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Scientia et Lux FACULTY OF LAW DEPARTMENT OF LAW LEGAL REGIME OF

ECONOMIC CRIMES IN RWANDA: CASE STUDY OF ILLICIT ENRICHMENT

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 INSTITUT D’ENSEIGNEMENT SUPÉRIEUR DE RUHENGERI
Accredited by Ministerial Order N° 005/2010/Mineduc of 16 June2010
Scientia et Lux

FACULTY OF LAW

DEPARTMENT OF LAW

LEGAL REGIME OF ECONOMIC

CRIMES IN RWANDA: CASE STUDY OF
ILLICIT ENRICHMENT
(2017-2020)

A dissertation submitted in partial fulfillment of requirements for the

award of a Bachelor’s Degree in Law.

By: Claude UWIMANA

Reg No: 20/14980

B.P. 155
Supervisor: Callixte MBONIGABA Ruhengeri
Rwanda

T : +250 788 90 30 30
Musanze, January 2022 : +250 788 90 30 32
E : info@ines.ac.rw

W :www.ines.ac.rw

i
 DECLARATION OF ORIGINALITY

I, Claude UWIMANA do hereby declare that the work presented in this dissertation is my
own contribution to be the best of my knowledge. The same work has never been submitted
to any other University or Institution. I, therefore declare that this work is my own for the
partial fulfillment of the award of a Bachelor’s degree with honors in Law at INES-
Ruhengeri.

Candidate’s name: Claude UWIMANA

Candidate’s signature…………………………………

Date of submission……………./………………./2021

ii
 APPROVAL

This is to certify that this dissertation entitled “Legal regime of economic crimes in Rwanda:
case study of illicit enrichment” is an original study conducted by Claude UWIMANA under
my supervision.
Supervisor’s name: Callixte MBONIGABA

Supervisor’s Signature……………………….….…………………

Date of submission……………………./……………………./2021

iii
 DEDICATION

I dedicate this dissertation work to:

My Beloved wife

My family

My parents,

My sister,

My colleagues.

iv
 ACKNOWLEDGEMENTS

First and foremost, I thank Almighty GOD for his blessings, guidance and protection during
my life in general and while doing my studies in particular.

From the bottom of my heart, I would like to thank my supervisor Callixte MBONIGABA,
for his technical guidance and encouragement that helped me to successfully complete this
Dissertation on time.

This Dissertation would not have achieved its objectives, without the active and enthusiastic
cooperation of INES and its lecturers especially those of the Faculty of Law. My time may
not allow me to give details of each person’s contribution, but my heart holds me
accountable for the love they all entrusted to me. I am indebted to the staffs and all
employees of INES Ruhengeri whose assistance played a vital role during this entire
dissertation, the reason why I am grateful to all of them.

My gratitude goes also to all my teachers in primary and secondary schools for contributing
to my intellectual growth. Finally, I would like to thank all those who in one way or another,
contributed to the achievement of this dissertation.

God bless you all!!!!

Claude UWIMANA

v
 ABSTRACT

The present study is entitled «the legal regime of economic crimes in Rwanda: case study
of illicit enrichment». As problem statement, even if those civil servants comply with the
duty of declaration of patrimony, the latter may not be sincere because they may declare
known property especially in the country while they hide huge amounts outside on
anonymous accounts or belonging to far relatives. Second, the law does not allow the civil
servants to publicly declare their property while it is the public who specifically know their
real possessions. And it provide its penalty without precision on modalities of its specific
prosecution especially lacking rules on the collection of proofs of this fleeting and trans-
boundary crime. Besides, under the criminal procedure the strict application of the rule of
burden of proof does not facilitate the prosecution and the reversal of this rule is
internationally illegal and infringes fundamental rights.As hypothesis, the prosecution is
hindered by a series of legal challenges such as the inefficiency of all laws thereon to detect
hidden patrimony beyond what is officially declared; the issue of burden of proof; access of
proofs for a fleeting and trans-boundary crime; a series of legal suggestions are made to
insure effectiveness in the process of eradication of the crime of illicit enrichment.The global
goal of this study is the assessment of the Rwandan legal means to fight illicit enrichment
and specifically, determining the extent to which the fight against illicit enrichment is legally
guaranteed in Rwandan law; pointing out legal challenges undergone in the prosecution of
the crime of illicit enrichment due to the weaknesses of legislation thereon;suggesting
mechanisms to insure effectiveness in the process of eradication of the crime of illicit
enrichment. In order to attain the objectives of this study, different techniques and methods
were used. As techniques only documentary technique was used while the analytical,
exegetic, synthetic, the comparative and the historical methods were helpful.

vi
 TABLE OF CONTENTS

DECLARATION OF ORIGINALITY .......................................................................... ii

APPROVAL ....................................................................................................................iii

DEDICATION................................................................................................................. iv

ACKNOWLEDGEMENTS ............................................................................................ v

ABSTRACT ..................................................................................................................... vi

TABLE OF CONTENTS .............................................................................................. vii

CHAPTER 1. GENERAL INTRODUCTION ............................................................ 15

1.1. Background of the study .............................................................................................. 15

1.2. Problem statement ........................................................................................................ 17

1.3. Research questions ....................................................................................................... 19

1.4. Hypothesis .................................................................................................................... 19

1.5. Objectives .................................................................................................................... 19

1.5.1. General objective ...................................................................................................... 20

1.5.2. Specific objectives .................................................................................................... 20

1.6. Scope of the study ........................................................................................................ 20

1.7. Choice of the study ...................................................................................................... 20

1.8. METHODOLOGY ...................................................................................................... 20

1.8.1. Research techniques .................................................................................................. 21

1.8.1.1. Documentary technique ......................................................................................... 21

1.8.1.2. Research methods .................................................................................................. 21

vii
1.8.1.3. Analytical method .................................................................................................. 21

1.8.1.4 Exegetic method ...................................................................................................... 22

1.8.1.5 Synthetic method .................................................................................................... 22

1.8.1.6 Comparative method ............................................................................................... 22

1.9. SIGNIFICANCE OF THE STUDY ............................................................................. 23

1.10. STRUCTURE OF THE STUDY ............................................................................... 23

CHAPTER 2: LITERATURE REVIEW ON ILLICIT ENRICHMENT ................ 24

2.1 Conceptual framework .................................................................................................. 24

2.1.1 Definition of illicit enrichment .................................................................................. 24

2.1.2. The constituent elements of the offence of illicit enrichment ................................... 25

1. The legal element ............................................................................................................ 25

2. The material element ....................................................................................................... 26

3. The moral element .......................................................................................................... 26

2.1.3. The specifics of illicit enrichment ............................................................................. 26

2.2. Illicit enrichment and related concepts ........................................................................ 27

2.2.1. Illicit enrichment and corruption .............................................................................. 27

2.2.2. Illicit enrichment and money laundering .................................................................. 29

2.2.3. Illicit enrichment and unjust enrichment .................................................................. 29

2.3. The causes and consequences of illicit enrichment ..................................................... 30

2.3.1. The causes of illicit enrichment ................................................................................ 30

1. An incomplete preventive policy and the fragility of the judicial system ...................... 30

viii
2.The feeling of personal financial insecurity ..................................................................... 31

3. Perversion of social and cultural practices ...................................................................... 31

2.3.2. The consequences of illicit enrichment ..................................................................... 32

1. Political effects of illicit enrichment ............................................................................... 32

2. Economic impact of illicit enrichment ............................................................................ 33

3. Socio-cultural impact of illicit enrichment ..................................................................... 34

CHAPTER 3. ANALYSIS OF THE LEGAL AND POLITICAL PREVENTION OF

ILLICIT ENRICHMENT IN RWANDA .................................................................... 35

3.1. Prevention by state organs ........................................................................................... 35

3.1.1. Declaring property and procedure to be followed .................................................... 35

1. Period of declaring property ........................................................................................... 35

2. Content of declarations of property ................................................................................ 35

3. Filing of declarations of property.................................................................................... 35

4: Faults relating to declaration of property and administrative sanctions ......................... 36

3.2. Prevention by non-state bodies .................................................................................... 37

3.2.1. Civil society .............................................................................................................. 38

3.2.1.1. The means of struggle ............................................................................................ 38

3.2.1.2. Education of the population ................................................................................... 38

3.2.1.3. The moderation of abuses by rulers ....................................................................... 39

3.2.1.3.1. Collaboration with the government .................................................................... 39

3.2.1.3.2. Pressure tactics .................................................................................................... 39

3.2.2. The role of the media ................................................................................................ 40

ix
3.2.2.1. Popularization of the law ....................................................................................... 40

3.2.2. 2. Monitoring the implementation of the law ........................................................... 41

3.3. Caselaws on unjustified wealthies ............................................................................... 42

3.3.1. Case of Murenzi Janvier: suspicious wealth ............................................................. 42

3.3.2. Theoneste Mutsindashyaka ....................................................................................... 43

3.3.3. Gatwabuyenge on two fronts .................................................................................... 43

3.3.5. Marc Kabandana ....................................................................................................... 44

3.4. Analysis of legal, institutional and political weaknesses ............................................. 44

3.4.1. Legal issues ............................................................................................................... 44

3.4.1.1. Inaccessibility of evidence of patrimony declared ................................................. 44

3.4.1.2. The difficult application of the burden of proof .................................................... 45

3.4.1.3. Resort to unfair proofs ........................................................................................... 46

3.4.1.4. Issue of detection of facts constituting the illicit enrichment ................................ 46

3.4.1.4.1. Denunciations ..................................................................................................... 47

3.4.1.4.2. The opposability.................................................................................................. 47

3.4.1.4.3. Reference to the internal order for the sanction .................................................. 48

3.4.1.6. Violation of international law by the Rwanda legislator ....................................... 49

3.4.1.6.1. Inconsistency with the goals of the United Nations. ........................................... 49

3.4.2. Institutional challenges ............................................................................................. 50

3.4.3. Comparative approach .............................................................................................. 51

3.4.3.1. Botswana ................................................................................................................ 51

x
3.4.3.2. Seychelles .............................................................................................................. 52

3.4.3.3. Rwanda: Petty corruption not recognized .............................................................. 53

CHAPTER 4: LEGAL AND INSTITUTIONAL MECHANIMS FOR AN

EFFICIENT PROSECUTION OF ILLICIT ENRICHMENT IN RWANDAN LAW
.......................................................................................................................................... 54

4.1. The primacy of the treaty over the ordinary laws ........................................................ 54

4.1.1. Affirmation of the principle in Rwanda law ............................................................. 54

4.1.1.1. A constitutional provision ...................................................................................... 54

4.1.2. A rule of general criminal law .................................................................................. 55

4.1.3. The obligation of the Rwandan legislator to react .................................................... 55

4.2.1. The ombudsman office and its missions ................................................................... 58

4.2.2. Procedural lengths and issue of proof ....................................................................... 59

4.2.3. The eventual reversal of the burden of proof ............................................................ 60

4.2.3.1. Rethinking the relationship between reverse burdens and the presumption of
innocence ............................................................................................................................ 60

4.2.3.1.1. Guiding Principle 1 ............................................................................................. 61

4.2.3.1.2. Guiding Principle 2 ............................................................................................. 62

4.2.3.1.3. Guiding principle 3 ............................................................................................. 62

4.2.3.2. The reversal of the burden of proof in case of illicit enrichment ........................... 64

4.3. Rethinking the regime of sanctions .............................................................................. 64

4.3.1. Civil sanctions ........................................................................................................... 65

4.3.1.1. The various possible scenarios ............................................................................... 65

xi
4.3.1.1.2. In case of no damage to the structure.................................................................. 67

4.3.1.1.3. Civil sanctions proper ......................................................................................... 68

4.3.2. Administrative sanctions. .......................................................................................... 71

4.3.2.1. Patrimonial sanctions. ............................................................................................ 71

4.3.2.2. Suspension of funding............................................................................................ 73

4.3.3. Professional sanctions ............................................................................................... 74

4.3.3.1. The sanctions themselves ....................................................................................... 74

4.3.3.2. Forfeiture................................................................................................................ 75

4.3.3.3. The conditions prior to the sanction ....................................................................... 75

4.4. Institutional mechanism: comparative approach based on Seychelles and Botswana

models ................................................................................................................................. 76

4.4.1. Seychelles ................................................................................................................. 76

4.4.2. Botswana ................................................................................................................... 77

4.4.3. Efficiency of the anti-corruption institutions ............................................................ 77

4.4.4. Creation of a specialized anti-corruption commission to reinforce the track of

economic criminals ............................................................................................................. 79

CHAPTER 5. CONCLUSION AND RECOMMENDATIONS ........................................ 81

5.2. Recommendations ........................................................................................................ 82

xii
 LIST OF ABBREVIATIONS AND ACRONYMS

ACE : Anti-Corruption Evidence

Art. : Article

CCP : Code of Criminal Procedure

COVID : Corona Virus

CPI : Corruption Perception Index

OHADA : Organisation pour l'harmonisation en Afrique du droit des affaires

TIS : Transparency International Seychelles

CECA : Corruption and Economic Crime Act

CPC : Criminal Procedure Code

DCEC : Directorate on Corruption and Economic Crimes (Botswana)

DC : District of Columbia

Ed. : Edition

AUCPCC : African Union Convention on Preventing and Combating Corruption

KIST : Kigali Institute of science and Technology

et al. : et alii which means “with others (authors)”

i.e. : Id est which means “that is”

INES : Institut d’Enseignement Supérieur de Ruhengeri

Nº : Number

IAJC : Inter-American Juridical Committee

OECD : Organisation for Economic Co-operation and Development

xiii
NPPA : National Public Prosecution Authority

OG : Official Gazette

OL : Organic Law

ibid : ibidem which means “same author, same page

P. : Page

Par : Paragraph

PwC : PricewaterhouseCoopers

Reg : Registration

% : Percentage

SC : Supreme Court

UNCAC : United Nations Convention against Corruption

VS : Versus (against)

www : worldwide web

Vol : Volum

OAS : Organization of American States

ICAC : Independent Commission Against Corruption

DPP : Directorate of Public Prosecutions

ACCS : Anti-Corruption Commission of Seychelles

RIB : Rwanda Investigations Bureau

NPPA : National Public Prosecution Authority

xiv
 CHAPTER 1. GENERAL INTRODUCTION

1.1. Background of the study

According to Price Waterhouse Coopers (PwC), looking more closely at the data, Rwanda’s
economic crime rate of 47% is well below the East African average of 64% and is below
the global average of 49 %. Rwanda also has the lowest bribery and corruption1 rate in East
Africa.2This may be because the country apparently enforces laws and regulations against
bribery and corruption. Nevertheless, even if it is not explicitly required by service
providers, corruption is really practiced in all sectors especially in recruitments where huge
amounts and sex are offered to access attractive positions; public tender where the happy
winner is not always innocent, traffic police whereby police officers are daily bribed to
deviate sanctions inflicted to road users; driving licenses are delivered on bribes all but a
few and then the failure to disclose or to detect fraud in all its forms may also play a role,
albeit smaller, in explaining the low prevalence rate in Rwanda.3

Consequently, although Rwanda’s figures are better than compared well with its East
African counterparts,4 this does not involve that Rwandans are really less corrupt but most
often what is published is far different from the field practice. The fight against corruption
today is meant to be effective given that States are looking for the necessary means to
combat the phenomenon. Although Rwanda has often been less criticized by Transparency
International 5 than some other African states in terms of measures against the practice of
corruption and enjoys a good rank compared with ranks of the neighboring countries,

1
bribery means giving or receiving an unearned reward to influence someone's behavior. One common
form of bribery is a "kickback" - an unearned reward following favorable treatment while corruption - is
any unlawful or improper behaviour that seeks to gain an advantage through illegitimate means. Bribery,
abuse of power, extortion, fraud, deception, collusion, cartels, embezzlement and money laundering are all
forms of corruption

2
Ibidem
3
Transparency International, Corruption perception index,2020,
https://www.transparency.org/en/cpi/2020/table/rwa https://www.transparency.org/en/cpi/2020/table/rwa
4
Ibid
5
Indeed, the indices are 0.07, 0.06 and 0.04 respectively for corruption in the public sector, corruption in the
private sector and corruption of politicians
15
corruption practices are still a reality especially the illicit enrichment which is reflected by
disproportional balance between what the civil servant receives officially as income and
what he really possesses.6 The various sanctions provided for in the Rwandan penal code
(which dates from 1977; 2012 and 2018) to combat anti-corruption behavior has proven
ineffective. The African Union convention on the prevention and the fight against
corruption of July 01, 2003 in its article 1 defines illicit enrichment as a substantial increase
in the property of a public official or any other person which he or she cannot reasonably
explain in in relation to his or her income.7

The United Nations convention aapproaches the question in the same direction throughout
international instruments against corruption. Illicit enrichment is considered in article 9 the
law n° 54/2018 of 13/08/2018 on fighting against corruption as the situation of any person
who cannot justify the source of his or her assets compared with his or her lawful income.
There is a substantial increase in the wealth of an individual, but with the particularity that
the income of this individual cannot be justified as far as its source is concerned especially
the salary monthly paid for civil servants.8

It is to put an end to these acts that Rwanda joined the others foreign countries in
criminalizing illicit enrichment. Rwanda is part of several conventions including the United
Nations Convention against Corruption (UNCAC) of October 31, 2003 and the African
Union Convention on the Prevention and Combating against Corruption(AUCPCC) on July
01, 2003 which prohibit acts of corruption in general and illicit enrichment in particular.9
Although Rwanda made political strategies at least by putting in place the legal and
institutional framework to fight illicit enrichment especially enacting the law n° 54/2018
of 13/08/2018 on fighting against corruption and law no 76/2013 of 11/9/2013 determining

6
Hutchinson, E., McKee, M. and Balabanova, D. 2019. What Drives Health Workers to Break the Rules and
Use Public Resources for Private Gain? A Review of the Literature on sub-Saharan Africa. Anti-Corruption
Evidence (ACE) Research Consortium, Working Paper 9.
7
Ibidem

8
Ibidem

9
Rwanda signed the UNCAC on 30 November 2004 and ratified the AUCPCC on on 25/06/2004.

16
the mission, powers, organization and functioning of the office of the ombudsman,
nevertheless, the crime of illicit enrichment is still a reality and legal and political ways
forward seem not yet efficient to eradicate this fleeting scourge. The present study intends
therefore to conduct an assessment of Rwandan criminal legislation in the face of the
offence of illicit enrichment. The study strives to tackle various impediments and
shortcomings in the domain of laws and judicial practice put in place to prevent and punish
this economic offence.

