{"id":8334,"date":"2018-06-10T12:16:36","date_gmt":"2018-06-10T16:16:36","guid":{"rendered":"http:\/\/www.journals.law.harvard.edu\/ilj\/?p=8334"},"modified":"2018-06-30T11:01:59","modified_gmt":"2018-06-30T15:01:59","slug":"the-persistence-of-colonial-laws-why-rwanda-is-ready-to-remove-outdated-legal-barriers-to-health-human-rights-and-development","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/ilj\/2018\/06\/the-persistence-of-colonial-laws-why-rwanda-is-ready-to-remove-outdated-legal-barriers-to-health-human-rights-and-development\/","title":{"rendered":"The Persistence of Colonial Laws: Why Rwanda is Ready to Remove Outdated Legal Barriers to Health, Human Rights, and Development"},"content":{"rendered":"<style>h2 {text-align: center; font-size: 100%}<br \/><\/style>\n<p style=\"text-align: center;\"><a href=\"https:\/\/journals.law.harvard.edu\/ilj\/wp-content\/uploads\/sites\/84\/Freeman_FORMATTED-1.pdf\">[PDF]<\/a><\/p>\n<p style=\"text-align: justify;\">By Agnes Binagwaho, Richard Freeman, and Gabriela Sarriera<a href=\"#_ftn0\" name=\"_ftnref0\">*<\/a><\/p>\n<h2>I. Introduction<\/h2>\n<p>Rwanda has earned a reputation as a trailblazer among developing nations.\u00a0 Especially in the health sector, it is often the early-adopter of international recommendations and new technologies.\u00a0 Yet at times, Rwanda\u2019s momentum is impeded when it must grapple with a challenge that post-colonial societies commonly face: the persistence of colonial laws.\u00a0 When left in force, these legal vestiges, once designed to oppress and subordinate, can rear their head at unexpected moments, causing delays in policy implementation, uncertainty, or unjust outcomes.\u00a0 In public health, the delayed implementation of better health policies can mean the difference between life and death.\u00a0 In such circumstances, these obscure legal impediments warrant serious consideration.\u00a0 Following Rwanda\u2019s independence, the country suffered through a civil war and a genocide against the Tutsi, a minority ethnic group.\u00a0 Since then, however, Rwanda\u2019s institutions have evolved to a point that, in the authors\u2019 view, they are now well-equipped to finally cure the legal code of its latent colonial pathologies, clearing the way for greater progress ahead.<\/p>\n<h2>II. How a Colonial-Era Law Interfered with Treatment of Vitamin and Mineral Deficiencies in Rwanda<\/h2>\n<p>Among the public health challenges that Rwanda has had to confront are micronutrient deficiencies, which present a serious detriment to global health.\u00a0 They are a significant contributing factor to malnutrition<a href=\"#_ftn1\" name=\"_ftnref1\"><sup>[1]<\/sup><\/a> and contribute to the spread of infectious disease.<a href=\"#_ftn2\" name=\"_ftnref2\"><sup>[2]<\/sup><\/a> Supporting micronutrient fortification of staple foods is among the steps a government can take to reduce malnutrition and improve health-related outcomes in the population.<a href=\"#_ftn3\" name=\"_ftnref3\"><sup>[3]<\/sup><\/a>\u00a0 For these reasons, in 2010 the Rwandan Ministry of Health developed plans to promote micronutrients.<\/p>\n<p>That year, the Permanent Secretary presented on behalf of the Minister of Health a draft order, <em>Minister of Health Instruction on Micronutrients<\/em>, at one meeting of the Inter-Ministerial Committee, chaired by the Right Honorable Prime Minister.\u00a0 To the Permanent Secretary\u2019s surprise, during the course of the meeting it was discovered that the Minister was not lawfully permitted to sign the instructions. Rather, the Head of State was the only person in Rwanda vested with the legal authority to sign and approve instructions on micronutrients.\u00a0 This legal arrangement, still in force until 2012, was created by a colonial precedent: prior legal instructions regarding micronutrients had been signed by the Governor of Congo-Rwanda-Burundi in 1940.<a href=\"#_ftn4\" name=\"_ftnref4\"><sup>[4]<\/sup><\/a> Because those earlier instructions had issued from the highest executive authority, in today\u2019s executive branch, only the Head of State has the power to abrogate or amend them.\u00a0 In other words, an outdated law designed to empower Rwanda\u2019s colonial oppressor with control over crucial domestic commercial activities\u2013in this case, food production\u2013was still legally binding on Rwanda\u2019s modern democratic processes.\u00a0 It delayed a public agency\u2019s ability to efficiently pass modern regulations in the best interest of Rwandans\u2019 health.<\/p>\n<p>This was a shocking revelation for three reasons. First, it was alarming that more than five decades after independence, colonial rules that are hardly known remained in place and were still enforced.\u00a0 Second, the insufficient revisions made after independence to outdated, pre-independence laws related to health, provided a possible explanation for some difficulties faced by the health sector, which had been making unprecedented progress in virtually all areas but not in combatting malnutrition. Lastly, it was disconcerting that the Head of State, who is engaged in pressing issues and high-level decisions across all domains of the government should be diverted from those priorities in order to focus on miniscule, fine-detailed health-related decisions, such as the level of Vitamin A in food.<\/p>\n<p>Armed with these facts, we explored further to unearth other colonial laws and to address the latent problems they present.\u00a0 But first, a brief summary of Rwanda\u2019s historical and developmental background is necessary to contextualize these events.<\/p>\n<h2>III. Rwanda\u2019s Historical and Developmental Context<\/h2>\n<p>Rwanda\u2019s recent history has required Rwandans to reinvent their country according to their own design.\u00a0 Following independence in 1962, Rwanda\u2013then still a client state of European powers\u2013suffered through decades of violence and civil war, culminating in the atrocities of 1994 when the former extremist regime prosecuted a genocide against the Tutsi, a minority group, in the span of just 100 days. Twenty-three years later, Rwanda is still mending some of the damage that resulted from its colonization and that was compounded up to 1994.<\/p>\n<p>Rwandan society, abandoned by the international community at that tragic hour,<a href=\"#_ftn5\" name=\"_ftnref5\"><sup>[5]<\/sup><\/a> subsequently took it upon itself to rebuild a nation reflecting its own vision and values.\u00a0 And Rwanda\u2019s narrative has changed: today, the country is focused on priorities that include human development, equity, reconciliation, accountability, and universal health care.<a href=\"#_ftn6\" name=\"_ftnref6\"><sup>[6]<\/sup><\/a>\u00a0 The path to progress did not come serendipitously; it required arduous efforts. In this context, Rwanda has prided itself as an early-adopter of bold public health initiatives, achieving ambitious targets.\u00a0 For example, its ability to move swiftly has put Rwanda on the forefront of universal access to healthcare in Africa; has permitted the development of a health extension worker program that serves as a model for other countries; and has enabled the early adoption of recommendations for improved HIV treatment, as new guidelines become available.<\/p>\n<p>Nevertheless, some aspects of the legal system in Rwanda still date back to colonization.\u00a0 Rwanda was initially colonized by Germany from 1894 until 1918, as part of German East Africa. Following Germany\u2019s defeat in World War I, Rwanda was made a Belgian protectorate under the League of Nations, as part of the \u201cTerritory of Ruanda-Urundi.\u201d Between 1919 and 1962, the central legislation governing Rwanda was established by Belgian authorities, who had replaced many traditional laws. Ignoring the unique characteristics of Rwandan and Burundian society, Belgium imported the civil and criminal codes of the then Belgian Congo to Rwanda and Burundi.<a href=\"#_ftn7\" name=\"_ftnref7\"><sup>[7]<\/sup><\/a><\/p>\n<p>The 1994 Genocide against the Tutsi has its roots in colonial institutions: colonial authorities and complicit national leaders and intellectuals imposed social and legal frameworks to transform the traditional clan stratification of pre-colonial society, replacing it with artificially constructed ethnic divisions designed to dominate and oppress contemporary society.