According the law a “person” is defined as a “being” that can have rights and duties or obligations, and that has, therefore, capacities to play a part in the life of a given community.
Rwandan law distinguishes between two classes of persons: the natural person or human being, and the moral person. Moral persons, called also “juristic persons”, are social associations representing a group of interests. Such organisations can be either a group of individuals such as a state, company and association, or a group of properties/individuals such as foundations.
These associations are governed:
- either by public law, in the instances of entities such as the state, provinces, districts, and public corporations;
- or by private law, such as companies, associations of natural persons and
Natural persons and moral persons are vested with juridical personality.
- 1. Juridical or legal personality
“Juridical or legal personality” of a person refers to his ability to have rights and duties.
A human being, without any discrimination, is recognised as a legal subject who possesses legal personality, without distinction of sex, race, colour, religion, nationality or social condition.
Human beings are the only legal subjects recognised by the law. This principle implies that things and animals are legal objects and cannot be legal subjects (active or passive).
There was a time in history when a human being could be considered as an object instead of a human being: those were slaves. Slaves were legal objects like objects. Slavery has been abolished all over the world. A human being does not ask for juridical personality. It is recognised as a matter of right. But a moral person must always demand juridical personality given by an authorised organ. The moral person, as a legal subject may only carry out acts relating to its object.
Legal personality has a beginning and an end.
- THE BEGINNING OF LEGAL PERSONALITY: BIRTH OF A NATURAL PERSON
According to Art.15 of Family code (FC), a natural person’s personality begins at birth. However, the potential interests of the unborn child may be protected from his/her conception. Whenever there is a situation which can be to the advantage of a child, the child shall be deemed to have been born from the time of conception (art.16 FC). Provisions of this article enable the child born alive and viable to claim his/her rights from the time of conception, and that will be the case in matters relating to successive rights.
It appears thus that rights are conferred on the unborn child at birth, if he is born alive and viable. However, there are rights that are to be protected before birth; we can mention the right to life. From the time of conception, the unborn child is recognised as having the right to life. This is the reason for repression and punishment of medical abortion.
What about the date of conception? This is a complex question of proof. In other words, how can one determine the exact time of conception?
In trying to solve that complex question, the law established an irrefutable presumption: the child is presumed to have been conceived between the 300th day and the 180th day before his birth (Art.17 FC), so that his rights can easily be established.
- THE END OF LEGAL PERSONALITY: DEATH
The legal personality of a person is terminated by death or by absence. In law, if the missing person has been absent for 9 to 12 years, he is presumed to be dead.
- The legal personality, recognised by a person alive, is ended by death; the human being is considered a legal subject from birth to death (Art. 15 FC). Dead persons cannot possess (have) rights. Nevertheless, Rwandan law admits:
- Protection of the deceased’s body and burial place;
- Respect of the deceased’s names and protection against defamation; – Respect of the deceased’s will after his death.
But in fact, respect of the dead and his memorial celebration is done in the interest of the survivors’ honour.
- Proof of death. In principle, death is proved by the identification of the deceased’s body. A situation can arise where a person disappears, but nevertheless there are circumstances justifying his death, even if his body was not found or identified. In such a situation, any interested party may approach the competent tribunal to grant a presumption of death order with regard to the person. This is called “declaration of death”(Art.19-20 FC).
- Determination of the moment of death. It is always important and obligatory to determine the moment of death. This is for practical reasons: for example, succession falls open at the time of death. The date of death can be certain or presumed. The presumption is applied to cases of co-deceased persons (Art. 18 FC) and “declaration of death”.
Death is also presumed in the case of long absence of a person and this presumption shall be followed by a judgement declaring his death.
Legal identification of physical persons
Identification of a person serves to distinguish people from others while exercising their rights. According to article 57 of the family code, “a physical person is identified by gender, ethnicity, name, given name, residence and domicile”.
On these elements, we must add “nationality” in order to distinguish a Rwandan citizen from a foreigner. It is also important to add “the place and date of birth (age)”.
Although, in this chapter, nationality is one of the elements identifying a person, it will be dealt with in a separate section.
- GENDER, AGE AND THNICITY
- Gender and age
There are legal effects related to gender and age :
- marriage is only allowed between two persons of different sexes (art.17 FC);
- the husband is the head of the conjugal community (art. 206 FC);
- The incapacity of a person of minor age;
- Under the former Family Code – the incapacity of the married woman; the new code gives a man and a woman full capacity without distinction.
