LLB DISSERTATION

i

UNIVERSITY OF RWANDA

COLLEGE OF ARTS AND SOCIAL SCIENCES

SCHOOL OF LAW

LLBIV

ACADEMIC YEAR: 2015-2016

RESEARCH PROJECT

Research project submitted in partial fulfilment of the Academic requirements for the award

of Bachelor Degree of Laws (LLB) at University of Rwanda, School of Law, Nyarugenge

Campus.

Presented by:

NTIRUSHWAMABOKO Aloys

Supervisor: Me UWINEZA Odette (LLM)

Kigali, May, 2016

TOPIC: EVIDENCE IN PROPRIETARY LAND RIGHTS UNDER RWANDAN LAW: CASE LAW ANALYSIS

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TABLE OF CONTENTS

DECLARATION ............................................................................................................................ v

APPROVAL .................................................................................................................................. vi

ACKNOWLEDGEMENTS .......................................................................................................... vii

EVIDENCE IN PROPRIETARY LAND RIGHTS UNDER RWANDAN LAW: CASE LAW

ANALYSIS ..................................................................................................................................... 1

CHAP. 0: PRESENTATION OF THE RESEARCH PROJECT ................................................... 1

0. I. INTRODUCTION ................................................................................................................ 1

0. II PROBLEM STATEMENT ..................................................................................................... 4

0. III RESEARCH QUESTIONS ................................................................................................ 7

0. IV. RESEARCH OBJECTIVES.............................................................................................. 8

0. V RESEARCH METHODOLOGY ........................................................................................ 8

0.VI SIGNIFICANCE OF THE RESEARCH ................................................................................ 8

0.VII ORGANISATION OF THE RESEARCH ............................................................................ 9

CHAP.I HISTORICAL PROTECTION OF OWNERSHIP LAND RIGHTS IN RWANDA:

LEGAL FRAMEWORK .............................................................................................................. 10

Section I: General understanding of Ownership rights ............................................................. 10

I.1 Notion of ownership rights .................................................................................................. 10

I.2 Characteristics and prerogatives of ownership rights .......................................................... 12

I.2.1 Rights to Use (Usus) ......................................................................................................... 13

I.2.2 Rights to enjoy the fruits from a property (Fructus) ......................................................... 13

I.2.3 Rights to alienate/ dispose of the property (Abusus) ........................................................ 14

I.3 The ownership rights of land in Rwanda ............................................................................. 14

I.3.1 Land Ownership System in Pre-Colonial period ........................................................... 14

I.3.2 Land Ownership System during the Colonial period .................................................... 15

I.3.3 Land Ownership System during Post colonial period ................................................... 15

I.4 The notion of private ownership over the land .................................................................... 17

I.4.1 Legal framework of private ownership over the land ................................................... 17

I.4.2 Limitation of private ownership........................................................................................ 18

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I.4.2.1 Prescription (article 45 of 2013 land law) .................................................................. 19

I.4.2.2 Expropriation for public interest ................................................................................ 20

I.4.2.3 Environmental regulations ......................................................................................... 21

I.5 The notion of public ownership over the land and its Legal framework in Rwanda ........... 22

I.5.1 Authentication of public ownership over land .............................................................. 23

I.5.2 Limitations of public ownership over the land .............................................................. 23

SECTION II: EVIDENCE IN LAND RELATED LITIGATION ............................................... 24

II.1 Arusha Peace Agreement between the Government of the Republic of Rwanda and the

Rwandese Patriotic Front .......................................................................................................... 24

II.2The law of procedure (Civil, Commercial, Labour and Administrative procedure) ........... 26

II.3 The law of Evidence ........................................................................................................... 26

II.4 Land law ............................................................................................................................. 27

CHAP. II: EVIDENCES IN PROPRIETARY LAND RIGHTS: CASE LAW ANALYSIS....... 28

Section I: Evidence in Proprietary land rights under the communal law/ of 23/11/1963 ........ 28

I.1 Modes of acquisition of land under the communal law/ of 23/11/1963 .............................. 29

I.2 Limitations of rights over land under the communal law/ of 23/11/1963 ........................... 29

I.3 Authentication of land under the communal law/ of 23/11/1963 ........................................ 30

I.4 Analysed case laws .............................................................................................................. 30

I.4.1 Case no RC0336/011/TB/KBH, Karangwa Rosalie Vs Hvugimana Phillipe................... 31

1.4.1.1 Presentation of facts and applicable law .................................................................... 31

1.4.1.2 Application of law to facts and decision of the court ................................................ 31

I.4.1.3 Analysis of the case .................................................................................................... 33

I.4.2 Case no RCA 0073/13/TGI/MHG, MUKAMUSONI Assia Vs MUSONERA Venuste,

HAGABIYAREMYE Innocent, et. al. ...................................................................................... 33

1.4.2.1 Presentation of facts and applicable law .................................................................... 33

1.4.2.2 Application of law to facts and decision of the court ................................................ 34

1.4.2.3 Analysis of the case ................................................................................................... 35

SECTION II: EVIDENCE IN PROPRIETARY LAND RIGHTS UNDER THE 2005 LAND

LAW ............................................................................................................................................. 36

II.1 Land registration and Issuance Land titles ......................................................................... 36

II.1.1 Land titles ........................................................................................................................ 38

II.2.2 The 2008 procedure of land titling .................................................................................. 38

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II.2.3 Critics on the procedures of land registration in Rwanda ............................................... 40

II.3 Authentication under the 2013 land law ............................................................................. 41

II.4 Analysed case law (case no RCA 0300/14/TGI/RBV) ...................................................... 41

II.4.1 Presentation of facts, question of law, applicable law and court decision ................... 42

II.4.2. Analysis of the case .................................................................................................... 43

SECTION III: THE SUPREME COURT CASE LAW OF 2014 ................................................ 44

III.1 The analysis of the Supreme Court case (Case Law no RCAA 0018/13/CS)................... 44

III.1.1 Presentation of the case .............................................................................................. 44

III.1.2. Summary of facts, Question of Law and Application of law .................................... 45

III.2 Decision of the court ......................................................................................................... 46

III.3 Position of the court .......................................................................................................... 46

III.4 Innovations from the decided case law by Supreme Court ............................................... 46

III.5 Declaration of Nullity of Land Certificate ........................................................................ 48

GENERAL CONCLUSION ......................................................................................................... 51

RECOMMENDATIONS .............................................................................................................. 52

BIBLIOGRAPHY ......................................................................................................................... 54

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DEDICATION

I dedicate this work to:

My family (My Parents, Brothers and Sisters),

My Enlightened Supervisor, Me Odette UWINEZA

The School of Law

The Legal Aid Forum (LAF)

All friends and classmates.

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DECLARATION

I, NTIRUSHWAMABOKO Aloys , hereby declare that this final report project entitled

“Evidence in Proprietary Land Rights under Rwandan Law: Case Law Analysis” is entirely my

own work and has not been submitted in whole or in part to any other University or Higher

Learning institution. To the best of my knowledge, the work presented hereafter is original. All

materials that I consulted while carrying out this work, all references were provided in footnotes

and bibliography. This final report project was conducted at the School of Law, College of Arts

and Social Sciences, in the University of Rwanda under the supervision of Me Odette

UWINEZA, the Lecturer at School of Law.

Kigali, On ………/…………/……..

Signature …………………….

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APPROVAL

I, undersigned, certify that this final report project entitled “Evidence in Proprietary Land Rights

under Rwandan Law: Case Law Analysis” has been carried out under my supervision and has

been submitted with my approval.