\u00a0 Those structural injustices were carried forward by the former, post-independence regime to perpetuate a similar system of domination, but now with Rwandans in power.<a href=\"#_ftn8\" name=\"_ftnref8\"><sup>[8]<\/sup><\/a>\u00a0 To cite one prominent example, the Belgian authorities instituted an identity card system in 1933-1934, imposing an ethnic label (<em>ubwoko<\/em>) on all Rwandans, which continued after independence and was used by the genocidal regime to further entrench a race-based system of suppression and promote violent objectives.<a href=\"#_ftn9\" name=\"_ftnref9\"><sup>[9]<\/sup><\/a><\/p>\n<p>While the most prominent discriminatory laws have since been abolished, some lesser known laws or subtle remnants were never repealed.\u00a0 Those colonial laws remain presumptively valid until they are either repealed or otherwise revoked, or until the judiciary strikes them down. For this reason, some of the laws are likely to still have some power over Rwandan citizens today.\u00a0 If brought to the attention of a court, or if identified by a government official, such laws could be enforced or litigated.<\/p>\n<p>Yet, the published text of many of these laws is nowhere to be found in Rwanda.<a href=\"#_ftn10\" name=\"_ftnref10\"><sup>[10]<\/sup><\/a>\u00a0 Law libraries are missing volumes, as a result of the war or because portions of collections were taken from the country and sold overseas.<a href=\"#_ftn11\" name=\"_ftnref11\"><sup>[11]<\/sup><\/a>\u00a0 This makes it challenging to predict when and how such problematic vestiges of the past might resurface to interfere with the rule of law, social justice, and development today.<\/p>\n<h2>IV. An Attempt to Prevent Future Legal Barriers to Health:<br \/>\nA Worldwide Investigation into the Persistence of Rwanda\u2019s Colonial Health Laws<\/h2>\n<p>As we reviewed colonial-era laws governing public health, we encountered references to older laws that had been repealed.<a href=\"#_ftn12\" name=\"_ftnref12\"><sup>[12]<\/sup><\/a>\u00a0 We searched for the repealed laws to understand what had been modified, and more importantly, to identify whether <em>other<\/em> laws may be referenced in those which were repealed, but which may themselves <em>not <\/em>have been repealed.\u00a0 Such laws could still impact the health sector.<\/p>\n<p>The health laws that the colonial authorities imposed on Rwanda commonly discriminated between the rights or liberty interests of \u201c<em>les indig\u00e8nes<\/em>\u201d or \u201c<em>les noirs<\/em>\u201d and all others.<em>\u00a0 <\/em>For example, the 1954 regulations concerning outbreaks expressly mandated that indigenous Rwandans infected with tuberculosis had to be hospitalized, even while the same law provided that other patients could be treated without being detained.<a href=\"#_ftn13\" name=\"_ftnref13\"><sup>[13]<\/sup><\/a>\u00a0 Meanwhile, in the event of an outbreak of plague, the houses of infected patients were to be \u201ccarefully disinfected and rid of insects,\u201d but should cases be found among indigenous patients in the villages, then <em>their<\/em> homes \u2013 as well as the directly neighboring homes of other \u201c<em>indigenes<\/em>\u201d \u2013 were to be completely \u201cdestroy[ed] by fire.\u201d<a href=\"#_ftn14\" name=\"_ftnref14\"><sup>[14]<\/sup><\/a>\u00a0 This was all the more egregious in the context of a colonial society that not only imposed harsher (and more punitive) preventive measures on the local population, but also systematically provided better treatment services for the colonists.<\/p>\n<p>Other colonial laws may seem less discriminatory on their face, but would undoubtedly have discriminatory effects on the poor if enforced.\u00a0 For example, a 1959 law prohibited maintaining living conditions that would be favorable for the breeding of flies and mosquitos, punishable by up to two months imprisonment.<a href=\"#_ftn15\" name=\"_ftnref15\"><sup>[15]<\/sup><\/a>\u00a0 A 1940 law required \u201c<em>les indig\u00e8nes<\/em>\u201d to maintain the interior of their homes in \u201ca perfect state of cleanliness,\u201d punishable by up to seven days imprisonment.<a href=\"#_ftn16\" name=\"_ftnref16\"><sup>[16]<\/sup><\/a><\/p>\n<p>Many laws and regulations pertaining to infectious disease can be traced back to a precursor law that was central to Belgium\u2019s original public health framework in Ruanda-Urundi: <em>Ordonnance du 22 aout 1888, relating to infectious and epizoonotic diseases<\/em> (the \u201c1888 Ordonnance\u201d).\u00a0 Although the 1888 Ordonnance was ultimately replaced by other laws,<a href=\"#_ftn17\" name=\"_ftnref17\"><sup>[17]<\/sup><\/a> we sought to understand the regime it established and the framework of which it was part, what other health laws may have been promulgated or codified with it, and what other laws the 1888 Ordonnance may have referenced. We also sought to identify such laws because some of them might never have been repealed, unlike the 1888 Ordonnance itself.<\/p>\n<p>Our search for the 1888 Ordonnance started in Rwanda, in the archives of the Ministry of Justice and the Ministry of Health.\u00a0 Failing to locate a copy of the 1888 Ordonnance within the country, we followed up with phone calls to the Rwandan Embassies in the capitals of the former colonial states &#8211; Germany and Belgium. Those embassies were not able to locate a copy of the law either.<a href=\"#_ftn18\" name=\"_ftnref18\"><sup>[18]<\/sup><\/a>\u00a0 We continued by searching even farther afield, soliciting assistance from a reference librarian at Stanford University\u2019s law library.<a href=\"#_ftn19\" name=\"_ftnref19\"><sup>[19]<\/sup><\/a> It was this step, on the other side of the world, that finally produced results. At an off-site depository of Stanford University\u2019s library system \u2013 essentially, a storage facility \u2013 we located a treatise of Belgian Congolese law which contained the 1888 Ordonnance: Octave Louwers\u2019 1905 publication, <em>Lois en vigueur dans l\u2019\u00c9tat ind\u00e9pendant du Congo: Textes annot\u00e9s d\u2019apr\u00e8s les instructions officielles et la Jurisprudence des Tribunaux<\/em>.<\/p>\n<p>We determined that it would be worthwhile to investigate even further and understand how the only accessible record of a Rwandan law \u2013 one which was rumored to exist in the country with sufficient credibility to raise questions within the country\u2019s Ministry of Health \u2013 had ended up so far from Rwanda.\u00a0 Our questions went beyond mere curiosity; understanding the means by which laws were dispersed and scattered might allow us to identify whether other problematic laws may be lurking out of sight, threatening to resurface at another inopportune moment.\u00a0 We pursued the trail.<\/p>\n<p>Stanford\u2019s reference librarian learned that Stanford had acquired the treatise from the University of California, Berkley.\u00a0 We followed this information to Berkeley\u2019s law school but, it turned out, the librarian who had been responsible for procuring African law books, Tom Reynolds, was now retired. However, we contacted Reynolds for more information.<a href=\"#_ftn20\" name=\"_ftnref20\"><sup>[20]<\/sup><\/a> Through him, we learned the story of the book\u2019s arrival at Berkeley. Reynolds had been responsible for personally traveling to Europe in search of rare African law books for the library\u2019s collection.\u00a0 Based on information Reynolds provided, we identified the possible booksellers in Europe that were in business during the late 1950s and early 1960s, and from whom the treatise may have been purchased.\u00a0 In particular, Reynolds recalled that one of the rare book dealers, and a likely source of the procurement, was Martinus Nijhoff Publishers.\u00a0 Martinus Nijhoff was originally based in The Hague and had since been acquired by other publishing houses, most recently by Brill Publishers. In a three-part series of articles that narrates the history of Martinus Nijhoff and American Research Libraries, Hendrick Edelman wrote: \u201cMartinus Nijhoff, publisher and bookseller of The Hague . . . had by far the longest successful tenure in supplying American libraries with European books and periodicals.