1.2. Problem statement

In case there is known that a civil servant only has his income linked to the function he
occupies and that everybody is aware of the amount of his/her salary without excluding the
other property possessed outside the position, there is wondered how were acquired these
assets such a sumptuous building and a very expensive car and other cars for his spouse
and children, lorries transiting goods in the region, several houses erected in the capital for
leasing and so on. Judgments rendered on cases of illicit enrichment are referred to
throughout this study. There is no writing defect no denounced acts of corruption or
declared embezzlement.10

At more and more corruption has plagued the daily life of populations. It is to put an end
to these acts that the international community has decided to criminalize" illicit
enrichment". Rwanda, as party of international and regional conventions against corruption
and related crimes among which is included illicit enrichment put in place different criminal
laws in a bid to prevent and repress acts constituting illicit enrichment.11 Indeed, according
to paragraph 1 of article 9 of the law n° 54/2018 of 13/08/2018 on fighting against
corruption, any person who cannot justify the source of his or her assets compared with his

10
Ibidem

11
Indeed, Rwanda is a party of African Union Convention on Preventing and Combating Corruption, 11 July
2003, 43 ; OECD Convention on Combating Bribery of Foreign Public Officials in International Business
Transactions of 17 December 1997, ;United Nations. Declaration against Corruption and Bribery in
International Commercial Transactions of 16 December 1999,;United Nations. International Covenant on
Civil and Political Rights of 23 March 1976 ;United Nations. United Nations Convention against Corruption,
31 October 2003); and United Nations. United Nations Convention against Illicit Traffic of Narcotic Drugs
and Psychotropic Substances of 20 December 1988
17
or her lawful income commits an offence.12 Besides, per article 4 of the law no 76/2013 of
11/9/2013 determining the mission, powers, organization and functioning of the office of
the ombudsman dealing with the mission of this institution, the Office shall have the
following mission....«to receive annually the declaration of assets from persons determined
in the annex of this Law; and to receive annually declaration of assets of political
organizations and verify their origin and their use.»13

Furthermore, in accordance with article 107 of the law nº 027/2019 of 19/09/2019 relating
to the criminal procedure, the burden of proof is on the public prosecution or, in case of a
claim for damages or private prosecution, on the victim of an offence or his or her rightful
beneficiaries. An accused is always presumed innocent until proven guilty by a final court
decision. An accused is not obliged to prove his or her innocence unless his or her guilt has
been established. However, where evidence to support the offence is presented, the accused
or his or her legal counsel may present all the defences available to him or her, raise a plea
of inadmissibility or show that the allegations against him or her do not constitute an
offence or he or she is innocent and present all the facts challenging the veracity of
incriminating evidence.14

Although, those legal texts are established they are reproached to have some loopholes and
weaknesses which seem to be factors of inefficiency in the prosecution of illicit enrichment.
Indeed, Therefore, first, as far as the law nº 76/2013 of 11/9/2013 determining the mission,
powers, organization and functioning of the office of the ombudsman is concerned, even if
those civil servants comply with the duty of declaration of patrimony, the latter may not be
sincere because they may declare known property especially in the country
while they hide huge amounts outside on anonymous accounts or belonging to far relatives.
In this regard, the investigators may encounter the challenge of detecting such economic
criminals and content themselves on what is locally accessible. Second, the law does not
allow the civil servants to publicly declare their property while it is the public who

12
Law n° 54/2018 of 13/08/2018 on fighting against corruption, Official Gazette nº. special of 20/09/2018
13
Law no 76/2013 of 11/9/2013 determining the mission, powers, organization and functioning of the office
of the ombudsman, Official Gazette n° special of 18/10/2013
14
Ibidem

18
specifically know their real possessions. Third, the law n° 54/2018 of 13/08/2018 on
fighting against corruption just defines the illicit enrichment and provide its penalty without
precision on modalities of its specific prosecution especially lacking rules on the collection
of proofs of this fleeting and trans-boundary crime.15

Fourth, under the law nº 027/2019 of 19/09/2019 relating to the criminal procedure the
strict application of the rule of burden of proof does not facilitate the prosecution and the
reversal of this rule is internationally illegal and infringes fundamental rights.
Consequently, although laws incriminating facts qualified as illicit enrichment are already
adopted, their implementation by judicial institutions does not assure efficiency in the fight
against this offence which is hardly evidenced given that it is sometimes trans-boundary so
that people illicitly enriched can easily cover their wealth abroad and declare few assets to
the extent that apparent reports differ far from the real property.

1.3. Research questions

1) What are the legal hindrances of the prosecution of the crime of illicit enrichment?
2) What are effective strategies to efficiently detect the undeclared property and identify
their real owners?

1.4. Hypothesis

1)The prosecution is hindered by a series of legal challenges such as the inefficiency of all
laws thereon to detect hidden patrimony beyond what is officially declared; the issue of
burden of proof; access of proofs for a fleeting and trans boundary crime
2) A series of legal suggestions are made to insure effectiveness in the process of
eradication of the crime of illicit enrichment.

1.5. Objectives

The present research elected a series of general and specific objectives as follows.

15
Ibidem

19
1.5.1. General objective

The global goal of this study is the assessment of the Rwandan legal means to fight illicit
enrichment
1.5.2. Specific objectives
Determining the extent to which the fight against illicit enrichment is legally guaranteed in
Rwandan law;
Pointing out legal challenges undergone in the prosecution of the crime of illicit enrichment
due to the weaknesses of legislation thereon;
Suggesting mechanisms to insure effectiveness in the process of eradication of the crime
of illicit enrichment.

1.6. Scope of the study

The present work is limited in time, space and domain. Timely, there is taken into account
2018 when was adopted the law n° 54/2018 of 13/08/2018 on fighting against corruption
as well as the law nº68/2018 of 30/10/2018 determining offences and penalties in general.
Spatially, the research was carried out inside the Rwandan territory. Regarding the legal
field, the study frames with special criminal law.

1.7. Choice of the study

A researcher decides to undertake research because is a way of proving lies and support
truth and also, she or he can conduct a research as a tool for building knowledge and for
facilitating learning. The findings from research allow a researcher to make a better
decision. I selected this topic the legal regime of economic crimes in Rwanda because I
was interesting about of illicit enrichment.

1.8. METHODOLOGY

In order to attain the objectives of this study, different techniques and methods were used.
Technique is a procedure or skill for completing a specific task. If a class room is becoming
distracted a teacher may use the technique to use a quick physical activity to distract their

20
distraction and get them all to do the same thing at the same time; whereas the method is a
way something is done. Example: the recipe that I found in the cookbook had different
ways to cook the potatoes, but I chose the bake in the oven.16The documentary technique
was used in collecting data from different written documents relevant to the topic including
law texts, books, journal articles, annual reports, newspapers, etc. The exegetic method
helped to interpret the various law materials. The analytic method was used for analysis of
different elements of data collected. Finally, the synthetic method has helped in regrouping
the collected data in a coherent manner

1.8.1. Research techniques

1.8.1.1. Documentary technique

This technique concerns the reading done to collect data such as national and international
texts of law (legislation), books in the library, journal articles, electronic sources, reports,
newspapers, etc. available on the crime of illicit enrichment

1.8.1.2. Research methods

This method of research consisted of a descriptive analysis and critique of a legal problem
identified in primary or secondary source of law. It consists of an analytical, interpretative
exercise. This method is often referred to colloquially as “black letter” methodology, which
takes its name from the tendency of legalistic approaches to concentrate solely on the “letter
of the law”. Within the present study, different “methods” will be used. These are the
analytical method; the exegetic method, the synthetic method, the comparative method and
the historical method.

1.8.1.3. Analytical method

Legal research is generally speaking done by way of reading and “analyzing” the existing
primary and secondary sources of law on the crime of illicit enrichment. Within the present

16
https://wikidiff.com/method/technique
21
study, this method is helpful to assess the strengths and weaknesses of the law governing
the fight against corruption and the law on the functioning of ombudsman as far strategies
to prevent corruption in general and illicit enrichment in particular are concerned.

1.8.1.4 Exegetic method

Exegetic method consists in the critical explanation or interpretation of the texts of

legislation. This is a form of statutory interpretation which aims at finding the correct and
accurate ways forward for an effective prosecution of the crime of illicit enrichment.

1.8.1.5 Synthetic method

The synthetic method consists in summing up our findings in a logical, clear and concise
manner. In this regard, data collected from publications were selected focusing on what are
more related to the topic and coherently quoted.

1.8.1.6 Comparative method

Comparative method is a method or process of comparing laws. It is a method of study and

research in which the legal principles or methods of different systems of law are compared.
Where there are areas of difference, one must reconcile them either by adopting the best
existing variant or by finding, through comparative methods, a new solution which is better
and more easily applied than any of the existing ones.17 Regarding our study, there were
compared various national, foreign and international legislations on the prevention of the
crime of illicit enrichment; specifically, there was referred to Botswana and Seychelles
which obtained good ranks in the index respectively 34 and 27 while Rwanda obtained the
61rst rank.18

17
KAYITANA E. (2018). Advanced Research Methodology for Law. ULK, Kigali,p.22(not published)
18
E.NTIRENGANYA(2021).Anti-corruption committees to step up Rwanda’s graft fight
https://www.newtimes.co.rw/news/anti-corruption-committees-step-rwandas-graft-fight
22
1.9. SIGNIFICANCE OF THE STUDY

Having daily observed factual phenomenon of civil servants monthly paid as others but
possess huge amounts on bank accounts and possess movables and immovables valued in
millions of Rwandan francs19 the researcher was driven to design a study which may assess
or balance the extent to which the crime of illicit enrichment is prosecuted and fought in
Rwandan so that there should be suggested legal, institutional and political mechanisms to
more legally prevent and repress this concerning economic crime.

1.10. STRUCTURE OF THE STUDY

The study consisted of five chapters. The first chapter dealt with the general introduction.
Chapter 2 traces the literature review of the study whereby are defined technical and cross-
cutting concepts of the study. Chapter 3 analyzed the legal and political prevention of illicit
enrichment in Rwanda. Chapter 4 focused on the legal and political mechanisms proposed
to insure effectiveness of eradication the crime of the crime of illicit enrichment. Lastly,
with the chapter 5 there were drawn a conclusion of the study and emitted
recommendations.

19
E.Kwibuka(2019).Towards Enforcement of Africa’s Commitments against Corruption: Rwanda to
implement the AUCPCC. https://www.newtimes.co.rw/news/featured-towards-enforcement-africas-
commitments-against-corruption-rwanda-implement-aucpcc

23
CHAPTER 2: LITERATURE REVIEW ON ILLICIT ENRICHMENT

Within this chapter we successively identify the general notions on illicit enrichment in its
first section where there are defined key concepts, the elements constituting the offence of
illicit enrichment and the specificities thereof. The concepts related to the offence of illicit
enrichment occupy the second section before discussing its causes and consequences in the
third section.

2.1 Conceptual framework

There is hereby defined the offence of illicit enrichment and its constitutive elements are
highlighted according to the law incriminating this economic crime.

2.1.1 Definition of illicit enrichment

Etymologically, the term "illicit" comes from the Latin word "illicitus", the adjective which
designates what is not permitted by law or morality. Illicit enrichment is a concept that
refers to enriching oneself by means contrary to the law. Usually, the concept is used to
refer to public officials who use their power and authority to carry out crimes; 20 illegal
activities or who obtain money through bribes.21
In the UNCAC, illicit enrichment is defined as: "a substantial increase in the assets of a
public official that the latter cannot reasonably justify in relation to legitimate
income".22There is a substantial increase in the wealth of an individual, but with the
particularity that the income of this individual cannot be justified in quality and quantity.23
The Inter-American Convention against Corruption, in the same vein, considers illicit
enrichment as a significant increase in the assets of a public servant that he cannot

20
https://www.merriam-webster.com/dictionary/illicit
21
ibid
22
UNCAC, article 20
23
The United Nations Convention against Corruption of 31 October 2003,
https://www.unodc.org/unodc/en/corruption/uncac.html
24
reasonably justify in relation to the income legitimately received in the exercise of his
functions.24
The African Union Convention on Preventing and Combating Corruption goes further by
defining illicit enrichment as: A substantial increase in the property of a public official or
any other person that he cannot justify. With regard to its income. Criminal liability is not
limited only to the person of the public official, but also to any other person, whether public
or private, whose increase in property cannot be justified by his legitimate income.25
The Rwandan criminal lawmaker is silent on the definition of the unlawfulness of the
offence of illicit enrichment, which can confuse the determination of the illicit origin of the
wealth for the judge seized.
From these definitions, it should be concluded that illicit enrichment is the increase in assets
in movable and immovable property without the holder being able to justify its origin in
relation to his legitimate income.

2.1.2. The constituent elements of the offence of illicit enrichment

Like any other offence, the offence of illicit enrichment must have three elements, namely:
the legal element, the material element and the mental element.

1. The legal element

Illicit enrichment is provided for and punished by law law n° 54/2018 of 13/08/2018 on
fighting against corruption and the law nº68/2018 of 30/08/2018 determining offences and
penalties in general..

24
The Inter-American Convention against Corruption, adopted in March, 1996, https://www.oas.org ›
juridico › english › corr_bg
25
African Union Convention on Preventing and Combating Corruption of 01 July 2006,
https://au.int/en/treaties/
25
2. The material element

Under the terms of the aforementioned articles, the offence is constituted when one is in
possession of goods whose origin is illicit. The quality of the person in possession of these
goods must be a depositary of public authority, entrusted with a public service mission or
invested with an elective public mandate.26
According to article 1 of the African convention on the prevention and the fight against
corruption, the mere fact of having in one's possession the property whose official income
cannot justify is sufficient to conclude that there is consumption of the offence. .

3. The moral element

It is the possession of goods with full knowledge of their illicit origin. These assets must
be derived from an offence and in this context from a corruption offence and related
offences

2.1.3. The specifics of illicit enrichment

It would be wise to clarify that illicit enrichment is an offence under international criminal
law because it is an offence that can occur with any foreign element in the sense that some
assets or funds are often hidden abroad. In fact, conventions of either international or
regional levels have been ratified by Rwanda to fight against this offence. In this we can
say that illicit enrichment is a formal offence, in the sense that the only increase in property
that the owner's income cannot justify or constitutes the offence. The UNCAC of October
31, 2003 in its article 3.al.2 (article 3, paragraph 2) specifies that it is not necessary for the
offence to cause damage or financial loss to the State.