Done at Kigali, On ………/………/…………

Me Odette UWINEZA

Lecturer at the School of Law, University of Rwanda.

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ACKNOWLEDGEMENTS

Upon the accomplishment of this final report project, I am pleasing the Almighty God for his

blessing and grace of daily life. I wish to express my heartfelt gratitude to all those who

contributed to its completion. In this view, I wish to recognise the role played by my parents,

brothers and sisters for the achievement of my work. The indispensable provision of financial

means and of all necessary support to live in complex academic life is really a great effort to my

future life.

I really thank to the authorities of University of Rwanda, College of Arts and Social Sciences,

specifically those of School of Law for having put in place the module for the purpose of

transforming the theoretical knowledge into research practices, and come up with a fully

researched and supervised work for the fulfillment of a bachelor degree.

Particularly, my sincere appreciation goes directly to the staff of the School of Law, beside their

personal duties, charges and responsibilities, for their determined efforts to complete my work in

safe conditions.

The same acknowledgment goes to my Supervisor Me Odette UWINEZA, the Lecturer of Laws

at the School of Law for her kind supervision, help in terms of provision of certain materials and

guidance as well as for undertaking the task to supervise my work. Without her excellent

supervision, full of legal and crucial analysis for the sake of its completion, my work would not

have been in the light of today.

Moreover, my recognition goes to my colleagues of the class. Their moral, collaborative

assistance and enthusiasm have been indispensable and beneficial towards the success of this

work.

Lastly, I thank all persons who contributed and helped me in one way or another, either direct or

indirect to achieve my light expectations at the University of Rwanda throughout the academic

period.

May God bless you all!

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EVIDENCE IN PROPRIETARY LAND RIGHTS UNDER RWANDAN LAW: CASE

LAW ANALYSIS

CHAP. 0: PRESENTATION OF THE RESEARCH PROJECT

0. I. INTRODUCTION

Rwanda is a hilly and evergreen country located in East Africa with an area of 26.338 km.1 Its

population varies between 11.78 millions of people.2 Land issues are very delicate especially that

they touch on the fundamental essence of every society, especially in as far as the land

ownership which constitutes the major factor of production and the population‟s best way of

living. It therefore becomes clear to everyone that for Rwanda‟s sustainable development, the

priority is to put into account the land dimensions as it is the highly ranked resource in the

Rwanda‟s socio economic life.3

Land is the surface of the earth identified by specific boundaries, including the airspace above

that portion of surface, the minerals beneath it, and surrounding biodiversity, erections and

developments on that surface. In legal terms, it is an immovable and permanent asset inclusive of

rights associated with the surface of the earth from the centre to the infinite sky.4

Land is a fundamental resource of the nation state.5 Without land, without territory, there can be

no nation state. Housing, agriculture, natural resource use, and national security concerns are all

based upon land management and use.6 Hence, land is seen as one of the most important and

fundamental natural resource that is exploited by people to get their daily living means.

1

E. Rurangwa, Perspective of Land Reform in Rwanda, The Ministry of Lands, Human Settlement and

Environmental Protection, Kigali, 2002, p. 1. 2 Republic of Rwanda, Ministry of Finance and Economic Planning, National Institute of Statistics of Rwanda,

Fourth Population and Housing Census, Rwanda, 2012 Thematic Report; Characteristics of households and

housing, January 2014, Kigali, p. 1. 3 D. M.Kayihura, F. Kigenza, Property and Land Law, Students Manual, University of Rwanda (Former NUR),

Butare, 2010, p. 42. 4 The Law no 43/2013 of 16/06/2013 governing land in Rwanda, OG of 16/06/2013, Article 2.

5 S. Hodgson, C. Cullinan and K. Campbel, Land Ownership and Foreigners: A Comparative Analysis of

Regulatory Approaches to the Acquisition and Use of Land by Foreigner, FAO Legal Papers Online #6, 1999, p. 1. 6 Idem.

2

Through different periods of Rwandan history, Land issues have become the country‟s top

priority to the extent of being on the schedule of different national institutions at all times.7 For

instance, in 1996, a National Conference was held to discuss land issues in Rwanda and at the

end of it, the grounds were leveled for the draft Organic law on Land. After some years, the

government succeeded in having in place the law governing land use and management that was

The Organic Law No. 08 /2005 of 14/07/2005.8

Though the law was put in place, land related matters persisted. The massacres of 1959, 1973,

1990 and the Genocide perpetrated against Tutsi in April - July 1994 decimated over one million

lives. These sad events led also to the displacement of millions of people, both inside and outside

the country, leaving behind many widows and orphans, as well as their properties including

lands, houses, etc.

After Genocide, the 1959 refugees were expected to return to their natal country as stipulated the

Arusha Peace Accords. Under its Article 2, the Arusha Peace Accords between the Government

of the Republic of Rwanda and the Rwandese Patriotic Front on the Repatriation of Rwandan

Refugees and the Resettlement of Displaced Persons stated that” …every returnee is free to settle

in any area of his/her choice in the country, as long as he/she does not infringe on somebody

else‟s rights”.9 Article 3 of the same Protocol stated that “In order to resettle the repatriated

persons, the Government of Rwanda should release all unoccupied land so identified by the

“Repatriation Commission".10

On the other hand, Article 4 of the Protocol stipulated that “the

right to property is a fundamental right for all Rwandans”. As a result, the refugees have the right

to repossess their properties upon their return. However, the two parties recommended that “with

a view to promoting social harmony and national reconciliation, refugees who fled the country

over 10 years ago should not reclaim their properties which have been occupied by other

individuals. To compensate them, the Government will give them land and assist them to

resettle".

7

G.U. Mugiraneza, “The Origin of Organic Land Law in Rwanda (More on this Law)”, available at

www.igihe.com/twandikire/article/inkomoko-y-itegeko-ry-ubutaka-mu, accessed on 20th

February, 2016

(Authors‟translation). 8 Idem.

9 Arusha Peace Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front,

Arusha, Article 2. 10

The Peace Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front,

Arusha, Article 3.

http://www.igihe.com/twandikire/article/inkomoko-y-itegeko-ry-ubutaka-mu

3

In the first place, the return of the 1959 refugees gave rise to a real land problem. It was found

that it was difficult to apply the Arusha Peace Accords to those cases of first returnees. As an

interim measure, some of the former 1959 refugees occupied land that had been abandoned.11

Other former refugees were given plots on public land and vacant land on which they could

resettle and produce.

The legislation that was in place before the Organic Law No. 08/2005 of 14/07/2005 relating to

land regimes in Rwanda was characterized by enormous problems in which for example, the

existence of a pluralistic legal system; lack of an adequate land legislation; lack of an appropriate

institutional framework; the land regime that was discriminatory to women; etc.12

Apart from the above mentioned issues that characterized the Rwandan land legislation, there is

also the matter of evidences (proofs) in proprietary land rights that has characterized the

Rwandan land regime in course of its history. For instance, those who acquired lands through

customary means could claim their ownership rights by showing evidences like last will made by

their parents, or by testimonies of witnesses. And for those who acquired lands through written

laws, they could claim their ownership rights either by sale contracts, by the communal land

certificate as well as the certificate of land allocation under the 2005 and 2013 laws governing

the use and management of land in Rwanda. All those led to controversies in decisions that were

rendered by Rwandan courts when land related cases were brought before them specifically in

matters of evidences.

