llb dissertation
TRANSCRIPT
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UNIVERSITY OF RWANDA
COLLEGE OF ARTS AND SOCIAL SCIENCES
SCHOOL OF LAW
LLBIV
ACADEMIC YEAR: 2015-2016
RESEARCH PROJECT
Research project submitted in partial fulfilment of the Academic requirements for the award
of Bachelor Degree of Laws (LLB) at University of Rwanda, School of Law, Nyarugenge
Campus.
Presented by:
NTIRUSHWAMABOKO Aloys
Supervisor: Me UWINEZA Odette (LLM)
Kigali, May, 2016
TOPIC: EVIDENCE IN PROPRIETARY LAND RIGHTS UNDER RWANDAN LAW: CASE LAW ANALYSIS
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TABLE OF CONTENTS
DECLARATION ............................................................................................................................ v
APPROVAL .................................................................................................................................. vi
ACKNOWLEDGEMENTS .......................................................................................................... vii
EVIDENCE IN PROPRIETARY LAND RIGHTS UNDER RWANDAN LAW: CASE LAW
ANALYSIS ..................................................................................................................................... 1
CHAP. 0: PRESENTATION OF THE RESEARCH PROJECT ................................................... 1
0. I. INTRODUCTION ................................................................................................................ 1
0. II PROBLEM STATEMENT ..................................................................................................... 4
0. III RESEARCH QUESTIONS ................................................................................................ 7
0. IV. RESEARCH OBJECTIVES.............................................................................................. 8
0. V RESEARCH METHODOLOGY ........................................................................................ 8
0.VI SIGNIFICANCE OF THE RESEARCH ................................................................................ 8
0.VII ORGANISATION OF THE RESEARCH ............................................................................ 9
CHAP.I HISTORICAL PROTECTION OF OWNERSHIP LAND RIGHTS IN RWANDA:
LEGAL FRAMEWORK .............................................................................................................. 10
Section I: General understanding of Ownership rights ............................................................. 10
I.1 Notion of ownership rights .................................................................................................. 10
I.2 Characteristics and prerogatives of ownership rights .......................................................... 12
I.2.1 Rights to Use (Usus) ......................................................................................................... 13
I.2.2 Rights to enjoy the fruits from a property (Fructus) ......................................................... 13
I.2.3 Rights to alienate/ dispose of the property (Abusus) ........................................................ 14
I.3 The ownership rights of land in Rwanda ............................................................................. 14
I.3.1 Land Ownership System in Pre-Colonial period ........................................................... 14
I.3.2 Land Ownership System during the Colonial period .................................................... 15
I.3.3 Land Ownership System during Post colonial period ................................................... 15
I.4 The notion of private ownership over the land .................................................................... 17
I.4.1 Legal framework of private ownership over the land ................................................... 17
I.4.2 Limitation of private ownership........................................................................................ 18
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I.4.2.1 Prescription (article 45 of 2013 land law) .................................................................. 19
I.4.2.2 Expropriation for public interest ................................................................................ 20
I.4.2.3 Environmental regulations ......................................................................................... 21
I.5 The notion of public ownership over the land and its Legal framework in Rwanda ........... 22
I.5.1 Authentication of public ownership over land .............................................................. 23
I.5.2 Limitations of public ownership over the land .............................................................. 23
SECTION II: EVIDENCE IN LAND RELATED LITIGATION ............................................... 24
II.1 Arusha Peace Agreement between the Government of the Republic of Rwanda and the
Rwandese Patriotic Front .......................................................................................................... 24
II.2The law of procedure (Civil, Commercial, Labour and Administrative procedure) ........... 26
II.3 The law of Evidence ........................................................................................................... 26
II.4 Land law ............................................................................................................................. 27
CHAP. II: EVIDENCES IN PROPRIETARY LAND RIGHTS: CASE LAW ANALYSIS....... 28
Section I: Evidence in Proprietary land rights under the communal law/ of 23/11/1963 ........ 28
I.1 Modes of acquisition of land under the communal law/ of 23/11/1963 .............................. 29
I.2 Limitations of rights over land under the communal law/ of 23/11/1963 ........................... 29
I.3 Authentication of land under the communal law/ of 23/11/1963 ........................................ 30
I.4 Analysed case laws .............................................................................................................. 30
I.4.1 Case no RC0336/011/TB/KBH, Karangwa Rosalie Vs Hvugimana Phillipe................... 31
1.4.1.1 Presentation of facts and applicable law .................................................................... 31
1.4.1.2 Application of law to facts and decision of the court ................................................ 31
I.4.1.3 Analysis of the case .................................................................................................... 33
I.4.2 Case no RCA 0073/13/TGI/MHG, MUKAMUSONI Assia Vs MUSONERA Venuste,
HAGABIYAREMYE Innocent, et. al. ...................................................................................... 33
1.4.2.1 Presentation of facts and applicable law .................................................................... 33
1.4.2.2 Application of law to facts and decision of the court ................................................ 34
1.4.2.3 Analysis of the case ................................................................................................... 35
SECTION II: EVIDENCE IN PROPRIETARY LAND RIGHTS UNDER THE 2005 LAND
LAW ............................................................................................................................................. 36
II.1 Land registration and Issuance Land titles ......................................................................... 36
II.1.1 Land titles ........................................................................................................................ 38
II.2.2 The 2008 procedure of land titling .................................................................................. 38
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II.2.3 Critics on the procedures of land registration in Rwanda ............................................... 40
II.3 Authentication under the 2013 land law ............................................................................. 41
II.4 Analysed case law (case no RCA 0300/14/TGI/RBV) ...................................................... 41
II.4.1 Presentation of facts, question of law, applicable law and court decision ................... 42
II.4.2. Analysis of the case .................................................................................................... 43
SECTION III: THE SUPREME COURT CASE LAW OF 2014 ................................................ 44
III.1 The analysis of the Supreme Court case (Case Law no RCAA 0018/13/CS)................... 44
III.1.1 Presentation of the case .............................................................................................. 44
III.1.2. Summary of facts, Question of Law and Application of law .................................... 45
III.2 Decision of the court ......................................................................................................... 46
III.3 Position of the court .......................................................................................................... 46
III.4 Innovations from the decided case law by Supreme Court ............................................... 46
III.5 Declaration of Nullity of Land Certificate ........................................................................ 48
GENERAL CONCLUSION ......................................................................................................... 51
RECOMMENDATIONS .............................................................................................................. 52
BIBLIOGRAPHY ......................................................................................................................... 54
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DEDICATION
I dedicate this work to:
My family (My Parents, Brothers and Sisters),
My Enlightened Supervisor, Me Odette UWINEZA
The School of Law
The Legal Aid Forum (LAF)
All friends and classmates.
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DECLARATION
I, NTIRUSHWAMABOKO Aloys , hereby declare that this final report project entitled
“Evidence in Proprietary Land Rights under Rwandan Law: Case Law Analysis” is entirely my
own work and has not been submitted in whole or in part to any other University or Higher
Learning institution. To the best of my knowledge, the work presented hereafter is original. All
materials that I consulted while carrying out this work, all references were provided in footnotes
and bibliography. This final report project was conducted at the School of Law, College of Arts
and Social Sciences, in the University of Rwanda under the supervision of Me Odette
UWINEZA, the Lecturer at School of Law.
Kigali, On ………/…………/……..
Signature …………………….
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APPROVAL
I, undersigned, certify that this final report project entitled “Evidence in Proprietary Land Rights
under Rwandan Law: Case Law Analysis” has been carried out under my supervision and has
been submitted with my approval.
Done at Kigali, On ………/………/…………
Me Odette UWINEZA
Lecturer at the School of Law, University of Rwanda.
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ACKNOWLEDGEMENTS
Upon the accomplishment of this final report project, I am pleasing the Almighty God for his
blessing and grace of daily life. I wish to express my heartfelt gratitude to all those who
contributed to its completion. In this view, I wish to recognise the role played by my parents,
brothers and sisters for the achievement of my work. The indispensable provision of financial
means and of all necessary support to live in complex academic life is really a great effort to my
future life.
I really thank to the authorities of University of Rwanda, College of Arts and Social Sciences,
specifically those of School of Law for having put in place the module for the purpose of
transforming the theoretical knowledge into research practices, and come up with a fully
researched and supervised work for the fulfillment of a bachelor degree.
Particularly, my sincere appreciation goes directly to the staff of the School of Law, beside their
personal duties, charges and responsibilities, for their determined efforts to complete my work in
safe conditions.
The same acknowledgment goes to my Supervisor Me Odette UWINEZA, the Lecturer of Laws
at the School of Law for her kind supervision, help in terms of provision of certain materials and
guidance as well as for undertaking the task to supervise my work. Without her excellent
supervision, full of legal and crucial analysis for the sake of its completion, my work would not
have been in the light of today.
Moreover, my recognition goes to my colleagues of the class. Their moral, collaborative
assistance and enthusiasm have been indispensable and beneficial towards the success of this
work.
Lastly, I thank all persons who contributed and helped me in one way or another, either direct or
indirect to achieve my light expectations at the University of Rwanda throughout the academic
period.
May God bless you all!
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EVIDENCE IN PROPRIETARY LAND RIGHTS UNDER RWANDAN LAW: CASE
LAW ANALYSIS
CHAP. 0: PRESENTATION OF THE RESEARCH PROJECT
0. I. INTRODUCTION
Rwanda is a hilly and evergreen country located in East Africa with an area of 26.338 km.1 Its
population varies between 11.78 millions of people.2 Land issues are very delicate especially that
they touch on the fundamental essence of every society, especially in as far as the land
ownership which constitutes the major factor of production and the population‟s best way of
living. It therefore becomes clear to everyone that for Rwanda‟s sustainable development, the
priority is to put into account the land dimensions as it is the highly ranked resource in the
Rwanda‟s socio economic life.3
Land is the surface of the earth identified by specific boundaries, including the airspace above
that portion of surface, the minerals beneath it, and surrounding biodiversity, erections and
developments on that surface. In legal terms, it is an immovable and permanent asset inclusive of
rights associated with the surface of the earth from the centre to the infinite sky.4
Land is a fundamental resource of the nation state.5 Without land, without territory, there can be
no nation state. Housing, agriculture, natural resource use, and national security concerns are all
based upon land management and use.6 Hence, land is seen as one of the most important and
fundamental natural resource that is exploited by people to get their daily living means.
1
E. Rurangwa, Perspective of Land Reform in Rwanda, The Ministry of Lands, Human Settlement and
Environmental Protection, Kigali, 2002, p. 1. 2 Republic of Rwanda, Ministry of Finance and Economic Planning, National Institute of Statistics of Rwanda,
Fourth Population and Housing Census, Rwanda, 2012 Thematic Report; Characteristics of households and
housing, January 2014, Kigali, p. 1. 3 D. M.Kayihura, F. Kigenza, Property and Land Law, Students Manual, University of Rwanda (Former NUR),
Butare, 2010, p. 42. 4 The Law no 43/2013 of 16/06/2013 governing land in Rwanda, OG of 16/06/2013, Article 2.
5 S. Hodgson, C. Cullinan and K. Campbel, Land Ownership and Foreigners: A Comparative Analysis of
Regulatory Approaches to the Acquisition and Use of Land by Foreigner, FAO Legal Papers Online #6, 1999, p. 1. 6 Idem.
2
Through different periods of Rwandan history, Land issues have become the country‟s top
priority to the extent of being on the schedule of different national institutions at all times.7 For
instance, in 1996, a National Conference was held to discuss land issues in Rwanda and at the
end of it, the grounds were leveled for the draft Organic law on Land. After some years, the
government succeeded in having in place the law governing land use and management that was
The Organic Law No. 08 /2005 of 14/07/2005.8
Though the law was put in place, land related matters persisted. The massacres of 1959, 1973,
1990 and the Genocide perpetrated against Tutsi in April - July 1994 decimated over one million
lives. These sad events led also to the displacement of millions of people, both inside and outside
the country, leaving behind many widows and orphans, as well as their properties including
lands, houses, etc.
After Genocide, the 1959 refugees were expected to return to their natal country as stipulated the
Arusha Peace Accords. Under its Article 2, the Arusha Peace Accords between the Government
of the Republic of Rwanda and the Rwandese Patriotic Front on the Repatriation of Rwandan
Refugees and the Resettlement of Displaced Persons stated that” …every returnee is free to settle
in any area of his/her choice in the country, as long as he/she does not infringe on somebody
else‟s rights”.9 Article 3 of the same Protocol stated that “In order to resettle the repatriated
persons, the Government of Rwanda should release all unoccupied land so identified by the
“Repatriation Commission".10
On the other hand, Article 4 of the Protocol stipulated that “the
right to property is a fundamental right for all Rwandans”. As a result, the refugees have the right
to repossess their properties upon their return. However, the two parties recommended that “with
a view to promoting social harmony and national reconciliation, refugees who fled the country
over 10 years ago should not reclaim their properties which have been occupied by other
individuals. To compensate them, the Government will give them land and assist them to
resettle".
7
G.U. Mugiraneza, “The Origin of Organic Land Law in Rwanda (More on this Law)”, available at
www.igihe.com/twandikire/article/inkomoko-y-itegeko-ry-ubutaka-mu, accessed on 20th
February, 2016
(Authors‟translation). 8 Idem.
9 Arusha Peace Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front,
Arusha, Article 2. 10
The Peace Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front,
Arusha, Article 3.
3
In the first place, the return of the 1959 refugees gave rise to a real land problem. It was found
that it was difficult to apply the Arusha Peace Accords to those cases of first returnees. As an
interim measure, some of the former 1959 refugees occupied land that had been abandoned.11
Other former refugees were given plots on public land and vacant land on which they could
resettle and produce.