Moreover, the Inter-American convention against corruption signed on March 29, 1996 in
its article XII is of the same opinion by specifying that it is not necessary that the offence

26
Check, N.A., Madise, T., Majozi, N. and Hamada, Y. 2019. The Integrity of Political Finance Systems in
Africa: Tackling Political Corruption. International IDEA Policy Paper No. 20
26
of illicit enrichment cause damage or an economic prejudice to the State property. 27 There
is a reversal of the burden of proof because the person suspected of illicit enrichment would
have to demonstrate the origin, provenance and sources of his property; these should
reasonably justify the balance between income and said assets. Otherwise, if one is
prosecuted for the crime of illicit enrichment, we would not, however, speak of the
presumption of innocence with the particularity that there is a reversal of the burden of
proof. One could rather speak of a presumption favorable to the prosecution and not in
favor of the suspect.

We find that the prosecution does not have much to suffer in seeking out the evidence, but
rather it is evidently for those suspected of illicit enrichment to prove the origin of the
sustained and disproportionate increase the value of their heritage. However, the principle
of the presumption of innocence and the obligation imposed on the prosecution to provide
proof of guilt are the major general principles which may constitute limiting factors.

2.2. Illicit enrichment and related concepts

Since illicit enrichment is one of the offences related to corruption, it must relate to them
without however being confused with them. Thus, we will show the relationships that illicit
enrichment has with the corruption offence itself, with that of embezzlement, that of
fraudulent management and that of money laundering. It will also be appropriate to
differentiate illicit enrichment from unjust enrichment.

2.2.1. Illicit enrichment and corruption

Etymologically, the term “corruption” comes from the Latin “corruptio” and means
“alteration of the substance by decomposition. In this sense, a judgment, a taste, a language,
... can be altered, corrupted.28 n a more restricted sense, and falling within the scope of this

27
The Inter-American Convention against Corruption, adopted in March, 1996, https://www.oas.org ›
juridico › english › corr_bg
28
Doss, Eric. "Sustainable Development Goal 16". United Nations and the Rule of Law. Retrieved 25
September 2020.
27
research work, corruption is defined as “the abuse of public position for the purpose of
personal gain.29 For Roger Lenglet, “corruption is the perversion or misappropriation of a
process or an interaction with one or more people for the purpose, for the corrupter, to
obtain particular advantages or prerogatives or, for the corrupt, to obtain retribution in
exchange for his benevolence. It generally leads to the personal enrichment of the corrupt
or to the enrichment of the corrupt organization.30

As for Ursula Cassani and Anne Héritier, “corruption is the offence by which an undue
advantage is granted to a public or private official in exchange for an act or an omission in
the exercise of his office or his duties. employee or agent. The corrupter is guilty of active
corruption, while the corrupt agent commits an act of passive corruption.31 Nicolas
QUELOZ distinguishes between petty and grand corruption. The first is practiced by the
little people to survive while the second is that of the ruling elites who make it a means of
getting rich illicitly.32

The Rwandan penal legislator defines corruption as the act of any person who, in order to
acquire illicit profits, solicits or approves, gives or offers without right, directly or
indirectly, for his own account or for the account of others, offers, gifts, presents or
advantages of any kind for the accomplishment or the abstention from doing an act which
falls within its attributions or to carry out an unjust act. Thus, we find, as VERON M.
asserts that the corruption offence involves two or more people, namely the briber, who
offers or accepts remuneration to the corrupt who, in exchange, performs or refrains from
performing an act falling within its functions; when the offence of illicit enrichment
involves a single person whose substantial unjustified increase in assets is noted. In all

29
Roth, John; Douglas Greenburg and Serena Willie (2004). "Monograph on Terrorist Financing" (PDF):
54–56. Retrieved 2 March 2011.
30
Roger Lenglet,: Profession corrupteur - La France de la corruption, éditions Jean-Claude Gawsewitch,
Paris,2007
31
Ursula Cassani and Anne Héritier Lutte contre la corruption internationale, Schulthess Verlag
Centre de droit bancaire et financier,Zürich 2011
32
Nicolas QUELOZ, Droit pénal suisse, Schulthess Verlag, Zürich,2019
28
cases, acts of corruption lead to illicit enrichment and this constitutes the body of the
corruption offence.33

2.2.2. Illicit enrichment and money laundering

The offence of money laundering can be perceived as the concealment of illicit wealth to
see the acts which constitute it namely: the conversion, the acquisition, the possession or
the use, the transfer or the assignment of the goods, products of an offence in order to
conceal or disguise their illicit origin or to help any person involved in the commission of
the offence to escape prosecution.34 The person who has acquired goods illegally tries all
means to bring them into legality through complicated channels. This means that anyone
who is afraid of being prosecuted for illicit enrichment can proceed by laundering as a
means of escaping its consequences, prosecution and possibly repression.

2.2.3. Illicit enrichment and unjust enrichment

Unjust enrichment which is sanctioned by the action "de in rem verso", belongs to the
category of quasi-contracts. The action is allowed when the patrimony of one person has
been enriched to the detriment of another and the correlative impoverishment which has
resulted from it finds its justification, neither in a convention or a donation, nor in a legal
or regulatory provision. Thus unjust enrichment is the product of a commitment which is
formed without agreement and which results from the sole authority of the law. Payment
of overdue payments and business management are good examples of this.

Illicit enrichment has similarities with unjust enrichment in civil law through the unjustified
increase in the wealth of one individual to the detriment of another. The two notions differ
in their fields, the first being the notion of criminal law while the second falls under civil

33
Veron M, et al. (2006) Histone H1 of Saccharomyces cerevisiae inhibits transcriptional
silencing. Genetics 173(2):579-87
34
Morris-Cotterill, Nigel (1999). "A brief history of money laundering". Archived from the original on 24
February 2016.
29
law and the only sanction is none other than the restitution of the enriched person (now
debtor) to the impoverished (creditor) by what he got from his patrimony.35

2.3. The causes and consequences of illicit enrichment

We cannot speak of the causes and consequences of illicit enrichment by isolating the
corruption which is an origin of it. Corrupt practices thrive in a system that makes them
possible and lowers the risk for the perpetrator. Even then, whoever takes the risk of
denouncing illicit enrichment becomes the target of mockery, even of reprisals. They thrive
above all in a context where oversight institutions are non-existent or loose and where
pressure groups are weak.

2.3.1. The causes of illicit enrichment

The causes of illicit enrichment in Rwanda are multiple and complex and also take different
forms. They are found at different levels and without claiming to be exhaustive, we will
particularly insist on: an incomplete anti-corruption policy and the fragility of the judicial
system, the feeling of personal insecurity and the perversion of social practices.

1. An incomplete preventive policy and the fragility of the judicial system

Failure to realize the importance of certain issues such as professional ethics, conflicts of
interest, denial of gifts and other benefits that end up creating relationships that are cloudy
or frowned upon by others remains a challenge. How could one interpret, for example, a
gesture of material support by traders towards the Director in charge of public procurement
for his project to build a dwelling house? The next day, will he be able to resist the
solicitations of the person who offered him a hundred bags of cement? The offer,
acceptance of gifts and prizes for people in decision-making positions should be put under
the control of a legal standard. The judiciary, whose degree of independence is insufficient,

35
Dell, G. and McDevitt, A. 2018. Exporting Corruption: Progress Report 2018: Assessing Enforcement of
the OECD Anti-Bribery Convention. Transparency International
30
cannot therefore prosecute certain authorities for illicit enrichment. Since some people
appear to be above the law, justice is likely to be discouraged.36

2. The feeling of personal financial insecurity

On the one hand, insecurity concerns the act of a public and even private agent in the
exercise of his functions. The latter, still fearing his imminent departure and the dark days
that will follow, will be tempted by bribes. This is also the case for civil servants at the end
of their career who imagine their fate when they are in office retirement. On the other hand,
insecurity concerns the fact that income is insufficient and is in perpetual deterioration.
Rwanda is suffering from an economic recession, with high inflation and its currency is
dangerously losing its value against foreign currencies, which makes the expensive cost of
living. It will be difficult to practice the virtues of integrity for a public servant whose salary
cannot cover even his basic needs.37
This is also the case for political representatives who are afraid of being relieved of their
duties at any moment when they have already taken a liking to the good life. The
uncertainty of his future gives him the audacity to take the illicit act to ensure his
tomorrow.38

3. Perversion of social and cultural practices

We must not ignore that honor and social consideration are measured by the wealth of the
person, his ability to intervene to meet the financial needs of his relatives or even
neighbors.39
Indeed, in the Rwandan culture, poverty is taken for a disease or failure of the poor person
and the mentality that the poor are the target of all misfortunes hence to the extent that they
are hated by everyone including close relatives. Becoming rich is translated in

36
Chan, Eric. "Getting The Deal Through - Anti-Money Laundering" (PDF). Retrieved 28 May 2017.
37
Joseph, Lester; John Roth (September 2007). "Criminal Prosecution of Banks Under the Bank Secrecy
Act"(PDF). United States Attorneys' Bulletin. Retrieved 2 March2011.
38
Lawrence M. Salinger, Encyclopedia of white-collar & corporate crime: A – I, Volume 1, page 78, ISBN 0-
7619-3004-3, 2005.
39
Room, Reading. "Regulatory and Supervisory Framework > Anti Money Laundering and Countering the
Financing of Terrorism". www.mas.gov.sg. Retrieved 28 May 2017.
31
Kinyarwanda by "gushaka gukira vuba" which means to the race behind money. Getting
rich for a Rwandan, who finds the opportunity, is a way of making himself a man of his
word and endowing himself with an acceptable social status. Others take refuge behind
certain Rwandan proverbs encouraging diversion, such as “gukama izo uragiye” which
means that the goat grazes where it is tied and this occasion of managing a post with
financial opportunities prompts some unscrupulous staff to embezzle public funds.

2.3.2. The consequences of illicit enrichment

The effects of illicit enrichment are devastating and affect all aspects of national life. “The
illicit acquisition of personal wealth can be particularly damaging to democratic
institutions, national economies and the rule of law. In principle, the State must make its
efforts to improve the socio-economic and cultural situation of its citizens by ensuring
distributive justice as stipulated in the international covenant on economic, social and
cultural rights of 16 December 1966 according to which Everyone is entitled to obtain the
satisfaction of economic, social and cultural rights indispensable to his dignity and to the
free development of his person, thanks to the national effort and taking into account the
country's resources.. However, corruption distorts this fairness and all efforts are doomed
to failure.40

1. Political effects of illicit enrichment

The harmful consequences are manifested mainly by the indiscretion of state institutions
towards citizens and donors. Corruption in general and illicit enrichment in particular erode
the rule of law in several areas. In public administration, it leads to inequality, uncertainty
in service delivery and undermines trust in the state apparatus and its institutions. It attacks
the purpose of public management, national stability and even the legitimacy of the political
process. National security and the very values of democracy are undermined while the
achievement of development goals is threatened. The general interest is sacrificed for the
benefit of particular interests by the political or administrative authorities vested with

40
Jackobson, Peter (12 November 2020). "Exclusive: Gold market authority threatens to blacklist UAE and
other centres". Reuters. Retrieved 12 November 2020.
32
powers of management of public affairs and politics is reduced to a field of business where
everyone seeks his profits.41

This leads us to support Porta Donatella who finds that corruption and illicit enrichment
bring important changes in the political system and facilitate the emergence of a class of
business politicians where political parties engage in illegal activities to subsist. Citizens
no longer have confidence in their elected representatives and associate the person of the
politician with that of a liar or a crook and believe in certain statements such as: "politics
is the art of lying". Donors doubting the integrity of people in state institutions freeze funds
intended for the implementation of poverty reduction programs.42 It is one of the primary
causes of human rights violations and accentuates impunity, distorts the rules of the
democratic game and allows less deserving people to be in charge of state affairs.43

2. Economic impact of illicit enrichment

They mainly concern the infringement of economic development and the distortion of the
distributive role of the State. They cause economic growth, foreign direct investment and
domestic investment to stop. There is a fluctuation of the local currency which experiences
a deep depreciation in front of the currencies which tend to dominate in the transactions on
the local market. Illicit enrichment can also affect the size and composition of public
spending, financial systems, the private sector, and the extent to which companies are
dragged. Investments in infrastructure are unlikely to target low-income groups income
especially since these projects do not contribute to increasing revenues from corruption.44

41
Joseph, Lester; John Roth (September 2007). "Criminal Prosecution of Banks Under the Bank Secrecy
Act"(PDF). United States Attorneys' Bulletin. Retrieved 2 March2011.
42
Della Porta, Donatella, Social Movements in Times of Austerity, Cambridge, Polity, 2015.
43
Greenberg, Theodore, Linda Samuel, Wingate Grant, and Larissa Gray. 2009. A Good Practices Guide to
Non-Conviction-Based Forfeiture. Washington, DC: World Bank, Stolen Asset Recovery Initiative. Henning,
P. J. 2001. “Public Corruption: A Comparative Analysis of International Corruption Conventions and United
States Law.” Arizona Journal of International and Comparative Law 18 (1): 793–866.
44
Inter-American Juridical Committee. 1999. Annual Report of the Inter-American Juridical Committee to
the General Assembly. Rio de Janeiro: IAJC. International Council on Human Rights Policy. 2010.
Integrating Human Rights in the Anti-Corruption Agenda: Challenges, Possibilities, and Opportunities.
Geneva: Transparency International. http://www.ichrp.org/fi les/reports/58/131breport. pdf.
33
Even the construction of schools or health clinics will yield little benefit to the poor if the
gains from corruption increase the costs. Social services for the poor are of poor quality
and face a correspondingly higher tax burden. higher, or fewer services, as the share of the
tax bill imposed on those who have neither the power nor the wealth to pay tax collectors
increases. According to the World Bank report, more than a trillion illicitly acquired dollars
are paid each year into banks in developed countries.45

3. Socio-cultural impact of illicit enrichment

The consequences of illicit enrichment are also manifested by the distortion of the
distributive role of the state and the poverty of the masses. Illicit enrichment tends to
concentrate the country's wealth in the hands of a small group of people, as OLUCOME
says, “Corruption enriches few people and kills many.46

So one group of people are working and running on oil and the other group is languishing
in misery. This can contribute greatly to social inequalities and conflict. It separates the
poor from the rich, causes the poor to perceive government as a predator and oppressor
rather than a facilitator. It helps to divide communities and creates feelings of rivalry. and
jealousy. From what precedes, we hope to have shown that illicit enrichment constitutes an
evil which threatens the entire international community, Rwanda presenting itself as the
potential victim. So, it is important to analyze the legal or institutional mechanisms put in
place by the Rwandan legislator for the prevention of illicit enrichment, which will be the
subject of the following chapter.

45
'Brien, Timothy L. (9 November 2005). "Bank of New York Settles Money Laundering Case". New York
Times. Retrieved 3 March 2011.
46
Jayawickrama, Nihal, Jeremy Pope, and Oliver Stolpe. 2002. “Legal Provisions to Facilitate the Gathering
of Evidence in Corruption Cases: Easing the Burden of Proof.” United Nations Forum on Crime and Society
2 (1): 23–32.