Family code considers ethnicity as an element for identifying a physical person, even though there is no right attached to it; especially in as far as the status and capacity of a person are concerned.
At the moment of adoption of the Family Code, the upholding of ethnicity as an element for identifying a person was justified by the former regime as a fundamental element to implement the so-called policy of “ethnic and regional balance”.
Today, ethnic background is no longer an element of identification of a person, since it was first repealed by the Arusha Peace Agreement of August 4th, 1993, and later by the 2003 Rwandan Constitution. It is formally prohibited to mention that element in the identity card, or in any other document related to civil status.
- NAME AND GIVEN NAMES (ART 58-72 FC)
- Notion and principle
Name is a term used to specify a person in his/her social and legal life in exercising his/her rights and fulfilling his/her duties.
This means of individualisation is composed of various elements having different importance, and governed by different regulations:
- A surname and one or more potential given names (Art.58 FC) ;
- In practice, individuals are sometimes given nick names ;
- Individuals also may decide to use a pseudonym or pen-name ;
- In some societies, there are qualifications based on either religion (e.g. Muslims), or nobility (e.g. In European feudalism: Prince, Duke, Count, Viscount, Baron, and Knight).
- Surname and given name
Unlike some societies where the individuals take up family surnames, in Rwanda, a personal name is given to an individual upon his/her birth: surname.
The legislator gives reasons to justify why a personal name is maintained instead of a family name:
- Most of Rwandan names are closely related to previous circumstances of their parents’ life;
- Some names are ridiculous and are against good morals;
- There are some names which are not suitable for females (e.g. Mfizi –Bull, Gasekurume – Goat, Semubi – The Ugly.);
- Attribution of family surnames is no more than a blind obedience to foreign traditions.
- It is unanimously known that Rwandan culture, regardless of potential nicknames, officially attributes one surname and if need be one given name.
A surname is given within a period of 15 days after birth. The given name(s) is (are) not compulsory. The given name(s) is (are) given at the same time as the surname.
In the same family, given names are personal. It is not allowed to take one’s father’s, mother’s, brothers’ or sisters’ given names while they are still alive so as to avoid confusion among individuals.
The name given to a child is communicated to the civil status officer at the time of birth declaration. In practice a surname is given to a new-born child by his/her father on the 8th day after birth, in case of father’s absence, this is done by one of the close male relative, member of the family council.
Birth declaration (notice) is done (given) by the father, in his absence by the mother, in their absence by one of the ascendants or close relatives, or any person having assisted in the birth, or any other person that finds a new-born.
The married woman retains her maiden name on official documents. She may however, for personal reasons, use her husband’s name if she so wishes.
Clergymen and religious personnel also retain their surnames and given names on official documents.
Surnames and given names must not be against morality and good morals.
A nickname is an unofficial name used by friends and by the public and adds to his/her name.
Nicknames are very common. They are not official, therefore cannot be written on certificates of civil status.
Pseudonym is a borrowed name that a person uses to conceal his/her real name. This is often done by artists, writers, sportsmen, warriors and politicians.
Pseudonym has no regulation and has no official value. Because it is useful in completing identity, people are used to mentioning it on certain certificates. Pseudonym can lead to birth of a right similar to commercial names and be protected against usurpation.
- Legal characteristics of a name
The name is characterised by the following three elements:
– Immutability; – Imprescriptibility; – Unavailability.
The name is imposed on a person. None shall officially take/adopt a name or a given name which is different from the one mentioned on the birth certificate (Art.62 FC). A person cannot change his/her name at will.
Changing a name is only authorised by the Minister of Justice on request of any interested person in conformity with the prescribed legal procedure (Art.65-70 FC).
The person’s name is not subject to extinguishing or acquisitive prescription.
The person’s name is not subject to commercial transaction. It’s beneficiary cannot pass it (on) to another neither can he/she generally allow another person to use it. However, an individual’s name attributed to the commercial exploitation can be passed to another person as a commercial name.
- Protection of the right to a name
Any person has a right to use his name in order to identify him/herself, even though the usage may cause prejudice to the other person; for example, in the case of homonymy – sharing the same name. However, the attempt to create confusion is to be avoided, otherwise, there would be abuse of rights that can result in liability.