The legislation that was in place before the Organic Law No. 08/2005 of 14/07/2005 relating to
land regimes in Rwanda was characterized by enormous problems in which for example, the
existence of a pluralistic legal system; lack of an adequate land legislation; lack of an appropriate
institutional framework; the land regime that was discriminatory to women; etc.12
Apart from the above mentioned issues that characterized the Rwandan land legislation, there is
also the matter of evidences (proofs) in proprietary land rights that has characterized the
Rwandan land regime in course of its history. For instance, those who acquired lands through
customary means could claim their ownership rights by showing evidences like last will made by
their parents, or by testimonies of witnesses. And for those who acquired lands through written
laws, they could claim their ownership rights either by sale contracts, by the communal land
certificate as well as the certificate of land allocation under the 2005 and 2013 laws governing
the use and management of land in Rwanda. All those led to controversies in decisions that were
rendered by Rwandan courts when land related cases were brought before them specifically in
matters of evidences.
11
The situation of letting those refugees occupy those lands resulted in the 1996 regulations on the temporary
management of abandoned land in Rwanda. It was regulated by the ministerial order no 01/1996 regarding the
temporary management of land property (Instruction ministérielle no. 01/1996 du 23 septembre 1996 portant
mesures de gestion provisoire des propriétés foncières, du 23 Septembre, 1996, available at:
http://www.refworld.org/docid/3ae6b50017.html.). 12
See supra note 2, p. 124.
4
0. II PROBLEM STATEMENT
From different periods of time, a number of statutes and orders were passed to regulate land
related matters. They include: The 1885 Ordonance / Order relating to the occupation of land in
Rwanda, The decree of 24/01/1943 related to gratuitous cessions and concessions to scientific
and religious associations and to public entities in Rwanda, The communal law/District law of
23/11/1963, The law of 30/03/1982 relating to soil conservation in Rwanda, Arusha Peace
Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic
Front, Rwandan constitution of 04/June 2003, The Organic Law No. 08/2005 of 14/07/2005
relating to land regimes in Rwanda, Ministerial Order N°002/2008 of 01/4/2008 determining
modalities of land registration, as well as the law no 43/2013 of 16/06/2013 governing land in
Rwanda.
Though all of those laws were put in place, the Rwandan land regime still manifests some
controversies in relation with evidences over land where you can find more than one people
claiming ownership over the same land. There are some alternatives that those legal instruments
provide.
Starting with the Constitution as the supreme law of the Republic of Rwanda, it states that Every
person has a right to private property, whether personal or owned in association with others.
Private property, whether individually or collectively owned, is inviolable. The right to property
may not be interfered with except in public interest, in circumstances and procedures determined
by law and subject to fair and prior compensation.13
Under article 35, it provides that, Private
ownership of land and other rights related to land are granted by the State. The law specifies the
modalities of acquisition, transfer and use of land.
The law governing land in Rwanda provides for the way of proving the ownership of the land. It
states that Certifying that the land has been allocated or leased shall be evidenced by a certificate
13
The Rwandan Constitution of 4th
June, 2003 revised in 2015, Article 34.
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of land registration issued by the registrar of land titles. In case of loss or damage of the
certificate of land registration, the registrar of land titles issued a replacing one.14
With regards to the private ownership of land and the emphyteutic lease, it is legally stated that
they can only be legally established by a Certificate of Registration of the title recognised or
granted by the State. The private ownership of immovable by incorporation and other real rights
such as emphyteusis owned separately from the land are only legally established by a Certificate
of Registration of the authentic deed that serves as its base.15
Furthermore, the law on evidence and its production provides that An authentic deed is one,
which has been drawn or received in accordance with all the required formalities, by a public
officer authorised to officiate in the place where the deed was drawn.16
Article 13, paragraphs 1-
2 of the very law states that The authentic deed is trustworthy and binding for all the parties as
regard its contents are witnessed by a civil servant or where the latter worked them out within his
or her mission. The contents of such a deed shall not be challenged except where there is
prosecution for falsification of authentic documents or where either party alleges forgery. An
authentic deed turns into evidence unless its validity is challenged by one of the parties, or an
interested third party, by the use of contrary evidence in writing, evidence corroborated by partial
writing, or any other means provided for by the law.
The law on Civil, Commercial, Labour and Administrative procedure on its part relating to the
execution of judgments, it also states that Provisional execution order shall be issued by the
court on its own motion, even without a security if the evidence of litigation is an authentic
deed.17
From this provision, one can wonder how the court decides so without assessing the
validity of such a deed and the conditions under which it was obtained by the party who
presented it to the court.
14
The Law no 43/2013 of 16/06/2013 governing land in Rwanda, O.G of 16/06/2013, Article 18. 15
The Ministerial Order N°002/2008 of 01/4/2008 determining modalities of land registration, O.G of 01/08/2008
Article 4. 16
The law n° 15/2004 relating to evidence and its production, O.G special No of 19/07/2004, Article 11. 17
The Law relating to Civil, Commercial, Labour and Administrative procedure (CCLAP), Article 212.
6
Apart from the above highlighted legislations, the Rwandan authorities (Executive, Judicial)
have faced a number of problems of allocating lands of people that belonged to others. Though
evidences existed, persons claimed their private ownership rights over lands that were occupied
by other people. When the real owners all those lands and properties, get back, it becomes too
difficult to know, who is to be considered as the owner of the occupied land, what can be taken
as real evidence (proof) while settling such disputes, what are conditions to be followed, which
legislations can be applied to such cases, Etc.
Some returnees claimed their ownership rights on the basis that the occupied land was their own
“Intizo”, others; having the orphans‟ status claimed their ownership rights on the basis that the
occupied land belonged to their parents.18
From that, One can imagine a situation where 67 families in Rubavu District that were given
land of 80 hectares in 1995 for use, habitation and production of their daily needs were required
by the owner of that land to quit his land after court proceedings.19
This is a considerable issue
that should be settled to avoid the controversies of evidences in land related matters and as to
protect the private ownership of the owner of the land. In cases to be dealt with in this research,
18
These are the questions that were met and developed by different courts. Their rulings are quietly similar with
regard to the evidences that they took as the basis of their judgments. Those evidences include Testimonies of
different witnesses, some authentic deeds provided by litigants during the trial... And this led to the proof of truth of
the real owner of the land. See the judgments: Supreme Court of the Republic of Rwanda, case law no
RCAA
0018/13/CS HARERIMANA Vs. SEBUKAYIRE, case decided by the Supreme Court on 24th
/12/2014, Intermediate
court of RUSIZI; Case no RCA 0076/10/TGI/RSZ: KANYABASHI Jean Vs NYIRANZAYINO Marie, Case
decided by the Intermediate court of RUSIZI, on 28/06/2011, Intermediate court of Muhanga, Case no RCA
0263/011/TGI/MHG, NZAMUKOSHA Vs NSIGAYEHE, Case decided by the intermediate court of Muhanga, on
26/09/2011, Intermediate Court of Rubavu, Case no RCA 0300/14/TGI/RBV MUKAMAZIMPAKA Agnès Vs
NYIRANDUSHYI, YAKUZE and NTARIBANANIRA, case decided by the Intermediate Court of Rubavu, on 14th
042015, Intermediate Court of Nyamagabe, Case no
RCA013/14/TGI/NYBE, MAPYISI Ladislas Vs KARAMBIZI
Vincent and MUKARUZAMBA Epiphanie, Case decided on 05/06/2014, Primary court of Kibeho, case no RC
0336/O11/TB/KBH, KARANGWA Rosalie Vs HAVUGIMANA Phillipe, Case decided on 30/10/2014, Primary
court of Ruhango, Case no RC 0642/013/TB/RHGO, Case decided on 22/01/2015, Intermediate court of Muhanga,
case no RCA 0025/15/TGI /MHG, Kanobana Viateur and Umulinga Marceline Vs Mukansoro Esther, case decided
on 29/12/2015, Intermediate court of Muhanga, Case no RCA 0073/13/TGI/MHG, MUKAMUSONI Assia Vs
MUSONERA Venuste, HAGABIYAREMYE Innocent, et. al., case decided on 15/10/2015.
19
P. Maisha, “Rubavu: They were shelted by the state in 1995 but now they are getting denounced of their rights
over the allocated land (Batujwe na Leta mu 1995 none ubu bagiye kwamburwa aho bari bahawe)”, Available at
file:///C:/Users/User/Documents/LAND%20LITIGATION/Rubavu%20%20Batujwe%20na%20Leta%20mu%20199
5%20none%20ubu%20bagiye%20kwamburwa%20aho%20bari%20bahawe%20%E2%80%93%20UMUSEKE.htm,
Lastly accessed on 05th
February, 2106. (Author‟s translation).
7
courts have decided according to evidences that were produced by parties. It is from this those
evidences that the key loop hole to be analysed is built.
In point of fact, Laws provide that, the certificate of ownership issued by a competent authority
is a full evidence of ownership over the land. Such deed is trustworthy and binding for all the
parties as regard its contents are witnessed by a civil servant or where the latter worked them out
within his or her mission. The law also recognises the contents of such a deed to be non
challengeable except where there is prosecution for falsification of authentic documents or where
either party alleges forgery. However, in all cases dealt with, land certificates have been
challenged and declared null and void by courts. Courts did not only consider the land
certificates as the only proof of proprietary rights, rather they went far; search for more
evidences to find out the real owners of lands in questions.
Therefore, the research intends to propose the harmonisation between court decisions referring to
the Supreme Court case law that has highlighted different meaningful and important elements
that must be taken into account while deciding land related matters in terms of evidences to such
land.
0. III RESEARCH QUESTIONS
This part will be about the problematic to which the study will be focusing. That is how the
Rwandan legal system applies Evidence in proprietary land rights. This will be supplemented by
the following research questions:
In case more than evidence is produced over the land as the proof of ownership, which
one is to be relevant, and which one will be rejected?
Under which conditions, can a land title be nullified?
What were evidences in land proprietary rights in course of Rwandan history?
What are the strategies taken into account to overcome the problems of Rwandan
returnees for their properties (land) that were occupied by others?
8
What were the approaches/ attitudes of courts vis à vis the appreciation of evidence in
proprietary land rights?
0. IV. RESEARCH OBJECTIVES
Through the analysis of different case laws, the study will be intending to put aware the ways
through which persons who are/ were deprived of their proprietary land rights can regain them.
In addition, the study intends to recall people that though they possess land titles, their rights
over land can be limited in case it is proved that such titles were got in illegality. So, this study
will be intending to analyse, look for the basis and find out how the judicial organ has tried to
overcome the above mentioned problems that are attached to land (including those of “Intizo”,
lands acquired through customary ways, lands acquired through land sharing whereas they
belonged to others, those of orphans and other Rwandan returnees that were back to their natal
state after the 1959 atrocities, and the massacres of 1994). Thus, those are specific issues
relating to evidences in land proprietary in Rwanda.
0. V RESEARCH METHODOLOGY
For the interest and purpose of this research, casuistic method will be first used; by analysing
cases on evidence in land related matters. Qualitative research methodology will be used. There
will be collection of information by review of available literature either libraries or the internet.
Various legal texts on land including International treaties which recognize the right to property
will be referred to. Various books both published and unpublished will be consulted as well.
0.VI SIGNIFICANCE OF THE RESEARCH
The research is conducted with the main aim of looking for proprietary land rights, through the
analysis of case laws decided by Rwandan courts. In doing so, the analysis of those cases
specifically goes with the historical evolution of proprietary land rights in Rwanda, what were
the proofs of ownership land rights, and how different laws and orders provided for such rights
along the history. To turn to the intended objectives, by analysis, the research bases to the 2014
9
milestone decision of the Supreme Court. Such case law has provided a number of issues to be
taken into account while proving one‟s ownership land rights. They include: the consideration of
origin of such right in question and the way that one has acquired the proof of such right in
question. Hence, throughout this research, significant decided cases are analysed and see how the
proprietary land rights were protected and provided for by courts in their rulings.
0.VII ORGANISATION OF THE RESEARCH
The research is subdivided into four chapters. It is organised as follow:
The first chapter of the research goes with the general presentation of the research. It is made of
a general introduction, the problem statement, legal questions to be solved through the research,
objectives and significance of the research, research methodology as well as the research
hypothesis.
The second chapter comprises of the common understanding of the key concept of
ownership rights. It also discusses the historical evolution and protection of ownership
land rights in Rwanda, prerogatives attached to ownership rights as well as limitations
upon such rights.
The third chapter, which is the heart of the research, encompasses the legal analysis of
different cases, as decided by different courts. All cases turn around the proprietary land
rights, as provided for by land laws and as decided by courts. Into three sections, it is
highlighted how courts have made decisions regarding also the way laws provided for the
ownership rights over land.
In fine, the research comes up with concluding remarks. General conclusions with further
recommendations from the analsyed case laws are provided. This is developed in the
forth chapter.
10
CHAP.I HISTORICAL PROTECTION OF OWNERSHIP LAND RIGHTS IN RWANDA:
LEGAL FRAMEWORK
As the preliminary part of project, this chapter, under section I, is about the general
understanding of the notion of ownership rights over land, its historical evolution, and the notion
of private as opposed to public ownership of land as well as their limitations (restrictions),
evidences that are attached to private and public owned lands all in the Rwandan context. Under
section II, it deals with Evidence in land litigations. Through this division, the main focus is put
on the law relating to evidence and its production, the law relating to Civil, Commercial, Labour
and Administrative Procedure (CCLAP), the Arusha Peace Agreement between the Government
of the Republic of Rwanda and the Rwandese Patriotic Front as well as the 2013 law governing
the use and management of land in Rwanda.
Section I: General understanding of Ownership rights
I.1 Notion of ownership rights
In the first place, Proprietary rights refer to ownership or characteristics relating to ownership.
They describe all the rights that the owner of property can exercise.20
A proprietor or owner is
one who has the exclusive title to a thing; one who possesses or holds the title to a thing in his or
her own right; one who possesses the control or ownership of a thing in his or her own right.21
It
is the one who is master of his actions, and who has the free disposition of his property.