34
 CHAPTER 3. ANALYSIS OF THE LEGAL AND POLITICAL
PREVENTION OF ILLICIT ENRICHMENT IN RWANDA

3.1. Prevention by state organs

3.1.1. Declaring property and procedure to be followed

1. Period of declaring property

Every public civil servant under obligation of property declaration shall declare to the
Office his/her property within the Country and abroad. A declaration form indicating
property shall be submitted to the Office not later than 30 June each year for those who are
already in service and within a period not exceeding fifteen (15) days from the date they
left office for those who are no longer in public service. New public officials taking up
duties shall declare their properties to the Office within a period of one (1) month from the
date of taking office. Declarations indicating the properties of the Ombudsman, Deputy
Ombudsmen and staff members of the Office, who are required to declare their properties,
shall be submitted to the Bureau of Senate in a period provided for to others who must
declare their assets.47

2. Content of declarations of property

The declaration shall indicate the source of the declared property, the date of acquisition,
its value at that time, assets of his/her spouse if married under community of property,
property of his/her children below eighteen (18) years of age, donations made from his/her
own patrimony and others.48

3. Filing of declarations of property

47
art.37, law no 76/2013 of 11/9/2013 determining the mission, powers, organization and functioning of the
office of the ombudsman, Official Gazette n° special of 18/10/2013
48
art.38
35
The declarations of property shall be kept confidential and the information contained in
the declaration shall only be known to the filer and their relevant custodians. Where
necessary, the President of the Supreme Court or the Prosecutor General, after making an
official request to the Ombudsman or the Bureau of Senate, may be allowed to access the
declaration information of the person suspected to have committed an offence, for the
investigations purposes. However, if the concerned person is the President of the Supreme
Court or the Prosecutor General, the request shall be made by their deputies.49

4: Faults relating to declaration of property and administrative sanctions

According to this Law, faults relating to declaration of property shall include: 1° failure to
submit declarations; 2° partial declaration or unintentional false declaration. The Office
shall request the person required to declare his/her property to make another declaration
once the fault is committed for the first time. The Office shall request the employer to
impose administrative sanctions to the person who committed faults relating to the
declaration of property in the following manner: 1º second time: blaming; 2º third time:
retention of a quarter of the salary; 3º fourth time: expulsion. When the declaration of
property is rejected for the second time for reasons notified to the concerned person in
writing, the Office shall commence investigations. In the event the investigations show that
the property declaration is intentionally false, the concerned person shall be liable to
temporary suspension, and, in case of recidivism, to expulsion. Where faults referred to in
this Article have been committed by the Authority governed by the Organic Law
determining the leadership code of conduct, such an authority shall be liable to an
administrative fine of five hundred thousand (500,000) to one million (1,000,000) Rwandan
Francs. In case of recidivism, he/she shall be liable to an administrative fine of one million
(1,000,000) to two million (2,000,000) Rwandan Francs. Sanctions referred to in
Paragraphs 6 and 7 of this Article shall be given by the Office and the amount of the fine
shall be deposited in the Public Treasury.50

49
art.39
50
art.40
36
3.2. Prevention by non-state bodies

Per article 3 of the law n° 54/2018 of 13/08/2018 on fighting against corruption, to prevent
corruption and related offences, public and private 'institutions as well as non-governmental
organizations which are charged with providing services that are of public interest must, in
providing these services, avoid inequality and discrimination of any kind with regard to
beneficiaries with equal rights.51 Besides, notwithstanding provisions of international
conventions ratified by Rwanda, institutions and international organizations operating or
wishing to operate in Rwanda must set up mechanisms for the prevention of corruption and
related offences.
We will focus here on the roles played by civil society and the media. The ideological
foundations of civil society participation are numerous and can be summed up in two:
First, illicit enrichment constitutes a threat to the stability of States to the point that public
authorities alone cannot succeed in the fight. Second, the principle of good governance is
a feature of democracy which participates in the good management of public affairs. All
this is also the reflection of Article 5.al.1 of the UNCAC which provides that the
participation of society would be a pledge of "The rule of law, good management of public
affairs and public goods, integrity, transparency and accountability.52

51
law n° 54/2018 of 13/08/2018 on fighting against corruption, Official Gazette n° Special of 20/09/2018
Quoted by Jorge, Guillermo. 2003. “Notes on Asset Recovery in the U.N. Convention against Corruption.”
52

American Bar Association, Chicago

37
3.2.1. Civil society

The role of civil society in the fight against illicit enrichment is not without importance.
We will first analyze the means of struggle available to civil society before talking about
the moderation of abuses by rulers by it.

3.2.1.1. The means of struggle

Civil society must participate in the management of affairs and in the education of the
populations so that they can be able to combat illicit enrichment. The conventions signed
or ratified by Rwanda emphasize the delicate problem of civil society in the context of the
fight against illicit enrichment. Indeed, it would be necessary “to create a favorable
environment which allows civil society to encourage governments to demonstrate
transparency and accountability in the management of public affairs.53Although it would
be necessary “to increase the transparency of the processes of decision-making and promote
public participation in these processes. That said, the essential role that civil society must
play in combating this phenomenon is to participate in the management of State affairs.
And for this to be effective, the population should be educated.

3.2.1.2. Education of the population

Civil society has a role of educating the population so that we can all recognize the harms
of illicit enrichment instead of complying with it as a habit. Likewise, civil society should
be able to explain to the population what illicit enrichment is. This would perhaps allow an
indirect popularization of the law and the people could then have a more or less sufficient
understanding about illicit enrichment and its misdeeds. Civil society must bring the
population to understand that it is the first victim of illicit enrichment and encourage them
to join the ranks of the fight against this evil.

53
Okuyucu-Ergün, Güne. 2007. “Anti-Corruption Legislation in Turkish Law.” German Law Journal 8 (9):
903–14.

38
In Rwanda, in its role of countervailing power and defending the interests of citizens, civil
society, through numerous national associations, should get involved in the fight against
this scourge, particularly in the areas of awareness, education, documentation and initiation
of deterrence strategies.
The means available to civil society to fight against illicit enrichment are intended to
moderate the abuses of those who manage public wealth.

3.2.1.3. The moderation of abuses by rulers

A well-educated society can help the State to a fair distribution of wealth because the
government will collaborate with it, this because this society would have all the means of
pressure.

3.2.1.3.1. Collaboration with the government

Civil society should work with governments to successfully prevent cases of illicit
enrichment. We believe that this will remind potential delinquents to reconsideration and
will avoid as much as possible to get rich illicitly.
Articles 36 and 37 of the former law no 23/2003 related to the punishment of corruption
and related offences encourages citizens to denounce cases of corruption and illicit
enrichment under a promise, i.e. to benefit from one fiftieth of the value of the property
making object of offence, or a sum of money varying from one hundred thousand to three
hundred thousand Rwandan francs if the fact denounced led to a conviction.54
The government cannot dispense with this collaboration in order to avoid undue pressure
or suspicion.

3.2.1.3.2. Pressure tactics

Civil society should be an agent of respect for the law. As such, it would have an important
place in the prevention of illicit enrichment. This means that the people should urge the
government not to break the law. We should feel that the law is applied by the government

54
Official gazette of 03-09-2003
39
so that the people feel concerned and especially that all the desired struggle is not artificial.
This would lead to the promotion of the law.55
Thus, civil society would have an important role in preventing cases of illicit enrichment.
It is also because information is one of the means used by civil society that we bring into
play the role of the media.

3.2.2. The role of the media

Ignorance, forgetting or contempt for human rights are the causes of misfortunes such as
the perpetuity of crimes including illicit enrichment. Information is necessary to avoid such
misfortunes. Article 10 of the UNCAC calls on states to inform the public. The media
would therefore be of great help in achieving this goal with a view to fulfilling this mission.
Thus the main role of the media would be to provide information to the public which can
be summed up in popularizing the law, monitoring its implementation and raising
awareness.56

3.2.2.1. Popularization of the law

The publication of the law and its accessibility are media means of popularization of the
law making it possible to fight illicit enrichment.
First, for the popularization of the law, it is not for the media to replace the public
authorities in their missions of promulgation and publication of the law, but to facilitate its
wide dissemination by allowing a large number to access it. The population would at least
be aware that a law prohibiting such behavior is in force and perhaps help them to inform
those close to them of the risks of getting rich illicitly. We can only hope that the texts
made available to the public are reliable in order to guarantee effective accessibility.57

55
Pereira, Julio. 2003. “O crime de riqueza injustifi cada e as garantias do processo penal.” Boletim do CCAC
7 (September): 1. Police Federation of Australia. 2009. “Police Support Unexplained Wealth Legislation.”
Press Release. Police Federation of Australia, Canberra. http://www.pfa.org.au/fi les/
uploads/Press_Release_240609__2_.pdf.
56
Posadas, Alehandro. 2000. “Combating Corruption under International Law.” Duke Journal of Comparative
and International Law 10 (2): 345–415.
57
Schroth, Peter W., and Ana Bostan. 2004. “International Constitutional and Anti-Corruption Measures in
the European Union’s Accession Negotiations: Romania in Comparative Perspective.” American Journal of
Comparative Law 52 (1): 625–711.
40
As for the accessibility of the law, the media can popularize the law and make it accessible
to all. The law should be understood by all and in all its contours. For this, the media should
surround themselves with legal specialists (university professor, lawyers, magistrates, etc.)
so as not to distort the law or alter its meaning. Publishing the law and making it accessible
would make little sense if there was no effective monitoring of its implementation.58

3.2.2. 2. Monitoring the implementation of the law

The media would be more useful in the fight if they undertook activities of information of
the public not to tolerate the illicit enrichment by various programs of education of this
public. The illicit enrichment in its facets would be apprehended by the population and it
would be easy for the population to provoke judicial actions.
The media should monitor judicial practice without, however, breaking the law because
“no one can be worried about their opinions. This idea leads us to believe that the media
should follow judicial practice. Thus, the media would pose a threat to would-be offenders
and many will avoid getting rich illicitly because the media could expose them and then
follow them to court. That is to say that the media will try to put pressure on the courts, but
on condition that they do not undermine the presumption of innocence and the rules of a
fair trial.59

The preventive actions of illicit enrichment demonstrate a version of countering the offence
upstream. We can safely say that the fight at this level would be relatively effective if it is
well organized. It should be understood, however, that prevention cannot completely
prevent the commission of the offence since there could be some who fall through the
cracks. We cannot therefore forget that repressive action must intervene to overcome the
failure of preventive action; this is what will be analyzed during the fourth and last chapter
of our work.

58
Rudnick, A. G. 1992. “Cleaning Up Money Laundering Prosecutions: Guidelines for Prosecution and Asset
Forfeiture.” Criminal Justice 7 (1): 2–6.
59
Shams, Heba. 2001. “The Fight against Extraterritorial Corruption and the Use of Money Laundering
Control.” Law and Business Review of the Americas 7 (1-2): 85–134.

41
3.3. Caselaws on unjustified wealthies

Whoever commits crime in life- no matter how long it takes, time comes and you get
punished. Certainly, such a scenario befits several government officials who had been put
in charge of taxpayers’ money but decided to divert it for personal enrichment. The list is
long and includes former ministers and top civil servants who have been paraded before
the courts of law this year. Others got sacked for corruption related crimes.

3.3.1. Case of Murenzi Janvier: suspicious wealth

The verdict had been set for November, 27, after prosecution called for a five-year prison
term for Murenzi. Murenzi who is currently detained at Mulindi military prison is accused
of accumulating unexplained wealth. According to the national prosecutor Habarurema
Jean Pierre, Murenzi had in the period of four years worked as a civil servant, accumulating
over Rwf500m, seriously dwarfing his four year salary of Rwf 30,540,000. Murenzi first
served as a government prosecutor before his spell at the President’s Office, he has never
acquired a loan, nor any other source of income, there is no way he could have accumulated
all this wealth,” Habarurema told the intermediate court.National prosecutor abarurema
said that the suspect said he had acquired the wealth way before he joined the civil service
while he was still a student at Kigali Institute of science and Technology (KIST).However
he couldn’t pin point his business,” prosecutor maintained. He added that within the same
period, Murenzi had been able to put up five mansions in several city suburbs, two plots,
two accounts, one being a USD dollar one. The youthful former director of finance at
Urugwiro, Janvier Murenzi will also spend under custody. He accumulated unexplained
wealth. In a space of four years, he was worth over Rwf500m according to prosecution. He
was convicted for illegal amassing of wealth and sentenced four years in prison and ordered
to pay Rwf 1.1 billion to government.60

60
Judgment rendered on December 24, 2009
42
3.3.2. Theoneste Mutsindashyaka

During his tenure as minister, Theoneste Mutsindashyaka, the former state Minister of
primary and secondary school could have planned to spend the best moment of this
Christmas with his family somewhere. But fate had other plans for him. Mutsindashyaka
was arraigned before Kacyiru Court for among other charges, flouting tendering rules in
the construction of eastern province headquarters in 2007.This case was a complicated. At
first, prosecution had shown no particular interest to pursue Mutsindashyaka until the Judge
intervened. Judge Nyiramikenke ordered prosecution to produce Mutsindashyaka to court
insisting he was party to the eastern province case. At the end of it all, the former minister
was sentenced to one year jail term and fined Rfw 500000.But before his file was closed,
new charges came up. He was arrested shortly before Kacyiru verdict for allegedly
concealing his foreign bank accounts from Ombudsman.

3.3.3. Gatwabuyenge on two fronts

Gatwabuyege’s troubles this year worsened. He was a former permanent secretary in the
ministry of infrastructure who was arrested for awarding a tender worth Rwf 1.7 billion
illegally to the constructors of headquarters for Eastern province.He was also found guilty
for swindling funds in the construction of the Bugesera road. Just a day after being
sentenced by Gasabo primary Court to 3 years in prison for robbing the government, he
received another 4 years for circumventing tendering rules.Along with his group, they are
supposed to pay Rwf 1.7 billion to government

3.3.4. Doing Business the wrong way

The eastern province case extended. The same primary court fund Alexis Mugarura, owner
of EMA and John Wilson Sekaziga who owned Intertech, a consultancy firm charged with
monitoring construction work at the headquarters guilty in the same case of flouting
tendering rules and were sentenced to four years imprisonment each.

43
3.3.5. Marc Kabandana

Kabandana was Director General of Rwanda Institute of Administration and Management

(RIAM) a government’s training body also celebrates Christmas in jail for allegedly
embezzling about Rwf 203 million. He was arrested with Faustin Mugisha the director of
finances (DAF) after an audit of Riam’s books revealed 203 million francs had disappeared
unaccounted for.

3.4. Analysis of legal, institutional and political weaknesses

There is hereby assessed abilities of Rwandan legislation; policies and institutions to deter
the perpetrators of this crime of illicit enrichment.

3.4.1. Legal issues

The law n° 54/2018 of 13/08/2018 on fighting against corruption deserves to be assessed

on its capacity to fight the targeted crime.

3.4.1.1. Inaccessibility of evidence of patrimony declared

The Law n° 54/2018 of 13/08/2018 relating the punishment of the crime of corruption and
related offences appears very general in so far as it just defines the understanding of the
illicit enrichment and its penalties while there lack a number of specifications which may
facilitate the investigator and the prosecutor seeking evidence of such a crime especially
the veracity of facts constituting this crime. In this regard, the fact that someone holds huge
amounts on foreign accounts exculpates him while those judicial institutions failed to
countercheck such a phenomenon of exporting patrimony in a bid to escape from the
control. This loophole has benefit to Mutsindashyaka61 who pretended that the funds saved
abroad was aimed to pay tuition for his schooling children while really those amounts were
scattered in different countries of Europe and America and that their number exceeded these
limited tuitions. Besides, the secret nature the declaration of patrimony prevents the public
to access and denounce lies declared. Indeed, according to article 39 of the law no 76/2013

61
RP 0177/09/TB/KCY.Prosecution vs.Theoneste Mutsindashyaka
44
of 11/9/2013 determining the mission, powers, organization and functioning of the office
of the ombudsman, the declarations of property shall be kept confidential and the
information contained in the declaration shall only be known to the filer and their relevant
custodians. Where necessary, the President of the Supreme Court or the Prosecutor General,
after making an official request to the Ombudsman or the Bureau of Senate, may be allowed
to access the declaration information of the person suspected to have committed an offence,
for the investigations purposes. However, if the concerned person is the President of the
Supreme Court or the Prosecutor General, the request shall be made by their deputies.

3.4.1.2. The difficult application of the burden of proof

Besides, the principle of burden of proof enshrined by the article 107 of law nº 027/2019
of 19/09/2019 relating to the criminal procedure according to which The burden of proof is
on the public prosecution or, in case of a claim for damages or private prosecution, on the
victim of an offence or his or her rightful beneficiaries. An accused is always presumed
innocent until proven guilty by a final court decision. An accused is not obliged to prove
his or her innocence unless his or her guilt has been established. Unless provided otherwise
by Law, the production of evidence is made in accordance with the Law relating to the
production of evidence.62
This rule is not applicable in the specific prosecution of the illicit enrichment given that the
investigator ignores the real assets of the suspect apart from those officially declared and
the very person who is aware of such compromised movables and immovables is the owner
and the law limits the reversal of this duty only when the prosecuting party provided
sufficient charging proofs whereby the defendant has to refute them. Indeed, the third
paragraph of the same article states that where evidence to support the offence is
sufficiently presented, the accused or his or her legal counsel may present all the defences
available to him or her, raise a plea of inadmissibility or show that the allegations against
him or her do not constitute an offence or he or she is innocent and present all the facts
challenging the veracity of incriminating evidence. Is it allowed to prior reverse the burden
of proof? Isn't it then a violation of the right to a fair trial and due process?

