We revisited cases of convicted young men for defilement, the constitutional petition that challenged the provision that convicted them, talked to the authorities on the ground, families of convicted young men and defiled young women.
Lilian was 15 and Gilbert was 17 in 2017 when both started having sex in small villages of Kibirizi, Nyanza District in Southern Rwanda.
The law does not punish young people between the age of 14-17 for having sexual intercourse among themselves.
They had known each other for a long time especially because they live in the same area and could visit each other, sometimes getting a chance to do some lovemaking.
Things changed on the morning of 30 January 2019 when, after spending a night together, Gilbert was arrested as a defiler of a girl Lilian who had left her parent’s home.
She knew she was pregnant not for Gilbert but for Felicien, a motorist who was not willing to take her away from the shame of pregnancy in her parents she has not honoured with a wedding.
She chose to continue her life with Gilbert, a responsible and honest young man though she did not tell her that she was pregnant for someone else.
The first night together sealed the fate of the 18-year old Gilbert (who the law calls adult), arrested and charged for defiling and cohabiting with the 16-year old Lilian (who the law calls child).
At Huye Intermediate Court, he pleaded guilty, asking for a lesser sentence even mentioning that he did not know that the girl was young due to her appearance and her “maturity” in bahaviour.
A fortnight later, the young man who grew in the hands of a struggling single mother Gilbert was condemned to spend the rest of his life in prison.
“If I knew that going to his house would cost him life, I would have lost mine and spare his. I had nowhere else to go but to him. I trusted him” Lilian who is 18 now, told Kigali Law Tidings.
But the law worked indifferently against her will, considering that she was too young to have a right decision and that Gilbert who was 2 years older than she was, was mature enough to know the right.
In late December the same year, some Kigali lawyers found problems with the defilement law and decided to petition the Supreme Court to have it changed especially the provision that condemned Gilbert to life imprisonment.
The law was found unconstitutional, a bad law that did not give room for judges to consider the circumstances of the crime and give an appropriate sentence.
The Supreme Court declared that “Judges were given their rights to discretion of mitigating factors of the crime”, revising the article.
But this ruling only affected the cases that were ongoing in courts and those that would come in the future but not the cases that had been decided on such as Gilbert’s.
“By the time of conviction the law was constitutional so one who was convicted cannot benefit from the Court’s declaration that the law that convicted them was a bad law” said Dr Tom Mulisa, the Executive Director at Great Lakes Initiative for Human Rights and Development.
Dr Mulisa said that “practice shows that in case there are new elements of appeal then one can benefit from the new law” which is not the case with Gilbert who had not appealed and has no capacity for lawyers to process case review.
In September 2019 at Musanze Intermediate Cout, Augustin 19 who the law calls adult was convicted for defiling a young woman Christella two months to turn 18 who the law calls child.
Looking at certain circumstances, even the prosecution pleaded to the court to hand him 10-year imprisonment but the court could not do contrary to the law and Augustin was condemned to life in prison in absentia because he had fled.
When the provision that convicted him was removed, Augustin slowly returned to find that that the child of the child Christella he defiled was for someone else who knew her before him.
He is still a fugitive but according to local authorities of Cyanika in Burere District Northern Province, he sometimes appears to help his mother who is a hardworking widow whose hope was in his son, a fugitive of the removed bad law.
According to figures from the national prosecution, over 3000 people were convicted under the bad law, most of them young men who are called adults on children whose age difference is not more than five.
If these young people had been brought to the courts after the Supreme Court had revised the law, there was a chance for them to return to their families and work to correct their past mistakes.
Dr Tite Niyibizi, a lecturer at the Institute of Legal Practice and Development recently told Kigali Law Tidings that “it is very unfair for the law to consider young people in the same age range one to be adult and the other child”
Parliamentarians have recently argued that the punishments for defilers should be made more draconian with castration, death penalties and life imprisonments without any other considerations.