According to the Black‟s Law Dictionary, Ownership is the collection of rights allowing one to
use and enjoy property, including the right to convey it to others. It further continues to point out
that ownership implies the right to possess a thing regardless of any actual or constructive
20
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc, “Proprietary”, available
at<
file:///C:/Users/User/Documents/LAND%20LITIGATION/Proprietary%20legal%20definition%20of%20proprietary
.htm>, Accessed on 8th
February, 2016. 21
J. Bouvier, “Proprietary”, Available at
<ahref="http://legaldictionary.thefreedictionary.com/proprietary">proprietary</a>, lastly accessed on 8th
February,
2016.
11
control.22
In addition to this definition, it is noted that ownership rights are general, permanent
and inheritable.23
Secondly, the term Ownership can be defined in a duplex sense; that of Roman law and English
Law respectively.24
In the Roman law the idea of ownership is as the right to enjoy and dispose
of something in an absolute manner and equates it to dominium.25
It analyses ownership (and
possession) as an absolute legal relationship between a person and a thing. Interference with
ownership gives the owner a remedy in damages known as vindication or simply damages in
trespass26
.
To the contrary, English law does not treat ownership as an absolute concept but as a form of
possession or seisin (possession of land by freehold). Consequently, under English land law, the
right to remain in control of land depends on a better possession or seisin, rather than on any
notion of infringe. It does not base its remedies for infringe on the abstract notion of ownership,
rather, possession forms basis of such remedies. The question of whether a remedy is
forthcoming depends on the better entitlement to retain or obtain possession rather than
ownership per se.27
As for the Rwandan context, the ownership rights are also recognised. Ownership rights are
defined as the rights of disposing of things in the absolute and exclusive manner, subject to any
restriction of the law and the real rights belonging to other persons.28
Such restrictions of the
right of ownership resulting from the relationship between neighbors are established in the title
22
Black‟s Law Dictionary, 3rd
Edition, (1999), United States of America, p. 1131.
23 Idem.
24 T. O. Ojienda, Conveyancing Principles and Practices, Law Africa, Nairobi,: Kenya, p.7.
25 This refers to ones complete powers to use, to enjoy and to dispose/ alienate the property at will. In other words, when one owns
land, the law allows the owner to use, get fruit from it abuse and get the benefits arising out of that land which may
otherwise be referred to as “deprivation”.
26 According to the Law Dictionary (2
nd Edition), Vindicatio is the act of claiming a thing as one's own; the asserting
of a right or title in or to a thing. Law Dictionary: What is Vindicatio? definition of Vindicatio (Black's Law
Dictionary). 27
B. A. Nyakeri, Land Law: The Concept of Ownership and Acquisition Rights Land in Kenya, Bachelor of Laws,
(LL.B), Africa Nazarene University, 2012, p. 2. 28
Decree of 20 July1920 establishing the Civil Code Book II relating to property (hereinafter CCBII), article 14.
12
concerning charges on Land”.29
The following point discusses about the characteristics and
prerogatives of ownership rights.
I.2 Characteristics and prerogatives of ownership rights
The ownership over a given property creates rights and obligations to its owner. With regards to
the characteristics of ownership rights, they are: personal/ individual, perpetual and exclusive as
well.30
Starting with the individualistic character of ownership, it is that only the owner has the right
over the property. However, there are some cases of collective ownership like in successions or
in co-ownerships.31
With regard to the perpetual character, the owner of a property has/ exercises the rights over it as
it lasts (as long as the property upon which the right is exercised still exists.)
And as for the exclusive character, only the owner exercises his/her right over the property
(thing) save for usufruct and servitudes.
Regarding the prerogatives attached to ownership rights, Article 1 of the Civil Code Book II
makes an introduction of the concept of ownership and the related rights like the superficiary,
emphyteusis, and servitudes.32
Ownership right can be as the most complete real right one can
talk about because it is the only one which gives to its owner all the three prerogatives: Usus,
Fructus and Abusus.33
It is clear that, the rights to property may be defined as comprising the
freedom to dispose either partially or in full, taking into account restrictions and the rights of
others.34
With those prerogatives, one can exercise in full and complete way the proprietary rights
over a given property, as explained below:
29
D. M.Kayihura, F. Kigenza, Property and Land Law, Op.cit., p. 39. 30
D. M.Kayihura, F. Kigenza, Property and Land Law, Op.Cit, pp. 41-45. 31
L. Sebucensha, Property and Land Law, Student Manual, University of Rwanda, Butare, 2013, p. 33. 32
The preliminary title instituting the Civil Code Book II (hereinafter CCBII), Article 1. 33
L. Sebucensha, Property and Land Law, Student Manual, University of Rwanda, Butare, 2013, p. 36. 34
W. A. Schabas and M. Imbleau, Introduction to Rwandan Law, Les Editions Yvons Blais Inc., Cowansville
(Quebec), 1997, P. 96.
13
I.2.1 Rights to Use (Usus)
The right to use a property is that right that allows its owner to be served by the same property. 35
For instance; a house, by occupying it or a plot of land by cultivating it, building on it, or any
kind of use of such property; it also includes the right of not using it; the right not to occupy the
house, the right not to consume the goods, the right not to drive your car, etc.
However, some limitations on the right to use are imposed.36
Those include:
Limitations established to meet the interests of good neighborliness like the legal
servitudes, limitations concerning the sight of your neighbors, the paths, the plantations,
etc
Limitations for the general interests like in urbanization, protection of Memorial or
historic sites; Hygiene and sanitation rules; Agricultural policy taken by the ministry
concerned regarding to how a given type of land will be used; Expropriation due to the
public utility of your property.
Such limitations apply or affect on all the prerogatives of the ownership right.
I.2.2 Rights to enjoy the fruits from a property (Fructus)
Right of harvesting all the fruits that are given by that property (fruits produced from that
property): fruits that are harvested or acquired at times without changing the state or substance of
the thing (property), and products which on the other hand do not transform or change but
instead are destroyed and completely changes the substance and the state of the property.37
Thus,
the owner of a given property has the rights of enjoying the fruit, production that is harvested
from it.
35
I. Segal and M. D. Whinston, Property Rights, August, 2010 Available at
http://web.stanford.edu/~isegal/prights.pdf>, accessed on 20th
February, 2016. 36
X., Limitations of ownership rights, available at http://en.wikipedia.org/wiki/property_law, accessed on 20th
February, 2016. 37
Ibid. p. 38.
14
I.2.3 Rights to alienate/ dispose of the property (Abusus)
This right of disposing the property can be either physical or legal. It is physical when the owner
decides to destroy or demolish it to use the part on which it was for other purposes. And it is
Legal when he/ she decides for partial or full alienation of the right on his/her property.38
With
this prerogative, the owner of a property is entitled the transfer, alienation of his/ her property.
I.3 The ownership rights of land in Rwanda
The right to property is certainly dear to the heart of most citizens. It is enshrined in the
Constitution, the Universal Declaration of Human Rights (article 17)39
, the African Charter on
Human and Peoples „Rights (Article 14)40
. Under this part, a brief historical background on
evolution of land ownership rights under Rwandan law is made.
I.3.1 Land Ownership System in Pre-Colonial period
Starting with the pre- colonial period, ownership of land vested in the Mwami (King) in the local
chief as well as in the heads of the family. People viewed themselves as having the rights to use
land, but there was no exclusive right to own it.41
In this period, the head of the family who had
cleared the forest and the first occupant for that matter managed Ubukonde42
or isambu of the
family.
The pre-colonial land system was characterised by collective ownership of land, and was based
on the complementary links between agriculture and livestock.43
Land rights were respected and
transmitted from generation to generation according to Rwandan tradition and custom.44
The
38
Ibid. p. 39.
39 Everyone has the right to own property alone as well as in association with others. No one shall be arbitrarily
deprived of his property.
40 The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the
general interest of the community and in accordance with the provisions of appropriate laws. 41
See supra note 11, W. A. Schabas and M. Imbleau, Introduction to Rwandan Law p. 95. 42
Ubukonde is a right that a chief of the family possessed on the forested land which had no owner. He deforested
once he acquired through custom with the owner. He could make his family the successor of such a land. 43
Republic of Rwanda: Ministry of Lands, Environment, Forests, Watera and Mines, National Land Policy, Kigali,
2004, p.10. 44
See supra note1, E. Rurangwa, Perspective of Land Reform in Rwanda, p. 3.
15
collective form of ownership that was in place, coincided with the other system of written law
which came into force during the colonial period.45
I.3.2 Land Ownership System during the Colonial period
Like most of African States, Rwanda was also colonized in the late 19th
up to 20th
century. It was
under the colonial rule of Germany and Belgium.46
During this period, specifically on the period of Belgium colonial rule, a number of legislations
were put in place to regulate land related matters.47
Those statutes provided that “all occupied
lands that were not legally recognized at the time were declared unregistered land vacant”.48
Land ownership during this period was meant having it registered though the customary land
acquisitions were also maintained and the owner of the land could not be dispossessed of the
land unless he no longer exercised the rights. Throughout this era, there was a legal dualism of
land ownership- where lands occupied by colonialists were solely regulated by written laws and
Rwandan natives remained regulated by customary laws.49
Hence, during this period, the
proprietary land rights were proved by certificates of registration to lands occupied by
colonialists whereas those of inhabitants remained under customary law.
I.3.3 Land Ownership System during Post colonial period
After the independence, around 90% of the land was under customary law, written laws
continued to regulate few people and religious institutions. At the time, communes were given
the competence to land management. The law of 23rd
/11/1963 establishing communes provided
45
Idem 46
C. Toulmin, J.F Quan, Evolving Land Rights, Policy and Land Tenure in Africa, FID/IIED/NR, London, 2000,
p.10. 47
D. Ruzirampuhwe, Land ownership Rights under Rwandan Law: A Critical Analysis of the Organic Law no
08/2005 of 14/07/2005 determining the Use and Management of land in Rwanda, Dissertation, NUR, Butare, 2007,
P. 27. 48
Idem. 49
Missionaries‟ (Catholics and Protestants) lands, towns, and other commercial centres were the ones that written
laws were applied for. As stated under the (Décret du 24/01/1943 relatif au cession des concessions gratuites aux
établissements d’utilité publiques).
16
that “granting ownership rights on customary land is for the communes”50
. From this period,
communes started issuing land certificates that were referred to as proofs of ownership of the
land. This law was abrogated by the presidential order no 09/76 determining selling and buying
of customary lands.
Along this period, the country has experienced internal migrations of people. Those from
overpopulated areas of the country like Ruhengeri, Gisenyi, Gikongoro and Kibuye moved to
less populated areas like Umutara, Kibungo and areas of Bugesera.51
There was also conflict
upheavals which lead to genocide in 1994 where a lot of people fled and others were internally
displaced.52
To overcome this, the Arusha accord recommended those who had been away for
ten years not to claim their former land parcels.53
And for those who had been internally
displaced or who had fled to the neighboring countries, who at their back found their land
occupied, they had to share amicably or with the intervention of administrative authorities.54
These lands were shared regardless of possessing a certificate of ownership or not proving the
rights that the owner has to exercise over it.
Due to the existence of a pluralistic legal system; lack of adequate land legislation; lack of an
appropriate institutional framework; the land regime that was discriminatory to women, and
other land relate issues that would be addressed, the government has decided to put in place the
Organic Law No. 08/2005 of 14/07/2005determining the use and management of land in
Rwanda. This law was also replaced by the Law no 43/2013 of 16/06/2013 governing Land in
Rwanda.
At the moment, proprietary land rights are evidenced (proved) by a Certificate of Full Title
which can be obtained for private land of individuals, state land, the City of Kigali, district land,
50
See supra note 22, p. 28 51
Ministry of Lands, Environment, Forests, Water and Mines (Hereinafter MINITERE), Land Policy, August 2006,
p. 6. 52
Idem 53
The Peace Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front,
Arusha, Article 4, para. 2. This was applied to those who fled the country from 1959, 1962 and 1973 due to
successive ethnic tensions and/ or war. 54
C. Gasarasi, H. Musahara, Land Question in Kibungo, Butare, Editions de l‟Université Nationale du Rwanda,
2004, p. 2.
17
and land held by parastatals. Land under a Certificate of Full Title can be subject to an
emphyteutic lease and a notation of the leasehold is made on the certificate.55
Individuals, entities, and the State can own land in Rwanda. Landowners have the right to
exclusive use of their land, and land can be mortgaged and freely transferred. Though Ownership
rights can be obtained under customary law or formal law, they must be registered to be
recognized under the Organic Land Law.56
Without registration therefore, the owner of the land
is deemed to lose the rights attached on it if it is proved that there is any other authentic act that
certifies the ownership of such land.
I.4 The notion of private ownership over the land
In fact, the idea of private ownership implies that owners are free to do with their things
whatever is shown to be mistaken. 57
A private property system gives individuals the exclusive
right to use their resources the way they feel comfortable with notwithstanding some legally
accepted exceptions which come in as limitations to this freedom of one‟s exclusive use,
enjoyment and disposal of his/ her property.
I.4.1 Legal framework of private ownership over the land
Here, there will be an assessment of how the law provides for the private ownership of the land,
and its mode of evidence.
Private land in the law is an abstract human construct; a bundle of legal rights and
responsibilities typically defined without regard for the land‟s natural features.58
The Rwandan
law recognizes the concept of individual land and its mode of acquisition. Under article 10, it
states that “Private individual land shall comprise land acquired through custom or written law.
55
The Ministerial Order N°002/2008 of 01/4/2008 determining Modalities of Land Registration, O.G of
01/08/2008, Article 15 56
United States Agency of International Development (USAID), Property Rights and Resource Governance,
Rwanda, 2008, p.6 57
M. Haller, Private, Public and Common Ownership, West Deutchescher Velag, Opladen, 1998, p.1 58
E. Michelle Grant, Private Property in America: Land Use and the Ethics of Owning Land, University of North
Texas, December 2005, p. 55.