62
Official Gazette n° Special of 08/11/2019
45
3.4.1.3. Resort to unfair proofs

the investigators have often recourse to unfair evidence such as intercepting

communications especially in case of allocation of public tenders to catch promises of
corruption in exchange of such a market or preparing banknotes and copying them in a sort
of provoking the offender to address difficulties encountered to get proof of cheating facts
in this domain. The investigator and even the prosecutor get the expected facts but there
are obtained illegally. Indeed, the provisions of articles 38; 39 and 40 of the Rwandan law
relating to criminal procedure allowing and organizing the interception of communication
in investigations and prosecution overtly violate the constitution especially its article 23
according to which the privacy of a person, his or her family, home or correspondence shall
not be subjected to interference in a manner inconsistent with the law; the person's honor
and dignity shall be respected. a person's home is inviolable. no search or entry into a home
shall be carried out without the consent of the owner, except in circumstances and in
accordance with procedures determined by the law. Confidentiality of correspondence and
communication shall not be waived except in circumstances and in accordance with procedures
determined by the law.63

3.4.1.4. Issue of detection of facts constituting the illicit enrichment

Detecting facts of illicit enrichment can limit the damage by blocking and eradicating all attempts
or actions in progress. This detection would be a means of recovering the cases that the
preventive actions would not have been able to intercept. We would cut off any inclinations
for illicit enrichment. The sense of the relations between the different partners is essential
here. If they are conflicting, it would be difficult to achieve detection; on the other hand, if
collaboration is at the center of said relations, detection would be better assured. And this
could be done through the cooperation that can manifest itself both internally or nationally
and internationally.

63
official gazette no special of 24/12/2015
46
3.4.1.4.1. Denunciations

The bank or financial institutions can therefore denounce suspicious transactions. All this
would allow the participation of these institutions in the strengthening of the rule of law,
especially since in opposability would allow better progress in detection. The eventual
commission for declaring goods and assets we are hereby suggesting when it is set up could
then receive suspicious reports from banks and financial organizations. The ombudsman
office would already be ready to receive them since it is already up and running. We can
then count on the manifest will of the competent services and organizations to ensure the
effectiveness of this cooperation.

3.4.1.4.2. The opposability

Bank secrecy and the confidentiality of securities can lead an institution not to cooperate.
These conditions are unenforceable here.
1ºBanking secrecy
The various conventions against corruption contain provisions in this direction i.e. the
UNCAC and the African Union Convention on Preventing and Combating
Corruption (AUCPCC) of 11 July 2003 as well as Articles 9 and 10 of Law no 76/2013
of 11/9/2013 determining the mission, powers, organization and functioning of the office
of the ombudsman
go in this direction. We can therefore think that no financial institution could oppose
banking secrecy. This measure, which would already be effective in the context of classic
economic crime, may prove useful in the context of the fight against illicit enrichment.
It could in no way be difficult for a bank to serve the data necessary for the materialization
of the truth. Rather, these banks may be suspected of engaging in illicit activities, for
example embezzlement (in complicity) or money laundering. This could be seen as a limit
to the confidentiality of transactions.64

64
Brun, Jean-Pierre, Larissa Gray, Clive Scott, and Kevin Stephenson. 2011. Asset Recovery Handbook: A
Guide for Practitioners. Washington, DC: World Bank, Stolen Asset Recovery Initiative.
47
2ºConfidentiality of titles
Illicit enrichment covers all the patrimony. What to be interested in goods other than those
entrusted to banks. The titles relating to intangible property, donations and bequests
received by the taxable person must be known. A notary, for example, cannot refuse to
collaborate to justify himself by confidentiality. It is in a way an invitation from everyone
to get involved in the fight against illicit enrichment.
This fight is not therefore reserved for a single category of person, it would concern all the
actors involved in the management of funds, in the exercise of the public service (directly
or indirectly). Detection would then be effective, efficient and even crucial in the context
of this fight.
The argument shows that legal persons cooperate in the detection of infringements. This
should not obscure the role of natural persons in the same direction.65

3.4.1.4.3. Reference to the internal order for the sanction

The conventions relating to the fight against illicit enrichment proceed by reference to the
internal order to sanction cases. Article 65 (1) of the United Nations Convention provides:
"Each State Party shall take the necessary measures, including legislative and
administrative, in accordance with the fundamental principles of its internal law, to ensure
the fulfillment of its obligations under this convention . We could say that the United
Nations convention would lead States to reinforce“ measures more stringent or more severe
than those provided for ”in the convention. This is a hypothesis which allows us to observe
a will of the international community to punish and repress the authors of illicit enrichment,
but all this is difficult to apply with the predominance of internal law because States are
jealous of their sovereignty. This leads the researcher to think that the Rwandan legislator
would have to get more involved.66 Observing that sanctions are impossible to be inflicted

65
De Luca, Javier Augusto, and Julio E. López Casariego. 2002. “Enriquecimiento patrimonial de
funcionarios, su no justifi cación y problemas constitucionales.” Revista de Derecho Penal 2: 117–50.
66
Lindy Muzila, Michelle Morales, Marianne Mathias, and Tammar Berger, Public Office, Private Interests:
Accountability through Income and Asset Disclosure (2012) On the Take: Criminalizing Illicit Enrichment
to Fight Corruption (2012)
48
by lack of criminal legality, we can think that the legislator would have violated
international law.67

3.4.1.6. Violation of international law by the Rwanda legislator

This violation could be summed up in the failure to respect international provisions and the
incompatibility between Rwanda law and the aims of international conventions.

3.4.1.6.1. Inconsistency with the goals of the United Nations.

Rwanda legislation is said to be incompatible with the aims of international conventions.

This can be observed both within the framework of the fight against impunity and through
the use of ineffective means.
1ºIn the fight against impunity
The African Union convention like that of the United Nations against corruption above
insists on the fight against impunity. The first shows that African states are "concerned
about the negative effects of corruption and impunity on political, economic, social and
cultural stability". This is to say that they would be to fight all the illicitly enriched. In the
same sense, the United Nations Convention expresses that members are "convinced of the
fact that the illicit acquisition of personal wealth can be particularly harmful to democratic
institutions, national economies and the rule of law" and therefore all those involved in
these acts should be punished.68 We therefore believe that this situation which is not
respected in the Rwanda internal order could lead to the decline of the law because “there
are legal principles which are linked to our civilization and ensure their maintenance. The
law declines if they are ignored. Because it would be pointless to denounce a behavior and
neither prohibit nor punish it when it is committed. This means that the managers of the
public wealth would do everything to stay there as long as possible to loot with all concern.
Those in charge will also seek to access it in order to enjoy these “advantages”. 69

67
ibid.
68
Addah, M.A., Jaitner, A., Koroma, E.B., Miamen, A., and Nombora, D. 2012. Poverty And Corruption in
Africa: Community Voices Break the Cycle.
69
Ibid
49
Chaos would therefore be in sight, all the more so as the Rwanda legislator would certainly
have provided resources, but these would prove ineffective.
2ºThe ineffectiveness of the means used
These resources are only contingent or for others ineffective. Because the declaration of
assets or the various or the various actions of the office of the Ombudsman are important..
But not all of these actions can have a real impact if the offenders cannot be dissuaded or
rewarded. These means are much more preventive and when the preventive and when the
smartest fall through the cracks, it is difficult to punish them under Rwanda law. We know
that the legal penalty “deprives the offender of the advantage obtained by his non-
compliance with the rules and imputing to him a reprimand, a moral reprobation. It would
be wise to punish because non-repressive sanctions appear to be insufficient and less
dissuasive. The legislator should therefore react to avoid the plundering of the nation's
wealth and the distress of users. If the formality of the offence has been consecrated, it is
to catch the hidden corrupt and the hijackings of the last malicious audiences. If no
management fault is found, no one will be punished for illicit enrichment. In addition, the
non-ratification of the African Union Convention demonstrates a real lack of will on the
part of the Rwanda public authorities to combat a harmful fact. This is in addition to the
failure to comply with the ratified United Nations Convention against corruption of 31
October 2003 the effects of which on the internal level are being felt70.
In view of what has just been said, the absence of repressive measures to combat illicit
enrichment would be a handicap. In relation to this reluctance, we can offer solutions.

3.4.2. Institutional challenges

In Rwanda, there lacks an institution which may be charged of economic crimes as a

commission and which would be vested of large powers to undertake investigations as
carried out in general by the Rwanda Investigation Bureau, prosecutions before courts of
those specific economic offenders. Of course, the public prosecution authority has a unity

70
Kevin Stephenson, Larissa Gray, and Rick Power, Barriers to Asset Recovery: An Analysis of the Key
Barriers and Recommendations for Action (2011)

50
in charge of those crimes but the powers are not as large as those allocated to similar organs
of foreign countries whereby they are commissions in charge of fighting corruption and
related crimes. A close example is Botswana and Seychelles where a commission and a
directorate is composed of staff playing the role of investigators and prosecutors
exclusively carrying out tasks against economic crimes and work independently but more
technically than in Rwanda where the economic unity which is not by the way scientifically
specialized prepare the case files and entrust them to the prosecutors competent ratione loci
without any specific skills on the technicality of the commission of those offences.

3.4.3. Comparative approach

The present analysis carries out a comparative study whereby there is overtly evidenced
that the Seychelles and Botswana do fight corruption than Rwanda where petty corruption
is put aside and where some favors especially in staff recruitment and public procurement
are granted in a perfect secret.

3.4.3.1. Botswana

Corruption in Botswana is primarily investigated by the Directorate on Corruption and

Economic Crimes (DCEC). It is because of the Directorate on Corruption and Economic
Crimes that Botswana is able to stay relatively low on the corruption scale. This is because
of the high prosecution rates that the Directorate on Corruption and Economic Crime is
able to achieve. To aid in fighting corruption, Botswana is also a member of the Eastern
and Southern Anti-Money Laundering Group. 71

Mokgweetsi Masisi, the current President of Botswana, has also had a hand in combating
corruption in his country. At a regional conference dedicated to combating corruption on
the African continent, Masisi gave a speech as the guest of honor. He was noted in saying
that there needed to be strong institutions to combat corruption and that good policies must
be emplaced on sectors of internal affairs. Masisi also explained the various methods that
his country has adopted in combating their own corruption. Methods that include the

71
Botswana Corruption Report". GAN Integrity. Retrieved 2019-12-15.
51
creation of a specialized court only for criminal acts of corruption, and a number of different
legal acts, such as the Whistle Blower Act and Proceeds and Instruments of Crime Act.72

When it comes to other legal frameworks and acts passed to combat corruption in the
country, the most famous and instrumental is the Corruption and Economic Crime Act of
1994. This specific act laid the framework for all the future anti-corruption acts that
Botswana has developed. However, the main aspect of this act was the creation of the
Directorate on Corruption and Economic Crimes (DCEC). It is the CECA that gives the
Directorate on Corruption and Economic Crimes the power that they now have. Though,
the Corruption and Economic Crime Act also has a number of other powers, such
as solicitation and the receiving and accepting of a payment with aims to manipulate a
public civil servant being considered illegal and thus outlawed. Some more powers of the
CECA include numerous whistleblower protections.73

3.4.3.2. Seychelles

.In 2020 Seychelles has seen a change in leadership, following presidential election results
which moved a new political party into the presidency for the first time in 43 years."TIS
has noted the stance and sentiments of the new regime on corruption matters and remains
hopeful that with the correct synergies, we can disrupt this ailment," he continued.
According to the Index, persistent corruption is undermining healthcare systems and
contributing to democratic backsliding amid the COVID-19 pandemic. It also recognized
that countries that perform well on the index invest more in health care, are better able to
provide universal health coverage and are less likely to violate democratic norms and
institutions or the rule of law. Sharing the top position of the index are New Zealand and
Denmark, each scoring 88. On the other end of the spectrum are Somalia and South Sudan
with a score of 12 out of 100.The chair of Transparency International, Delia Ferreira Rubio,
said that "COVID-19 is not just a health and economic crisis. It is a corruption crisis. And

72
Badham-Jones, Michael (27 November 2014). "Overview of Corruption and Anti-Corruption in
Botswana" (PDF). Transparency International. Retrieved 2019-12-15
73
Lekorwe, Mogopodi; Molomo, Mphe; Mole, Wilford; Moseki, Kabelo (2004). "Public attitudes toward
democracy, governance, and economic development in botswana" (14). Afrobarometer: 19. Retrieved july
12, 2011.
52
one that we are currently failing to manage.""The past year has tested governments like no
other in memory, and those with higher levels of corruption have been less able to meet the
challenge. But even those at the top of the CPI must urgently address their role in
perpetuating corruption at home and abroad," said Ferreira Rubio.74

3.4.3.3. Rwanda: Petty corruption not recognized

In the everyday reality of taxi motorcyclists in Kigali, corrupt practices are common: ‘The
police and the security officers are always asking us for money. We are being milked for
our money! Corrupt practices continue mainly because informal governance practices have
caused a lack of control. In this case, the traffic police have delegated authority to enforce
anti-corruption policies to security officers from taxi cooperatives. This has added another
level of authority and therefore more opportunities for corruption because the security
officers are not sufficiently supervised. For example, the security officers from motorcycles
cooperatives are issuing fines and asking for bribes. Both practices are totally illegal, but
have the tacit support of both the motorcycle cooperatives and the police. These power
relations expose the real issue: at face value, a fraud or a simple bribe belies an abuse of
power, a breach of trust, and an abuse of a dominant position. Of interest, these aspects of
corruption are not seen in Transparency International’s Corruption Perception Index (CPI).
As this index relies on surveys (notably the World Economic Forum’s Executive Opinion
Survey), CPI results may be influenced by the curtailment of free speech in Rwanda. This
lack of visibility may also be because international rankings consider only an economic
understanding of corruption.75

74
Transparency Initiatives Seychelles https://www.transparency.org/en/countries/seychelles accessed on
12/12/2021
75
Guillaume Nicaise(2021) Linking informal and formal governance blurs the lines between lawful and illegal
practices. https://medium.com/u4-anti-corruption-resource-centre/a-case-study-on-corrupt-practices-in-rwanda-
accessed on 13/12/2021
53
 CHAPTER 4: LEGAL AND INSTITUTIONAL MECHANIMS FOR
AN EFFICIENT PROSECUTION OF ILLICIT ENRICHMENT IN
RWANDAN LAW

4.1. The primacy of the treaty over the ordinary laws

This is a principle recognized in Rwanda law, the consequences of which would only be
positive with regard to the fight against illicit enrichment.

4.1.1. Affirmation of the principle in Rwanda law

It is a constitutional provision which is respected in Rwandan law determining offences

and penalties in general.

4.1.1.1. A constitutional provision

Article 170 of Rwandan constitutional law provides: “international treaties or agreements

regularly approved or ratified have, upon their publication, an authority superior to that of
the law, subject to each agreement or treaty its application by the law. 'other party'. This
affirmation of, the monist option with primacy of international law is clearly expressed by
the constituent of 2003 put an end to the uncertainty which prevailed before the
reform.“Each party State party takes the necessary measures including legislative to ensure
the fulfillment of its obligations under this agreement ”. This should lead the Rwanda
legislator to comply with the convention and also with the constitution. The non respect of
the convention being a violation of the constitution which enshrined the priority of the
treaty over the law. By ensuring respect for the treaty, which is a supra-legal text, one could
end up punishing illicit enrichment. We should once again observe weaknesses in
international law, we cannot force a State to apply a convention for its nationals. It is within
the framework of a relationship with another State that the reservation of reciprocity could
lead the State to commit to it. However, compliance with the treaty which would be respect
for the constitution. This is all the more so since criminal law conforms to the hierarchy of
standards.

54
4.1.2. A rule of general criminal law

The constitution and the regularly ratified treaties are supra legal texts. There should be
referred to the Rwanda law nº68/2018 of 30/08/2018 determining offences and penalties in
general. This rule which law to be ex nihilo76 since it follows from the constitution
recommends the penal law to conform to the texts which are superior to it. Which means
that parliamentary or administrative law comply with the constitution and the treaty. This
could possibly lead the Rwanda authorities to incriminate and sanction behavior recognized
as deviant by a regularly ratified convention. It would be a way of respecting legal
formalism to respect the hierarchy of norms. But we should not forget that the penal law
would have violated the international convention insofar as no provision of the penal code
was foreseen for the enrichment. illicit. It should just be remembered that in the event of a
forecast on this subject, the legislator endeavors to respect the United Nations convention
and possibly that of the African Union. The Rwanda legal order establishes the primacy of
the treaty over the ordinary laws. This could have consequences in the context of the fight
against illicit enrichment.