\u201d<a href=\"#_ftn21\" name=\"_ftnref21\"><sup>[21]<\/sup><\/a><\/p>\n<p>Our efforts to reach a Senior Acquisitions Officer at Brill remained unanswered, by phone and by e-mail. An expedition to Brill\u2019s office in the Netherlands did not yield results neither. We suspected that if Martinus Nijhoff was indeed the bookseller, the book may be recorded in one of its catalogs.\u00a0 Every time we inquired with rare book publishers and distributors, we received the same response: there was no paperwork or information on how such a treatise may have been procured for their inventory.<\/p>\n<p>Here the trail grew cold. Our quest to trace the procurement of Louwers\u2019 treatise back to its source \u2013 and to the potential discovery of other similar compilations of colonial Rwandan laws that may have traveled through the same distribution stream \u2013 proved to be unsuccessful.\u00a0 Nor would we know the integrity of the chain of custody through which such representations of Rwandan law had passed.\u00a0 The National Archives, located in Amsterdam, and the municipal Haags Gemeentearchief archives, located in The Hague, had no record of the treatise.\u00a0 Libraries that had the treatise in their collections were unable to provide us with traceable information about its acquisition; our telephone calls to libraries in Belgium led to another dead-end.<a href=\"#_ftn22\" name=\"_ftnref22\"><sup>[22]<\/sup><\/a> In fact, the acquisition of Louwers\u2019 treatise throughout an array of international collections<a href=\"#_ftn23\" name=\"_ftnref23\"><sup>[23]<\/sup><\/a> remains a mystery.\u00a0 However, during this search, librarians across the world anecdotally shared with us a common suspicion: that, in general, the supply chains for rare African legal texts are poorly documented because much of their materials were improperly appropriated from African countries, republished and subsequently sold internationally (though none disclosed sources to substantiate that theory).<\/p>\n<p>This dead-end, however, offers important conclusions.\u00a0 So long as the colonial era laws continue to be recognized as possibly valid and enforceable, we cannot rule out the possibility that other problematic health laws will emerge at an inopportune moment.\u00a0 Nor can we pronounce with certainty what the body of positive law is that governs health in Rwanda.\u00a0 Additionally, in the absence of a gazette publication of such law, our reliance on Louwers\u2019 representation, for example, of the content of the law \u2013 and confidence about the accuracy of what precisely had been repealed by Ordonnance n\u00ba 74\/Hyg. du 10 octobre 1931 and about what actual provisions may otherwise still resurface another day \u2013 will necessarily retain a degree of uncertainty.<\/p>\n<p>The challenges associated with tracking down the country\u2019s laws also carry normative implications.\u00a0 When the country achieved its independence, an incomplete portion of its culture and history had been retained, due to the stripping of its traditional laws and the imposition of foreign laws. By missing an important part of its history \u2013 in particular, that where the roots of public health disparities, development obstacles, and even the artificially constructed ethnic divisions leading to the 1994 Genocide against the Tutsi, could be identified<a href=\"#_ftn24\" name=\"_ftnref24\"><sup>[24]<\/sup><\/a> \u2013 Rwanda was deprived of one of its tools for effectively eliminating those divisions.<\/p>\n<p>Colonial mismanagement, the selling of public goods without recording what was sold by whom and to whom, and ethical lapses of colonial academia, are among the factors that conspired to hinder the development of an autonomous legal system.\u00a0 How is a country expected to evolve and move from its past colonization when it lacks necessary materials and information to do so? The availability of information and administrative memory are essential for the country to comprehensively move forward.<a href=\"#_ftn25\" name=\"_ftnref25\"><sup>[25]<\/sup><\/a><\/p>\n<h2>V. Legal Implications of the Colonial Legacy<\/h2>\n<p>Legal theory offers some pragmatic suggestions for how agencies charged with executing the laws and the courts may accommodate these vestigial pathologies in the code.\u00a0 For example, a \u201cdynamic\u201d theory of interpretation calls for statutes to be \u201cinterpreted \u2018dynamically,\u2019 that is, in light of their present societal, political, and legal context.\u201d<a href=\"#_ftn26\" name=\"_ftnref26\"><sup>[26]<\/sup><\/a>\u00a0 An \u201cinstitutional\u201d theory of interpretation would justify broad ministerial discretion to interpret problematic colonial statutes, emphasizing the role of governmental institutions to promote certain \u201csubstantive principles\u201d when they execute the laws.<a href=\"#_ftn27\" name=\"_ftnref27\"><sup>[27]<\/sup><\/a>\u00a0 Such substantive principles would include, <em>inter alia<\/em>: (i) a principle of interpreting statutes so as to promote constitutional norms and to avoid constitutional invalidity;<a href=\"#_ftn28\" name=\"_ftnref28\"><sup>[28]<\/sup><\/a> (ii) a principle of avoiding irrationality and injustice;<a href=\"#_ftn29\" name=\"_ftnref29\"><sup>[29]<\/sup><\/a> (iii) a principle of protecting disadvantaged groups;<a href=\"#_ftn30\" name=\"_ftnref30\"><sup>[30]<\/sup><\/a> (iv) a principle of administrative discretion;<a href=\"#_ftn31\" name=\"_ftnref31\"><sup>[31]<\/sup><\/a> (v) and a principle of interpreting statutes so as to avoid regulatory failures.<a href=\"#_ftn32\" name=\"_ftnref32\"><sup>[32]<\/sup><\/a> \u00a0Such approaches to statutory interpretation may offer justifications for a ministry of health to take proactive measures by interpreting older statutes aggressively and to fill in gaps.\u00a0 Such theories might even justify the selective refusal to enforce discriminatory provisions, curtailing certain \u201crights\u201d as they may appear in the plain language of the statute (e.g., refusing differential treatment based on race, ethnicity, or nationality during a public health emergency).<\/p>\n<p>To some extent, the justification for relying on these flexible interpretive solutions is heightened in the unique context of a developing country, where there are particular pragmatic considerations.\u00a0 For one, the capacity of courts and the legislature cannot realistically handle all necessary corrections in a timely manner; executive agencies are forced to make choices.\u00a0 Second, in a rapidly developing society, statutes become outdated faster.\u00a0 Institutions are young and evolving.\u00a0 Even legislative procedures are evolving.\u00a0 This, too, may require more agency and judicial discretion in interpreting statutes.\u00a0 Third, in a developing country such as Rwanda, there is less litigation of public law.\u00a0 Administrative choices tend to be challenged less frequently in court than they are in western developed jurisdictions.<a href=\"#_ftn33\" name=\"_ftnref33\"><sup>[33]<\/sup><\/a>\u00a0 Courts may not necessarily be called upon to interpret a problematic colonial law or its application.\u00a0 In any event, when courts do intervene, judicial rulings have less precedential value in Rwanda\u2019s system than in a typical common law system.<a href=\"#_ftn34\" name=\"_ftnref34\"><sup>[34]<\/sup><\/a><\/p>\n<p>However, in the face of a system-wide statutory infirmity, such as the perseverance of colonial statutes, theories of flexible interpretation offer <em>ad hoc<\/em> band-aids, and not an adequate long-term solution.\u00a0 Furthermore, encouraging such flexible interpretation for a variety of laws <em>en masse <\/em>runs into other serious, theoretical concerns.\u00a0 To name one, separation of powers doctrine counsels against relinquishing so much of the legislative clean-up to the executive agencies alone.<a href=\"#_ftn35\" name=\"_ftnref35\"><sup>[35]<\/sup><\/a>\u00a0 Far from a theoretical concern, the Rwandan constitution commands as much, creating three \u201cseparate\u201d and \u201cindependent\u201d branches of government (Article 61), in which the \u201cLegislative power is vested in a Parliament\u201d (Article 64).<a href=\"#_ftn36\" name=\"_ftnref36\"><sup>[36]<\/sup><\/a>\u00a0 For these reasons, a more comprehensive solution is warranted.