18
That land has been granted definitely by competent authorities or acquired by purchase,
donation, inheritance, succession, ascending sharing, and exchange or through sharing.”59
In fact, the mode of authentication of private individual lands is also provided. The law provides
that Certifying that the land has been allocated or leased shall be evidenced by a certificate of
land registration issued by the registrar of land titles. In case of loss or damage of the certificate
of land registration, the registrar of land titles issued a replacing one.60
This certificate serves
authentic act proving the ownership rights. But and in many cases, it has been contested due to
the mode of its acquisition as will be shown in the second chapter of this research. Hereunder is
developed some limitations of private ownership as provided for by different instruments.
I.4.2 Limitation of private ownership
Ownership right is not absolute.61
The African charter also shows an extent to which the right to
property may be limited. It provides that “if the cause is for public need or in the general
interests of the community, an individual right to property may be interfered with but subject to
the provisions of appropriate laws.”62
This part is in relation with the restrictions that are imposed upon the owner of a property. Those
limitations include prescription, those which are there for the general interests like in
urbanization(Construction license, Land occupation plans, etc), protection of Memorial or
historic sites, Hygiene and sanitation rules (e.g. stopping people from rearing animals in towns
and cities, not putting dustbin to a places near the house or where it embarrasses the neighbor,
etc.); Agricultural policy taken by the ministry concerned regarding to how a given type of land
must be used; Expropriation due to the public utility of the property (e.g. Land for the
construction of a road or a public school or market). 63
Such limitations apply or affect on all the
prerogatives of the ownership right.
59
The Law no 43/2013 of 16/06/2013 governing land in Rwanda, OG of 16/06/2013, Article 10, para 1-2 60
The Law no 43/2013 of 16/06/2013 governing land in Rwanda, OG of 16/06/2013, Article 18, para 1-2 61
S. Agaba, Expropriation of Immovables in Rwanda, Dissertation, Butare, 1999, p.12 (Unpublished). 62
The African Charter on Human and Peoples‟ Rights (hereinafter ACHPR), duly ratified by Rwanda on 17th
May,
1983, Article 14. 63
L. Sebucensha, Property and Land Law, op.cit. p.19.
19
I.4.2.1 Prescription (article 45 of 2013 land law)
Through the process of prescription, a person can lose (extinctive prescription) or acquire
(acquisitive prescription) ownership rights over the land or any other property in limit of time.
The term prescription refers to a procedure of definitive possession of rights over property or
losing rights over property due to expiration of a certain period of time provided for by law.64
Prescription is a means through which, one acquires or free from ownership of a given property,
by a given lapse of time and pursuant to the conditions determined by the law.65
In addition, under the law governing land in Rwanda, the Prescription period over land is and the
prescription is ascertained by a decision of a competent court.66
However, in case of Fraudulent
occupation of the land, A person who occupies vacant and escheat land or other people's land,
cannot invoke the right to prescription to claim definite right on it, even if he/ she has occupied it
for a period longer than the prescription period.67
The issue of prescription has been raised in the case of KANYABASHI Jean Vs
NYIRANZAYINO Marie before the Intermediate court of Rusizi. In 2011, the former was
claiming ownership rights to the land that was occupied by the later in 1956. He argued that
those rights were acquired through ascending partitions from his father RUBANZA Raphael. In
deciding, the court takes its basis on article 70 of the law 2005 governing use and management of
land in Rwanda stating that “In matters related to land, the right to pursue land lordship shall be
prescribed for thirty (30) years.”68
64
The Law no 43/2013 of 16/06/2013 governing land in Rwanda, OG of 16/06/2013, Article 2,21o.
65 The preliminary title instituting book III of the civil code relating to law of obligations (hereinafter CCBIII),
Article 613. 66
The Law no 43/2013 of 16/06/2013 governing land in Rwanda, OG of 16/06/2013, Article 46. 67
The Law no 43/2013 of 16/06/2013 governing land in Rwanda, OG of 16/06/2013, Article 47. 68
Intermediate court of RUSIZI, Case no RCA 0076/10/TGI/RSZ: KANYABASHI Jean Vs NYIRANZAYINO
Marie, Case rendered by the Intermediate court of RUSIZI, on 28/06/2011.
20
I.4.2.2 Expropriation for public interest
In adding up, ownership rights can also be restricted by the act of expropriation for public
interest. In Rwanda, the policy expropriation roots from different decrees such as the decree of
5th
February, 1932 and 30 July 1953 stipulates expropriation for the public interest69
. These
decrees were modified by the decree of 24 July 1956 relating to expropriation for the public
interest where Congo-Belge and Rwanda –Urundi used this decree70
and this shows that
expropriation took place along the Rwandan land legal evolution. Today, expropriation for
public interest is regulated by the law N° 32/2015 of 11/06/2015 relating to expropriation for
public interest which has replaced the law no 18/2007 of 19/4/2007 relating to expropriation in
the public interest.
Once more, it is the dispossession of real estate for public interest, subject to legal formalities
and in return for prior and fair compensation.71
It is a sort of confiscation of land which is
followed by compensation. 72
Expropriation is also the act of the government to take the private
owned property to be used for the benefit of the public interest73
.
In simple approach, expropriation can be defined as an administrative procedure by which the
administration obliges an individual to cede his/ her property particularly immovables, to the
state for general interests, upon payment of a just compensation in advance to that particular
individual.74
Thus, The act of expropriation for public interest restricts the ownership rights over land in a
way that, only the State has the supreme power of management of all land situated on the
national territory, which it exercises in the general interest of all with a view to ensuring rational
69
Decree of 1932 and 1953 published in B.O. (Bulletin official), 1956 no 16 of 15/ August/1956, pp. 1418-1428.
70 Decree of 24 July 1956, relating to expropriation for the public interest, in F. Reyntjens and J. Gorus, C.L.R.,
Vol.II, Bruylant, Bruxelles, 1980, p.1136 where in article 31 of the decree provides: ‟Le present décret est applicable
au Congo-Belge et au Rwanda-Urundi. 71
The Law N°10/2012 of 02/05/2012 governing Urban Planning and Building in Rwanda, O.G nº Special of 30 May
2012, Article 2, 22o.
72 A. Kayitavu Mpumuro, La Problematique de la Legislation Relative à l’Expropriation pour Cause d’utilité
Publique en Droit Rwandais, Dissertation, NUR, Butare, 2005, P. 5. 73
X., “Expropriation”, available at <http://www.investopedia.com/terms/e/expropriation.asp>, accessed on 20th
February, 2016. 74
P.R. Kouri, Private Law Dictionary, 2nd
Edition, Editions Yvons Blais, Cowansville (Quebec ), 1991.
21
economic and social development; the State is the sole authority to accord rights of occupation
and its use. It also has the right to order expropriation in the public interest.75
Some acts of public
interest include roads and railway lines, water canals and reservoirs, water sewage and treatment
plants, water dams, rainwater canals built alongside the roads, waste treatment sites, electric
lines, gas, oil, pipelines and tanks, etc.76
From this provision, the owner of the land is limited in
exercising his/her rights over it as the state can expropriate him/her whenever found necessary.
I.4.2.3 Environmental regulations
Rwanda is party to several international conventions and agreements relating to environmental
protection and sustainable natural resources management, including: The United Nations
Convention on Combating Desertification (UNCCD), the International Convention on Biological
Diversity (CBD) the UN-Framework Convention on Climate Change, The Stockholm
Convention on Persistent Organic, and others.
Apart from those conventions, the law governing the use and management of land and the law
determining the modalities of protection, conservation and promotion of environment in Rwanda
have set some limitations that the owner of the land has to abide by. Those limitations are in
relation with the use of ownership rights that should not infringe the environmental regulations.
For instance, under article 39 of the law governing land provides for the obligations of exploiting
the land in a productive manner. It states that “Any person owning land shall exploit it in a
productive way and in accordance with its nature and intended use. Any person who uses
another person‟s land, either basing on agreement he/she entered into with the owner of the land
or whether he/she was assigned to it through legal procedures is required to properly maintain it
and use it in a productive manner.”77
75
The Law no 43/2013 of 16/06/2013 governing land in Rwanda, OG of 16/06/2013, article 3. This is also
underpinned by the article 34, paragraph 3 of the constitution of the republic of Rwanda where it provides that “The
right to property may not be interfered with except in public interest, in circumstances and procedures determined
by law and subject to fair and prior compensation.” With this provision, it is clear that when it deems necessary that
there is a public interest act, the owner of the property can be expropriated from it. 76
The law n° 32/2015 of 11/06/2015 relating to expropriation for public interest, O.G No 35 of 31/08/2015, Article
5, 10-7
0.
77 The Law no 43/2013 of 16/06/2013 governing land in Rwanda, O.G of 16/06/2013 Article 39.
22
In addition, the law determining the modalities of protection, conservation and promotion of
environment also provides some restrictions that should be respected. Under article 28, it
provides that” National land organisational surveys, urban planning or plans to set up grouped
housing, master plans and other documents related to national land organisational plans, must
take into account environmental conservation in selecting their sitting as well as the location of
economic, industrial, residential areas and leisure activities”.78
Form this provisions, the use of
land in a productive way is to protect it from erosion, safeguard its fertility and ensuring its
production in a sustainable way”.79
This law also provides some prohibited acts that owners of lands have to take into account.
Amongst them, they include acts of burning mountains, swamps, grazing land, bushes with an
aim of agriculture or organising grazing land.80
Therefore, if the owner is not able to use and
exploit the land in a prescribed manner, he/ she may be deprived of his/her rights over it. Again,
it is clear that, any activity in relation to the use and exploitation of natural resources especially
the land should be consistent with laws and regulations on the protection and conservation of
environment.
The next step highlights the concept of public ownership, its legal framework as well as its
limitations.
I.5 The notion of public ownership over the land and its Legal framework in Rwanda
The notion of public ownership of land goes with the prerogatives that states exercise over their
properties. Under the perception of public ownership, there is for instance; government
ownership of lands, streets, public buildings utilities, marshlands, lakes, and other business
enterprises. Under Rwandan context, property possessed by the State and its decentralized
entities is divided into two categories: those belonging to the private domain (res fisci) and those
78
The Organic Law n° 04/200508/04/2005 determining modalities of protection, conservation and promotion of
environment in Rwanda, (O.G. nº 09 of 01/05/2005), Article 28. 79
Republic of Rwanda; Ministry of Lands, Environment, Forestry, Water and Mining, Building Capacity for
Sustainable Land Use and Management in Rwanda, UNDP/GEF-MSP Project on Land Degradation in Rwanda,
2007, p.11. 80
The Organic Law n° 04/200508/04/2005determining modalities of protection, conservation and promotion of
environment, O.G. nº 09 of 01/05/2005, Article 38.
23
which belong to the public domain (res publica).81
The law governing land in Rwanda provides
for categories of lands that belong to the state: Public land which consists of land in public and
private domain of State, land belonging to public institutions and land that belongs to local
authorities whether being in their public domain or in their private domain.82
It should be noted that the transfer of land from the public domain of public institutions to their
private domain is also done by an Order of the Minister in charge of land on proposal by the
supervising Authority.83
I.5.1 Authentication of public ownership over land
Public owned land are authenticated/ legally evidenced by a certificate of allocation which is
issued by the registrar of land titles. The law governing land in Rwanda provides that “Certifying
that the land has been allocated or leased shall be evidenced by a certificate of land registration
issued by the registrar of land titles. In case of loss or damage of the certificate of land
registration, the registrar of land titles issued a replacing one.”84
I.5.2 Limitations of public ownership over the land
As far as the limitations of public ownership are concerned, it is clearly stipulated that “things
belonging to the State that are attached to public use or service are not subject to commercial
transactions as long as they are not officially put out of public service or use”.85
In this vein, the
above mentioned types of land cannot be put under commercial transactions, except if they have
been put out of public service or use. In addition to restrictions imposed for public owned lands,
they cannot be alienated as it is done to private owned lands.86
81
The preliminary title of the Civil Code, instituting part II relating to property, (Hereinafter CCBII), Decree of 31
July 1912 as modified to date (B.O.,1912, p. 799), entered into force in Rwanda by O.R.U. nº8 of 8March, 1927
(B.O.R.U., p. 264). Articles 10-11. 82
The Law no 43/2013 of 16/06/2013 governing land in Rwanda, OG of 16/06/2013, Article 11-16 para. 2. 83
The Law no 43/2013 of 16/06/2013 governing land in Rwanda, OG of 16/06/2013, Article 16, para. 2. 84
The Law no 43/2013 of 16/06/2013 governing land in Rwanda, OG of 16/06/2013, Article 18, para 1-2. 85
The preliminary title instituting part II of the Civil Code relating to property (hereinafter CCBII), Decree of 31
July 1912 as modified to date (B.O.,1912, p. 799), entered into force in Rwanda by O.R.U. nº8 of 8March, 1927
(B.O.R.U., p. 264).Article 10. 86
Republic of Rwanda, Rwanda Natural Resources Authority, Rwanda Land Administration System, Procedures
Manual, Kigali, 2012, p. 2.
24
Though all those alternatives of certifying lands through legally provided procedures were put in
place, proprietary land right is still an issue that needs to be addressed. It firstly goes with laws
that were put in place along the Rwandan history, secondly with what those legal instruments
provided as evidences (proofs) of ownership over lands. The following section describes how
laws which regulated land related matters impacted decisions that were rendered by courts.
SECTION II: EVIDENCE IN LAND RELATED LITIGATIONS
As a matter of facts and concern of this research, the following will be highlighted. How
evidences and proofs are provided for by various legal instruments in different land related
litigations.