A person may request third parties to address him/her using his/her real name, and rectify it on certificates where his/her name might have been incorrectly written. It is the “action of claiming a name” or an “action of rectifying a certificate” or an “action of claiming a status”.
The bearer of a name can prevent other persons from using it, especially when there is a likelihood that it could lead to material or moral damage. After death of the bearer, the right is passed to the surviving spouse and successors.
- DOMICILE AND RESIDENCE
According to article 78 FC, the domicile of a person is “a place where he/she has his/her principal establishment, and where he/she can possibly be reached at any time either directly or through an intermediary, or where he/she is registered”.
Domicile is the place where a person is legally deemed to be permanently present for the purpose of exercising his/her juridical activities. In a way it is the person’s registered office.
According to article 73 FC, a person’s residence is “a place where a physical person is habitually based”. It is actually the permanent place where a person lives.
A place where a person lives is assumed to be his/her residence unless it is proved that he/she has another residence elsewhere (art.74 FC).
The meaning that emerges from those two definitions is that residence is a factual notion. Domicile is a legal notion and it is determined by legal provisions. Registration in “population register” and an “identity card” provide an official evidence of a domicile.
A domicile can be a residence. In this case, the domicile and the residence are interchangeable. But the domicile can also be located in a place different from that of residence.
The terms “domicile and residence” in their current usage, or in their official usage or juridical usage, are very often confused. For example, in the field of criminal law, when we talk of ‘violation of domicile”, it can be taken to mean violation of domicile, as well as residence, housing or lodging of a person, even for a single night.
Practical importance of domicile and residence
The lex loci domicilii of a person plays an important practical role:
- Importance in the law of procedure
In several cases, the domicile of the defendant determines the competent jurisdiction “ratione loci”, unless the law provides otherwise.
In case notice or summons con not be given to a person, domicile is the place where he/she can be notified as regards procedural acts
- Importance in the civil law
Some legal acts regarding family matters must or can be accomplished at the place of domicile; e.g. marriage, adoption, tutorship.
The succession falls open at the deceased’s domicile.
The domicile is the central place of a person’s financial interest, in the event of measures to be taken as regards his patrimony, e.g. the debt payment is normally done at the debtor’s domicile. The determination of a person’s residence plays also an important practical role:
- The residence can sometimes replace the domicile when the latter is not fixed or known.
- Residence and domicile can also stand in direct position to each other as regards legal effects. For example, marriage can be celebrated by the civil status officer not only at one of the spouses’ domicile but also at one of their residences.
- Legal characteristics of domicile and its determination
Necessity and uniqueness of domicile: “Every person must have one and only one domicile” (Art.79 FC). However, domicile can be transferred following certain administrative procedures (Art.80 FC).
The family code distinguishes three categories of domicile: domicile of choice, domicile by operation of law, and domicile by election.
Every physical person is legally characterised by a set of qualities or attributes to which legal consequences are attached. That set of qualities is known as the civil status of a person. The civil status of a person distinguishes him from all other entities. The civil status of a person therefore personifies him and determines his role in the society and distinguishes him from all other entities, as far as the enjoyment and exercise of civil rights are concerned. The civil status determines civil rights of a person.
The person’s status is composed of political, familial, and individual elements.
The political elements (or the political status) determine the legal status of a person towards the national community Hence, nationals (or citizens) are distinguished from foreigners within the national community; and foreigners are not systematically accorded similar political rights as citizens. Citizenship gives the right to participate in public life and enables him/her to take part in institutions exercising political power within the state.
Familial elements of the person’s status determine his/her position vis-à-vis his/her family members. The legal status of a person confers upon him/her rights and obligations. The legal status of a person depends on his/her state of a spouse, father, child, brother or sister, married or single, aunt or uncle, grand-mother or grand-father, cousin, brother-in-law or sister-in-law Individual elements of a person’s status depend on factors such as age, gender, and mental state. Such elements influence the person’s capacity of exercising his/her rights.
In some societies, race, religion, profession, social condition and wealth play a role in determining the person’s legal status, nevertheless, this situation is no longer common with the growth of the spirit of equality among human beings. In Rwanda, such elements do not have legal effect.
In the narrow sense, civil status is the base of a person’s identification; it is at least made up (composed) of a name, age, filiations, gender and nationality.
In the usual administrative practice, the person’s civil status is often confused with his/her state of being married or single.