11

The situation of letting those refugees occupy those lands resulted in the 1996 regulations on the temporary

management of abandoned land in Rwanda. It was regulated by the ministerial order no 01/1996 regarding the

temporary management of land property (Instruction ministérielle no. 01/1996 du 23 septembre 1996 portant

mesures de gestion provisoire des propriétés foncières, du 23 Septembre, 1996, available at:

http://www.refworld.org/docid/3ae6b50017.html.). 12

See supra note 2, p. 124.

http://www.refworld.org/docid/3ae6b50017.html

4

0. II PROBLEM STATEMENT

From different periods of time, a number of statutes and orders were passed to regulate land

related matters. They include: The 1885 Ordonance / Order relating to the occupation of land in

Rwanda, The decree of 24/01/1943 related to gratuitous cessions and concessions to scientific

and religious associations and to public entities in Rwanda, The communal law/District law of

23/11/1963, The law of 30/03/1982 relating to soil conservation in Rwanda, Arusha Peace

Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic

Front, Rwandan constitution of 04/June 2003, The Organic Law No. 08/2005 of 14/07/2005

relating to land regimes in Rwanda, Ministerial Order N°002/2008 of 01/4/2008 determining

modalities of land registration, as well as the law no 43/2013 of 16/06/2013 governing land in

Rwanda.

Though all of those laws were put in place, the Rwandan land regime still manifests some

controversies in relation with evidences over land where you can find more than one people

claiming ownership over the same land. There are some alternatives that those legal instruments

provide.

Starting with the Constitution as the supreme law of the Republic of Rwanda, it states that Every

person has a right to private property, whether personal or owned in association with others.

Private property, whether individually or collectively owned, is inviolable. The right to property

may not be interfered with except in public interest, in circumstances and procedures determined

by law and subject to fair and prior compensation.13

Under article 35, it provides that, Private

ownership of land and other rights related to land are granted by the State. The law specifies the

modalities of acquisition, transfer and use of land.

The law governing land in Rwanda provides for the way of proving the ownership of the land. It

states that Certifying that the land has been allocated or leased shall be evidenced by a certificate

13

The Rwandan Constitution of 4th

June, 2003 revised in 2015, Article 34.

5

of land registration issued by the registrar of land titles. In case of loss or damage of the

certificate of land registration, the registrar of land titles issued a replacing one.14

With regards to the private ownership of land and the emphyteutic lease, it is legally stated that

they can only be legally established by a Certificate of Registration of the title recognised or

granted by the State. The private ownership of immovable by incorporation and other real rights

such as emphyteusis owned separately from the land are only legally established by a Certificate

of Registration of the authentic deed that serves as its base.15

Furthermore, the law on evidence and its production provides that An authentic deed is one,

which has been drawn or received in accordance with all the required formalities, by a public

officer authorised to officiate in the place where the deed was drawn.16

Article 13, paragraphs 1-

2 of the very law states that The authentic deed is trustworthy and binding for all the parties as

regard its contents are witnessed by a civil servant or where the latter worked them out within his

or her mission. The contents of such a deed shall not be challenged except where there is

prosecution for falsification of authentic documents or where either party alleges forgery. An

authentic deed turns into evidence unless its validity is challenged by one of the parties, or an

interested third party, by the use of contrary evidence in writing, evidence corroborated by partial

writing, or any other means provided for by the law.

The law on Civil, Commercial, Labour and Administrative procedure on its part relating to the

execution of judgments, it also states that Provisional execution order shall be issued by the

court on its own motion, even without a security if the evidence of litigation is an authentic

deed.17

From this provision, one can wonder how the court decides so without assessing the

validity of such a deed and the conditions under which it was obtained by the party who

presented it to the court.

14

The Law no 43/2013 of 16/06/2013 governing land in Rwanda, O.G of 16/06/2013, Article 18. 15

The Ministerial Order N°002/2008 of 01/4/2008 determining modalities of land registration, O.G of 01/08/2008

Article 4. 16

The law n° 15/2004 relating to evidence and its production, O.G special No of 19/07/2004, Article 11. 17

The Law relating to Civil, Commercial, Labour and Administrative procedure (CCLAP), Article 212.

6

Apart from the above highlighted legislations, the Rwandan authorities (Executive, Judicial)

have faced a number of problems of allocating lands of people that belonged to others. Though

evidences existed, persons claimed their private ownership rights over lands that were occupied

by other people. When the real owners all those lands and properties, get back, it becomes too

difficult to know, who is to be considered as the owner of the occupied land, what can be taken

as real evidence (proof) while settling such disputes, what are conditions to be followed, which

legislations can be applied to such cases, Etc.

Some returnees claimed their ownership rights on the basis that the occupied land was their own

“Intizo”, others; having the orphans‟ status claimed their ownership rights on the basis that the

occupied land belonged to their parents.18

From that, One can imagine a situation where 67 families in Rubavu District that were given

land of 80 hectares in 1995 for use, habitation and production of their daily needs were required

by the owner of that land to quit his land after court proceedings.19

This is a considerable issue

that should be settled to avoid the controversies of evidences in land related matters and as to

protect the private ownership of the owner of the land. In cases to be dealt with in this research,

18

These are the questions that were met and developed by different courts. Their rulings are quietly similar with

regard to the evidences that they took as the basis of their judgments. Those evidences include Testimonies of

different witnesses, some authentic deeds provided by litigants during the trial... And this led to the proof of truth of

the real owner of the land. See the judgments: Supreme Court of the Republic of Rwanda, case law no

RCAA

0018/13/CS HARERIMANA Vs. SEBUKAYIRE, case decided by the Supreme Court on 24th

/12/2014, Intermediate

court of RUSIZI; Case no RCA 0076/10/TGI/RSZ: KANYABASHI Jean Vs NYIRANZAYINO Marie, Case

decided by the Intermediate court of RUSIZI, on 28/06/2011, Intermediate court of Muhanga, Case no RCA

0263/011/TGI/MHG, NZAMUKOSHA Vs NSIGAYEHE, Case decided by the intermediate court of Muhanga, on

26/09/2011, Intermediate Court of Rubavu, Case no RCA 0300/14/TGI/RBV MUKAMAZIMPAKA Agnès Vs

NYIRANDUSHYI, YAKUZE and NTARIBANANIRA, case decided by the Intermediate Court of Rubavu, on 14th

042015, Intermediate Court of Nyamagabe, Case no

RCA013/14/TGI/NYBE, MAPYISI Ladislas Vs KARAMBIZI

Vincent and MUKARUZAMBA Epiphanie, Case decided on 05/06/2014, Primary court of Kibeho, case no RC

0336/O11/TB/KBH, KARANGWA Rosalie Vs HAVUGIMANA Phillipe, Case decided on 30/10/2014, Primary

court of Ruhango, Case no RC 0642/013/TB/RHGO, Case decided on 22/01/2015, Intermediate court of Muhanga,

case no RCA 0025/15/TGI /MHG, Kanobana Viateur and Umulinga Marceline Vs Mukansoro Esther, case decided

on 29/12/2015, Intermediate court of Muhanga, Case no RCA 0073/13/TGI/MHG, MUKAMUSONI Assia Vs

MUSONERA Venuste, HAGABIYAREMYE Innocent, et. al., case decided on 15/10/2015.

19

P. Maisha, “Rubavu: They were shelted by the state in 1995 but now they are getting denounced of their rights

over the allocated land (Batujwe na Leta mu 1995 none ubu bagiye kwamburwa aho bari bahawe)”, Available at

file:///C:/Users/User/Documents/LAND%20LITIGATION/Rubavu%20%20Batujwe%20na%20Leta%20mu%20199

5%20none%20ubu%20bagiye%20kwamburwa%20aho%20bari%20bahawe%20%E2%80%93%20UMUSEKE.htm,

Lastly accessed on 05th

February, 2106. (Author‟s translation).