Like in any other court proceedings, parties to the case are required to turn out evidences of what
they are claiming. Article 3 of the law relating to evidence and its production states that “Each
party has the burden of proving the facts it alleges.”87
Evidence is the demonstration of the truth
of a fact.88
Evidence is the means by which an allegation may be proven such as oral testimony,
documents, or physical objects; it is a set of legal rules determining what testimony, documents,
and objects may be admitted as proofs in trial.89
II.1 Arusha Peace Agreement between the Government of the Republic of Rwanda and the
Rwandese Patriotic Front
From 1990, Rwanda was characterized by the period of war and many people fled from the
country to neighboring states. To overcome different problems of refugees who left their lands,
the government of Rwanda entered into agreement with the Rwandese Patriotic Front. In
agreeing so, they come up with the decision that every returnee is free to settle in any area of
87
The law relating to evidence and its production, O.G special no of 19/07/2004, Article 3, para. 1.
88 The law n° 15/2004 relating to evidence and its production, O.G special n
o of 19/07/2004, Article 2.
89 H. Mifflin, American Heritage Dictionary, 5
th Ed., Harcourt Publishing Company, Houghton Mifflin Publisher,
2011, P. 657.
25
his/her choice in the country, as long as he/she does not infringe on somebody else‟s rights”.90
Article 3 of the same Protocol stated that “In order to resettle the repatriated persons, the
Government of Rwanda should release all unoccupied land so identified by the “Repatriation
Commission".91
However, the two parties recommended that “with a view to promoting social harmony and
national reconciliation, refugees who fled the country over 10 years ago should not reclaim their
properties which have been occupied by other individuals. To compensate them, the Government
will give them land and assist them to resettle".92
Though this was set, the 1994 Genocide perpetrated against Tutsi also caused a great number of
refugees who left aside their properties. To settle land related issues, the ministerial order was
put in place to regulate the temporary management of land.93
This order gave the commune the
full authority to ensure on behalf of the government all the land properties in rural areas of their
jurisdiction that were abandoned by their owners.94
Further, for the well management of those lands, at each commune was established a commission
in charge of settling people temporarily in abandoned lands. The accord regarding such temporal
allocation was proved (evidenced) by an Agreement of temporal allocation of land made in
writing on condition of exploiting the allocated land in a productive way.95
Apart from that, the
law on civil, commercial and Administrative procedure also lay out some further procedures to
be fulfilled as discussed below.
90
Arusha Peace Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front,
Arusha, Article 2. 91
Arusha Peace Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front,
Arusha, Article 3. 92
Arusha Peace Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front,
Arusha, Article 4, paragraph 2. 93
Ministerial order no 01/1996 of 1996 regarding the temporary management of land, (Instruction ministérielle no.
01/1996 du 23 septembre 1996 portant mesures de gestion provisoire des propriétés foncières, du 23 September
1996, available at: http://www.refworld.org/docid/3ae6b50017.html.), accessed on 10th
March, 2016. 94
The Ministerial order no 01/1996 regarding the temporary management of land, (Instruction ministérielle no.
01/1996 du 23 septembre 1996 portant mesures de gestion provisoire des propriétés foncières, du 23 September
1996, available at: http://www.refworld.org/docid/3ae6b50017.html.), accessed on 10th
March, 2016 Article 1. 95
The Ministerial order no 01/1996 regarding the temporary management of land, (Instruction ministérielle no.
01/1996 du 23 septembre 1996 portant mesures de gestion provisoire des propriétés foncières, du 23 September
1996, available at: http://www.refworld.org/docid/3ae6b50017.html.), accessed on 10th
March, 2016Article 13.
26
II.2The law of procedure (Civil, Commercial, Labour and Administrative procedure)
Land litigation like in other fields of law, parties to the disputes must follow a set of procedures
from the introduction of the lawsuit up to its execution.96
In those procedures, parties are
required to produce evidences of what they are claiming before courts.
Article 9 of the law on civil, commercial, labour and Administrative procedure provides that”
Every plaintiff must prove a claim. Failure to obtain proof, the defendant wins the case.
Likewise, a party who alleges that he/she has been discharged from an obligation that has been
established must prove that the obligation no longer exists. Failure to do so, the other party wins
the case.”97
This has been dealt with in many cases where plaintiffs lose their cases due to lack of convincing
evidences. For instance, in the case Nzamukosha Vs Nsigayehe before the Intermediate court of
Muhanga, the former (Nzamukosha) failed the case due to the lack of convincing evidences on
the claim requesting ownership of the plot of land that she disputed with Nsigayehe.98
After the
provisions of this law, the law of evidence also stipulates more on evidences as discussed below.
II.3 The law of Evidence
The law on evidence and its production provides that “An authentic deed is one, which has been
drawn or received in accordance with all the required formalities, by a public officer authorised
to officiate in the place where the deed was drawn”.99
Article 13, paragraphs 1-2 of the very law
states that The authentic deed is trustworthy and binding for all the parties as regard its contents
are witnessed by a civil servant or where the latter worked them out within his or her mission.
The contents of such a deed shall not be challenged except where there is prosecution for
falsification of authentic documents or where either party alleges forgery. An authentic deed
96
L.Gatete, Civil, Commercial, Labour and Administrative procedure, Course notes, University of Rwanda, Butare,
2014, P.1. 97
The law relating to Civil, Commercial, Labour and Administrative procedure, O.G.nº 29 of 16/07/2012
(Hereinafter CCLAP), Article 9. 98
Case no RCA 0263/011/TGI/MHG, NZAMUKOSHA Vs NSIGAYEHE, Case rendered by the intermediate court
of Muhanga, on 26/09/2011. 99
The law relating to evidence and its production, O.G special no of 19/07/2004, Article 11.
27
turns into evidence unless its validity is challenged by one of the parties, or an interested third
party, by the use of contrary evidence in writing, evidence corroborated by partial writing, or any
other means provided for by the law.
As a matter of focus of the research, evidences weigh differently. It is to mean that an authentic
deed values much than a private deed made by parties, as for testimonies that can be provided
witnesses in case it is deemed necessary. However, all those depend on the sole discretion of the
judge who decides the case. The next is what is provided for by the law governing land.
II.4 Land law
As a matter of focus of the research, Land related matters are also object of being proved before
courts. To certify that a given plot of land belongs to a certain person requires a certificate of
land registration.
The law governing land in Rwanda provides that Certifying that the land has been allocated or
leased shall be evidenced by a certificate of land registration issued by the registrar of land titles.
In case of loss or damage of the certificate of land registration, the registrar of land titles issued a
replacing one.100
Apart from the provisions of the law, its implementing ministerial order also
provides that” In case of loss or destruction of a duplicate Certificate, the owner may request a
new one upon production of a decision par the competent court. The new duplicate Certificate
exactly conforms to the former one as shown on the Register of Titles. It is recorded in the
Register of Titles and issued to the owner with reference to the folio of the previous certificate
and the reason for which it is issued, as well as the owner‟s undertaking.101
”
But as it will be elaborated in the next chapter, the land certificate also can be challenged through
different procedure.
In a conclusive way of this chapter, the ownership land rights have evolved according to history
of Rwanda. It is clearly indicated that, through laws, land ownership rights were provided. Those
100
The Law no 43/2013 of 16/06/2013 governing land in Rwanda, OG of 16/06/2013, Article 18. 101
The Ministerial Order N°002/2008 of 01/4/2008determining modalities of land registration, O.G of 01/08/2008, Article 60.
28
rights can be enjoyed as can be limited. They enjoyment and limitations depends on the
provisions of the law, good neighborliness, etc. Unfortunately, the worst periods of the Rwandan
history made some owners escape from their properties to the extent that, some could lose their
rights while expatriated fault of the decisions taken by courts or other restrictions imposed for by
laws like the prescription period. The following chapter is about evidences as having evolved
along the Rwandan history with relevant case laws that are analysed throughout each phase.
CHAP. II: EVIDENCES IN PROPRIETARY LAND RIGHTS: CASE LAW ANALYSIS
This chapter is the main part of the research where evidences in proprietary land rights are
developed. This is made through some identified case laws which dated from the period of 1963
up to the law of 2013 governing land in Rwanda. This chapter also construes the decided case
law of the Supreme Court of 2014, where some new features which may serve as guidelines
while solving land related disputes were given. The following section discusses evidence in
proprietary land rights as provided in the communal law of 23/11/1963.
Section I: Evidence in Proprietary land rights under the communal law/ of 23/11/1963
From 1960, the powers of transfer of ownership and lease of state land were vested in the powers
of General resident (Resident Général)102
and his assistants of the government of Rwanda and
Burundi. The two governments could transfer such powers to communes in sell and lease of
lands not beyond two (2) hectares.103
Indeed, the modes of acquisition of land under the 1960 law were determined taking into
consideration whether the land is owned under customary norms or if it has been allocated by the
authorities. During that period, those who owned lands under customary ways might request the
102
At the time, Resident géneral was the one who served as the principal administrative officer in the territorial
jurisdiction of Rwanda-Urundi. 103
The decree of 11 July, 1960 relating to land, B.O.R.U. of 11th
July, 1960, p. 1136 (published in the Codes et
Lois Usuels du Rwanda, Volume II, January, 1997), Article 1.
29
government the full acquisition of such lands in accordance with civil laws.104
The register of
land titles where the land is located could issue the title to the owner upon payment of the
required fee.105
In the meantime, communes were given the powers over lands. Such powers
were regulated by the law of 23/11/1963.
I.1 Modes of acquisition of land under the communal law/ of 23/11/1963
After the mass atrocities of 1959, where people fled to the neighboring countries, the problem of
land started being at the top of conflicts among the population. Some policies were put in place
to attribute and reallocate lands to their owners while repatriated. Among them, there are:
Attribution106
(Attribution des terres), Reallocation (Gusubizwa)107
and sharing through division
(Kugabana).108
At the time, the acquisition of land by people was under the powers of the
communes. Therefore, the modes of acquisition under this period were based two systems. Those
are the reallocation to the repatriated of 1959 and sharing through division to landless people.
I.2 Limitations of rights over land under the communal law/ of 23/11/1963
In fact, the limitation of rights over land could be due to the decision of the commune or to the
court decision. Those rights were the right to use, enjoy the fruit and alienate but under certain
conditions. 109
For instance, as highlighted in the preceding paragraphs on the modes of
acquisition of land, when one acquired land by the process of sharing through division, his/her
104
The decree of 11 July, 1960 relating to land, B.O.R.U. of 11th
July, 1960, p. 1136 (published in the Codes et
Lois Usuels du Rwanda, Volume II, January, 1997), Article 10. 105
The decree of 11 July, 1960 relating to land, B.O.R.U. of 11th
July, 1960, p. 1136 (published in the Codes et
Lois Usuels du Rwanda, Volume II, January, 1997), Article 11. 106
The process of attribution was governed by the decree of the Internal Ministry (Ministère de l‟Interieur). Those
decisions were to be communicated to all commune leaders (Bourgoumestres), all leaders of Prefectures (Préfets),
Prime Minister, General resident (Resident Géneral) across the country. 107
This mode was reserved to those who fled the country in the 1959 atrocities by leaving aside their lands. 108
The reference is taken to the act of Commune Rwamiko of 11August, 1987. It was based on the decree law of 26
September, 1974 and the decisions of 3 January, 1963. Such decision was taken by the commune leader
(Bourgoumestre) in presence of the commune council to decide on the case of Nzirabatinya Etienne who was given
the land of Ndizihiwe after being refuge in 1959. 109
The decree no 09/1976 relating to buying and selling of lands governed by customary law and other occupied
lands (J.O., 1976, P. 198), article 2. It is stipulated that “lands governed by customary laws and other lands that were
given by competent authorities through legal procedures, its owner cannot sell them without the prior authorization
of the minister of land and the council of the commune where the land is located”.
30
rights fell limited by the back of the real owner of such land when repatriated.110
As stipulated
also under the decree no 09/1976 relating to buying and selling of lands governed by customary
law and other occupied lands, the owner of the land has limited rights over his/ her land in terms
of transferring through sale contract. For instance, selling a part of the land requires the
ministerial approval, upon consideration of the commune council and after having proved that
the seller remains with at least two hectares and that the buyer has shown the reasons of the
buying the land.111
I.3 Authentication of land under the communal law/ of 23/11/1963
By definition, authentication is a process or an act of confirming the truth of an attribute of a
single piece of data claimed true by a person or an entity.112
During this period, people were
given lands by the State on a temporal (provisional) basis, but with the option of getting full
ownership after a certain period of time.113
The lands allocated to people were recorded in the
registers of the commune. So, the endorsement/ confirmation of land at the period was proved by
“A Certificate of ownership issued by communes”.114
Such certificate should lose its validity in
case it is proved that, it was issued to an unlawful occupant or through maneuvers.
I.4 Analysed case laws
Under this part, three case laws were referred to, to show how courts come up with decision to
land disputes. The three cases take their origin to the 1959 political atrocities when people fled
the country by leaving behind their lands but at their back, they found them occupied by
110
This was motivated in the case no RC0336/011/TB/KBH. Under this case, Karangwa Rosalie fled the country in
1959 leaving their land located in Mata sector. During their refuge period, the land was occupied by Havugimana
Philippe. At the return of the former, she claimed it from the latter but absolutely refused to release it alleging that
he acquired it from the state (it is the state that has given him the land). Thereafter, Rosalie started the proceedings
of recovering her land before the court, which come up with a decision in her favour. 111
The decree no 09/1976 relating to buying and selling of lands governed by customary law and other occupied
lands, (J.O., 1976, P. 198), article 3. 112
X., “Authentication”, available at https://en.m.wikipedia.org/wiki/Athentication, accessed on 20th
April, 2016 113
Intermediate court of Muhanga, Case no RCA 0025/15/TGI /MHG (Appeal of the case no RC.
0642/013/TB/RHGO, Case decided on 22/01/2015), Kanobana Viateur and Umulinga Marceline Vs Mukansoro
Esther, case decided on 29/12/2015, para. 5-7. 114
Primary Court of Kibeho, case no RC0336/011/TB/KBH, Karangwa Rosalie Vs Hvugimana Phillipe, para.2, case
decided on 30th
October, 2010.
31
others.115
Some plaintiffs were granted their proprietary rights whereas others were totally
deprived of them as shown below in cases under analysis.
