Lawyers at local firm Certa Law want article 133 of the 2018 penal code against defilement amended, arguing that it violates constitutional rights of judges’ discretion.
Appearing before the Supreme Court early this month, the lawyers said that a number of young people are being handed life imprisonment for defilement even in instances where judges could hand lesser sentences.
“Currently the punishment to an 18-year-old boy for defiling a 17-year-old-girl is similar to the punishment that is handed to a married 55-year-old man who defiles a 15-year-old girl,” said Florida Kabasinga who led the Certa law firm in court.
They argued that if the article gave the judges their constitutional rights to discretion, they would consider mitigation or aggravation factors and deliver justice in defilement crimes.
“An attempt by an 18-year-old boy to live with a 17-year-old girl earned him life imprisonment while a 55-year-old who abandons a 15-year-old girl he defiled is ironically handed lesser sentence” Kabasinga added.
The penal code stipulates 20 to 25 years of imprisonment to defilement convicts. However, if the defiler goes ahead to live with the victim as husband and wife, the penalty is life imprisonment “that cannot be mitigated by any circumstances.”
Lawyers are challenging it as a limit put by the Legislature stripping judges of their discretion in delivering justice.
“The constitution does not allow interference by the Legislature into judges’ examination of circumstances leading to a crime in order to rule,” said Fred Rwagitare of Certa law.
State attorney Aline Batsinda first slammed the application against sentencing young and old defilers all alike.
“Anyone above 18 is an adult regardless of whether their age,” she said, arguing that they deserve the same punishments. “The petition should not be challenging the constitutionality of the law because the law considers a 19-year-old and a 55-year-old as adults,” Batsinda argued.
She also criticised the arguments that cohabitation after defilement can sometimes be a mitigating factor for the reduction of punishment.
“Cohabitation after defilement aggravates the punishment because marriage is not allowed to under 18-year-olds, making it two crimes,” he said.
The State attorney submitted a 15,000 cases of defilement recorded between January and August this year, arguing that the number is high enough to attract heavy punishments to dissuade the crime from society.
“This is why handing life imprisonment is delivering justice in cases where one defiles their victim and then cohabits with her,” she added.
Certa lawyers submitted examples including 18-year-old Augustin Dukuzumuremyi, of Musanze in Northern Province, who was convicted for defiling a girl who was two months to her 18th birthday in September this year.
“Prosecution had considered the circumstance of the crime, and plea for 10 years in jail for Dukuzumuremyi but the judges handed him life imprisonment because the law forbids judges from examining circumstances of the crime,” Rwagitare said.
The jury led by Chief justice Prof Sam Rugege, former Ombudsman Aloysie Cyanzayire and other three senior judges are expected to deliver the ruling next week on December 4.
This is the second time lawyers have taken the 2018 penal code to court.
The first was early last year against defamation and penalties on family desertion and concubinage by Kigali lawyer Richard Mugisha.