4.1.3. The obligation of the Rwandan legislator to react

The Rwanda legislator should respect its contractual obligations. This will lead him to
review the law on the declaration of assets.

76
Ex nihilo is a Latin phrase meaning “out of nothing“to mean in this context that the law against corruption
is not an Island but it must conform to the hierarchy of norms
55
1ºRespect for contractual obligations
There would be an obligation to incriminate and to sanction which weighs on the Rwanda
legislator. This is because everyone must honor their commitments and Rwanda's
adherence to various conventions and must not be obvious complacency on the part of the
leaders.
1. The obligation to incriminate
The obligation to incriminate arises from the Rwanda legislature's commitment to respect
the convention to which it is a party and which it has ratified. It would necessarily be a
reflection on the foundations of justice. We would feel morality in the life of society in
general and the proper functioning of the public service in particular.
We could then ask ourselves the technique that the Rwanda legislator will use. Either
without citing the United Nations convention, he will limit himself to reproducing the
criminalization of illicit enrichment so that the foreignness of the offence is camouflaged
behind the complete criminal law: Perhaps also he could return the references to the
convention of the United Nations. But this hypothesis would be a source of problem in the
sense that access to domestic legislation is not easy for all populations. It would then be
very potent for a State which would claim to be democratic and would want its populations
to have knowledge of the law. This could prove to be a source of legal insecurity which
could lead to enormous disorders.
The Rwanda legislator should therefore be able to recognize in its domestic law the
nuisance and harmfulness of illicit enrichment behavior. The appropriate way to
incriminate it as an offence and so that this offence is not unnecessary, provide for penalties
in the event of the commission of the act.77
Sanction would be useful and fair because the aim here would be to dissuade and
compensate individuals. Sanctions in criminal law are therefore the logical consequence of
criminalization. The provision of a sanction would be necessary for the effectiveness of the
rule of criminal law. We should not be faced with an imperfect law; criminal law would
then be a dead letter since it prohibits behavior without providing for the sanction in the

77
Jeremy Pope, and Oliver Stolpe. 2002. “Legal Provisions to Facilitate the Gathering of Evidence in
Corruption Cases: Easing the Burden of Proof.” United Nations Forum on Crime and Society 2 (1): 23–32.
56
event of violation. The sanction should therefore supplement the incrimination, because
alone, we would be with a blank law that would sanction without enacting faulty behavior.
The sanction should therefore be clear and precise (imprisonment, fine ...).
. Despite this same assimilation to embezzlement, one can be justified by the fact that illicit
enrichment looks more like an act of corruption in the strict sense, but not declared.78
Therefore, the United Nations convention would have already provided for certain
sanctions which could guide the legislator. “Each State Party shall make the commission
of an offence established in accordance with this convention punishable by sanctions which
take into account the gravity of this offence.” Certain sanctions such as freezing, seizure
and confiscation are possible. The convention provides even that states can take more
severe measures to crack down on illicit enrichment. We cannot hope that the sanctions
will be exemplary and conducive to ensuring social order, a considerable reduction in
corruption in general and illicit enrichment in particular. , even a healthy public service
exercise, all this said, the possible court decisions should bring a minimum of conscience
because "the jurisprudence as the legislation must progress at the rate of the evolution of
the aspirations of the collective conscience. The French courts for example are already
aware of disputes related to illicit enrichment. This is the case of Paul VERGES, this worthy
representative of a political party who was translated for incomplete and false declaration.
This demonstrated that the Rwanda public authorities should do the same. It would be a
step forward in a battle that is very difficult to succeed in terms of both the idea and the
public option as well as selfish inclinations and the privatization of public affairs, confused
with the heritage of administrative and political leaders. We may be led to think that
mentalities will change after such progress, silencing the critics of the population and the
international community.79
The reasoned reflection above could lead us to think that the simple incrimination and the
anticipation of the sanction could be sufficient for an effective curative fight against illicit
enrichment. It remains to be clarified that the prerequisites for referral to the criminal court
for a possible sanction would be obstacles to the good conduct of leaders and those

78
Ibidem
79
Paul VERGES D'une île au monde, Entretiens avec Brigitte Croisier, Éditions L'Harmattan, 1993
57
responsible for the management of public affairs. Hence the proposed amendment to the
law no 76/2013 of 11/9/2013 determining the mission, powers, organization and
functioning of the office of the ombudsman.
4.2. Amendment of the law nº76/2013 of 11/9/2013 determining the mission, powers,
organization and functioning of the office of the ombudsman

The amendment of the law could concern the composition of the commission for the
declaration of goods and assets in its missions and the elimination of any procedural lengths
that may result from the application of this famous law on the declaration of assets.

4.2.1. The ombudsman office and its missions

We could first ask ourselves about the role of the ombudsman office. Indeed, this one is
responsible for receiving the declarations of the assets of all the subjected persons. We can
be interested in the material effectiveness of such an opportunity. The ombudsman office
would then be perhaps overloaded, overwhelmed, and thus, would be doing its job under
enormous pressure.
In France for example, the President of the Republic declares his patrimonial situation to
the constitutional council; parliamentarians, for their part, file their declarations in the
chambers provided for this purpose. The same is not true of the members of the regional
council who report to the regional commissions. There is here a certain desire for
decentralization and even to reduce the workload with regard to asset declarations. Some
could defend the thesis of the single commission, arguing that the same rules apply to all
taxable persons. However, it should be understood that there would be no question here of
different rules (although we should make a distinction between the appointed and elected
subjugates, but equal rules applied by different commissions so that the work is done in all
peace of mind and in all serenity others could justify the absence of means or even of
competent personnel, we will answer them that only a real political will and a concern
rehabilitating morals could make it possible to fight against illicit enrichment.80

80
Constance Baudry, M. Piketty : Les gains de pouvoir d'achat sont très fortement concentrés parmi les plus
hauts revenus, Le Monde, 6 mai 2008 [lire en ligne [archive]]
58
Even more, the deadlines which we mentioned for the declaration in Rwanda allowed us to
think that our country would be left behind in the fight against illicit enrichment. Indeed, it
is not possible to understand how a leader whose “normal” end of mandate is known (we
are talking here about elected officials whose mandate is specified) can declare his property
at the same time as that is appointed. We could cry out for cheating for the elected official
who at the approach of the end of his mandate could conceal his property.
All these limits should be corrected to ensure effective incrimination and sanction. Because
it would be difficult to achieve the objective of combating impunity if these prerequisites
for criminal law are not corrected. Although the procedural lengths could derive from this
same law.

4.2.2. Procedural lengths and issue of proof

Per article 37 of law no 76/2013 of 11/9/2013 determining the mission, powers,

organization and functioning of the office of the ombudsman, every public civil servant
under obligation of property declaration shall declare to the Office his/her property within
the Country and abroad. A declaration form indicating property shall be submitted to the
Office not later than 30 June each year for those who are already in service and within a
period not exceeding fifteen (15) days from the date they left office for those who are no
longer in public service. New public officials taking up duties shall declare their properties
to the Office within a period of one (1) month from the date of taking office. Declarations
indicating the properties of the Ombudsman, Deputy Ombudsmen and staff members of the
Office, who are required to declare their properties, shall be submitted to the Bureau of
Senate in a period provided for to others who must declare their assets.
Article 40 of the same law establishes different sanctions inflicted to the civil servant who
commits irregularities in the discharge of the obligation to declare the patrimony. The
refusal of the said transaction would result in the soundness of the Public Prosecution on
the order of the President of the Republic after a proposal from the Commission for the
declaration of goods and assets. We can therefore consider procedural lengths compared to
a normal procedure. Hereby there should address two issues. On one side, the annual

59
declaration of patrimony may entail temptation to make disappear some valuable assets;
therefore the research suggest a regular monitoring of the declared assets and other
meantime added by the civil servants comparatively to the income. This task may overload
the tasks of the ombudsman office so that an independent commission with ad hoc duties
may fill the gaps. On the other hand, the issue of proof of the origin of such assets is still
not responded given that there are not means to countercheck the evidence provided by the
civil servants. It goes without saying that such a commission in charge of economic crimes
may help to address this challenge and find out agents who cheat as they should organize
field audits.

4.2.3. The eventual reversal of the burden of proof

A reverse onus clause is a provision within a statute that shifts the burden of proof onto
the individual specified to disprove an element of the information. Typically, this particular
provision concerns a shift in burden onto a defendant in either a criminal
offence or tort claim. For example, the automotive legislation in many countries provides
that any driver who hits a pedestrian has the burden of establishing that they were not
negligent.81As per Article 4:201 of the Principles of European Tort Law, the burden of
proving fault may be reversed in the light of the gravity of the danger presented by the
activity. The gravity of the danger is determined according to the seriousness of possible
damage in such cases as well as the likelihood that such damage might actually occur.’

4.2.3.1. Rethinking the relationship between reverse burdens and the presumption of
innocence

The framework set out below is the result of a survey of case law and scholarly literature
on burdens of proof, the presumption of innocence, and fair trials more generally. The form
of this new framework is best thought of as a ‘threshold consideration’, followed by a series
of three general principles. The first hurdle which must be cleared is the thin Presumption

81
Marria, Vishal. "How The Unexplained Wealth Order Combats Money Laundering". Forbes.
Retrieved 2018-11-15.

60
of innocence, which I describe as a threshold consideration because it represents a clear
minimum standard which must not be breached. This requires that any reverse burden be
attached to a defence, rather than an element of the offence. Next, the first guiding principle
provides guidance on how to resolve ambiguity in statutes which allocate some sort of
burden to the accused, without indicating whether it is a persuasive or evidential burden.
The second guiding principle then addresses the process of rationalizing the imposition of
a persuasive burden, strictly limiting the role of rationales borrowed from civil law. Finally,
the third guiding principle applies specifically to offences which impose a specific type of
responsibility on the accused and identifies when such offences can compatibly employ
reverse burdens.

There are three guiding principles which have been drawn from Anglo-American case law
and scholarship on reverse burden in the prosecution of the illicit enrichment which may
inspire the Rwandan law in the regulation of the prosecution of this specific economic
crime. To understand how these three principles operate together, we must first examine
each individually.82

4.2.3.1.1. Guiding Principle 1

Where the law is ambiguous as to the locus of the burden of proof, there is a rebuttable
presumption against imposing a reverse persuasive burden. GP1 has its origins in the case
of Nimmo, where the House of Lords was split over which party should bear the burden of
proof in a civil action under the Factories Act 1961. Though their Lordships disagreed as
to which party should bear the burden, all five of them agreed that where a statute was
ambiguous about the burden of proof the court would have to construe the statute based on
considerations beyond just the plain meaning of its words.83 The House of Lords then

82
Jorge, Guillermo. 2003. “Notes on Asset Recovery in the U.N. Convention against Corruption.” American
Bar Association, Chicago
83
(Nimmo at 115 (Lord Reid); 121-122 (Lord Guest); 124-126 (Lord Upjohn); 129-130 (Lord Wilberforce);
133-138 (Lord Pearson)).
61
returned to the question of how to construe a statutory provision which was ambiguous
about where the burden of proof should lie in the case of Hunt.84

4.2.3.1.2. Guiding Principle 2

In the absence of some independent justification, rationales based on the allocation of the
burden of proof in civil law do not apply to reverse burdens in the criminal context..This
principle relates to a different aspect of reverse burdens’ role in the criminal process.
Specifically, the principle imposes a constraint on the imposition of a reverse persuasive
burden in the criminal law, restricting the role of analogies to civil law. More precisely, the
principle generally precludes reasoning by analogy to principles of civil law in order to
justify imposing a reverse burden, unless there is some sort of context-specific justification
for making such an analogy. The reason for this, as will be discussed below, is that there is
no principled reason for making such analogies. Moreover, there is in fact good
reason not to assume that civil law and criminal law should necessarily have identical rules
regarding the burden of proof. Namely, criminal law and civil law are distinct areas of the
law, each with different goals, functions and consequences. The significance of these
differences means that basing the allocation of the burden of proof in the criminal law on
the parallel rules of the civil law is irrational, and therefore undesirable, unless there is
some specific justification for doing so in certain contexts.85

4.2.3.1.3. Guiding principle 3

Imposing a reverse persuasive burden will not infringe the Presumption of innocence if it
attaches to a ‘secondary’ responsibility which stems from the regulatory duty. This
principle applies to the imposition of a persuasive burden on the accused with respect to a
certain subset of offences. Specifically, the principle provides that there will be no
infringement of the presumption of innocence if the accused is required to prove that they

84
Lee, R. S. K. 2000. “The Application of Hong Kong’s Basic Law in Criminal Litigation.” Unpublished
paper submitted to the fourteenth International Conference of the International Society for the Return of
Criminal Law in Sandton, South Africa.
85
McWalters, Ian. 2003. Bribery and Corruption Law in Hong Kong. Singapore: LexisNexis Butterworth's,
a Division of Reed Elsevier (Singapore).
62
have fulfilled some sort of ‘secondary prospective responsibility’ related to a regulatory
duty. This guiding principle draws on two key sources: Duff’s theory of strict criminal
responsibility86 and Picinali justificatory theory of regulatory offences. 87
Although
nominally focused on different topics, these two theories share an important similarity: both
offer an explanation for reverse persuasive burdens in the limited context of offences which
impose a secondary responsibility on the accused. For that reason, they will be relied upon
as the foundation of this principle. This guiding principle explains why reverse persuasive
burdens on what are typically considered regulatory offences are not infringements of the
Presumption of innocence, provided certain conditions are met. However, the principle is
concerned with the imposition of secondary responsibility, rather than with any formal label
of an offence as ‘regulatory’ or otherwise.88

The meaning of the phrase ‘regulatory offence’ is not without its controversy. Indeed, there
are many possible ways to define what constitutes a regulatory offence, though no single
definition seems entirely satisfactory. At its narrowest, the phrase may refer only to
offences which arise under a statutory scheme designed to regulate a socially useful
activity, as opposed to ‘truly’ criminal laws which regulate behavior with no social utility.
At the other end of the spectrum, the broadest conception of regulatory offences would
include all those which have ‘the intention or effect of controlling, ordering, or influencing
behavior’. Between these two extremes there exists a range of possible meanings which
could be ascribed to regulatory offences. However, I will not fully adopt any such definition
here.

86
Duff, Punishment as moral communication: The experiences of long-term prisoners, School of Social and
Political Sciences, University of Glasgow, Ivy Lodge, 63 Gibson Street, Glasgow, G12 8LR, UK.
87
Picinali, Federico (2016) The denial of procedural safeguards in trials for regulatory offences: a
justification. Criminal Law and Philosophy. ISSN 1871-9791
88
Low, Lucinda A., Andrea K. Bjorklund, and Kathryn C. Atkinson. 1998. “The InterAmerican Convention
against Corruption: A Comparison with the United States Foreign Corrupt Practices Act.” Virginia Journal
of International Law 38 (Spring): 243–92.

63
4.2.3.2. The reversal of the burden of proof in case of illicit enrichment

It is true that the question of proof is cardinal. But we must not forget that the presumption
of guilt in matters of illicit enrichment is not necessarily established. The new law
punishing corruption and related offences or the law relating to criminal procedure may
establish the reversal of the burden of proof as exception for economic crimes; such laws
may just reverse the burden of proof so that the taxable person can explain the source of
his income. But the non-reasonable explanation would already be proof of illicit
enrichment. We can at least recognize at this level that the presumption here would be due
to the fact that we are in criminal business law. And the question of proof here is often
treated in a particular way and is often treated with regard to the domain. Allowing anyone
suspected of having illicitly enriched themselves to access a judge would entail procedural
lengths.

Notwithstanding the fact that taking legal action is a fundamental right, we will say with
regard to illicit enrichment that the procedure will be very long. In addition, we can see that
the difficulties in punishing illicit enrichment in Rwanda will allow the smartest to refuse
the transaction in order to be brought before the judge to raise the non-existence of the
offence, not facing any sanction. It is therefore a certain number of prerequisites that the
legislator should take into account in order to better prepare the sanction.89

4.3. Rethinking the regime of sanctions

For us, it is a question of seeing how the Rwanda legislator intends to resolve the problem
of illicit enrichment outside the criminal justice system. "Social defense is ready to admit
it insofar as it considers that repression is only the last resort and should only intervene in
civil, administrative or social remedies which are impossible or have proved ineffective”.