I.4.1 Case no RC0336/011/TB/KBH, Karangwa Rosalie Vs Hvugimana Phillipe
1.4.1.1 Presentation of facts and applicable law
In this case, the parties are: Karangwa Rosalie (Plaintiff) assisted by Me Sindayigaya Abson and
Havugimana Philippe assisted by Me Karinganire Steven (Defendant). The object of the
litigation in the case is land “Isambu”.
In fact, Karangwa Rosalie with her husband fled the country in 1959. They left their land located
in the today Rwinanka village, Mata sector, Nyaruguru district, Southern province. While
repatriated, their land was occupied by Havugimana Philippe. They requested him to leave but
the latter refused, asserting that he acquired it from the state. Rosalie started the proceedings of
how she could get back her land. The following are the steps followed before the Primary Court
of Kibeho.
Under this case at hand, the legal question to be analysed and decided by the court was to
determine the exact owner of the land basing on evidences presented by parties to the case.
By the application of laws in the case, the following laws were referred to by the court to settle
the dispute: The Law relating to evidence and its production in its article, 35, 65, 110 and the
Ministerial decree no 661/Org.Com of 26 April, 1961 on the attribution of land in its page 3,
paragraph 3.116
1.4.1.2 Application of law to facts and decision of the court
Before the Primary court of Kibeho, the two parties presented their facts with supporting
evidences. The plaintiff bases her facts to testimonies of her neighbor witnesses who all testified
115
Primary Court of Kibeho, case no RC0336/011/TB/KBH, Karangwa Rosalie Vs Hvugimana Phillipe, case
decided on 30th
October, 2010, the Case no RCA 013/14/TGI/NGBE, Mapyisi Ladislas Vs Karambizi Vincent and
Mukaruzamba Epiphanie, case decided by the Intermediate Court of Nyamagabe on 5/6/2014 and the case no RCA
0025/15/TGI /MHG, Kanobana Viateur and Umulinga Marceline Vs Mukansoro Esther, case decided on
29/12/2015. 116
Primary Court of Kibeho, case no RC0336/011/TB/KBH, Karangwa Rosalie Vs Hvugimana Phillipe, para3-12
32
that the land is hers. She supported her arguments with the provision of the Ministerial decree of
1961 on land allocation whereas the defendant presents his facts basing on the certificate of
ownership issued by commune Rwamiko.
After the presentation of their facts, the court applied different laws to them. In doing so, the
court takes reference to the provision of the Ministerial decree of the Internal Ministry (Ministère
de l‟interieur) on allocation of land and the law relating to evidence and its production.
With regards to the provision of the Ministerial decree of 1961 on the allocation of land, it
provides that “Certains territories ont été abandonées par des habitants qui sont refugiés lors
des derniers événements politiques. Afin de ne pas provoquer la dégradation de ces terres et
pour conserver la productivité du sol national, il est autorisé à louer ces terres à d’autres
habitants de la commune. Mais la location ne veut pa dire appropriation”117
, This can be
translated as follow: certain lands were abandoned by people during the last political tensions. In
the view of not provoking the degradation of those lands and conserve their productivity, it is
authorised to allocate them to other people of the commune. However, the allocation does not
mean appropriation.118
In addition, the court bases the law relating to evidence and its production. Under article 65, the
law states that “Only the court can assesses the relevance, pertinence and admissibility or
rejection of testimonial evidence. It shall not be influenced by the number of witnesses. It shall
mainly their knowledge of facts and the objectivity and sincerity of their testimonies”119
Furthermore, the court also bases on article 35 and 110 of the stated law. It reads that” A copy of
an original document, kept under the custody of an authorised public officer, is valid without
having to prove the authority or the signature or the thumbprint of the public officer. A copy,
photocopy, or other reproduction which has been certified in conformity the original, is always
valid until it is disapproved by other evidence. A copy, photocopy or other reproduction which
has not been certified in conformity with the original is valid unless supported by other evidence
not prohibited by law; loten the original cannot be produced. And that “A judicial admission
117
Primary Court of Kibeho, case no RC0336/011/TB/KBH, Karangwa Rosalie Vs Hvugimana Phillipe, para9 118
Primary Court of Kibeho, case no RC0336/011/TB/KBH, Karangwa Rosalie Vs Hvugimana Phillipe, para9
(Author‟s Translation). 119
The law relating to evidence and its production, O.G special no of 19/07/2004, Article 65.
33
refers to statements the accused or his or her representative makes before the court. Such
statements shall serve as plaintiff arguments. It prohibited to retract portions of the statements
and to use them as counterarguments against the party. A person cannot retract a judicial
admission unless it can be proved that the admission was a result of physical torture or it was a
mistake of fact. He or she cannot retract under the pretext that he or she was misdirected by an
error in law.120
”
As a result of the case, basing on the presented evidences and their analysis, the court decides in
favour of Karangwa Rosalie. It bases on the provision of the ministerial decree by emphasizing
that those who got lands for the purposes of avoiding their degradation and conserving their
productivity should not allege it as if they were given proprietary rights over them. The
allocation made by the State was for those purposes and does not mean appropriation.
I.4.1.3 Analysis of the case
As far as the breakdown of the case no RC0336/011/TB/KBH, Karangwa Rosalie Vs
Havugimana Phillipe is concerned, it is clear that the court has considered a positive approach in
making the analysis, investigation of the case so as to come up with a good decision. Specific
issues to be considered in this case are all based to force of evidences presented by parties and
their considerations by the court.
In fact, the court did not considered by the fact of possessing duplicate of the certificate issued
by Commune Rwamiko. Rather it entered in details by understanding witnesses, making site
inspections with local authorities to come up with concise decision of the subject matter.
I.4.2 Case no RCA 0073/13/TGI/MHG, MUKAMUSONI Assia Vs MUSONERA Venuste,
HAGABIYAREMYE Innocent, et. al.
1.4.2.1 Presentation of facts and applicable law
In this case, the parties are: Mukamusoni Assia (Plaintiff) assisted by Me Rwabukumba Mussa
and Musonera Venuste, Hagabiyaremye Innocent, et. al., assisted by Me Cyiza Faustin
120
The law relating to evidence and its production, O.G special no of 19/07/2004Article 35 and 110.
34
(Defendant). The object of the litigation in the case is land “Isambu”(Appeal of the case RC
0648/13/TB/RHGO). The plaintiff is a spouse of Rwabukombe. She filed a case before the
Primary court of Ruhango requesting the land that they left in 1959 after fleeing the country.
That land was occupied by Manjwe Marc, who asserted that he acquired it through legal
proceedings (he was given by the State). The primary court ruled against her request and the
latter filed the appeal before the Intermediate court of Ruhango.
At the appeal level, she alleged that the court did not consider witnesses‟ testimonies, and other
motives that she provided. Legal question to be solved before the court was to see if evidences
presented by the plaintiff were not considered.
1.4.2.2 Application of law to facts and decision of the court
Before the intermediate court of Muhanga, Mukamusoni Assia assisted by Me Rwabukumba
Mussa presented their fact, showing how the land in question was left in 1959 and how it gets
into the hands of the defendants. After that, they also mention how the Primary court rejected
evidences that they presented including the testimonies from witnesses and her request of sharing
the land with the defendants, where Manjwe has accepted but others refused. On the part of the
defendants: Musonera Venuste, Hagabiyaremye Innocent, et. al., assisted by Me Cyiza Faustin,
they show how there are no inconsistencies within the primary court decision, since Manjwe has
acquired the land from the state in 1963.
In rending the decision therefore, the intermediate court referred to the law of evidences and the
law relating to civil, commercial, labour and administrative procedure. Taking reference to
article 35 of the law of evidences, it stipulates that “A copy, photocopy or other reproduction
which has not been certified in conformity with the original is valid unless supported by other
evidence not prohibited by law; loten the original cannot be produced.121
” Upon the motivation
of the decision, the court motivated that the deed of 1963 was corroborated by the testimony of
witnesses saying that Manjwe was given the land by Bourgoumestre.
Regarding the law on civil, commercial, labour and administrative procedure, the court relied on
article 9 which stipulates that “Every plaintiff must prove a claim. Failure to obtain proof, the 121
The law relating to evidence and its production, O.G special no of 19/07/2004Article 35, para. 3.
35
defendant wins the case. Likewise, a party who alleges that he/she has been discharged from an
obligation that has been established must prove that the obligation no longer exists. Failure to do
so, the other party wins the case.”122
On this point, the court ruled that the plaintiff did not
discharge from the obligation. Therefore, saying that they have left their land without any deed
or testimony that may be referred to prove it, does not induce the court.
1.4.2.3 Analysis of the case
In final analysis of this case, one could consider that, the way that the court (Intermediate court
of Muhanga) has decided on it, differs completely from the way that the court (Primary court of
Kibeho). It is clear that the first has restituted the lost ownership rights whereas in the second
case, the plaintiff remains losing them, fault of lack of evidences as provided by laws.
For that reason, as it has been demonstrated in the above cases under this section, evidences in
proprietary land rights remained questionable. Laws are clear, but it is challenge how two
persons, with similar cases get different court decisions. To that, there should be a consistence
built on case laws, so that persons could not be abruptly deprived of their ownership rights.
The following section talks about evidences in proprietary land rights as per the 2005 organic
law on the use and management of land, with related analysed case law.
122
The law relating to Civil, Commercial, Labour and Administrative procedure, O.G.nº 29 of 16/07/2012
(Hereinafter CCLAP), Article 9.
36
SECTION II: EVIDENCE IN PROPRIETARY LAND RIGHTS UNDER THE 2005
LAND LAW
The coming into force of the 2005 organic law on the use and management of land in Rwanda
was considered as a solution to many problems and challenges that characterised land tenure
system and other issues related to land in Rwanda. It came into force to address a number of
questions like the very high density of population and pressure on land, excessive partitioning of
family agricultural plots, soil degradation and loss, scarcity of land and a large number of
landless, negative consequences of war and genocide, bad agricultural practices and overgrazing,
the predominance of customary law and inadequacy of written land law, lack of a viable and
efficient cadastral system, the inadequacy of human, material and financial resources123
.
On the other point, matter of evidences in proprietary land rights also remained in question; to
the extent that land related matters, specifically in evidences provided by the owners still remain
unaddressed. Even the process of land registration and issuance of land titles that come after the
organic law in 2008, also did not come up with a concise and clear solution to matters of
evidence over land. Below, is detailed the way lands were registered and how titles were issued.
II.1 Land registration and Issuance Land titles
Land registration is the system of registering, at local branch offices of land registry, certain
legal estates or interests in land. It is an effective system which entails the allocation of the land
to its owner by providing him/her a land title.
Eventually, the idea of land registration has come when customary law was no longer able to
cope with new conditions where land boundaries have become imperative, where permanent
crops have replaced seasonal ones, where credit is required on the scarcity of land, where in fact
individual proprietary rights have arisen and land has acquired a negotiable value.124
Through
land registration process, there raised different problems due to instruments that were presented
123
D. M.Kayihura, F. Kigenza, Property and Land Law, Op.Cit, p.144. 124
C.K.Meeks, Land Law and Customs in Colonies, 2nd
Ed., Frank Cass and Co Ltd, 1986, p. 326.
37
by people without taking into account their sources/ origin and the way they have been
obtained.125
Under the 2005 organic law governing the use and management of land, Land registration was
obligatory.126
Usually, land registration has in effect the declaration of new rights, which never
existed and therefore having constitutive character.
To the extent of proving one‟s ownership rights over land, the law provided that “Certifying that
the land has been allocated or leased on sustainable basis shall be indicated by a certificate
approving the registration of land issued by registrar of land authentic deeds.”127
This is also
substantiated by the Ministerial order on modalities of land registration that “The private
ownership of land and the empyteutic lease can only be legally established by a Certificate of
Registration of the title recognised or granted by the State”.128
With these provisions, it is clear
that, whatever means used by the proprietor of a given land to obtain a land title certifying
his/her ownership, he/she will be deemed the owner.
During the process of land registration, Land Officers were appointed to keep land registers and
issue certificates approving ownership of land.129
This was a significant shift away from the
previous land tenure ship practice, in which only a fraction of all land was titled. This universal
registration provided land users with more certain rights and thereby impacted on the promotion
125
D. Ruzirampuhwe, Land ownership rights under Rwandan law: A critical analysis of the Organic Law no
08/2005 of 14/07/2005 determining the use and management of land in Rwanda, Op. Cit, p.33. Here, one can
consider the dispute where two people claimed their lordship/ ownership based on different certificates that each of
them possessed. It is a dispute between Gashugi and a Wife of Munyambo Ildefonse. They both had certificate
d’enregistrement d’une propriété foncière over the same piece of land. The latter repatriated finding the former
settled in his land which he acquired from the administrative and competent authorities in legal and cumulative
procedures. The authorities granted the latter a portion with 47% of that land. Mean while, he invested in the capital
borrowed from I&M Bank (Rwanda): the former BCR an amount worth 59.635.547 frw by constructing houses and
installing other beneficial activities on it. It is clear that, though land registration policy was put in place, there are
still gaps that are not regulated and which causes inconsistencies before courts while deciding on the real owner of
the land. 126
Organic Law n° 08/2005 of 14/07/2005 determining the use and management of land in Rwanda, O.G of
14/07/2005, Article 30. 127
Organic Law n° 08/2005 of 14/07/2005 determining the use and management of land in Rwanda, O.G of
14/07/2005, Article 26. 128
The ministerial order determining modalities of land registration in Rwanda, O.G of 01/08/2008, Article 4. 129
Organic Law n° 08/2005 of 14/07/2005 determining the use and management of land in Rwanda, O.G of
14/07/2005, Article 31.
38
of investment of labour and capital in increased productivity, and the sustainable development
and management of land resources.130
II.1.1 Land titles
A land title is a written document confirming a person‟s right to land, which is governed by
written laws and delivered according to the law by competent authority. It applies the
emphyteutic lease as well as the freehold or any other form of land tenure legally provided for.131
It is a document issued by land registry to the proprietor of a registered land as a proof of
ownership.132
A land title is an official record of who owns a piece of land. It can also include
information about mortgages, covenants, caveats and easements133
.