7

courts have decided according to evidences that were produced by parties. It is from this those

evidences that the key loop hole to be analysed is built.

In point of fact, Laws provide that, the certificate of ownership issued by a competent authority

is a full evidence of ownership over the land. Such deed is trustworthy and binding for all the

parties as regard its contents are witnessed by a civil servant or where the latter worked them out

within his or her mission. The law also recognises the contents of such a deed to be non

challengeable except where there is prosecution for falsification of authentic documents or where

either party alleges forgery. However, in all cases dealt with, land certificates have been

challenged and declared null and void by courts. Courts did not only consider the land

certificates as the only proof of proprietary rights, rather they went far; search for more

evidences to find out the real owners of lands in questions.

Therefore, the research intends to propose the harmonisation between court decisions referring to

the Supreme Court case law that has highlighted different meaningful and important elements

that must be taken into account while deciding land related matters in terms of evidences to such

land.

0. III RESEARCH QUESTIONS

This part will be about the problematic to which the study will be focusing. That is how the

Rwandan legal system applies Evidence in proprietary land rights. This will be supplemented by

the following research questions:

In case more than evidence is produced over the land as the proof of ownership, which

one is to be relevant, and which one will be rejected?

Under which conditions, can a land title be nullified?

What were evidences in land proprietary rights in course of Rwandan history?

What are the strategies taken into account to overcome the problems of Rwandan

returnees for their properties (land) that were occupied by others?

8

What were the approaches/ attitudes of courts vis à vis the appreciation of evidence in

proprietary land rights?

0. IV. RESEARCH OBJECTIVES

Through the analysis of different case laws, the study will be intending to put aware the ways

through which persons who are/ were deprived of their proprietary land rights can regain them.

In addition, the study intends to recall people that though they possess land titles, their rights

over land can be limited in case it is proved that such titles were got in illegality. So, this study

will be intending to analyse, look for the basis and find out how the judicial organ has tried to

overcome the above mentioned problems that are attached to land (including those of “Intizo”,

lands acquired through customary ways, lands acquired through land sharing whereas they

belonged to others, those of orphans and other Rwandan returnees that were back to their natal

state after the 1959 atrocities, and the massacres of 1994). Thus, those are specific issues

relating to evidences in land proprietary in Rwanda.

0. V RESEARCH METHODOLOGY

For the interest and purpose of this research, casuistic method will be first used; by analysing

cases on evidence in land related matters. Qualitative research methodology will be used. There

will be collection of information by review of available literature either libraries or the internet.

Various legal texts on land including International treaties which recognize the right to property

will be referred to. Various books both published and unpublished will be consulted as well.

0.VI SIGNIFICANCE OF THE RESEARCH

The research is conducted with the main aim of looking for proprietary land rights, through the

analysis of case laws decided by Rwandan courts. In doing so, the analysis of those cases

specifically goes with the historical evolution of proprietary land rights in Rwanda, what were

the proofs of ownership land rights, and how different laws and orders provided for such rights

along the history. To turn to the intended objectives, by analysis, the research bases to the 2014

9

milestone decision of the Supreme Court. Such case law has provided a number of issues to be

taken into account while proving one‟s ownership land rights. They include: the consideration of

origin of such right in question and the way that one has acquired the proof of such right in

question. Hence, throughout this research, significant decided cases are analysed and see how the

proprietary land rights were protected and provided for by courts in their rulings.

0.VII ORGANISATION OF THE RESEARCH

The research is subdivided into four chapters. It is organised as follow:

The first chapter of the research goes with the general presentation of the research. It is made of

a general introduction, the problem statement, legal questions to be solved through the research,

objectives and significance of the research, research methodology as well as the research

hypothesis.

The second chapter comprises of the common understanding of the key concept of

ownership rights. It also discusses the historical evolution and protection of ownership

land rights in Rwanda, prerogatives attached to ownership rights as well as limitations

upon such rights.

The third chapter, which is the heart of the research, encompasses the legal analysis of

different cases, as decided by different courts. All cases turn around the proprietary land

rights, as provided for by land laws and as decided by courts. Into three sections, it is

highlighted how courts have made decisions regarding also the way laws provided for the

ownership rights over land.

In fine, the research comes up with concluding remarks. General conclusions with further

recommendations from the analsyed case laws are provided. This is developed in the

forth chapter.

10

CHAP.I HISTORICAL PROTECTION OF OWNERSHIP LAND RIGHTS IN RWANDA:

LEGAL FRAMEWORK

As the preliminary part of project, this chapter, under section I, is about the general

understanding of the notion of ownership rights over land, its historical evolution, and the notion

of private as opposed to public ownership of land as well as their limitations (restrictions),

evidences that are attached to private and public owned lands all in the Rwandan context. Under

section II, it deals with Evidence in land litigations. Through this division, the main focus is put

on the law relating to evidence and its production, the law relating to Civil, Commercial, Labour

and Administrative Procedure (CCLAP), the Arusha Peace Agreement between the Government

of the Republic of Rwanda and the Rwandese Patriotic Front as well as the 2013 law governing

the use and management of land in Rwanda.

Section I: General understanding of Ownership rights

I.1 Notion of ownership rights

In the first place, Proprietary rights refer to ownership or characteristics relating to ownership.

They describe all the rights that the owner of property can exercise.20

A proprietor or owner is

one who has the exclusive title to a thing; one who possesses or holds the title to a thing in his or

her own right; one who possesses the control or ownership of a thing in his or her own right.21

It

is the one who is master of his actions, and who has the free disposition of his property.

According to the Black‟s Law Dictionary, Ownership is the collection of rights allowing one to

use and enjoy property, including the right to convey it to others. It further continues to point out

that ownership implies the right to possess a thing regardless of any actual or constructive

20

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc, “Proprietary”, available

at<

file:///C:/Users/User/Documents/LAND%20LITIGATION/Proprietary%20legal%20definition%20of%20proprietary

.htm>, Accessed on 8th

February, 2016. 21

J. Bouvier, “Proprietary”, Available at

<ahref="http://legaldictionary.thefreedictionary.com/proprietary">proprietary</a>, lastly accessed on 8th

February,

2016.

11

control.22

In addition to this definition, it is noted that ownership rights are general, permanent

and inheritable.23

Secondly, the term Ownership can be defined in a duplex sense; that of Roman law and English

Law respectively.24

In the Roman law the idea of ownership is as the right to enjoy and dispose

of something in an absolute manner and equates it to dominium.25

It analyses ownership (and

possession) as an absolute legal relationship between a person and a thing. Interference with

ownership gives the owner a remedy in damages known as vindication or simply damages in

trespass26

.

To the contrary, English law does not treat ownership as an absolute concept but as a form of

possession or seisin (possession of land by freehold). Consequently, under English land law, the

right to remain in control of land depends on a better possession or seisin, rather than on any

notion of infringe. It does not base its remedies for infringe on the abstract notion of ownership,

rather, possession forms basis of such remedies. The question of whether a remedy is

forthcoming depends on the better entitlement to retain or obtain possession rather than

ownership per se.27

As for the Rwandan context, the ownership rights are also recognised. Ownership rights are

defined as the rights of disposing of things in the absolute and exclusive manner, subject to any

restriction of the law and the real rights belonging to other persons.28

Such restrictions of the

right of ownership resulting from the relationship between neighbors are established in the title

22

Black‟s Law Dictionary, 3rd

Edition, (1999), United States of America, p. 1131.