<\/p>\n<p>The legal uncertainties that emerged in the health sector have broader implications for the country\u2019s development.\u00a0 As the micronutrient program illustrates, hidden colonial laws can suddenly re-appear if someone produces them, obstructing the development of positive policies for the population, disrupting settled expectations, and undermining the rule of law. As our team\u2019s hunt for colonial statutes demonstrates, only those who have significant resources can dig up antiquated laws, which are hard to find. A government minister or a Stanford lawyer can deploy the resources to search the world and find one, but that access is not possible for most ordinary citizens.\u00a0 Yet an ordinary citizen could find herself defending against one such law in a court of law, where ignorance of the law is no defense.<a href=\"#_ftn37\" name=\"_ftnref37\"><sup>[37]<\/sup><\/a>\u00a0 The <em>effect<\/em> is discriminatory, as it privileges some people who can cite laws that others cannot access.<\/p>\n<p>There are also strong normative and ethical implications. The persistence of discriminatory laws imposed by colonial sovereigns degrades the dignity of Rwandan law. And it certainly offends the dignity of Rwandan citizens.\u00a0 Some colonial laws are not obviously discriminatory on their face, but they preserve latent vestiges of a colonial scheme.\u00a0 This can perpetuate structural injustices.<\/p>\n<p>As a matter of social justice, human rights, and due process, <em>no<\/em> Rwandan should <em>ever<\/em> be subjected to a decree of a colonial governor or even wonder if she might be.\u00a0 Even if a court correctly refuses to enforce a colonial law, the damage is already done: no citizen (or even government officer, for that matter) should be subjected to the indignity of standing before a judge to defend herself against a colonizer\u2019s decree, brought into the court by a creative opponent.<\/p>\n<p>The persistence of colonial statutes can have certain effects that erode good governance, which also justifies taking action to definitively remove such statutes and minimize those effects. Whether they are ultimately enforced or not, laws influence behavior. From the administrative standpoint, a well-intentioned government official who is uncertain of the extent or validity of certain colonial laws may be deterred from taking well-justified risks or may curtail important reforms in order to steer clear of potential violations of a law which may only be rumored to exist or which may not even hold up in court if it were formally challenged.\u00a0 Finally, the persistence of such statutes weakens the rule of law, inviting authorities to pick and choose which laws to implement, and ultimately allowing them to determine when to substitute their own rules in place of rules they consider outdated.<\/p>\n<p>Across the board, every colonial law, no matter the content, is in conflict with certain provisions of Rwanda\u2019s Constitution, just by virtue of its ignoble provenance.\u00a0\u00a0 First, laws imposed by foreign sovereigns, which were designed to promote oppressive policy objectives, and which are not the product of the Rwandan democratic process, reflect an unconstitutional infringement on the Republic\u2019s sovereignty by a past colonial power.<a href=\"#_ftn38\" name=\"_ftnref38\"><sup>[38]<\/sup><\/a>\u00a0 Second, even if a law is not unconstitutional on its face, because it was designed to advance a discriminatory colonial scheme, its underlying public policy is tainted by an unconstitutional objective.<a href=\"#_ftn39\" name=\"_ftnref39\"><sup>[39]<\/sup><\/a>\u00a0 Third, the <em>effect<\/em> of maintaining such laws is discriminatory and unjust: it grants legal privileges to those who have more resources, because they can access hard-to-find laws that others cannot access.\u00a0 Fourth, for the reasons described <em>supra<\/em>, the perseverance of colonial laws undermines essential, formal principles of the rule of law.<a href=\"#_ftn40\" name=\"_ftnref40\"><sup>[40]<\/sup><\/a>\u00a0 In addition to rule of law concerns elaborated above, laws must be enforced uniformly, not selectively.\u00a0 Finally, there may be a colorable question whether hard-to-find colonial laws may be procedurally defective under the present Constitution, which states, \u201cLaws and orders cannot enter into force without their prior publication in accordance with procedures determined by law.\u201d<a href=\"#_ftn41\" name=\"_ftnref41\"><sup>[41]<\/sup><\/a><\/p>\n<p>In addition to the cross-cutting constitutional violations that are common to all pre-independence laws, as a body of law such statutes are replete with individual policies that are discriminatory on their face and patently unconstitutional: many are in violation of the fundamental principles of Article 10 of the Constitution and the constitutional protections against unequal treatment and discrimination.<\/p>\n<p>These concerns are enough to warrant a sincere debate as to whether colonial statutes should be retained.<\/p>\n<h2>VI. Options for Rwanda<\/h2>\n<p>If Rwanda chose to eliminate its statutory colonial baggage, there are a number of reasonable options.\u00a0 Fortunately, a strong Law Reform Commission is already established, and a law revision project is expected to eventually produce a revised code of Rwandan law.<a href=\"#_ftn42\" name=\"_ftnref42\"><sup>[42]<\/sup><\/a>\u00a0 The long-term mechanism for fundamental reforms and their subsequent maintenance is therefore in place.\u00a0 That effort must be supported.<\/p>\n<p>In the meantime, other options may be used to clear the problematic statutes from the books.\u00a0 For example, a \u201ctask force\u201d might review obsolete health laws, in order to clean up an area of law that is particularly critical to the population.\u00a0 However, task forces can introduce costs and bureaucratic delays.\u00a0 Ultimately, the task force would also encounter costly scavenger hunts and even some dead ends, as illustrated by our own experiences described above.\u00a0 Furthermore, because the problem is not limited to health, colonial laws would persist in other areas.<\/p>\n<p>The most ambitious measure during this interim period, until a more fulsome and comprehensive revised code is available, would be to invalidate all colonial laws.\u00a0 One wholesale repeal of all pre-independence statutes would be efficient and definitive.<\/p>\n<p>The choice is not unprecedented.\u00a0 The former American colonies continued using British statutes for a period of time after independence, while developing a legal tradition of their own.<a href=\"#_ftn43\" name=\"_ftnref43\"><sup>[43]<\/sup><\/a>\u00a0 In time, however, states responded to the growing need for certainty about the body of valid positive law in their jurisdictions.<a href=\"#_ftn44\" name=\"_ftnref44\"><sup>[44]<\/sup><\/a>\u00a0 That need led to the repeal of all British statutes that had not been affirmatively re-enacted after independence: in 1788, for example, just 12 years after declaring independence from England, the New York legislature repealed all British statutes.<a href=\"#_ftn45\" name=\"_ftnref45\"><sup>[45]<\/sup><\/a>\u00a0 Virginia did the same in 1792.<a href=\"#_ftn46\" name=\"_ftnref46\"><sup>[46]<\/sup><\/a>\u00a0\u00a0 As did New Jersey in 1799.<a href=\"#_ftn47\" name=\"_ftnref47\"><sup>[47]<\/sup><\/a>\u00a0\u00a0 And more followed.<a href=\"#_ftn48\" name=\"_ftnref48\"><sup>[48]<\/sup><\/a><\/p>\n<p>More recently, Singapore made the same bold choice.\u00a0 In 1993, just 25 years after its independence, Singapore passed the Application of English Laws Act.\u00a0 The reform preserved some elements of British common law, but it repealed all British statutes at once, except for just a few that were expressly singled out for preservation.<a href=\"#_ftn49\" name=\"_ftnref49\"><sup>[49]<\/sup><\/a>\u00a0 In a speech to the New York Bar Association, Singapore\u2019s Chief Justice, Chan Sek Keong, explained the country\u2019s decision:<\/p>\n<p style=\"padding-left: 30px;\">English law and English legal institutions are fine for England but not necessarily for Singapore because the political, social and cultural conditions are not the same \u2026 The legal framework imposed by the British continued, even after independence in 1965, as the need for change did not appear to be necessary. By the late 1980s, the need for change became apparent, and in 1993, Parliament enacted the Application of English Law Act to \u2018retire\u2019 the Charter and the 1878 law.