Along the procedure of land registration and issuance of land titles, there has been some
Challenges including: Unclaimed land (people outside Rwanda), Children born out of marriage
and orphans, Inheritance, Widowed women, Land registration on Islands and in Gishwati,
Former Natural Forest, Low collection of lease titles, Lease fees claimed to be high.134
The
procedure and mode of acquiring land title is discussed in the following part.
II.2.2 The 2008 procedure of land titling
Land registration process is one of major measures undertaken by the government of Rwanda to
manage the available land in order to sustain the life of 10.6 millions of Rwandans who
essentially live on agriculture production.
This process has been done and in order to implement the national land policy and the organic
law determining the use and management of land in Rwanda. Land registration, as stipulated in
the article 30 of the organic law determining the use and management of land in Rwanda is
130
D. G. Sagashya, Building Land Administration in Rwanda Through Systematic Land Registration, Geospatial
World Forum – Amsterdam 2012, p. 10. 131
The Law no 43/2013 of 16/06/2013 governing land in Rwanda, OG of 16/06/2013, Article 2, 270.
132 J. Law and E. A. Martin, A Dictionary of law, 7
th ed., Oxford university press Inc., New York, p. 315.
133 Victoria State Government, Department of Environment, Water and Land, available at
<http://www.dtpli.vic.gov.au/property-and-land-titles/land-titles, accessed on 10th March, 2016. 134
D. G. Sagashya, Building Land Administration in Rwanda Through Systematic Land Registration, Geospatial
World Forum – Amsterdam 2012, p.16.
39
obligatory. The procedures through which land registration is carried out are defined by a
ministerial order N° 002/2008 of 01/4/2008.135
It generally describes systems by which matters concerning ownership, possession or other rights
in land can be recorded to provide of title, facilitate transactions and to prevent unlawful
disposal. Definitely, the registration and issuance of the lease title guarantee rights to a land
parcel.136
Hereunder is briefly discussed the procedure through which land registration was carried out:137
On the first step, when the person who wishes to register a land do not have parcel‟s
number, he/she must have a deed plan of the land designed by a land surveyor using Global
Positioning System (GPS)138
. The following step is to find out a property certificate issued by the
sector in which the land is located to ensure that the land owner has not any disputes. After,
person who wishes to register pay registration fees as recommended by the Ministerial
instructions related to fees paid for systematic land registration. The fees fixed to 5,000 RWF in
urban areas and 1,000 RWF in rural areas are deposited in Rwanda Revenue Authority. Through
the District (especially in its land bureau office) in which the land is located, you can get the
number of your parcel.
After these steps are fulfilled, the land lease title is prepared and issued by the Deputy Registrar
of Land Titles of the region in which the land is located. When the parcel‟s number to be
registered does not have full details, the person who wishes to register the land should have a
property certificate issued by the sector in which the land is located and bring it to the Deputy
Registrar of Land Titles of the region, then, a certificate of marriage or of celibacy and a copy of
your identity card.
135
Republic of Rwanda: Ministry of Natural Resources, “Provided answers to land questions”, available at<
http://www.minirena.gov.rw/index.php?id=154>, accessed on 10th
March, 2016. 136
Idem. 137
Republic of Rwanda: Ministry of Natural Resources, “Provided answers to land questions”, available at<
http://www.minirena.gov.rw/index.php?id=154>, accessed on 10th
March, 2016. 138
The Global Positioning System (GPS) is a space-based satellite navigation system that provides location and time
information in all weather conditions, anywhere on or near the earth where there is an unobstructed line of sight to
four or more GPS satellites. This instrument was used during the process of land registration while collecting data
especially on boundaries lands.
40
In case of Claim receipt but not a land title, the person wishing registration simply goes to
the District Land Bureau office with his/her claim receipt, and gets a land lease title in the case
the land is not under any disputes.
After the issuance of the deed, The Certificate of Registration on the Register of Titles is full
evidence for the right of ownership, empyteutic lease or real rights or encumbrances (real
charges) that are specified on it. The right of ownership which is recorded thereon cannot be
challenged, even though the Certificate was drawn on basis of a cancellable or invalid contract of
alienation, or a court order obtained by surprise. Causes of rescission or invalidity of the contract
or the mistakes of the order only gives rise to a cause of personal action for damages.139
II.2.3 Critics on the procedures of land registration in Rwanda
In a social context dominated by huge differences in education levels and by differential access
to the administration, there is a concern that the elite in its favor may manipulate the registration
process. Experiences with land registration and titling schemes have shown that well informed,
powerful and usually educated individuals often compete successfully for land not previously
registered to their own names, while the mass of rural poor are generally unaware of the law or
do not grasp the implications of land registration.140
Under the above provision on the conclusiveness of registered title, some critics can be raised as
on how a person who is given a deed/certificate in fraudulent ways, yet the deed/ certificate
cannot be challenged as provided therein and also it should be noted that the time that this
procedure was put in place, a great number of lands that were allocated to people by the state in
1996, 1997 etc, those that were given to people in the implementation of land sharing policy, and
there was a number of Rwandans who fled the country during the atrocities of 1994 who
expected to repatriate to their natal land. In this case, as it was before the Supreme Court case to
be discussed, people should be granted rights over their properties.
139
The conclusiveness of registered title under article 23 of the ministerial order on land registration in Rwanda. 140
T. Camilla and J. Quan, Op. cit, p. 67.
41
II.3 Authentication under the 2013 land law
To achieve the noble objective of ensuring both rational use and prudent management of land,
the Government of Rwanda has reviewed the Organic Law n° 08/2005 of 14/07/2005
determining the use and management of land in Rwanda. The revision was mainly transform the
Organic land Law into ordinary law in order to comply with the provisions of the Constitution of
the Republic of Rwanda.141
Actually, the new Law N° 43/2013 of 16/06/2013 Law governing
land in Rwanda has been promulgated in the Official Gazette no Special of 16/06/2013.142
The new Land law is found as a long term solution as it takes into consideration all aspects of the
Land policy which has been adopted by the government of Rwanda in 2004. However, it does
not respond to the issue of evidences in land related matters that was still under question before
courts of law. Judgments were rendered basing on proofs provided by parties to the case, but
there is lack of conformity in decisions of courts on the basis of their decisions.
The law governing land in Rwanda provides that Certifying that the land has been allocated or
leased shall be evidenced by a certificate of land registration issued by the registrar of land
titles. In case of loss or damage of the certificate of land registration, the registrar of land titles
issued a replacing one.143
There remains the question of analysing, identifying the origin of the
certified land in all legislations that were put in place to regulate land related matters.
II.4 Analysed case law (case no RCA 0300/14/TGI/RBV)
In the case under analysis, the parties are: MUKAMAZIMPAKA Agnès (Appellant) Vs
NYIRANDUSHYI, YAKUZE and NTARIBANANIRA (Defendants). The object of the
litigation is The land located in Nengo village, Nengo cell, Gisenyi sector, Rubavu district,
western province.
141
The Constitution of the Republic of Rwanda of 2003 revised in 2015, Article 91. 142
Republic of Rwanda: Ministry of Natural Resources, “The new law governing land has been gazetted”, available
at<http://www.minirena.gov.rw/index.php?id=61&tx_ttnews%5Btt_news%5D=180&cHash=352b7e3af44ca00eae7
8fe3b96d40794>, accessed on 10th
March, 2016. 143
The Law no 43/2013 of 16/06/2013 governing land in Rwanda, OG of 16/06/2013, Article 18.
42
II.4.1 Presentation of facts, question of law, applicable law and court decision
MUKAMAZIMPAKA Agnès is a spouse of SETAKO Euphrem. In 1959, she fled the country
due to hostilities that were taking place in the country. At her return, she found the land occupied
by NYIRANDUSHYI, YAKUZE and NTARIBANANIRA (Defendants). Before the primary
court of Jomba (Gisenyi), she requested to recover her land but the case was rejected, that her
claim has no legal basis. Discontented with the decision, MUKAMAZIMPAKA Agnès appealed
before the Intermediate court of Rubavu.
The legal question in the case was to determine if the non provision of each part of the land
occupied by each of the defendant could lead to the loss of the case and assessment of produced
evidences. The applicable law on this matter was the 2013 law on use and management of land
in Rwanda. Its article 10 provides that “private individual land shall comprise land acquired
through custom or written law. That land has been granted definitely by competent authorities or
acquired by purchase, donation, inheritance, succession, ascending sharing, and exchange or
through sharing.” Other laws that were applied to the case are: the law on evidence and its
production, the law relating to civil, commercial, labour and administrative procedure on matters
relating to evidences.
At the appeal level, the court has referred to the above laws (law on land, law of evidence and its
production, the law relating to civil, commercial, labour and administrative procedure). In fact,
the court of appeal within its credence comes with a decision to the applicability of article 9 of
the CCLAP, providing that “the court should not have based on this article by requesting
MUKAMAZIMPAKA Agnès to provide the titles of plots of land occupied by the defendants,
since she claimed the whole land and not its parts.144
”
In addition, for evidence related issues in the case, the court referred to articles 62 and 65 of the
law on evidences and its production that “Testimonial evidence is statements made in court by an
individual regarding what he or she personally saw or heard with that is relevant to the object of
trial. And that only the court can assesses the relevance, pertinence and admissibility or rejection
of testimonial evidence. It shall not be influenced by the number of witnesses. It shall mainly
144
Intermediate Court of Rubavu, Case no RCA 0300/14/TGI/RBV MUKAMAZIMPAKA Agnès Vs
NYIRANDUSHYI, YAKUZE and NTARIBANANIRA , para.9
43
their knowledge of facts and the objectivity and sincerity of their testimonies.145
Basing on that
provision, the report made by the sector and all testimonies that were made, the court found them
in conformity and declares the land to be return to its owner (MUKAMAZIMPAKA Agnès).
Furthermore, basing on article 10 of the 2013 law on land, the court decided that the defendants
did not show the exact way source/origin that they have acquired the land. For the appellant, the
court decides that, since the land was for the family of SETAKO Ephreum, it should be returned
to her as a spouse entitled with the powers of using the family patrimony.
After the analysis of all facts of the case, the court has decided in favour of
MUKAMAZIMPAKA Agnès. It declared all the land titles of the three defendants null since
they have acquired them in fraudulent way.
II.4.2. Analysis of the case
As far as the analysis of the case RCA 0300/14/TGI/RBV is concerned, it is obvious that the
court has made a good approach in the concern of analysing evidences presented by parties.
The court was not biased by the fact of possessing land titles, which are deemed irrefragable
proofs of ownership over land. Rather it entered in details; understanding witnesses, making site
inspections with local authorities to come up with concise decision of the subject matter.
The ruling of this case did not only consider the land title as a full proof of ownership as the law
provides, but also came with the element of considering the source/ origin of the land. The next
section focuses and detailed the analysis given to the Supreme Court case of 2014.
145
The Law n° 15/2004 relating to evidence and its production, O.G special no of 19/07/2004Article 62 and 65.
44
SECTION III: THE SUPREME COURT CASE LAW OF 2014
The Supreme Court is the highest court in Rwanda. The decision of the Supreme Court are not be
subject to appeal save in terms of petitions for the exercise of the prerogative of mercy or
revision of a judicial decision. Its decisions are binding on all parties concerned whether such are
organs of the State, public officials, civilians, military, judicial officers or private individuals.
In fact, the decisions of the Supreme Court are called “case laws or precedents” and have binding
forces over other lower courts. Case law is and always has been a respected and vital part of
constitutional jurisprudence.146
Decided cases are known as stare decisis is Latin for “stand by
things decided.” In Supreme Court they become case laws because they are binding to lower
courts.147
There are two forms of stare decisis: vertical stare decisis and horizontal stare decisis.
Vertical stare decisis requires lower courts to follow the precedents of higher courts when faced
with indistinguishable facts.
In 2014, the Supreme Court has decided a rand mark case which is known as case RCAA
0018/13/CS HARERIMANA Vs. SEBUKAYIRENº. It is a case on land ownership related matters
where both parties to the case claimed their ownership rights over the same land. Details are
discussed below:
III.1 The analysis of the Supreme Court case (Case Law no RCAA 0018/13/CS)
III.1.1 Presentation of the case
In the case under analysis, parties are: HARERIMANA Emmmanuel as an appellant (in
representation of his relatives UWERA Clémentine and TURATSINZE Jean Bosco) and
SEBUKAYIRE Tharcisse as a defendant. The object of the litigation is the plot of land located in
Kamutwa cell, Kacyiru Sector, Gasabo district, City of Kigali.
146
See Kabalisa Case, Mutebwa Alphred etc as published in case law report of the Supreme Court of 2011 147
Organic Law no 03/2012 of 13/06/2012 determining the organization, functioning and jurisdiction of the
Supreme Court, Official Gazette, No. 28 of 09 July 2012, art. 47 (6).
45
III.1.2. Summary of facts, Question of Law and Application of law
HARERIMANA Emmmanuel with his relatives UWERA Clémentine and TURATSINZE Jean
Bosco are all children of HARERIMANA Gaspard and MUKANGWIJE Thérèse. In 1994, they
fled the country and left their properties including plot of land located in Kamutwa cell, Kacyiru
Sector, Gasabo district, City of Kigali. The plot of land in question was bought by
HARERIMANA Gaspard in 1988. After genocide, this plot was allocated to the father of
SEBUKAYIRE Tharcisse by the state. Along while, the three children have repatriated, but
found the properties of their parents occupied by SEBUKAYIRE.
On one hand, SEBUKAYIRE claimed the ownership basing on different proofs including «
contrat de location N° L 23134 of 11/09/95». This was issued after the allocation of this plot of
land to his father who has left it to him and the certificate of Land Titles issued by the office of
registrar of Land Titles. On the other hand, the appellant bases his claims to the contract of sale
made between his father and KARYANGO in 1988 testimonies.