89
Schroth, Peter W., and Ana Bostan. 2004. “International Constitutional and Anti-Corruption Measures in
the European Union’s Accession Negotiations: Romania in Comparative Perspective.” American Journal of
Comparative Law 52 (1): 625–711.

64
it also allows us to see if the difficult curative fight in law enforcement can be better
harmonized in civil or administrative sanctions.

These derive their legitimacy from article 26 of the United Nations convention against
corruption of 31 October 2003 which enshrines the liability of legal persons. This liability
can be “criminal, civil or administrative. The argument a fortiori would make it possible to
think the same thing for natural persons (here taxable persons) since the liability of legal
persons is without prejudice to the liability of natural persons authors of illicit enrichment.
Moreover, Article 30 of the convention provides in its provisions that each State take
measures of any kind? In consideration of the seriousness of the offence. All these
provisions cover many civil and administrative measures to put an end to illicit enrichment.

4.3.1. Civil sanctions

Civil sanctions cannot be pronounced by a criminal court. This means that one could not
become a civil party in criminal proceedings. It then emerges that to combat illicit
enrichment at the civil level, we are in an ordinary trial before the competent court. Here
we will therefore study the cases which could arise and examine the sanctions themselves.

4.3.1.1. The various possible scenarios

We will start here from the principle of the formality of the offence of illicit enrichment,
seeing depending on whether the act caused damage to the structure where the taxable
person is A or B.

1ºthe competence of the repressive judge

If it is established after a declaration of goods and assets an unjustified difference of the

assets, the commission of declaration of goods and assets could propose to the President of
the Republic the seizure of the public prosecutor. Unable to sanction for illicit enrichment,
the competent authorities should check whether there are any failures in the financial
management of the box. Thus several different offences from illicit enrichment could also
be up to the judge. But we also know that the advent of illicit enrichment was a godsend to

65
counter the difficulties that may be linked to these offences. It would be a step backwards
and we would see the need to incriminate behavior which offends the conscience and
frustrates the morals of honest people. We observe that this competence may be alternative
or cumulative with that of the civil judge according to the law determining offences and
penalties in general. This means that the interests or the seriousness of the fact will be taken
into account. It is to be hoped that the structure has suffered damage or that an offence
similar to illicit enrichment is observed. We must not forget that those liable for the
Organisation pour l'harmonisation en Afrique du droit des affaires (OHADA) private
companies could be subject to sanctions in the event of an infringement of OHADA law.
Never mind, it is obvious in the event of success of indictment that the guilty party would
risk the accumulation of repressive and civil penalties.90

2ºthe accumulation of sanctions

Civil sanctions would be cumulative here with repressive sanctions. The company would
become a civil party here and could ask for damages to punish the culprits. But we still
have to make it clear in these cases that guilt would have to be proven to get there. When
we know that embezzlement can result in imprisonment of 7 to 10 years and a fine of the
embezzled value multiplied by 3 to 5, we say that it would therefore be difficult to catch an
individual for it. Indeed, either he would manage to camouflage his package by falsifying
the management accounts, or he would simply avoid embezzling. But his greed could lead
him to get rich illicitly. This is the reason why when someone is found guilty of such acts,
they should be sanctioned with gravity in proportion to the effects that their act would have
caused. We therefore see that the shortcomings in the management of the company
observed could lead to the competence of the criminal court and the accumulation of
criminal and civil sanctions. It is in this that we would see that the damage suffered by the
structure could make it possible to punish the offenders.

90
Stessens, Guy. 2004. Money Laundering: A New International Law Enforcement Model. Cambridge, U.K.:
Cambridge University Press. United Nations General Assembly. 2002a. “Report of the Ad Hoc Committee
for the Negotiation of a Convention against Corruption on its First Session, Held in Vienna from 21 January
to 1 February 2002.” UN doc. A/AC.261/4. United Nations, Vienna
66
It remains for us to see that this accumulation could not be possible when the finding of
illicit enrichment would not have caused any damage to the structure.91

4.3.1.1.2. In case of no damage to the structure

When the structure at the head of which the taxable person has not suffered any damage,
we know ex officio that the civil judge will apply the rules and sanctions of civil law. Can
we then ask ourselves who will seize the competent court and how will we go about
recognizing this court? We must not forget that the stoppage of the financier could lead the
shareholders or those having rights to take legal action to establish the liability of the
manager. Since the stoppage of the financier would result from a declaration of assets
deemed false or insufficient. This could therefore justify referral to the Judge within the
framework of private companies.

1ºReferral to the Civil Judge

Who will refer the matter to the judge? the relevant question leads us to recall that in order
to take legal action, it is necessary to have quality and interest. Which would lead us to
think that the State (represented by the commission of declaration of goods and assets)
could seize the civil judge so that the taxable person can repair his forfeit. Although this
could occur after the failure of the transaction refused by the taxable person. It would then
be necessary to recognize that the civil trial is long and the different parties will have to
present arguments to bring out their claims. But the commission could ask for precautionary
measures to for example block the accounts of the taxable person so that this one does not
squander them to brandish his insolvency in the event that the court declares him at fault.92
The difficulty could arise with regard to the justification of the harm, but one would agree
to a real will to do justice. All precautionary measures should therefore be taken to prevent
such and such an individual from being unable to repair their package. The role of the

91
Schroth, Peter W. 2002. “American Law in a Time of Global Interdependence: U.S. National Reports to
the XVITH International Congress of Comparative Law; Section V, the United States and the International
Bribery Conventions.” American Journal of Comparative Law (Supplement) 50 (Fall): 32–64
92
Loucaides, L. G. 2004. “Protection of the Right to Property in Occupied Territories.” International and
Comparative Law Quarterly 53 (July): 677–90.

67
commission would then be very important because it would guarantee the reliability of the
declarations. The difficulty that may result from justifying the damage would be eliminated
by the law n° 54/2018 of 13/08/2018 on fighting against corruption; unfortunately, this
enactment accuses some loopholes thereon.

2ºThe competent court

It is clear that it will be the Intermediate Court as the case may be. Law n°30/2018 of
02/06/2018 determining the jurisdiction of courts sets the jurisdiction of the Intermediate
Court for “disputes for which the amount of the claim is less than or equal to three million
(3,000,000) Rwandan francs”. The Intermediate Court is competent to hear “requests for
payment of sums of money exceeding three million (3,000,000) Rwandan francs ". This
explains the Intermediate Court would be competent in consideration of the gap between
the goods rationally acquired and those illegally obtained. add that all this would be done
according to the claims of the plaintiff. Jurisdiction ratione loci should not be a problem
because it is the court of the place of residence of the defendant. In view of the foregoing,
we can say that recourse to the civil judge would be a palliative for the non-referral of the
criminal judge. But to be convinced of this, it would be necessary to dwell on the civil
sanctions proper in the matter of illicit enrichment.

4.3.1.1.3. Civil sanctions proper

We will be able to examine the sanctions that can be imposed and question their impact in
the context of the fight against illicit enrichment.
1º civil sanctions
The illicitly enriched taxable person could be asked for damages and interest, which could
lead to refunds.
1) Damages
Anyone who has allegedly been asked for an offence of illicit enrichment could reasonably
be asked to pay the State the price of the damage he has caused him. Interest can be claimed.
We are here reasonably in the event that the structure has suffered damage. In the other
case, where the illicit enrichment is established independently of the damage suffered by
68
the State, another situation is necessary. The ombudsman office informs the President of
the Republic, at any time, of the possible existence of obstacles to the achievement of its
mission, of respect and non- compliance by the persons referred to with the obligation to
declare goods and assets. There is a limit to the soundness of the judge and the award of
damages. We must say that if the court decides on the illicit enrichment, the payment of the
costs of the proceedings will be made by the litigant illicitly enriched or by the State in the
event of non-finding of illicit enrichment. We could also ask for restitution of goods
supposed to belong to the Nation.93

The portion of assets which would be acquired illegally should be paid into the treasury
coffers. Here we can talk about the boomerang effect of a refused or failed transaction
coming back in another facet. The property could be returned to the State. The sums of
money paid to the Treasury, the buildings declared to the State's property account. These
institutions would at least allow the State to safeguard the public heritage and possibly try
to restore the balance between the property of the taxable person and the interests of
society.94

From the foregoing, we observed that the illicitly enriched person could be required to pay
damages or else to proceed to restitution. We can then dwell on the advisability of these
sanctions in the manifest fight against illicit enrichment.

2ºthe impact of civil penalties for illicit enrichment.

191. For an act as shocking, as serious and even indignant as illicit enrichment, civil
sanctions could prove to be non-dissuasive, possibly leading to injustice.

93
Schmid, Jean-Bernard. 2006. “Off the Beaten Track: Alternatives to Formal Cooperation.” In Denying Safe
Haven to the Corrupt and the Proceeds of Corruption: Enhancing Asia-Pacific c Cooperation on Mutual Legal
Assistance, Extradition, and Return of the Proceeds of Corruption, 25–28. Papers presented at the fourth
Master Training Seminar of the ADB/OECD Anti-Corruption Initiative for Asia and the Pacific Manila:
OECD.
94
Star (Stolen Asset Recovery Initiative). 2012. Public Office, Private Interests: Accountability through
Income and Asset Disclosure, a Companion Volume to Income and Asset Disclosure; Case Study
Illustrations. Washington, DC: World Bank, Stolen Asset Recovery Initiative.

69
1) Non-dissuasive sanctions.

If an individual knows that he can take advantage of his position to acquire wealth illegally,
he should also fear that one day he might either be behind bars or not only have to pay back
illegitimate gains, but heavy fines are also imposed. This could then possibly dissuade
attempts at illicit enrichment. Damages and interest, as well as restitution, would not
necessarily fulfill this deterrent function. Those subject to the obligation to declare goods
and assets could not continue to harm both users and the State. They might not have
anything to prevent them from getting rich illicitly. It is easy to pay damages after having
provided your bank account, it is still wise to return part of your property. All this because
accounting for illicitly acquired assets cannot be mathematically accurate. Although there
would be the possibility for the wagers to contest both their illicit enrichment and the
quantity of the patrimony for which they would be accused. All this could therefore be the
source of injustice both in the materialization of the rule of law and in respect for citizens.95

2) A possibility of injustice
The fact that illicitly enriched persons are not worried, or suffer sanctions which are not in
our opinion exemplary, could be considered an injustice. The ones and the others would
walk quietly, taunting the populations of their assets acquired illegitimately. Voters would
feel wrong to have elected those they trusted. Either because they would get rich illicitly or
because they would have appointed people who would. We could therefore witness chaos,
no one more wanting to obey the law. It would then be a source of injustice, instability, a
time bomb that could explode at any time with serious consequences. Here we would still
be faced with the decline of the law that RIPERT decried above mentioned above. All the
more so since any subject would see it as a means of getting rich illicitly and giving a tiny
part of it. Which means that the penalties likely to be imposed will just take away a parcel
of ill-gotten gains.
Civil sanctions could be a palliative for repressive sanction absences. It would then turn out
that these civil sanctions are too complacent vis-à-vis an act of illicit enrichment as regards

95
Snow, Thomas. G. 2002. “The Investigation and Prosecution of White-Collar Crime: International
Challenges and the Legal Tools Available to Address Them.” William and Mary Bill of Rights Journal
(Symposium: Prosecuting White-Collar Crime) 11 (1): 209–44.
70
the moralization of behavior and the desire to punish, to ensure a smooth running of the
public service. It therefore seems opportune to us to see whether the administrative
sanctions could make it possible to achieve this goal.96

4.3.2. Administrative sanctions.

They are provided for by the law on the declaration of assets. We think that the
administration would like to sanction its agent who would have lacked probity in the
exercise of the public service. They are then patrimonial and professional..

4.3.2.1. Patrimonial sanctions.

The transaction here is flexible, unlike the suspension of financing which would be more
rigid.

1ºThe transaction
Article 40 of the law no 76/2013 of 11/9/2013 determining the mission, powers,
organization and functioning of the office of the ombudsman provides for the transaction
which in the event of failure will result in the referral to the public prosecutor. We can
define the administrative penal transaction as "a process by virtue of which a legally
empowered administration waives the exercise of penal proceedings after ascertaining the
offence or the application of pecuniary sanctions pronounced by a repressive court by
means of the payment of a sum of money by the accused or convicted person, without
having recourse to the judicial authority or to a third party.
Indeed, the same provision allows the office of the ombudsman to propose the transaction
to any taxable person whose declaration would reveal an unjustified origin of all or part of
the patrimony. The part which would be acquired illegally would give rise to the profit of
the 'State of a transaction of all or part of the movable and immovable property assets of
the person concerned; these transacted goods would return to the State in accordance with

96
Wilsher, Dan. 2006. “Inexplicable Wealth and Illicit Enrichment of Public Officials: A Model Draft That
Respects Human Rights in Corruption Cases.” Crime, Law, and Social Change 45 (1): 27–53.

71
rules governing the treasury for the safeguard of the public fortune. It is in this that we
believe that the transaction is a flexible sanction because the individual who would have
illegally enriched himself would not suffer so much damage to answer for his forfeit. It
would be a godsend for anyone caught for illicit enrichment. The transaction would
therefore result in decriminalization and diversion.97

It could therefore be criticized because those responsible for the public assets and
guarantors of the proper functioning of the public service will have a means of escaping
punishment by perhaps giving the State a share of their ill-gotten assets. The transaction
here would not act as a deterrent against illicit enrichment, but may further encourage both.
We put this criticism into perspective by specifying that the transaction responded to a
particular category of offences which undermine economic public order; financial or
environmental. Society would benefit more from recovering its assets than from blind
punishments. It is perhaps not enough to imprison an illicitly enriched person when one
could search in his patrimony. We must also add that the operation of the transaction would
not necessarily exclude repression if accumulation is not allowed here, we will see an
alternative and successive operation.98

2ºFailure of the transaction: referral to the public prosecutor.

Article 40 law no 76/2013 of 11/9/2013 determining the mission, powers, organization and
functioning of the office of the ombudsman establishes measures taken against people who
do not comply with rules governing declaration of the patrimony. This means that the
transaction which would be a flexible sanction could be considered as a means of escaping
the sanction on the part of the accused in the context of illicit enrichment. There are many
reasons for this:

97
OAS (Organization of American States). 2009a. Mechanism for Follow-up on the Implementation of the
Inter-American Convention against Corruption. OEA/Ser. L SG/ MESCIC/doc238/09rev.4. Report prepared
for the fifteenth Meeting of the Committee of Experts, Washington, DC, September 14–18. OAS, Rio de
Janeiro, September 1
98
Washington College of Law. 2000. “The Experts Roundtable: A Hemispheric Approach to Combating
Corruption.” American University International Law Review 15 (2): 759–812.

72
-The referral to the public prosecutor is illusory since we mentioned the absence of
incrimination and sanction. So what would be the point of seizing the prosecutor if we
know that it is topical that nothing would be done to the illicitly enriched?
-The transaction is ineffective because only those ignorant of the law will suffer it. The
smartest will refuse and cannot be penalized.
-We cannot possibly add the procedural slowness mentioned above because the refusal of
the transaction would appear as a means for both of them to lengthen the procedure and
waste time, in the event that illicit enrichment would be criminalized and sanctioned. in
order to falsify the values of their heritage (to justify their source) and better prepare their
defense.We have just seen that the transaction despite its specificities could effectively
make it possible to overcome illicit enrichment in Rwanda. It should not be forgotten that
this more than flexible sanction has as a corollary in terms of assets the suspension of
funding.
4.3.2.2. Suspension of funding
It would be more radical or then less flexible than the transaction. This is verified by the
cessation of funding due to certain conditions. The suspension could be lifted if the
conditions are met later.

1ºStop funding

There should be proposed de lege ferenda to suspend all public funding for the benefit of
an association or any other body, beneficiary of public funds under form of subsidies or
donations, for which the expenditure authorizing officer has not fulfilled the obligation to
declare goods and assets. We consider here that only associations and private organizations
benefiting from subsidies or donations from the State should be concerned here. The
authorizing officers of these structures who do not meet the obligation to declare goods and
assets would be the sole cause of the suspension of funding. We would like to moralize
these structures. It seems that the taxpayer pays to ensure the harmonious functioning of
the State. It might then take measures not to squander, waste these funds. This would justify
this suspension of funding. Indeed, these donations and subsidies are used to make these
structures work, to create or maintain jobs, to make families survive. It is then normal that

73
those who are called to manage them do so in all honesty and probity. Illicit enrichment
therefore concerns them and the fear of losing subsidies and donations would lead the
authorizing officers to better manage the structures. And this requires a declaration of assets
in due form which could lead to the lifting of the suspension.99

2º Lifting of the suspension.