\u00a0 That, together with the abolishment of appeals to the Judicial Committee of the Privy Council in 1994 gave Singapore complete control of its own laws.<a href=\"#_ftn50\" name=\"_ftnref50\"><sup>[50]<\/sup><\/a><\/p>\n<p>Like New York and other U.S. states, Singapore\u2019s approach stripped the colonizer\u2019s statutes out of the code with one wholesale repeal.<\/p>\n<p>Another option might come through the judiciary, rather than a parliamentary repeal.\u00a0 Under Article 96 of the Constitution, the Rwandan judiciary has jurisdiction over the \u201c[a]uthentic interpretation of laws.\u201d<a href=\"#_ftn51\" name=\"_ftnref51\"><sup>[51]<\/sup><\/a>\u00a0 A request for such an interpretation may be made through the Bar Association by \u201c[a]ny interested person.\u201d<a href=\"#_ftn52\" name=\"_ftnref52\"><sup>[52]<\/sup><\/a>\u00a0 If an interested person sought an advisory opinion or brought a challenge against colonial laws, the judiciary may find grounds for invalidating all colonial laws due to the cross-cutting constitutional concerns described above, which are common to all colonial laws.<a href=\"#_ftn53\" name=\"_ftnref53\"><sup>[53]<\/sup><\/a><\/p>\n<p>Some may hesitate before making such a bold move.\u00a0 Skeptics are likely to raise a counterargument that a wholesale repeal or invalidation of all colonial laws might leave \u201cgaps\u201d in the code if it is not known exactly what laws are being repealed.\u00a0 However, the actual effects of such \u201cgaps\u201d would be far less than it may seem: those \u201cgaps\u201d would necessarily implicate laws that are largely unknown and generally unused.\u00a0 The potential risks resulting from such \u201cgaps\u201d need not outweigh the potential benefits to the rule of law, to improved governance, and to Rwandans\u2019 human rights.<\/p>\n<p>First, as the examples from the Ministry of Health illustrate, it is already the case that people do not know what pre-independence health laws are even there in the first place.<a href=\"#_ftn54\" name=\"_ftnref54\"><sup>[54]<\/sup><\/a>\u00a0 One either does not know exactly what is being preserved or one does not know exactly what is being repealed.\u00a0 Invalidating all pre-independence laws would therefore bring greater clarity about what law is <em>in force<\/em>, which is the more important alternative between the two.<\/p>\n<p>Second, some may question how to deal with a potential \u201cgap.\u201d\u00a0 <em>However, filling that void with laws of a colonizer is no better than a gap.<\/em>\u00a0 A superior solution is already provided for in Rwandan law, where Article 6 of the Civil Procedure Law allows a judge to consider <em>contemporary <\/em>(rather than colonial) policies for addressing an issue not contemplated by statutory law:<\/p>\n<p>Judges shall decide cases by basing their decisions on the relevant law or, in the absence of such a law, on the rule they would have enacted, had they to do so, guided by judicial precedents, customs and usages, general principles of law and written legal opinions.<a href=\"#_ftn55\" name=\"_ftnref55\"><sup>[55]<\/sup><\/a><\/p>\n<p>Importantly, the invalidation of colonial laws would not only expose \u201cgaps\u201d but it would also <em>excise<\/em> the malignant vestiges of a once pathological code.<\/p>\n<p>Fortunately for Rwanda, the country has successfully managed ambitious reforms that disrupt old models many times before.\u00a0 To deliver better social services, Rwanda has managed bold choices to expand universal health care<a href=\"#_ftn56\" name=\"_ftnref56\"><sup>[56]<\/sup><\/a> and to establish English as the language of primary education,<a href=\"#_ftn57\" name=\"_ftnref57\"><sup>[57]<\/sup><\/a> to name just a few.\u00a0 Among its ambitious legal reforms, Rwanda introduced binding judicial precedent to the Supreme Court,<a href=\"#_ftn58\" name=\"_ftnref58\"><sup>[58]<\/sup><\/a> aligned laws with the East African Community, and promulgated a revised constitution all in recent years.\u00a0 Rwandan society is experienced at capitalizing swiftly on disruptive reforms that shake off old systems in favor of better ones; that experience positions it well to finally cast off the legal remnants of its colonial past.\u00a0 The next time science identifies new best practices to address public health needs, colonial baggage need not slow Rwanda down from blazing the trail right alongside other early adopters.<\/p>\n<h2>VII. Conclusion<\/h2>\n<p>A post-colonial nation can only restore its full sovereignty once it frees its legal system from undemocratic colonial remnants, now outdated, that hinder progress. Rwanda is certainly not the only country to face this post-colonial hurdle. But Rwanda is a trailblazer.\u00a0 By taking action on the colonial legal barriers to health, human rights and development, Rwanda also has an opportunity to inspire other formerly colonized countries to dig deep into their legal traditions and consider doing the same.<\/p>\n<p>Ultimately, whether the moment comes after a lengthy review process or with an ambitious stroke, Rwanda will need to take a leap of faith and cast aside colonial laws.\u00a0 The country has never been more ready.<\/p>\n<p><a href=\"#_ftnref0\" name=\"_ftn0\">*<\/a> Agnes Binagwaho, M.D., M(Ped), Ph.D. is a pediatrician, a Senior Lecturer in the Department of Global Health and Social Medicine at Harvard Medical School, Vice Chancellor of the University of Global Health Equity in Rwanda, and an Adjunct Clinical Professor of Pediatrics at Dartmouth College\u2019s Geisel School of Medicine.\u00a0 She served for 14 years in senior government positions in Rwanda\u2019s health sector, and served as Rwanda\u2019s Minister of Health from 2011 to 2016. Richard Freeman, J.D., M.P.P. works in Rwanda as an Advisor of the Rule of Law Program at Stanford Law School and is a practicing attorney in New York. Gabriela Sarriera B.S. is a research assistant in the Department of Global Health and Social Medicine at Harvard Medical School and served as a research assistant to Dr. Binagwaho in 2016.<\/p>\n<p><a href=\"#_ftnref1\" name=\"_ftn1\">[1]<\/a> <em>See<\/em> World Health Organization, World Health Report 2000 at 57 (\u201c[malnutrition] is often a combination of micronutrient deficiency and absolute shortage of calories\u201d), <a href=\"http:\/\/www.who.int\/whr\/2000\/en\/whr00_en.pdf?ua=1\">http:\/\/www.who.int\/whr\/2000\/en\/whr00_en.pdf?ua=1<\/a>.<\/p>\n<p><a href=\"#_ftnref2\" name=\"_ftn2\">[2]<\/a> <em>See, e.g.<\/em>, Alice M. Tang, Ellen Smit &amp; Richard D. Semba, <em>Nutrition and Infection<\/em>, <em>in<\/em> Infectious Disease Epidemiology: Theory and Practice at 305-27 (Kenrad E. Nelson &amp; Carolyn Masters Williams eds.) (3d ed. 2014) (\u201cIt has been established that adequate nutritional status is necessary for the normal functioning of various components of the immune system.\u00a0 Malnutrition may affect the course of infectious disease through a variety of mechanisms, including compromising host immune function, diminishing response to therapies, and promoting comorbidities.\u201d); Joint statement by the World Health Organization, the World Food Programme and the United Nations Children\u2019s Fund, Preventing and Controlling Micronutrient Deficiencies in Populations Affected by Emergency (2007) (\u201cMicronutrient deficiencies increase the general risk of infectious illness and of dying from diarrhoea, measles, malaria and pneumonia. These conditions are among the 10 leading causes of disease in the world [in 2007]\u201d), http:\/\/www.who.int\/nutrition\/publications\/micronutrients\/WHO_WFP_UNICEFstatement.pdf?ua=1.<\/p>\n<p><a href=\"#_ftnref3\" name=\"_ftn3\">[3]<\/a> <em>See<\/em> World Health Organization and Food and Agricultural Organization of the United Nations, WHO\/FAO Guidelines on Food Fortification with Micronutrients (2006); World Health Organization, WHO Guideline: Fortification of Maize Flour and Corn Meal with Vitamins and Minerals (2016), http:\/\/apps.who.int\/iris\/bitstream\/10665\/251902\/1\/9789241549936-eng.pdf?ua=1.