23 Idem.

24 T. O. Ojienda, Conveyancing Principles and Practices, Law Africa, Nairobi,: Kenya, p.7.

25 This refers to ones complete powers to use, to enjoy and to dispose/ alienate the property at will. In other words, when one owns

land, the law allows the owner to use, get fruit from it abuse and get the benefits arising out of that land which may

otherwise be referred to as “deprivation”.

26 According to the Law Dictionary (2

nd Edition), Vindicatio is the act of claiming a thing as one's own; the asserting

of a right or title in or to a thing. Law Dictionary: What is Vindicatio? definition of Vindicatio (Black's Law

Dictionary). 27

B. A. Nyakeri, Land Law: The Concept of Ownership and Acquisition Rights Land in Kenya, Bachelor of Laws,

(LL.B), Africa Nazarene University, 2012, p. 2. 28

Decree of 20 July1920 establishing the Civil Code Book II relating to property (hereinafter CCBII), article 14.

http://thelawdictionary.org/vindicatio/#ixzz3zfTv8Ize

http://thelawdictionary.org/vindicatio/#ixzz3zfTv8Ize

12

concerning charges on Land”.29

The following point discusses about the characteristics and

prerogatives of ownership rights.

I.2 Characteristics and prerogatives of ownership rights

The ownership over a given property creates rights and obligations to its owner. With regards to

the characteristics of ownership rights, they are: personal/ individual, perpetual and exclusive as

well.30

Starting with the individualistic character of ownership, it is that only the owner has the right

over the property. However, there are some cases of collective ownership like in successions or

in co-ownerships.31

With regard to the perpetual character, the owner of a property has/ exercises the rights over it as

it lasts (as long as the property upon which the right is exercised still exists.)

And as for the exclusive character, only the owner exercises his/her right over the property

(thing) save for usufruct and servitudes.

Regarding the prerogatives attached to ownership rights, Article 1 of the Civil Code Book II

makes an introduction of the concept of ownership and the related rights like the superficiary,

emphyteusis, and servitudes.32

Ownership right can be as the most complete real right one can

talk about because it is the only one which gives to its owner all the three prerogatives: Usus,

Fructus and Abusus.33

It is clear that, the rights to property may be defined as comprising the

freedom to dispose either partially or in full, taking into account restrictions and the rights of

others.34

With those prerogatives, one can exercise in full and complete way the proprietary rights

over a given property, as explained below:

29

D. M.Kayihura, F. Kigenza, Property and Land Law, Op.cit., p. 39. 30

D. M.Kayihura, F. Kigenza, Property and Land Law, Op.Cit, pp. 41-45. 31

L. Sebucensha, Property and Land Law, Student Manual, University of Rwanda, Butare, 2013, p. 33. 32

The preliminary title instituting the Civil Code Book II (hereinafter CCBII), Article 1. 33

L. Sebucensha, Property and Land Law, Student Manual, University of Rwanda, Butare, 2013, p. 36. 34

W. A. Schabas and M. Imbleau, Introduction to Rwandan Law, Les Editions Yvons Blais Inc., Cowansville

(Quebec), 1997, P. 96.

13

I.2.1 Rights to Use (Usus)

The right to use a property is that right that allows its owner to be served by the same property. 35

For instance; a house, by occupying it or a plot of land by cultivating it, building on it, or any

kind of use of such property; it also includes the right of not using it; the right not to occupy the

house, the right not to consume the goods, the right not to drive your car, etc.

However, some limitations on the right to use are imposed.36

Those include:

Limitations established to meet the interests of good neighborliness like the legal

servitudes, limitations concerning the sight of your neighbors, the paths, the plantations,

etc

Limitations for the general interests like in urbanization, protection of Memorial or

historic sites; Hygiene and sanitation rules; Agricultural policy taken by the ministry

concerned regarding to how a given type of land will be used; Expropriation due to the

public utility of your property.

Such limitations apply or affect on all the prerogatives of the ownership right.

I.2.2 Rights to enjoy the fruits from a property (Fructus)

Right of harvesting all the fruits that are given by that property (fruits produced from that

property): fruits that are harvested or acquired at times without changing the state or substance of

the thing (property), and products which on the other hand do not transform or change but

instead are destroyed and completely changes the substance and the state of the property.37

Thus,

the owner of a given property has the rights of enjoying the fruit, production that is harvested

from it.

35

I. Segal and M. D. Whinston, Property Rights, August, 2010 Available at

http://web.stanford.edu/~isegal/prights.pdf>, accessed on 20th

February, 2016. 36

X., Limitations of ownership rights, available at http://en.wikipedia.org/wiki/property_law, accessed on 20th

February, 2016. 37

Ibid. p. 38.

http://web.stanford.edu/~isegal/prights.pdf

http://en.wikipedia.org/wiki/property_law

14

I.2.3 Rights to alienate/ dispose of the property (Abusus)

This right of disposing the property can be either physical or legal. It is physical when the owner

decides to destroy or demolish it to use the part on which it was for other purposes. And it is

Legal when he/ she decides for partial or full alienation of the right on his/her property.38

With

this prerogative, the owner of a property is entitled the transfer, alienation of his/ her property.

I.3 The ownership rights of land in Rwanda

The right to property is certainly dear to the heart of most citizens. It is enshrined in the

Constitution, the Universal Declaration of Human Rights (article 17)39

, the African Charter on

Human and Peoples „Rights (Article 14)40

. Under this part, a brief historical background on

evolution of land ownership rights under Rwandan law is made.

I.3.1 Land Ownership System in Pre-Colonial period

Starting with the pre- colonial period, ownership of land vested in the Mwami (King) in the local

chief as well as in the heads of the family. People viewed themselves as having the rights to use

land, but there was no exclusive right to own it.41

In this period, the head of the family who had

cleared the forest and the first occupant for that matter managed Ubukonde42

or isambu of the

family.

The pre-colonial land system was characterised by collective ownership of land, and was based

on the complementary links between agriculture and livestock.43

Land rights were respected and

transmitted from generation to generation according to Rwandan tradition and custom.44

The

38

Ibid. p. 39.

39 Everyone has the right to own property alone as well as in association with others. No one shall be arbitrarily

deprived of his property.

40 The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the

general interest of the community and in accordance with the provisions of appropriate laws. 41

See supra note 11, W. A. Schabas and M. Imbleau, Introduction to Rwandan Law p. 95. 42

Ubukonde is a right that a chief of the family possessed on the forested land which had no owner. He deforested

once he acquired through custom with the owner. He could make his family the successor of such a land. 43

Republic of Rwanda: Ministry of Lands, Environment, Forests, Watera and Mines, National Land Policy, Kigali,

2004, p.10. 44

See supra note1, E. Rurangwa, Perspective of Land Reform in Rwanda, p. 3.

15

collective form of ownership that was in place, coincided with the other system of written law

which came into force during the colonial period.45

I.3.2 Land Ownership System during the Colonial period

Like most of African States, Rwanda was also colonized in the late 19th

up to 20th

century. It was

under the colonial rule of Germany and Belgium.46

During this period, specifically on the period of Belgium colonial rule, a number of legislations

were put in place to regulate land related matters.47

Those statutes provided that “all occupied

lands that were not legally recognized at the time were declared unregistered land vacant”.48

Land ownership during this period was meant having it registered though the customary land

acquisitions were also maintained and the owner of the land could not be dispossessed of the

land unless he no longer exercised the rights. Throughout this era, there was a legal dualism of

land ownership- where lands occupied by colonialists were solely regulated by written laws and

Rwandan natives remained regulated by customary laws.49

Hence, during this period, the

proprietary land rights were proved by certificates of registration to lands occupied by

colonialists whereas those of inhabitants remained under customary law.