Recall that the case has started before the Intermediate court of Gasabo where HARERIMANA
Emmanuel won the case. At this level, SEBUKAYIRE was ordered to reimburse the plot of land
to the concerned children. Being unsatisfied by such a decision, he appealed before the High
court Kigali. The HC considered the proofs and evidences of ownership ( contrat de location N°
L 23134 of 11/09/95, and the land title issued by the Registrar of land title) and ruled the case in
his favor. Unfortunately, HARERIMANA Emmanuel appealed before the Supreme Court which
decided the considerable land-mark jurisprudence and allocate the plot in question to him.
In adding up, before the Supreme Court, HARERIMANA Emmanuel appeals basing on different
reasons: having ruled the case illutra-vires (have changed the object of the litigation), the non
differentiation of the plot of land and land in the city148
, to this, the Court decided that the case
should have started before the primary court.149
The Court ruled the case null and rejects it.
148
Supreme Court case RCAA 0018/13/CS HARERIMANA Vs. SEBUKAYIRE, para.3 149
The Organic Law Nº 51/2008 of 09/09/2008 determining the organization, functioning and jurisdiction of courts,
Article 67, para 2; It reads that “ Cases involving land, livestock and their succession are under the jurisdiction and
competence of primary courts”.
46
In this case, the legal question to be analysed was to know who the real owner of the land in
question is. The applicable law on this matter was the 2005 organic law on use and management
of land in Rwanda. Its article 5 provides the way of obtaining land in Rwanda: either
customarily, purchase, or from a competent authority. Other laws that were applied to the case
are: the law on evidence and its production, the law relating to civil, commercial, labour and
administrative procedure on matters relating to evidences.
III.2 Decision of the court
Having reviewed and analysed all matters in question, the Supreme Court come up with a
decision in favor of HARERIMANA Emmanuel. Its bases were taken on the fact that,
SEBUKAYIRE Tharcisse did not persuade the court on the origin of the land. From that, the
certificate of land title owned by SEBUKAYIRE Tharcisse was declared null. The court
requested the latter to reimburse the property to HARERIMANA Emmanuel and is relatives.150
III.3 Position of the court
Considering the motivation given by the Supreme Court, it has made a very remarkable decision
which has to be taken as exemplary by other courts. The motivation was based on laws relating
to land (the decree of 1920, the law governing land, the ministerial order determining modalities
of land registration, the presidential order determining the powers of the registrar of land titles),
evidences produce by both parties, and other relevant techniques (site inquiries) used by the
court to come up to the decision.
III.4 Innovations from the decided case law by Supreme Court
From the analysis, it is noteworthy that the Supreme Court has brought some new elements over
cases on evidences in proprietary land rights. Under those elements, the following are identified:
150
Supreme Court case RCAA 0018/13/CS HARERIMANA Vs. SEBUKAYIRE, para. 20-28.
47
Consideration of the origin of land in question.
During the hearings before the Supreme Court, the legal counsel of HARERIMANA Emmanuel
has requested the court to ask his opponent to show the origin of the land in question.151
The
defendant on his side provided the contrat de location N° L 23134 of 11/09/95, which was
assigned to his father only for a period of three years. This evidence was issued during the
transitional period of 1995-1996 when a number of refugees of the 1994 Genocide perpetrated
against Tutsi were repatriating. Under this period, the government of Rwanda allocated lands to
people for temporal use.152
Apart from that contract of temporal use of the land, he also proved his proprietorship rights on
the basis of the land title issued by a competent authority (the office of Registrar of Land Titles).
He argued that, since he possesses the land title, he is the real owner since an authentic deed is
one, which has been drawn or received in accordance with all the required formalities, by a
public officer authorised to officiate in the place where the deed was drawn.
He also based his argument on the the fact that the Certificate of Registration on the Register of
Titles is full evidence for the right of ownership, empyteutic lease or real rights or encumbrances
(real charges) that are specified on it. The right of ownership which is recorded thereon cannot
be challenged, even though the Certificate was drawn on basis of a cancellable or invalid
contract of alienation, or a court order obtained by surprise. Causes of rescission or invalidity of
the contract or the mistakes of the order only gives rise to a cause of personal action for
damages.153
However, pursuant to the way the case was interpreted, the court granted proprietorship rights to
HARERIMANA Emmanuel and his relatives since they produced worth evidences that showed
the origin of the land.154
151
Supreme Court case RCAA 0018/13/CS HARERIMANA Vs. SEBUKAYIRE, para. 12 152
The situation of letting those refugees occupy those lands resulted in the 1996 regulations on the temporary
management of abandoned land in Rwanda. It was regulated by the ministerial order no 01/1996 regarding the
temporary management of land property, (Instruction ministérielle no. 01/1996 du 23 septembre 1996 portant
mesures de gestion provisoire des propriétés foncières, du 23 September 1996, available at:
http://www.refworld.org/docid/3ae6b50017.html.), accessed on 10th
March, 2016Article 13. 153
The ministerial order on land registration in Rwanda, O.G of 01/08/2008 Article 23. 154
Supreme Court case RCAA 0018/13/CS HARERIMANA Vs. SEBUKAYIRE, para. 35.
48
Consideration of the legality of all evidences produced by parties
Evidences over a given property can be obtained in legal, fraudulent or forcible way. As far as
the issue of evidences produced in the case is concerned, the contrat de location N° L 23134 of
11/09/95 and the land title produced by SEBUKAYIRE were deemed to be obtained in good
faith, but lacks the necessary elements on how it was obtained; origin of the land that was
registered on his name. Consequently, the court declares him “Unlawful occupant”155
, since the
evidences of proprietorship were declared null.
As concluding remarks of the chapter, it is clearly indicated that evidences in land related matters
pose categorical difficulties vis à vis courts rulings. As discussed from the hierarchy of laws that
regulated land related matters from 1963 up to the new law of 2013, courts decisions were
rendered. However, the way that they considered the powers and legality of evidences produced
by parties to cases manifests a form of contradiction regarding what is provided for by laws.
III.5 Declaration of Nullity of Land Certificate
Nullity is defined as an act that something is legally invalid; the state of being legally invalid.156
Such act must be nullified by a competent organ or by the court in accordance with the law.
Under the Rwandan context, issues related to nullity of land titles may create complexity while
declaring the cancellation such deeds. The ministerial order determining modalities of land
registration stipulates the conclusiveness of land certificate. On the other hand, the presidential
order determining the functioning and powers of the land registrar provide the person (organ)
who bears the powers to cancel a certificate of land registration in legally provided procedures.
Pursuant to the ministerial order determining modalities of land registration, the right of
ownership which is recorded on the land certificate cannot be challenged, even though the
Certificate was drawn on basis of a cancellable or invalid contract of alienation, or a court order
155
According to Law no 43/2013 of 16/06/2013 governing land in Rwanda, O.G of 16/06/2013, under its article 2,
250, an unlawful occupant is a unauthorised person who owns other persons‟ properties whether he or she may have
acquired them without any certificate to authorise him or her to do so, or he or she may have employed fraud to
acquire the certificate. 156
A. H. Blackwell, The Essential Law Dictionary, 1st Edition, Library of Congress Cataloging-in-Publication Data,
USA, 2008, p. 347.
49
obtained by surprise.157
Causes of rescission or invalidity of the contract or mistake of the order
only give rises to a cause of personal action for damages.158
Nonetheless, when the right of
ownership over the property is still with the acquirer, causes of rescission or invalidity of the
alienation that was made to him give rise for the assignor to a cause of action for reassignment of
the property with damages, if need be.159
With regards to the Presidential Order determining the functioning and competences of the
Office of the Registrar of Land titles, it sets out their powers and does provide for the power to
nullify or cancel the land certificate. Those powers are subdivided into those of the council of
registrars of land titles and those exercised by the Chief registrar and registrar of land titles.
On the side of those exercised by the council of registrars of land titles, there are: to decide on
the cancellation of land title, decide the removal of dispute which was registered during the
systematic land registration, examine and approve instructions of the Chief Registrar of Land
Titles.160
With reference to those exercised by the Chief registrar and registrar of land titles, there are: to
sign certificates of Land Titles and emphyteutic leases, certify that land has been allocated,
certify that land is leased under a long term or is under freehold, issue another certificate of land
registration in case of loss or damaged one, cancel certificate of land registration in accordance
with the law, update the land registry, certify land transaction by putting his/her signature on
transaction documents, give access to information related to land ownership in accordance with
the law.161
Considering the provisions of the above instruments, it is clearly indicated that the
institution which has the powers to cancel the title of land registration is the “Office of land titles
in accordance with the law”. By the point of view, as the registrar has the powers to sign, certify
157
The ministerial order on land registration in Rwanda, O.G of 01/08/2008 Article 23, para. 2. 158
The ministerial order on land registration in Rwanda, O.G of 01/08/2008 Article 23, para. 3. 159
The ministerial order on land registration in Rwanda, O.G of 01/08/2008 Article 23 para. 4. 160
Presidential Order n° 97/01 OF 18/6/2014 determining the functioning and the competences of the registrar of
land titles, O.G. nᵒ 27 of 07/07/2014, Article 6, para.1. 161
Presidential Order n° 97/01 OF 18/6/2014 determining the functioning and the competences of the registrar of
land titles, O.G. nᵒ 27 of 07/07/2014, Article 10, para.1.
50
the allocation of land titles, as well as the prerogatives of cancelling them in accordance with
laws. 162
Thereafter, pursuant to the Supreme Court decision, the conditions of nullifying a land certificate
are met in case its holder is found “Unlawful occupant”, and has acquired such certificate in a
“fraudulent way”.
162
Presidential Order n° 97/01 OF 18/6/2014 determining the functioning and the competences of the registrar of
land titles, O.G. nᵒ 27 of 07/07/2014, Article 6, para.1. and Article 10, para.1.
51
GENERAL CONCLUSION
All in all, as defined by the law, Land is the surface of the earth identified by specific
boundaries, including the airspace above that portion of surface, the minerals beneath it, and
surrounding biodiversity, erections and developments on that surface. In legal terms, it is an
immovable and permanent asset inclusive of rights associated with the surface of the earth from
the centre to the infinite sky. Land is a fundamental resource of the nation state. Without land,
without territory, there can be no nation state. Housing, agriculture, natural resource use, and
national security concerns are all based upon land management and use. Hence, land is seen as
one of the most important and fundamental natural resource that is exploited by people to get
their daily living means.
Its exploitation and use depend on how laws, rules, regulations and policies of a given state are
built. For the Rwandan point of view, a number of legislations were passed from the arrival of
colonisers up to now. All were meant to regulate land related matters. Apart from a few scattered
land regulations, Rwanda had never had a proper land policy nor had it ever had a land law, a
situation that enhanced the duality between the very restrictive written law and the widely
practiced customary law, giving rise to insecurity, instability and precariousness of land tenure.
On one hand, there was the customary law, which governed almost all the rural land and
promoted the excessive parceling out of plots through the successive father-to-son inheritance
system. And on the other, there was the written law, which mostly governed land in urban
districts and some rural lands managed by churches and other natural and legal persons.
The coming into force of all those decrees, laws, rules, regulations and policies does not give
clear solutions to evidences in land related matters in Rwanda. In the course of Rwandan history,
evidences to land were: Certificates of ownership issued by communes, Agreement of temporal
allocation issued in accordance with the 1996 Ministerial order on temporal management of
Lands, the Contrat de location issued in 1995 as well as land certificates issued in accordance
with the Ministerial order determining the modalities of land registration.
52
Eventually, the way that laws were passed and applied before courts, and the way that land
disputes/ cases were dealt before courts also creates controversies in decisions taken by courts.
Some based only on land title as the full evidentiary element to prove one‟s proprietary rights
while others went beyond the land title by making more investigations on the disputes (site
inquiry, hearing testimonies) and decided otherwise. The applicability of the law relating to
evidence and its application, the law on civil, commercial, labour and administrative procedure
also impacted on the decision making of courts. Several courts only considered the land title
(authentic deed) as the full evidence of ownership rights which cannot be opposed in any way.
As for the Supreme Court case, it is remarkable that it has made improvement while deciding on
matters of evidence to land on the analysed case of HABIMANA Versus SEBUKAYIRE (2014). In
its land mark decision, to prove one‟s ownership rights, it has considered two important things:
The origin of land in question as well as the legality of produced evidences.
However, given the way the court has decided, the powers to nullify the land certificate by the
court is also questionable in all analysed cases. Therefore, there should be a clear and common
understanding between court rulings on the powers conferred to registrars of land titles to cancel
land certificates.
RECOMMENDATIONS
The history of our country did not allow people to live consistently (intact) in their places. Some
fled the country in different periods of their history, they left behind their property; land
inclusive. At their repatriation, they sometimes found them occupied by others and started
proceedings of recovery of their ownership rights.
Considering the analysed landmark case law of the Supreme Court (case Nº RCAA 0018/13/CS
(HARERIMANA Emmanuel Vs SEBUKAYIRE Tharcisse before the Supreme Court), and other
analysed cases, the author recommends that, courts should not base only on land titles as the full
evidence of proprietary rights. Indeed, they should examine the way those titles were obtained
and their legality. In settling land related disputes, Courts should consider all presented
evidences. In doing so, they should carry out more investigations, look for the source of the land
53
in question, site visits and inquiry on the subject matter, hear testimonies, and assess their
applicability, relevance and their force in proving the reality of the dispute. Thus, courts should
take reference to Supreme Court case law to build a consistent case law that should serve in
settling all land related disputes especially in matters of evidences while proving the ownership
rights.
As an alternative, there should be a harmonisation laws and court decisions to overcome
stipulated contradictions (Land law, law of evidence, Civil, commercial, labour and
administrative procedure). Such harmonisation will serve as the process of creating common
standards between courts decisions and the provisions of the law. Harmonisation
54
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55
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56
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05/06/2014.
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59
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