<\/p>\n<p><a href=\"#_ftnref4\" name=\"_ftn4\">[4]<\/a> <em>See<\/em> Legislative Order no. 57\/A.E. of 10\/05\/1940 <em>Establishing regulation of commerce, detention and consumption of food stuffs<\/em>.<\/p>\n<p><a href=\"#_ftnref5\" name=\"_ftn5\">[5]<\/a> <em>See, e.g.<\/em>, Rep. of the Independent Inquiry into the Actions of the United Nations During the 1994 Genocide in Rwanda, transmitted by Letter Dated 15 December 1999 from the Secretary-General to the President of the Security Council, at 30, U.N. Doc. S\/1999\/1257 (Dec. 15, 1999) (describing \u201cthe failings of the United Nations to prevent and stop the genocide in Rwanda,\u201d including \u201ca lack of will to take on the commitment which would have been necessary to prevent or to stop the genocide.\u201d).\u00a0 <em>See also <\/em>Samantha Power, <em>Bystanders to Genocide<\/em>, The Atlantic, Sept. 2001, at 18-21, 30 (describing countries\u2019 prioritization of their national interests and evacuation of national staff rather than assisting the victims, the international community\u2019s failure to respond to the genocide, and \u201cBelgian requests for a full UN exit\u201d); <em>id.<\/em> (quoting the head of the UN Assistance Mission in Rwanda, Romeo Daillaire: \u201cMass slaughter was happening, and suddenly there in Kigali we had the forces we needed to contain it, and maybe even stop it . . . [y]et they picked up their people and turned and walked away.\u201d).<\/p>\n<p><a href=\"#_ftnref6\" name=\"_ftn6\">[6]<\/a> <em>See, e.g.<\/em>, Republic of Rwanda, Rwanda Vision 2020.<\/p>\n<p><a href=\"#_ftnref7\" name=\"_ftn7\">[7]<\/a> The Rwandan civil law system was based on Belgian and German legal systems as well as customary law, which it largely imported from the Belgian Congo, subject to the discretion of the vice governor general of Ruanda-Urundi.\u00a0 La loi du 21 ao\u00fbt 1925 sur le Gouvernement du Ruanda-Urundi, article 3 (\u201cLes d\u00e9crets et les ordonnances l\u00e9gislatives du gouverneur g\u00e9n\u00e9ral, dont les dispositions ne sont pas sp\u00e9ciales au Ruanda-Urundi, ne s&#8217;appliquent \u00e0 ce territoire qu&#8217;apr\u00e8s y avoir \u00e9t\u00e9 rendus ex\u00e9cutoires par une ordonnance du vice-gouverneur g\u00e9n\u00e9ral qui l&#8217;administre\u201d); <em>id. <\/em>article 5 (\u201cLes droits reconnus aux Congolais par les lois du Congo Belge appartiennent, suivant les distinctions qu&#8217;elles \u00e9tablissent, aux ressortissants du Ruanda-Urundi.\u201d). <em>See also<\/em> Sam Rugege, \u201cJudicial Independence in Rwanda,\u201d (Oct. 28, 2005), http:\/\/www.mcgeorge.edu\/Documents\/Conferences\/JUDIND_RUGEGE_MASTER.pdf (describing some of Rwanda\u2019s \u201cvery old\u201d laws, \u201csome dating back to nineteenth century Belgian laws or King\u2019s decrees, which must be replaced\u201d).<\/p>\n<p><a href=\"#_ftnref8\" name=\"_ftn8\">[8]<\/a> <em>See, e.g.<\/em>, Paul Rutayisire &amp; Charles Kabwete Mulinda, <em>The Role of History and Political Studies in Post-Genocide Reconstruction and Development<\/em>, 2 J. of Afr. Conflicts and Peace Stud. 1, 4 (Sept. 2013) (describing the promotion of \u201ca historiography that would divide the Hutu and the Tutsi of Rwanda given their interaction for centuries.\u00a0 \u2018The story of the Hutu and the Tutsi is always recounted as if the two groups were divided by an impregnable Chinese wall. Centuries of interaction between the two groups had not only produced a common language and similar cultural institutions and symbols but also a cultural and political space which made it possible for them to coexist peacefully.\u2019\u201d) (citing Arnold Temu, <em>Not Telling: African History at the End of the Millenium<\/em>, S. Afr. Hist. J. 42, 4 (2000)).<\/p>\n<p><a href=\"#_ftnref9\" name=\"_ftn9\">[9]<\/a> For example, this colonial vestige was specifically cited by the genocidal regime\u2019s infamous and much reviled \u201cBahutu Manifesto,\u201d as a tactic for oppression. (\u201cAussi, pour mieux surveiller ce monopole de race, nous nous opposons \u00e9nergiquement\u00a0.\u00a0.\u00a0. \u00e0 la suppression dans les pi\u00e8ces d\u2019identit\u00e9 officielles ou priv\u00e9es des mentions \u2018muhutu,\u2019 \u2018mututsi,\u2019 \u2018mutwa\u2019\u201d).<\/p>\n<p><a href=\"#_ftnref10\" name=\"_ftn10\">[10]<\/a> <em>See, e.g.<\/em>, Brian D. Anderson, <em>A Survey of Law Libraries in Rwanda<\/em>, 107 L. Libr. J. 225, 235 (2015) (documenting some limitations in law libraries and noting a law library worker\u2019s concern that \u201cin Rwanda there is \u2018a need for the rule of law and a need for access to laws, and many do not know where to find it.\u2019\u201d).<\/p>\n<p><a href=\"#_ftnref11\" name=\"_ftn11\">[11]<\/a> Based on authors\u2019 discussions with librarians in Rwanda and rare book collectors in the United States during 2014-2016.<\/p>\n<p><a href=\"#_ftnref12\" name=\"_ftn12\">[12]<\/a> <em>See, e.g.<\/em>, D\u00e9cret du 19 juillet 1926, \u201cHygi\u00e8ne et salubrit\u00e9 publiques\u201d \u00a7\u00a018 (citing, <em>inter alia<\/em>, l\u2019Ordonnance du 22 ao\u00fbt 1888; D\u00e9cret du 20 octobre 1888 sur les maladies contagieuses; D\u00e9cret du 22 f\u00e9vrier 1895 sur la vaccination, D\u00e9cret du 20 janvier 1921 sur la tuberculose, D\u00e9cret du 12 avril 1923 sur les maladies v\u00e9n\u00e9riennes).<\/p>\n<p><a href=\"#_ftnref13\" name=\"_ftn13\">[13]<\/a> Mesures \u00e0 prendre en application de l\u2019ordonnance du 22 juin 1954 N\u00b074\/213, relative a la lutte contre les maladies quarantenaires, \u00e9pid\u00e9miques, endemiques et autres affections transmissible [Measures to take in application of the ordinance of 22 June 1954 N\u00b074\/213, regarding the fight against quarantined illnesses, epidemics, endemics, and other transmissible diseases], Codes et Lois du Rwanda [Codes and Laws of Rwanda], Dec. 31, 1994, at 1712, Ch. XXIX Art. 3-4 (\u201cToute personne [\u2026] trouv\u00e9e atteinte de tuberculose ouverte ou \u00e9volutive . . . sera . . . soumise au traitement <em>ou<\/em> hospitalis\u00e9e\u2026\u201d; but mandating: \u201cTout indig\u00e8ne atteint de tuberculose ouverte ou \u00e9volutive . . . doit \u00eatre hospitalis\u00e9.\u201d) (emphasis added).<\/p>\n<p><a href=\"#_ftnref14\" name=\"_ftn14\">[14]<\/a> <em>Id.<\/em> at Ch. III Arts. 7-8 (\u201cLa maison du malade sera soigneusement d\u00e9sinfect\u00e9e et d\u00e9sinsectis\u00e9e.\u201d; but also mandating: \u201cDans les villages [<em>indig\u00e8nes<\/em>], en cas d\u2019\u00e9pid\u00e9mie, la destruction par le feu de toutes les cases occupies par les pestifer\u00e9s et les cases contigu\u00ebs sera ordon\u00e9e par l\u2019autorit\u00e9 locale, suivant avis de l\u2019autorit\u00e9 locale, suivant avis de l\u2019autorit\u00e9 sanitaire.\u201d).<\/p>\n<p><a href=\"#_ftnref15\" name=\"_ftn15\">[15]<\/a> L\u2019ordonnance du 28 juin 1959 N\u00b074\/345: Hygi\u00e8ne publique dans les agglom\u00e9rations Arts. 1, 10 (\u201cDans les villes, les circonscriptions urbaines, les centres r\u00e9sidentiels \u2026 il est interdit de maintenir des conditions favorables a l\u2019\u00e9closion ou \u00e0 la multiplication des mouches ou des moustiques \u2026. Les contraventions \u00e0 la pr\u00e9sente ordonnance seront punies d\u2019une peine de servitude p\u00e9nale de deux mois au maximum et d\u2019une amende que ne d\u00e9passera pas 2.000 francs ou d\u2019une de ces peines seulement.\u201d).<\/p>\n<p><a href=\"#_ftnref16\" name=\"_ftn16\">[16]<\/a> L\u2019ordonnance du 10 octobre 1940 N\u00b0375\/Hyg.: Hygi\u00e8ne dans les circonscriptions indigenes et les groupements traditionnels non organizes, Arts. 1, 6 (\u201cDans les circonscriptions indig\u00e8nes et les groupements traditionnels non encore organizes, les indigenes sont tenus de maintenir en parfait \u00e9tat de propret\u00e9 l\u2019int\u00e9rieur de leur habitations \u2026. Les infractions \u00e0 la pr\u00e9sente ordonnance seront punies d\u2019une peine de servitude p\u00e9nale de sept jours au maximum et d\u2019une amende qui ne d\u00e9passera pas 50 francs ou d\u2019une de ces peines seulement.\u201d).<\/p>\n<p><a href=\"#_ftnref17\" name=\"_ftn17\">[17]<\/a> The Decret du 19 juillet 1926: Hygiene et salubrit\u00e9 publiques, which was brought into force in Ruanda-Urundi by O.R.U. n\u00ba 38 du 19 octobre 1926, provided for the abrogation of the Ordonnance du 22 ao\u00fbt at a date to be determined by the governor general.