I.3.3 Land Ownership System during Post colonial period

After the independence, around 90% of the land was under customary law, written laws

continued to regulate few people and religious institutions. At the time, communes were given

the competence to land management. The law of 23rd

/11/1963 establishing communes provided

45

Idem 46

C. Toulmin, J.F Quan, Evolving Land Rights, Policy and Land Tenure in Africa, FID/IIED/NR, London, 2000,

p.10. 47

D. Ruzirampuhwe, Land ownership Rights under Rwandan Law: A Critical Analysis of the Organic Law no

08/2005 of 14/07/2005 determining the Use and Management of land in Rwanda, Dissertation, NUR, Butare, 2007,

P. 27. 48

Idem. 49

Missionaries‟ (Catholics and Protestants) lands, towns, and other commercial centres were the ones that written

laws were applied for. As stated under the (Décret du 24/01/1943 relatif au cession des concessions gratuites aux

établissements d’utilité publiques).

16

that “granting ownership rights on customary land is for the communes”50

. From this period,

communes started issuing land certificates that were referred to as proofs of ownership of the

land. This law was abrogated by the presidential order no 09/76 determining selling and buying

of customary lands.

Along this period, the country has experienced internal migrations of people. Those from

overpopulated areas of the country like Ruhengeri, Gisenyi, Gikongoro and Kibuye moved to

less populated areas like Umutara, Kibungo and areas of Bugesera.51

There was also conflict

upheavals which lead to genocide in 1994 where a lot of people fled and others were internally

displaced.52

To overcome this, the Arusha accord recommended those who had been away for

ten years not to claim their former land parcels.53

And for those who had been internally

displaced or who had fled to the neighboring countries, who at their back found their land

occupied, they had to share amicably or with the intervention of administrative authorities.54

These lands were shared regardless of possessing a certificate of ownership or not proving the

rights that the owner has to exercise over it.

Due to the existence of a pluralistic legal system; lack of adequate land legislation; lack of an

appropriate institutional framework; the land regime that was discriminatory to women, and

other land relate issues that would be addressed, the government has decided to put in place the

Organic Law No. 08/2005 of 14/07/2005determining the use and management of land in

Rwanda. This law was also replaced by the Law no 43/2013 of 16/06/2013 governing Land in

Rwanda.

At the moment, proprietary land rights are evidenced (proved) by a Certificate of Full Title

which can be obtained for private land of individuals, state land, the City of Kigali, district land,

50

See supra note 22, p. 28 51

Ministry of Lands, Environment, Forests, Water and Mines (Hereinafter MINITERE), Land Policy, August 2006,

p. 6. 52

Idem 53

The Peace Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front,

Arusha, Article 4, para. 2. This was applied to those who fled the country from 1959, 1962 and 1973 due to

successive ethnic tensions and/ or war. 54

C. Gasarasi, H. Musahara, Land Question in Kibungo, Butare, Editions de l‟Université Nationale du Rwanda,

2004, p. 2.

17

and land held by parastatals. Land under a Certificate of Full Title can be subject to an

emphyteutic lease and a notation of the leasehold is made on the certificate.55

Individuals, entities, and the State can own land in Rwanda. Landowners have the right to

exclusive use of their land, and land can be mortgaged and freely transferred. Though Ownership

rights can be obtained under customary law or formal law, they must be registered to be

recognized under the Organic Land Law.56

Without registration therefore, the owner of the land

is deemed to lose the rights attached on it if it is proved that there is any other authentic act that

certifies the ownership of such land.

I.4 The notion of private ownership over the land

In fact, the idea of private ownership implies that owners are free to do with their things

whatever is shown to be mistaken. 57

A private property system gives individuals the exclusive

right to use their resources the way they feel comfortable with notwithstanding some legally

accepted exceptions which come in as limitations to this freedom of one‟s exclusive use,

enjoyment and disposal of his/ her property.

I.4.1 Legal framework of private ownership over the land

Here, there will be an assessment of how the law provides for the private ownership of the land,

and its mode of evidence.

Private land in the law is an abstract human construct; a bundle of legal rights and

responsibilities typically defined without regard for the land‟s natural features.58

The Rwandan

law recognizes the concept of individual land and its mode of acquisition. Under article 10, it

states that “Private individual land shall comprise land acquired through custom or written law.

55

The Ministerial Order N°002/2008 of 01/4/2008 determining Modalities of Land Registration, O.G of

01/08/2008, Article 15 56

United States Agency of International Development (USAID), Property Rights and Resource Governance,

Rwanda, 2008, p.6 57

M. Haller, Private, Public and Common Ownership, West Deutchescher Velag, Opladen, 1998, p.1 58

E. Michelle Grant, Private Property in America: Land Use and the Ethics of Owning Land, University of North

Texas, December 2005, p. 55.

18

That land has been granted definitely by competent authorities or acquired by purchase,

donation, inheritance, succession, ascending sharing, and exchange or through sharing.”59

In fact, the mode of authentication of private individual lands is also provided. The law provides

that Certifying that the land has been allocated or leased shall be evidenced by a certificate of

land registration issued by the registrar of land titles. In case of loss or damage of the certificate

of land registration, the registrar of land titles issued a replacing one.60

This certificate serves

authentic act proving the ownership rights. But and in many cases, it has been contested due to

the mode of its acquisition as will be shown in the second chapter of this research. Hereunder is

developed some limitations of private ownership as provided for by different instruments.

I.4.2 Limitation of private ownership

Ownership right is not absolute.61

The African charter also shows an extent to which the right to

property may be limited. It provides that “if the cause is for public need or in the general

interests of the community, an individual right to property may be interfered with but subject to

the provisions of appropriate laws.”62

This part is in relation with the restrictions that are imposed upon the owner of a property. Those

limitations include prescription, those which are there for the general interests like in

urbanization(Construction license, Land occupation plans, etc), protection of Memorial or

historic sites, Hygiene and sanitation rules (e.g. stopping people from rearing animals in towns

and cities, not putting dustbin to a places near the house or where it embarrasses the neighbor,

etc.); Agricultural policy taken by the ministry concerned regarding to how a given type of land

must be used; Expropriation due to the public utility of the property (e.g. Land for the

construction of a road or a public school or market). 63

Such limitations apply or affect on all the

prerogatives of the ownership right.

59

The Law no 43/2013 of 16/06/2013 governing land in Rwanda, OG of 16/06/2013, Article 10, para 1-2 60

The Law no 43/2013 of 16/06/2013 governing land in Rwanda, OG of 16/06/2013, Article 18, para 1-2 61

S. Agaba, Expropriation of Immovables in Rwanda, Dissertation, Butare, 1999, p.12 (Unpublished). 62

The African Charter on Human and Peoples‟ Rights (hereinafter ACHPR), duly ratified by Rwanda on 17th

May,

1983, Article 14. 63

L. Sebucensha, Property and Land Law, op.cit. p.19.

19

I.4.2.1 Prescription (article 45 of 2013 land law)

Through the process of prescription, a person can lose (extinctive prescription) or acquire

(acquisitive prescription) ownership rights over the land or any other property in limit of time.

