ON RWANDA’S PRESIDENTIAL TERMS LIMIT by Dr Charles Kambanda

There is no legal instrument or methods to circumvent the terms limit save for a coup which would suspend or abrogate the Rwandan Constitution in its entirety.

A systematic move to drop presidential terms limit, to allow the incumbent to run for the same office after his two constitutional terms expires in 2017, is gaining momentum in Rwanda. Top Kagame regime officials are on a crusade to popularize their plan to drop term limit from the constitution. No Rwandan but current President Paul Kagame, they argue, is capable of leading the country. It appears that the Kagame regime wants to give the world the idea that “the people” are begging Kagame to stay in power, contrary to what “the people” have already said under Article 101 of the Rwandan Constitution.

Wrong argument and motive:
The gist of the Kagame regime’s argument is that “the people” have powers to change any provision of the constitution at any time they believe a provision or a combination of provisions in the constitution has 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 he must. The constitution must therefore be amended to keep Kagame in the country’s top office. It appears to me that the top office is Kagame’s shield from prosecution for crimes in Rwanda and the Democratic Republic of the Congo (DRC), which have been alleged in international courts. It is evident that the Presidency is to President Kagame what water is for fish. He will probably stop at nothing to hold on to power as long as it’s possible for him. In any case, he took power by the gun, he rules by the gun.

Strategy to amend the Rwandan Constitution:
Article 101 of the Rwandan 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 Republic for more than two terms.” This constitutional provision is categorical on three major points:

(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 as such grounds for such amendment would amount to circumstances that certainly prohibited by 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 Rwandan Constitution.

(c) Serving more than two terms is as prohibited, as is amending Article 101 on terms limit. 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 of Rwandan Constitution:
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, Kagame regime wrongly believes that the constitution amendment procedure under Article 193 including a referendum applies to Article 101 on presidential terms limit.

Articles 101 and 193 of Rwandan constitution are distinguishable:

First, whereas under Article 193, the President and Parliament may initiate an amendment to the constitution, Article 101 “under no circumstance” clause prevents the President or Parliament to initiate amendment to Article 101 because any reasons and/or circumstances for such amendment would trigger Article 101 “under no circumstances …” clause.

Second, 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 it is inconsistent with Article 101 “under no circumstance” clause – is null and void under Article 200 of the Rwandan 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”.

Third, while Article 193 of the Rwandan Constitution provides for amendment to the current number of years per presidential term (seven years), Article 101 deals with the number of years one presidential term lasts and the number of terms after which a person cannot hold the Rwanda’s top office ( two terms). Therefore, while the number of years each presidential term can last is subject to amendment under Article 193, the number of terms (2 terms) a person can be a president is not subject to change because Article 101 has already sealed the number of terms to two not renewable terms. While Article 193 provides “… 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…”, Article 101 provides “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 Republic for more than two terms”. There is a difference between term (singular) – which refers to the number of years per term and terms (plural) – which refers to the number of terms a person can be a president under Rwanda’s constitution. In both Article 101 and Article 193, the word “term” refers to the number of years that constitute a term while the word “terms” in Article 101 refers to the number of terms a person can be president. While Article 193 provides for amendment of presidential term (7 years), the Article is silent about the process to amend presidential “terms” because Article 101 sealed presidential terms off for amendment under the “under no circumstance …” clause.

A referendum to amend Article 101 would be illegal and null:
Article 101 of the Rwandan Constitution cannot be amended by a referendum because such a referendum would amount to “circumstance,” yet Article 101 provides that “under no circumstance …” can the Article 101 provision be modified.

A referendum in 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, whereas the number of years one term of the president can be more than 7 or even less than 7 if that amendment is passed by referendum after adoption by each Chamber, Article 101 is beyond that; not even a referendum would modify Article 101 because “The President of the Republic is elected for [one] term of seven years, renewable only once [and] Under no circumstances shall a person hold the office of President of Republic for more than two terms”, as per Article 101 of Rwanda’s constitution.

Article 193 of Rwanda’s constitution is wrongly cited by 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. There is no inconsistency between Article 101 and Article 193. In any case, the framers of Rwanda’s constitution cannot have intended that one Article of the Constitutions invalidates another provision of the constitution. Certainly, the framers of the constitution used “term” and “terms” to mean two different things in Article 101. The fact that the framers of the constitution subjected presidential “term” to amendment under Article 193 without subjecting “terms” to amendment is reveling; the “under no circumstance …” clause on presidential terms limit under Article 101 shall never be subjected to the only 2003 constitution amendment process under Article 193.

Article 101 of Rwanda’s constitution cannot be amended. The framers of Rwanda’s constitution worded Article 101 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 framers of the 2003 Rwanda constitution sealed off presidential terms limit from amendment probably because 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. It’s not surprising that the 2003 constitution is unique on presidential terms limit.

Charles KM Kambanda,

PhD, Attorney and Counsel-at-law, New York, US