\u00a0 That abrogation was later effectuated by Ordonnance n\u00ba 74\/Hyg. du 10 octobre 1931.\u00a0 <em>See <\/em>Codes et Lois du Rwanda.\u00a0 \u00c9dit\u00e9s par Filip Rentjens et Jan Gorus.\u00a0 Volume III.\u00a0 Mis \u00e0 jour au 31 d\u00e9cembre 1994, 2\u00e8me edition 1995<em>.\u00a0 <\/em>It is notable that even the veracity of such older treatises themselves is questionable, as they were edited by European collaborators of the genocidal regime.\u00a0 This is yet another reason why the continued enforcement of colonial laws is problematic \u2013 oftentimes, one is left to rely not on an original publication of the law itself, but rather on a secondary source of problematic provenance.<\/p>\n<p>&nbsp;<\/p>\n<p><a href=\"#_ftnref18\" name=\"_ftn18\">[18]<\/a> At the time of this research, the Royal Museum for Central Africa in Tervuren, Belgium, was closed for renovations.\u00a0 The closure may have prevented the Rwandan embassy in Belgium from locating materials it may otherwise have had access to at other times.<\/p>\n<p><a href=\"#_ftnref19\" name=\"_ftn19\">[19]<\/a> Conversations and email correspondence with Sergio Stone, Foreign, Comparative, and International Law (FCIL) Librarian, Stanford Law School (May-June 2014).<\/p>\n<p><a href=\"#_ftnref20\" name=\"_ftn20\">[20]<\/a> Example: Telephone interview with Tom Reynolds, former librarian, Berkeley University (Oct. 3, 2015); Email correspondence (Jun. 5-18, 2016).<\/p>\n<p><a href=\"#_ftnref21\" name=\"_ftn21\">[21]<\/a> Hendrik Edelman, <em>Nijhoff in America Booksellers from the Netherlands and the Development of American Research Libraries<\/em>, 42 Quaerendo 46, 46 (2012) (<em>available at <\/em>http:\/\/booksandjournals.brillonline.com\/content\/journals\/10.1163\/157006912&#215;640801?crawler=true&amp;mimetype=application\/pdf).<\/p>\n<p><a href=\"#_ftnref22\" name=\"_ftn22\">[22]<\/a> The authors sought this information by contacting the Royal Dutch Library, the Peace Palace Library, the the Belgium Royal Library, the Library of Congress, the University of Pennsylvania\u2019s library, and Cornell University\u2019s library.<\/p>\n<p><a href=\"#_ftnref23\" name=\"_ftn23\">[23]<\/a> Libraries and collections including, but not limited to: The Royal Dutch Library, The Library of Congress, Belgium Royal Library, The Peace Palace Library, Stanford University, Harvard University, University of Pennsylvania, and Cornell University.<\/p>\n<p><a href=\"#_ftnref24\" name=\"_ftn24\">[24]<\/a> <em>See supra <\/em>note 8.<\/p>\n<p><a href=\"#_ftnref25\" name=\"_ftn25\">[25]<\/a> Further information on the importance of archives and their societal roles can be found at the following website (http:\/\/www.clir.org\/pubs\/reports\/pub89\/role.html). The Council on Library and Information Resources offers an overview of the impact that libraries and archives have on societies.<\/p>\n<p><a href=\"#_ftnref26\" name=\"_ftn26\">[26]<\/a> William N. Eskridge, Jr., <em>Dynamic Statutory Interpretation<\/em>, 135 U. Pa. L. Rev. 1479, 1479 (1987).<\/p>\n<p><a href=\"#_ftnref27\" name=\"_ftn27\">[27]<\/a> <em>See<\/em> Cass R. Sunstein, <em>Interpreting Statutes in the Regulatory State<\/em>, 103 Harv. L. Rev. 405 (1989).<\/p>\n<p><a href=\"#_ftnref28\" name=\"_ftn28\">[28]<\/a> <em>Id.<\/em> at 468\u201369.<\/p>\n<p><a href=\"#_ftnref29\" name=\"_ftn29\">[29]<\/a> <em>Id.<\/em> at 482 (\u201cIn such circumstances, what might appear to be aggressive construction is entirely legitimate \u2013 at least if the injustice or irrationality is palpable and there is no affirmative evidence that the legislature intended the result\u201d).<\/p>\n<p><a href=\"#_ftnref30\" name=\"_ftn30\">[30]<\/a> <em>Id.<\/em> at 483 (When there is ambiguity, \u201cresolve interpretive doubts in favor of disadvantaged groups\u201d).<\/p>\n<p><a href=\"#_ftnref31\" name=\"_ftn31\">[31]<\/a> <em>Id.<\/em> at 474-75 (among \u201cinterpretive principles [that] respond directly to institutional concerns and are designed to improve the performance of governmental entities\u201d is a principle of \u201cadministrative discretion,\u201d whereby \u201c[c]ourts defer to agency understandings of policy and fact in cases in which discretion has lawfully been conferred.\u00a0 This idea is based on a recognition of the superior democratic accountability and fact-finding capacity of the agency.\u201d); <em>see also id.<\/em> at 465 (discussing the U.S. Supreme Court\u2019s application of \u201cthe principle of deference to agency interpretations of law,\u201d described as a \u201ccontestable institutional norm,\u201d in its decision to uphold the U.S. Food and Drug Administration\u2019s view that the agency could refrain from promulgating certain regulations under a statute seeking to limit unsafe substances in the food supply) (citing <em>Young v. Community Nutrition Institute<\/em>, 476 U.S. 974 (1986)).<\/p>\n<p><a href=\"#_ftnref32\" name=\"_ftn32\">[32]<\/a> <em>Id.<\/em> at 476 (Interpretations should \u201cavoid characteristic failures in regulation \u2013 caused, for example, by [the Legislature\u2019s] failure to understand the systemic effects of regulation or to coordinate statutes regulating the same area.\u201d\u00a0 The system should \u201cpermit <em>de minimis<\/em> exceptions [created by agencies], assume proportionality in regulation, and generously construe statutes designed to protect disadvantaged groups and nonmarket values\u201d).<\/p>\n<p><a href=\"#_ftnref33\" name=\"_ftn33\">[33]<\/a> For example, resources may be more limited for public interest institutions or NGOs to bring challenges through impact litigation, doctrines of standing may take time to fully develop, and a culture of litigating such issues may take time to emerge.\u00a0 <em>See, e.g.<\/em>, Ana Paula de Barcellos, <em>Sanitation Rights, Public Law Litigation, and Inequality: A Case Study from Brazil<\/em>, 16 Health &amp; Hum. Rts. J. 34, 41\u201342 (Dec. 2014) (empirical data from Brazil suggesting that although some individuals who have resources may successfully litigate their own rights to certain health services, communities with more limited resources benefit from less public law litigation related to health); Serges Djoyou Kamga, <em>An Assessment of the Possibilities for Impact Litigation in Francophone African Countries<\/em>, 14 Afr. Hum. Rts. L. J. 449, 454, 465, 467\u201368 (2014) (discussing the above factors as among those that may explain why certain types of impact litigation have been slow to develop in Francophone African countries, particularly where the inherited legal systems were based on the French model).<\/p>\n<p><a href=\"#_ftnref34\" name=\"_ftn34\">[34]<\/a> <em>See <\/em>Organic Law N\u00b0 03\/2012\/OL of 13\/06\/2012 determining the organization, functioning, and jurisdiction of the Supreme Court (Official Gazette of Rwanda, July 9 2012). The law gives the Supreme Court the power to bind the lower courts with its rulings, but this transition away from civil law traditions has not yet been implemented in lower levels of the judicial system<\/p>\n<p><a href=\"#_ftnref35\" name=\"_ftn35\">[35]<\/a> <em>See, e.g.<\/em>, Montesquieu, De L\u2019Esprit des Lois, Book XI, Part VI (separation of powers is necessary between the legislative, executive, and judicial powers: \u201cTout serait perdu, si le m\u00eame homme, ou le m\u00eame corps des principaux, ou des nobles, ou du peuple, exer\u00e7aient ces trois pouvoirs: celui de faire des lois, celui d&#8217;ex\u00e9cuter les r\u00e9solutions publiques, et celui de juger les crimes ou les diff\u00e9rends des particuliers.\u201d).<\/p>\n<p><a href=\"#_ftnref36\" name=\"_ftn36\">[36]<\/a> 2003 Const. 61, 64 (Rwanda) (revised 2015).<\/p>\n<p><a href=\"#_ftnref37\" name=\"_ftn37\">[37]<\/a> <em>See<\/em> Constitution of the Republic of Rwanda of 2003 Revised in 2015, Art. 176 (\u201cIgnorance of a duly published law is not an excuse\u201d).\u00a0 <em>But see also<\/em> discussion <em>infra<\/em> (discussing constitutionally suspect enforceability of colonial laws pursuant to Article 176).<\/p>\n<p><a href=\"#_ftnref38\" name=\"_ftn38\">[38]<\/a> <em>See id.