he can as well sign agreements temporarily or permanently to stop the war (Art. 110 const.).
He or she accredits Ambassadors and special envoys to foreign states and the ambassadors accredited to Rwanda Present their credentials to him or her (Art. 114 const.). He or she shall make appointments of senior public service and military offices as determined by the constitution and other laws (Art. 112)
The cabinet shall comprise the Prime Minister, Ministers of state and other members who may be determined by the President of the Republic (Art. 116(1) Const.).
The Prime Minister shall be nominated, appointed and removed from office by the President of the Republic (Art. 116(2) const.). Other members of cabinet shall be appointed and removed from office by the President of the Republic upon proposed by the Prime Minister (Art. 116(3) const.).
According to Art. 117 const., the cabinet implements national policy agreed upon by the President of the Republic and the cabinet. It is accountable to the President of the Republic and to the parliament (Art.117 (2) const.).
Judicial power is exercised by the Supreme Court and other courts established by the constitution and other laws. (Art140 (1) const.).
The Judiciary is independent and separate from the legislative and executive branches of government. (Art. 140 (2)).
Justice is rendered in the name of the people and nobody may be a judge in his or her own cause. (Art. 140(4) const.).
Judicial decisions are binding on all parties concerned, be they public authorities or individuals. They shall not be challenged except through ways and procedures determined by law (Art. 140(3) const.).
Every court decision shall indicate the grounds on which it is based. (Art 141(2) const.) Courts apply orders and regulations only where they are not inconsistent with the constitution and other laws. (Art. 141(3) const. ).
In the exercise of their function, judges follow the law and only the law (Art. 142(2).
JUDICAL ORGANISATION AND COMPETENCE
B.1. Ordinary courts
Lower instance courts
There is established a lower instance court for sector councils. The court is to exercise jurisdiction within the administrative boundaries of the sector council. In criminal matters lower instance courts are competent to hear offences whose sentence a term of imprisonment does not exceed five (5) years. They are not competent to hear offences relating to the violation of traffic rules.
As regards civil disputes lower instance courts have original jurisdiction to hear and determine:
- Disputes between natural or artificial (legal) persons whose monetary value does not exceed three million (3,000,000Rwf), except civil actions related to insurance as well as those seeking damages for loss occasioned by an offence tried by another court:
- Disputes related to land and livestock and their succession:
- Disputes related to civil status and family
- Disputes related to immovable property other than land which does not exceed 3 million Rwf of monetary value and its succession.
- Disputes related to movable property which does not exceed 3million Rwf of monetary value and its succession.
Note that judgments rendered by lower instance courts in both criminal and civil matter can be reviewed by the same court or appealed to the higher instance courts. The exception is cases whose monetary value does not exceed Rwf fifty thousand (50,000). In this case the lower instance court shall serve as the final court of appeal.
Higher instance courts
There is a higher instance court in district councils. Each court has specialized chambers: the juvenile chamber, the administrative chamber and the labour chamber.
In criminal matters higher instance courts shall have jurisdiction to try offences whose sentence is a term of imprisonment exceeding five (5) years except where the law reserves the offence to other courts; they have jurisdiction to try traffic offences and person placed in the first category accused of crimes of genocide and other crimes against humanity committed between 1st Oct. 1990 and 31st Dec. 1994.
In civil cases, higher instance courts have jurisdiction to hear cases on the first instance that are not triable by other courts. They shall have competence to hear on first instance case related to insurance regardless of the value of the claim.
Note that the specialized chambers of higher instance courts shall hear administrative cases relating inter alia, to actions for damages arising from contractual liability, government officials and its parastatals.
In its appellate jurisdiction the court can hear appeals against judgment rendered on first instance by lower instance courts within their respective jurisdiction.
The provincial or city of Kigali court can review its judgment or appeal to the Higher court.
The Higher court
There is established a higher court whose seat is in the city of Kigali. Its jurisdiction covers the entire territory of the republic. The higher court shall have four (4) chambers in other parts of the republic namely: Musanze, Nyanza, Rwamagana and Rusizi. The jurisdiction of the chamber that operates at Musanze is equal to the jurisdiction of the higher instance court in Musanze and Rubavu. The jurisdiction of the chamber that operates at Nyanza is equal to the jurisdiction of the higher instance court Muhanga, Huye and Nyamagabe. The jurisdiction of the chamber that operates at Rwamangana is equal to the jurisdiction of the higher instance court of Ngoma and Nyagatare. The jurisdiction of the chambers that operates at Rusizi is equal to the jurisdiction of the higher instance court of Rusizi and Karongi. Finally cases originating from the territorial jurisdiction of the higher instance court of Nyarungenge, Kabuga and Gicumbi shall be tried at the seat of the high court of the republic.
The high court exercises both original appellate jurisdictions. In the exercise of the original jurisdiction, the high court has competence to hear specific criminal cases, administrative cases and civil matters; its jurisdiction is limited to the execution or enforcement of authentic deeds executed by foreign authorities as well as foreign judgments. In the exercise of its appellate jurisdiction, the higher court has jurisdiction to hear appeals from civil cases heard on first instance by a higher instance court. It also hears specific appeals on second instance from higher instance courts. In addition, it hears appeals from decisions taken by arbitration tribunals.
The high court also hears appeals from criminal cases tried on first instance or appellate level from higher instance courts.
Note that the high court of the republic has competence to review its own decision. A dissatisfied party can party can appeal to the Supreme Court.
The Supreme Court is the highest court in the Republic of Rwanda. The Supreme Court directs and co-ordinates the activities of the lower courts. The court has jurisdiction over the territory of the Republic of Rwanda. Its decision is not subject to appeal except in terms of a prerogative of mercy or the revision of a judicial decision.
The Supreme Court exercises ordinary and special jurisdiction. In the exercise of ordinary jurisdiction the court is the court of last resort for appeal for trials heard by the high court of the republic in the first degree and in the second degree provided inter alia, the award of damages equals or exceeds twenty million francs (20,000,000) or the subject matter in disputes equals or exceeds twenty million francs (20,000,000).
In the exercise of its special jurisdiction the supreme court has, inter alia, exclusive jurisdiction to try in the first and final degree, the president of the republic, the president of the senate, the president of the chamber of deputies, the president of the supreme court and the prime minister for offences committed during their terms of office, whether such offences relate to the exercise of their public duties or their private matters, regardless of whether they are still or have ceased to hold office. B.2. Specialized courts
Military tribunals have competence to try all offences committed by all military personnel except offences which constitute a threat to national security and murder committed by soldiers. They also have competence to try all military personnel accused of the crime of genocide and crimes against humanity committed between October 1st and December 31st 1994 that places them in the first category.
Judgments rendered by a military court may be reviewed by the same court or appealed to the military high court.
The military high court exercises both original and appellate jurisdiction. In that exercise of its original jurisdiction, the military high court shall try all offences which constitute a threat to national security and murder committed by soldiers. However, if, during judgment, the court finds that the elements of the offences constitute manslaughter instead of murder, it shall nonetheless hear the case.
In its appellate jurisdiction the court hears appeals from cases tried by the military court. Cases heard in the first instance by the military high court may be reviewed by the same court or appealed to the Supreme Court. If the case was heard in the second instance by the military high court, the case will be appealed to Supreme Court provided the sentence passed by the military high court is equal to or exceeds ten (10) years of imprisonment.
Other specialized courts are commercial courts. They will be examined in the next chapter.