This suspension would be lifted as soon as the person in charge concerned has discharged
his obligation to declare goods and assets. This means that grants and donations would
revert to the structure if the reporting obligation is fulfilled. The structure would find these
advantages and it is in this that the suspension is less flexible than the transaction. Because
here, we are at least sure that we have a means of deterrence and even of retribution for
illicit enrichment. We could add that this lifting of the suspension will not be automatic.
The declaration must not present any difficulty, that it be complete. We would rather speak
of an accurate, complete and sincere statement. The property sanctions would be
administratively generous with regard to the fight against illicit enrichment, which would
not be the case with professional sanctions.100

4.3.3. Professional sanctions

We can include here all the sanctions linked to the function or to the profession. We have
the sanctions themselves and the modalities of their implementation.

4.3.3.1. The sanctions themselves

Taxable persons may, depending on the case, be ineligible or forfeited of their functions.
This in consideration of the process which led to their accession to the post, election or
appointment. Short of sham insofar as, not elected, the former beneficiary of the elective
mandate will purely and simply rest with the goods acquired illegally. Given the serious

99
Van der Does de Willebois, Emile, Emily M. Halter, Robert A. Harrison, Ji Won Park, and J. C. Sharman.
2011. The Puppet Masters; How the Corrupt Use Legal Structures to Hide Stolen Assets and What to Do
about It. Washington, DC: World Bank, Stolen Asset Recovery Initiative.
100
UNODC (United Nations Office on Drugs and Crime). 2006. Legislative Guide for Implementation of the
United Nations Convention against Corruption. United Nations, Vienna
74
deficiencies on the patrimonial and penal plan we would have perhaps wished the
ineligibility accompanied by conservation of illegally acquired property. It should be said
that eligibility would risk becoming a means for both of them to make money. Since
everyone will seek to be elected to amass wealth to the detriment of the common good of
society. And no longer being elected would have no effect insofar as we will go to a
peaceful retirement of ineligibility with ill-gotten gains. Especially since even the lapse is
in the same length.101

4.3.3.2. Forfeiture

This measure is not provided by the Rwandan law fighting corruption while it normally
covers the beneficiaries of appointments to a position. Here at least it is suggested that the
latter cannot occupy a post he/she was occupying before the discovery of the crime. We
can think that the culprits will be punished for the past (forfeiture of their post) and for the
future (non-postulation), this, for a period of five (05) years. We would therefore see in the
forfeiture as in the transaction a means of fleeing with the funds. Because these sanctions
intervene in the event of refusal of the transaction. One would have thought that forfeiture
was accompanied by pecuniary sanctions102 From the above, the law on the declaration of
assets provides for ineligibility and forfeiture. It would then be necessary to say that certain
practical modalities should be respected.

4.3.3.3. The conditions prior to the sanction

The formal notice as well as the respect of the appointment procedure must be followed in
order for the sanctions to take effect.
1) The formal notice
Forfeiture can only occur at the end of a formal notice of forty-five additional days sent by
the Commission to the defaulting manager". This means that as long as there is no formal
notice, the taxable person will not be worried. This would agree with an author who might

101
Snider, Thomas R., and Won Kidane. 2007. “Combating Corruption through International Law in Africa:
A Comparative Analysis.” Cornell International Law Journal 40 (691): 692–747.
102
Loi n° 1/12 du 18 avril 2006 portant mesures de répression de la corruption et des infractions connexes,
in B.O.B. n° 4/2006
75
have thought that article 40 of the law no 76/2013 of 11/9/2013 determining the mission,
powers, organization and functioning of the office of the ombudsman was dictated for the
occasion; because to appease the anger of citizens "become suspicious and demanding in a
context of manifest deliquescence". Because the deadlines will go from 120 days to 165
days at least for the start of functions and from 90 days to 135 days for the end of these
functions; the delays in the declaration, giving time to the defendants to prepare their
defense, having carefully taken the trouble to better conceal the goods. The appointment
procedure must be respected.
4.4. Institutional mechanism: comparative approach based on Seychelles and
Botswana models

Two African countries i.e. Botswana and Seychelles103 are highly ranked than others in
Africa and they succeeded thanks to specialized body uniquely charged with this task. The
reason why the present study proposes the Rwandan legislator to be inspired by these
countries by instituting a public organ specialized in the fight against this crime.

4.4.1. Seychelles

The index, released by Berlin-based Transparency International, measures perception of

corruption in the public sector using a scale of 0 to 100, where 0 is highly corrupt and 100
is clean. With a score of 66 points, Seychelles ranks 27th out of 180 countries globally. The
115-island archipelago in the western Indian Ocean held the same position in 2019. Since
2012, the earliest point of comparison in the current CPI methodology, the island nation
has risen 14 places. Seychelles has scored a 66 for three straight years, its highest-ever
score in the annual exercise. Chrystold Chetty, the chairman of the Transparency Initiative
Seychelles (TIS), said that he and his team were expecting either to gain or lose one point,
as no changes have happened in 2019 and 2020. "Had cases brought to the attention of the
Anti-Corruption Commission gone to court and more cases registered, maybe we could
have climbed higher.104 however, we have continued to put in place certain laws and

103
https://www.transparency.org/en/cpi/2020/index/nzl
104
Ernesta, Sharon (5 July 2017). "Head of Seychelles' anti-corruption body: We will work without fear or
favour". Seychelles News Agency. Retrieved 16 July 2017
76
frameworks such as the Anti-Money Laundering Act that has been revised and the
unexplained wealth law that has been put in place," said Chetty.105

4.4.2. Botswana

The 2019 Transparency International Corruption Perceptions Index gave Botswana a

corruption perceptions index of 34, where 100 is the most clean and 0 is the most corrupt.
Botswana was the 34th lowest out of 180 countries in terms of how corrupt its public
sector was perceived to be. Botswana has the second highest score in Africa, just after
Seychelles, which has a score of 66.106 Corruption in Botswana is primarily investigated by
the Directorate on Corruption and Economic Crimes (DCEC). It is because of the
Directorate on Corruption and Economic Crimes that Botswana is able to stay relatively
low on the corruption scale. This is because of the high prosecution rates that the
Directorate on Corruption and Economic Crime is able to achieve. 107 To aid in fighting
corruption, Botswana is also a member of the Eastern and Southern Anti-Money
Laundering Group. 108

4.4.3. Efficiency of the anti-corruption institutions

On one side, the DCEC was given wide-ranging powers and operational independence, and
was modeled on the Hong Kong's Independent Commission Against Corruption (ICAC),
with a "three-pronged strategy" of investigation, prevention and public education.109 had
robust investigative powers, such as the power to arrest, trace and freeze assets, to search
and seize, to confiscate travel documents, and to extradite suspects, and it could also
recommend prosecutions to the Directorate of Public Prosecutions (DPP)110. The DPP in

105
ibid
106
Lekorwe, Mogopodi; Molomo, Mphe; Mole, Wilford; Moseki, Kabelo (2004). "PUBLIC ATTITUDES
TOWARD DEMOCRACY, GOVERNANCE, AND ECONOMIC DEVELOPMENT IN
BOTSWANA" (14). Afrobarometer: 19. Retrieved July 12, 2011.
107
Frank, B., Lambsdorff, J.G., and Boehm F. 2011. Gender and Corruption: Lessons from Laboratory
Corruption Experiments. The European Journal of Development Research, Vol 23(1), pp 59-71.
108
Badham-Jones, Michael (27 November 2014). "Overview of Corruption and Anti-Corruption in
Botswana" (PDF). Transparency International. Retrieved 2019-12-15.
109
Combating corruption in Botswana: lessons for policy makers, David Seth Jones, 2017, Volume 6, No. 3,
Emerald Insight
110
ibid
77
turn had control over all prosecutions. The DCEC's work in prevention and education
involved auditing procedures and structures within ministries and agencies to identify
situations that could lead to corruption, sometimes with the help of committees within those
ministries. Combating corruption was also incorporated into the curricula of schools and
colleges, the training of public servants, and outreach activities to the wider community in
the form of campaigns, anticorruption clubs, workshops and seminars.111 On the other side,
with its own prosecutor in place, the Anti-Corruption Commission of Seychelles (ACCS)
was established under the Anti-Corruption Act 2016 which gives it authority to investigate,
detect and prevent corrupt practices.112 It is a self-governing, neutral and independent body
which is not subject to the direction or control of any person or authority. 113 Its main
functions are to enquire into and conduct investigation of offences; to file cases on the basis
of enquiry or investigation and to conduct cases; to hold enquiry into allegations of
corruption on its own motion or on the application of an aggrieved person or any person on
his or her behalf; to perform the functions assigned to the Commission by this Act or under
any written law; to review and recognize provisions of laws for the prevention of corruption
and submit recommendations to the President for their effective implementation; to raise
awareness and promote the values of honesty and integrity among people with a view to
prevent corruption; to organize seminars, symposiums, workshops on the subjects falling
within the functions and duties of the Commission; to identify various causes of corruption
in the context of socio-economic conditions of the Republic and make recommendations to
the President; to determine the procedure of enquiry, investigation, filing of cases and also
the procedure of according sanction of the Commission for filing cases against corruption,
and to investigate a public officer’s conduct which the Commission has reasonable grounds
to believe is connected with corrupt practices, among others.114 As mission, the ACCS is

111
Corruption and Mismanagement in Botswana: a Best-Case Example? Kenneth Good, September 1994,
Volume 32, Issue 3, The Journal of Modern African Studies, Cambridge University PresS
112
Roland Duval(2021).UK government contributes to Seychelles’ anti-corruption efforts
https://www.nation.sc/articles/9631/uk
113
Mathisen, H. et al. (2011), “How to monitor and evaluate anti-corruption agencies: Guidelines for
agencies, donors, and evaluators” U4 Issue No. 8,
114
Lamboo, T. and J. de Jong (2016), “Monitoring integrity: The development of an integral integrity monitor
for public administration in the Seychelles”, Integrity Management in the Public Sector. The Dutch
Approach, https://slidex.tips/download/integrity-management-in-the-public-sector-the-dutch-approach-
edited-by-leo-huber.
78
committed to fighting corruption through effective investigation, detection and prevention
of corrupt practices for a corruption free Seychelles, while its vision is to be a robust
institution that fosters a corruption free society in an environment of integrity,
accountability and transparency.115

4.4.4. Creation of a specialized anti-corruption commission to reinforce the track of

economic criminals

As underlined above, the office of ombudsman failed to detect hidden patrimonies and only
focuses on assets declared; without complaints the RIB and NPPA cannot prosecute people
officially clean.

Mutatis mutandis, the Rwandan government is called upon to adopt the functioning of the
two structures of Seychelles and Botswana which demonstrated their effectiveness in the
eradication of economic crimes especially due to their respective statutes and powers they
are entitled to exercise. Therefore, Rwandan State has to institute an independent
specialized commission exclusively charged with the fight against corruption which may
work more efficiently than the ombudsman..In this regards, it may be constituted by staff
competent in technical investigations on economic crimes, cyber-criminality and other
white collar crimes with powers of investigators and prosecutors to the extent that they may
enquire beyond Rwandan boundaries to track hidden accounts and property of suspected
people. The question not responded may be why replacing the office of ombudsman in this
task. The answer is that this institution seems not uniquely carrying out this mission as its
deals also with the contention of injustice reflected by judgments rendered by courts which
were not fairly tried; issues of delays in enforcement of judgments; administrative queries;
ethics of leaders, all but a few. Accordingly, a commission whose the majority of staff may
be charged with investigations on economic crimes daily committed and empowered to
prosecute case files constituted thereon before courts as done in Seychelles may do a
brilliant work more efficiently than officials of the office of ombudsman. Furthermore,

115
The World Bank((n.d.)), “Accountability in
Governance”, https://siteresources.worldbank.org/PUBLICSECTORANDGOVERNANCE/Resources/Acco
untabilityGovernance.pdf (accessed on 13 February 2018).
79
even those countries have in their administrative structure the institution of ombudsman
but it discharges other tasks and missions that of tracking economic criminals.

80
 CHAPTER 5. CONCLUSION AND RECOMMENDATIONS

5.1. Conclusion
The fight against illicit enrichment has been initiated in Rwanda. Moreover, the emphasis
is more on prevention rather than repression; the intermittent management governance of
the arrangement which primarily favors social mediation, and secondarily the wide range
of administrative (disciplinary) and judicial (criminal) sanctions that can be taken,
pronounced or in the course of the to be. This recent reflection by an author concerning
corruption holds its full relevance in the fight against illicit enrichment in Rwanda. The
office of ombudsman which is charged among areas with the reception of the declaration
of patrimony has been established.

But the law fixing the modalities of this declaration has already been promulgated,
published, the ombudsman office seems overloaded given additional tasks that should be
carried to insure sincerity of those declarations. To solve this loophole, a specialized
Commission should be instituted so that it actually fulfills its functions. We can also think
that such a commission would indeed play its role to denounce and punish all those who
would have tried to get rich illicitly. We can also only hope that civil society and the media
play their full role. It would therefore be necessary protect journalists and the media and
strengthen their role.

We cannot leave aside the cooperation that could be effective at the national level if we
avoid the register of politicization of the law to fight against illicit enrichment. We could
not also forget that “mutual aid and cooperation are mechanisms of international
repression”of illicit enrichment. The Rwanda legislator should also incriminate and
guarantee exemplary repressive sanctions to punish infringements. Civil sanctions that are
not dissuasive and may prove to be a source of injustice would not fill the gaps, although
the administrative sanctions expressly provided for by the legislator are insufficient. The
fight against illicit enrichment is a development issue. Since "The stolen African assets held
in bank accounts than abroad are equivalent to more than the half of the continent's external
debt

81
We can therefore praise the work carried out by the Rwanda public authorities in the context
of the fight against illicit enrichment. They have ratified the United Nations Convention
and signed that of the African Union which they should also ratify. But all this would be
judicious by the effective application of these Conventions both in their provisions and in
their aims. We do not want to recommend heavy sanctions or those contrary to human
dignity. We can suggest repressive sanctions, exemplary and of course proportional to the
seriousness of the offences. This could therefore cause both sides to get rich illicitly.
Society would also be proud to see that those who flouted the principles of democracy and
good governance are punished, repressed, chastised.

Each organ as far as it is concerned should therefore play its role fully and provide the
necessary support to the others. The Rwanda legislator should therefore act, take the
necessary measures to effectively prevent, detect and punish cases of illicit enrichment.
The fight would therefore not be in vain if a Commission for the declaration of goods and
assets specific to each category of independent taxable person played its role. We can
suggest the importance of parliamentarians in this fight, even if the Conventions relating to
illicit enrichment do not clearly express it. We believe that, endowed with their own means
to directly go to justice, the aforementioned bodies would be more efficient. The fight
against this phenomenon will be useful in order to make the practice of illicit enrichment a
risky or less profitable activity. We would therefore be witnessing the manifestation of the
rule of law.

5.2. Recommendations
To improve efforts deployed to prevent the crime of illicit enrichment, the
recommendations below are proposed:
1) The Law n° 54/2018 of 13/08/2018 on fighting against corruption should be amended to
detail specific modalities in which the illicit enrichment is committed
2) The law relating to criminal procedure should be reviewed to insert issues of reversal of
the burden of proof for exceptional circumstances
3)The law no 76/2013 of 11/9/2013 determining the mission, powers, organization and
functioning of the office of the ombudsman should be amended to insert issues of regular

82
monitoring of the management of the declared assets and even the countercheck of proofs
and new valuable eventually growing the patrimony
4) Creation of a commission specialized in economic crimes to avoid the overloading the
ombudsman tasks given that the follow-up of the perpetration of economic crimes requires
details properly sought by the investigators and public prosecutors.

83
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III.Caselaws
1) RPA 0051/09/TGI/GSBO, Prosecution vs Murenzi Janvier

2) RP 0177/09/TB/KCY.Prosecution vs.Theoneste Mutsindashyaka

3) RP 0177/09/TB/KCY Prosecution vs Gatwabuyenge Vincent

4) RP 0177/09/TB/KCY prosecution vs Alexis Mugarura, owner of EMA and John

Wilson Sekaziga

5) RPA 00380 2017 TGI HYE Prosecution vs Marc Kabandana

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