<\/em> Art. 1 (\u201cNational sovereignty belongs to Rwandans who exercise it directly by means of referendum, elections, or through their representatives\u201d); <em>id. <\/em>Art. 4 (\u201cThe Rwandan State is an independent, sovereign, democratic, social and secular Republic.\u00a0 The founding principle of the Republic is: \u2018Government of Rwandans, by Rwandans and for Rwandans.\u2019\u201d); <em>id. <\/em>Art. 10(4\u00ba) (\u201cThe State of Rwanda commits itself to \u2026 building a State governed by the rule of law, [and] a pluralistic democratic government\u2026\u201d).<\/p>\n<p><a href=\"#_ftnref39\" name=\"_ftn39\">[39]<\/a> <em>See, e.g.<\/em>, <em>id. <\/em>Art. 10(2\u00ba) (\u201cThe State of Rwanda commits itself to \u2026 [the] eradication of discrimination\u201d).<\/p>\n<p><a href=\"#_ftnref40\" name=\"_ftn40\">[40]<\/a> <em>See id. <\/em>Art. 10(4\u00ba).\u00a0 In its most basic form, the Rule of Law is commonly described as encompassing at least certain minimum, formalistic requirements.\u00a0 \u201cA legal system exemplifies the Rule of Law to the extent (it is a matter of degree in respect of each item of the list) that (i) its rules are prospective, not retroactive, and (ii) are not in any other way impossible to comply with, that (iii) its rules are promulgated, (iv) clear, and (v) coherent one with another; that (vi) its rules are sufficiently stable to allow people to be guided by their knowledge of the coherent rules, that (vii) the making of decrees and orders applicable to relatively limited situations is guided by rules that are promulgated, clear, stable, and relatively general; and that\u00a0 (viii) those people who have authority to make, administer, and apply the rules in an official capacity (a) are accountable for their compliance with rules applicable to their performance and (b) do actually administer the law consistently and in accordance with its tenor.\u201d\u00a0 John Finnis, Natural Law and Natural Rights 270 (1980).\u00a0 <em>See also <\/em>Lon Fuller, The Morality of Law 46 (1964) (describing the formalistic requirements of the rule of law).<\/p>\n<p><a href=\"#_ftnref41\" name=\"_ftn41\">[41]<\/a> Constitution of the Republic of Rwanda of 2003 Revised in 2015, Art. 176.<\/p>\n<p><a href=\"#_ftnref42\" name=\"_ftn42\">[42]<\/a> In a recent interview, the former Chairman of Rwanda\u2019s Law Reform Commission was quoted as explaining, \u201c[c]urrently, the country is in a peculiar position because we have laws from colonial times that are still applicable, yet virtually nobody knows them. These laws are scattered because we don\u2019t have a consolidated and update compendium of Rwandan laws.\u201d \u00a0<em>Rwanda Law Reform Commission to produce a fully revised edition of legislation within 5 years<\/em>, Hope Magazine (July 20, 2017), <a href=\"http:\/\/www.hope-mag.com\/index.php?com=news&amp;option=read&amp;ca=6&amp;a=3166\">http:\/\/www.hope-mag.com\/index.php?com=news&amp;option=read&amp;ca=6&amp;a=3166<\/a> (documenting interview with John Gara, former Chairman of Rwanda Law Reform Commission).\u00a0 Notably, in recent years, Parliament and the institutions of Rwanda\u2019s legal sector have worked to revise fundamental portions of the code, including, <em>inter alia<\/em>, their work on a revised Penal Code, <em>see, e.g.<\/em>,<em> Vote on new Penal Code kicks off tomorrow<\/em>, The New Times (Dec. 27, 2017) http:\/\/www.newtimes.co.rw\/section\/read\/226429, and the recently passed Law N\u00b0 27\/2017 of 31\/05\/2017 Governing Companies, updating core commercial laws.<\/p>\n<p><a href=\"#_ftnref43\" name=\"_ftn43\">[43]<\/a> <em>See <\/em>Elizabeth Gasper Brown, British Statutes in American Law, 1776-1836, \u00a0at 23-31 (1964) (describing the continuity of certain colonial and British laws for a period of time after American independence).<\/p>\n<p><a href=\"#_ftnref44\" name=\"_ftn44\">[44]<\/a> <em>Id. <\/em>at 31 (\u201cpressure for greater certainty [about which laws were valid and in force] developed\u201d).<\/p>\n<p><a href=\"#_ftnref45\" name=\"_ftn45\">[45]<\/a> Act of Feb. 27, 1788, ch. 46, 1788-1792 vol. 2 N.Y. Laws 116 (\u201cfrom and after the first day of May next, none of the Statutes of England, or Great-Britain, shall operate or be considered as Laws of this State.\u201d).<\/p>\n<p><a href=\"#_ftnref46\" name=\"_ftn46\">[46]<\/a> Act of Dec. 27, 1792, ch. 79, 1792-1806 vol. 1 Va. Acts 200 \u00a0(\u201cAnd whereas the good people of this commonwealth may be ensnared by an ignorance of acts of parliament, which have never been published in any collection of the laws \u2026 [b]e it therefore enacted by the General Assembly, That so much of the above recited ordinance as relates to any statute or act of parliament, shall be, and is hereby repealed; and that no such statute or act of parliament shall have any force or authority within this commonwealth.\u201d).<\/p>\n<p><a href=\"#_ftnref47\" name=\"_ftn47\">[47]<\/a> Act of June 13, 1799 \u00a7 4; Act of May 25, 1820, ch. 126, 1820 N.J. Laws 726.<\/p>\n<p><a href=\"#_ftnref48\" name=\"_ftn48\">[48]<\/a> <em>See, e.g.<\/em>, Act of Jan 2, 1806, 1806 Ohio Laws 38 (repealing all British statutes in Ohio); Act of Feb. 10, 1807, ch. 5, 1807 Miss. Laws 23 (repealing all British statutes in Mississippi); Act of Sept. 16, 1810, 1810 Mich. Pub. Acts 563 (repealing all British statutes in Michigan); Act of Jan. 23, 1837, ch. 26, 1836-1837 N.C. Sess. Laws 143 (repealing all British statutes in North Carolina); Act of Oct. 14, 1857, ch. 1, 1858 Tenn. Pub. Acts 1 (ceding to the US exclusive jurisdiction over Tennessee lands); Ch. 146, 1873 S.C. Acts 778 (repealing the colonial statute in South Carolina).<\/p>\n<p><a href=\"#_ftnref49\" name=\"_ftn49\">[49]<\/a> Application of English Laws, Act \u00a7 5.1 (1993) (Sing.) (\u201cExcept as provided in this Act, no English enactment shall be part of the law of Singapore\u201d).<\/p>\n<p><a href=\"#_ftnref50\" name=\"_ftn50\">[50]<\/a> Chan Sek Keong, Chief Justice of Sing., Speech to the N.Y. State Bar Assoc. (Oct. 27, 2009).<\/p>\n<p><a href=\"#_ftnref51\" name=\"_ftn51\">[51]<\/a> Additional bases for jurisdiction are also likely.\u00a0 For example, Article 43 gives the judiciary jurisdiction over certain matters as \u201cthe guardian of human rights and freedoms.\u201d Constitution, art. 43 (2003) (Rwanda).<\/p>\n<p><a href=\"#_ftnref52\" name=\"_ftn52\">[52]<\/a> Constitution, art. 96 (2003) (Rwanda).<\/p>\n<p><a href=\"#_ftnref53\" name=\"_ftn53\">[53]<\/a> <em>Supra <\/em>Section IV.<\/p>\n<p><a href=\"#_ftnref54\" name=\"_ftn54\">[54]<\/a> <em>See, e.g., <\/em>Part II <em>supra <\/em>(describing Ministry of Health\u2019s experience with instruction on micronutrients); footnote 42\u00a0<em>supra<\/em> (Hope Magazine interview with Rwanda Law Reform Commission).<\/p>\n<p><a href=\"#_ftnref55\" name=\"_ftn55\">[55]<\/a> Law N\u00b0 21\/2012 of 14\/06\/2012 Relating to the Civil, Commercial, Labour and Administrative Procedure, Art. 6.<\/p>\n<p><a href=\"#_ftnref56\" name=\"_ftn56\">[56]<\/a> <em>See, e.g.<\/em>, <em>An African Trailblazer: How a Poor Country Brought Health Insurance to 91% of the Population<\/em>, The Economist (Sept. 15, 2016) https:\/\/www.economist.com\/news\/middle-east-and-africa\/21707226-how-poor-country-brought-health-insurance-91-population-african (describing how \u201cgovernment engagement\u201d enabled Rwanda to achieve health insurance coverage that is \u201cby far the highest in Africa\u201d).<\/p>\n<p><a href=\"#_ftnref57\" name=\"_ftn57\">[57]<\/a> <em>See, e.g.<\/em>, <em>Speak English? Invest here. French need not apply, <\/em>The Economist (Oct. 15, 2012) https:\/\/www.economist.com\/blogs\/johnson\/2012\/10\/language-rwanda (\u201cIt isn&#8217;t strange that a country seeking more foreign investment is turning to English. What\u2019s notable about Rwanda\u2019s policy shift from French to English is its speed.\u201d).<\/p>\n<p><a href=\"#_ftnref58\" name=\"_ftn58\">[58]<\/a> N\u00ba 03\/2012\/OL of 13\/06\/2012 Organic Law determining the organization, functioning and jurisdiction of the Supreme Court, art. 47 Rwanda Gazette No. 28.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>[PDF] By Agnes Binagwaho, Richard Freeman, and Gabriela Sarriera* I. Introduction Rwanda has earned a reputation as a trailblazer among 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