The term prescription refers to a procedure of definitive possession of rights over property or

losing rights over property due to expiration of a certain period of time provided for by law.64

Prescription is a means through which, one acquires or free from ownership of a given property,

by a given lapse of time and pursuant to the conditions determined by the law.65

In addition, under the law governing land in Rwanda, the Prescription period over land is and the

prescription is ascertained by a decision of a competent court.66

However, in case of Fraudulent

occupation of the land, A person who occupies vacant and escheat land or other people's land,

cannot invoke the right to prescription to claim definite right on it, even if he/ she has occupied it

for a period longer than the prescription period.67

The issue of prescription has been raised in the case of KANYABASHI Jean Vs

NYIRANZAYINO Marie before the Intermediate court of Rusizi. In 2011, the former was

claiming ownership rights to the land that was occupied by the later in 1956. He argued that

those rights were acquired through ascending partitions from his father RUBANZA Raphael. In

deciding, the court takes its basis on article 70 of the law 2005 governing use and management of

land in Rwanda stating that “In matters related to land, the right to pursue land lordship shall be

prescribed for thirty (30) years.”68

64

The Law no 43/2013 of 16/06/2013 governing land in Rwanda, OG of 16/06/2013, Article 2,21o.

65 The preliminary title instituting book III of the civil code relating to law of obligations (hereinafter CCBIII),

Article 613. 66

The Law no 43/2013 of 16/06/2013 governing land in Rwanda, OG of 16/06/2013, Article 46. 67


Intermediate court of RUSIZI, Case no RCA 0076/10/TGI/RSZ: KANYABASHI Jean Vs NYIRANZAYINO

Marie, Case rendered by the Intermediate court of RUSIZI, on 28/06/2011.

20

I.4.2.2 Expropriation for public interest

In adding up, ownership rights can also be restricted by the act of expropriation for public

interest. In Rwanda, the policy expropriation roots from different decrees such as the decree of

5th

February, 1932 and 30 July 1953 stipulates expropriation for the public interest69

. These

decrees were modified by the decree of 24 July 1956 relating to expropriation for the public

interest where Congo-Belge and Rwanda –Urundi used this decree70

and this shows that

expropriation took place along the Rwandan land legal evolution. Today, expropriation for

public interest is regulated by the law N° 32/2015 of 11/06/2015 relating to expropriation for

public interest which has replaced the law no 18/2007 of 19/4/2007 relating to expropriation in

the public interest.

Once more, it is the dispossession of real estate for public interest, subject to legal formalities

and in return for prior and fair compensation.71

It is a sort of confiscation of land which is

followed by compensation. 72

Expropriation is also the act of the government to take the private

owned property to be used for the benefit of the public interest73

.

In simple approach, expropriation can be defined as an administrative procedure by which the

administration obliges an individual to cede his/ her property particularly immovables, to the

state for general interests, upon payment of a just compensation in advance to that particular

individual.74

Thus, The act of expropriation for public interest restricts the ownership rights over land in a

way that, only the State has the supreme power of management of all land situated on the

national territory, which it exercises in the general interest of all with a view to ensuring rational

69

Decree of 1932 and 1953 published in B.O. (Bulletin official), 1956 no 16 of 15/ August/1956, pp. 1418-1428.

70 Decree of 24 July 1956, relating to expropriation for the public interest, in F. Reyntjens and J. Gorus, C.L.R.,

Vol.II, Bruylant, Bruxelles, 1980, p.1136 where in article 31 of the decree provides: ‟Le present décret est applicable

au Congo-Belge et au Rwanda-Urundi. 71

The Law N°10/2012 of 02/05/2012 governing Urban Planning and Building in Rwanda, O.G nº Special of 30 May

2012, Article 2, 22o.

72 A. Kayitavu Mpumuro, La Problematique de la Legislation Relative à l’Expropriation pour Cause d’utilité

Publique en Droit Rwandais, Dissertation, NUR, Butare, 2005, P. 5. 73

X., “Expropriation”, available at <http://www.investopedia.com/terms/e/expropriation.asp>, accessed on 20th

February, 2016. 74

P.R. Kouri, Private Law Dictionary, 2nd

Edition, Editions Yvons Blais, Cowansville (Quebec ), 1991.

http://www.investopedia.com/terms/e/expropriation.asp

21

economic and social development; the State is the sole authority to accord rights of occupation

and its use. It also has the right to order expropriation in the public interest.75

Some acts of public

interest include roads and railway lines, water canals and reservoirs, water sewage and treatment

plants, water dams, rainwater canals built alongside the roads, waste treatment sites, electric

lines, gas, oil, pipelines and tanks, etc.76

From this provision, the owner of the land is limited in

exercising his/her rights over it as the state can expropriate him/her whenever found necessary.

I.4.2.3 Environmental regulations

Rwanda is party to several international conventions and agreements relating to environmental

protection and sustainable natural resources management, including: The United Nations

Convention on Combating Desertification (UNCCD), the International Convention on Biological

Diversity (CBD) the UN-Framework Convention on Climate Change, The Stockholm

Convention on Persistent Organic, and others.

Apart from those conventions, the law governing the use and management of land and the law

determining the modalities of protection, conservation and promotion of environment in Rwanda

have set some limitations that the owner of the land has to abide by. Those limitations are in

relation with the use of ownership rights that should not infringe the environmental regulations.

For instance, under article 39 of the law governing land provides for the obligations of exploiting

the land in a productive manner. It states that “Any person owning land shall exploit it in a

productive way and in accordance with its nature and intended use. Any person who uses

another person‟s land, either basing on agreement he/she entered into with the owner of the land

or whether he/she was assigned to it through legal procedures is required to properly maintain it

and use it in a productive manner.”77

75

The Law no 43/2013 of 16/06/2013 governing land in Rwanda, OG of 16/06/2013, article 3. This is also

underpinned by the article 34, paragraph 3 of the constitution of the republic of Rwanda where it provides that “The

right to property may not be interfered with except in public interest, in circumstances and procedures determined

by law and subject to fair and prior compensation.” With this provision, it is clear that when it deems necessary that

there is a public interest act, the owner of the property can be expropriated from it. 76

The law n° 32/2015 of 11/06/2015 relating to expropriation for public interest, O.G No 35 of 31/08/2015, Article

5, 10-7

0.

77 The Law no 43/2013 of 16/06/2013 governing land in Rwanda, O.G of 16/06/2013 Article 39.

22

In addition, the law determining the modalities of protection, conservation and promotion of

environment also provides some restrictions that should be respected. Under article 28, it

provides that” National land organisational surveys, urban planning or plans to set up grouped

housing, master plans and other documents related to national land organisational plans, must

take into account environmental conservation in selecting their sitting as well as the location of

economic, industrial, residential areas and leisure activities”.78

Form this provisions, the use of

land in a productive way is to protect it from erosion, safeguard its fertility and ensuring its

production in a sustainable way”.79

This law also provides some prohibited acts that owners of lands have to take into account.

Amongst them, they include acts of burning mountains, swamps, grazing land, bushes with an

aim of agriculture or organising grazing land.80

Therefore, if the owner is not able to use and

exploit the land in a prescribed manner, he/ she may be deprived of his/her rights over it. Again,

it is clear that, any activity in relation to the use and exploitation of natural resources especially

the land should be consistent with laws and regulations on the protection and conservation of

environment.

The next step highlights the concept of public ownership, its legal framework as well as its

limitations.

I.5 The notion of public ownership over the land and its Legal framework in Rwanda

The notion of public ownership of land goes with the prerogatives that states exercise over their

properties. Under the perception of public ownership, there is for instance; government

ownership of lands, streets, public buildings utilities, marshlands, lakes, and other business

enterprises. Under Rwandan context, property possessed by the State and its decentralized

entities is divided into two categories: those belonging to the private domain (res fisci) and those

78

The Organic Law n° 04/200508/04/2005 determining modalities of protection, conservation and promotion of

environment in Rwanda, (O.G. nº 09 of 01/05/2005), Article 28. 79

Republic of Rwanda; Ministry of Lands, Environment, Forestry, Water and Mining, Building Capacity for

Sustainable Land Use and Management in Rwanda, UNDP/GEF-MSP Project on Land Degradation in Rwanda,

2007, p.11. 80

The Organic Law n° 04/200508/04/2005determining modalities of protection, conservation and promotion of

environment, O.G. nº 09 of 01/05/2005, Article 38.

23

which belong to the public domain (res publica).81

The law governing land in Rwanda provides

for categories of lands that belong to the state: Public land which consists of land in public and

private domain of State, land belonging to public institutions and land that belongs to local

authorities whether being in their public domain or in their private domain.82

It should be noted that the transfer of land from the public domain of public institutions to their

private domain is also done by an Order of the Minister in charge of land on proposal by the

supervising Authority.83

I.5.1 Authentication of public ownership over land

Public owned land are authenticated/ legally evidenced by a certificate of allocation which is

issued by the registrar of land titles. The law governing land in Rwanda provides that “Certifying

that the land has been allocated or leased shall be evidenced by a certificate of land registration

issued by the registrar of land titles. In case of loss or damage of the certificate of land

registration, the registrar of land titles issued a replacing one.”84

I.5.2 Limitations of public ownership over the land

As far as the limitations of public ownership are concerned, it is clearly stipulated that “things

belonging to the State that are attached to public use or service are not subject to commercial

transactions as long as they are not officially put out of public service or use”.85

In this vein, the

above mentioned types of land cannot be put under commercial transactions, except if they have

been put out of public service or use. In addition to restrictions imposed for public owned lands,

they cannot be alienated as it is done to private owned lands.86

81

The preliminary title of the Civil Code, instituting part II relating to property, (Hereinafter CCBII), Decree of 31

July 1912 as modified to date (B.O.,1912, p. 799), entered into force in Rwanda by O.R.U. nº8 of 8March, 1927

(B.O.R.U., p. 264). Articles 10-11. 82

The Law no 43/2013 of 16/06/2013 governing land in Rwanda, OG of 16/06/2013, Article 11-16 para. 2. 83

The Law no 43/2013 of 16/06/2013 governing land in Rwanda, OG of 16/06/2013, Article 16, para. 2. 84

The Law no 43/2013 of 16/06/2013 governing land in Rwanda, OG of 16/06/2013, Article 18, para 1-2. 85

The preliminary title instituting part II of the Civil Code relating to property (hereinafter CCBII), Decree of 31

July 1912 as modified to date (B.O.,1912, p. 799), entered into force in Rwanda by O.R.U. nº8 of 8March, 1927

(B.O.R.U., p. 264).Article 10. 86

Republic of Rwanda, Rwanda Natural Resources Authority, Rwanda Land Administration System, Procedures

Manual, Kigali, 2012, p. 2.

24

Though all those alternatives of certifying lands through legally provided procedures were put in

place, proprietary land right is still an issue that needs to be addressed. It firstly goes with laws

that were put in place along the Rwandan history, secondly with what those legal instruments

provided as evidences (proofs) of ownership over lands. The following section describes how

laws which regulated land related matters impacted decisions that were rendered by courts.

SECTION II: EVIDENCE IN LAND RELATED LITIGATIONS

As a matter of facts and concern of this research, the following will be highlighted. How

evidences and proofs are provided for by various legal instruments in different land related

litigations.

Like in any other court proceedings, parties to the case are required to turn out evidences of what

they are claiming. Article 3 of the law relating to evidence and its production states that “Each

party has the burden of proving the facts it alleges.”87

Evidence is the demonstration of the truth

of a fact.88

Evidence is the means by which an allegation may be proven such as oral testimony,

documents, or physical objects; it is a set of legal rules determining what testimony, documents,

and objects may be admitted as proofs in trial.89

II.1 Arusha Peace Agreement between the Government of the Republic of Rwanda and the

Rwandese Patriotic Front

From 1990, Rwanda was characterized by the period of war and many people fled from the

country to neighboring states. To overcome different problems of refugees who left their lands,

the government of Rwanda entered into agreement with the Rwandese Patriotic Front. In

agreeing so, they come up with the decision that every returnee is free to settle in any area of

87

The law relating to evidence and its production, O.G special no of 19/07/2004, Article 3, para. 1.

88 The law n° 15/2004 relating to evidence and its production, O.G special n

o of 19/07/2004, Article 2.

89 H. Mifflin, American Heritage Dictionary, 5

th Ed., Harcourt Publishing Company, Houghton Mifflin Publisher,

2011, P. 657.

25

his/her choice in the country, as long as he/she does not infringe on somebody else‟s rights”.90

Article 3 of the same Protocol stated that “In order to resettle the repatriated persons, the

Government of Rwanda should release all unoccupied land so identified by the “Repatriation

Commission".91

However, the two parties recommended that “with a view to promoting social harmony and

national reconciliation, refugees who fled the country over 10 years ago should not reclaim their

properties which have been occupied by other individuals. To compensate them, the Government

will give them land and assist them to resettle".92

Though this was set, the 1994 Genocide perpetrated against Tutsi also caused a great number of

refugees who left aside their properties. To settle land related issues, the ministerial order was

put in place to regulate the temporary management of land.93

This order gave the commune the

full authority to ensure on behalf of the government all the land properties in rural areas of their

jurisdiction that were abandoned by their owners.94

Further, for the well management of those lands, at each commune was established a commission

in charge of settling people temporarily in abandoned lands. The accord regarding such temporal

allocation was proved (evidenced) by an Agreement of temporal allocation of land made in

writing on condition of exploiting the allocated land in a productive way.95

Apart from that, the

law on civil, commercial and Administrative procedure also lay out some further procedures to

be fulfilled as discussed below.

90

Arusha Peace Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front,





Arusha, Article 4, paragraph 2. 93

Ministerial order no 01/1996 of 1996 regarding the temporary management of land, (Instruction ministérielle no.

01/1996 du 23 septembre 1996 portant mesures de gestion provisoire des propriétés foncières, du 23 September

1996, available at: http://www.refworld.org/docid/3ae6b50017.html.), accessed on 10th

March, 2016. 94

The Ministerial order no 01/1996 regarding the temporary management of land, (Instruction ministérielle no.



March, 2016 Article 1. 95

The Ministerial order no 01/1996 regarding the temporary management of land, (Instruction ministérielle no.



March, 2016Article 13.




26

II.2The law of procedure (Civil, Commercial, Labour and Administrative procedure)

Land litigation like in other fields of law, parties to the disputes must follow a set of procedures

from the introduction of the lawsuit up to its execution.96

In those procedures, parties are

required to produce evidences of what they are claiming before courts.

Article 9 of the law on civil, commercial, labour and Administrative procedure provides that”

Every plaintiff must prove a claim. Failure to obtain proof, the defendant wins the case.

Likewise, a party who alleges that he/she has been discharged from an obligation that has been

established must prove that the obligation no longer exists. Failure to do so, the other party wins

the case.”97

This has been dealt with in many cases where plaintiffs lose their cases due to lack of convincing

evidences. For instance, in the case Nzamukosha Vs Nsigayehe before the Intermediate court of

Muhanga, the former (Nzamukosha) failed the case due to the lack of convincing evidences on

the claim requesting ownership of the plot of land that she disputed with Nsigayehe.98

After the

provisions of this law, the law of evidence also stipulates more on evidences as discussed below.

II.3 The law of Evidence

The law on evidence and its production provides that “An authentic deed is one, which has been

drawn or received in accordance with all the required formalities, by a public officer authorised

to officiate in the place where the deed was drawn”.99

Article 13, paragraphs 1-2 of the very law

states that The authentic deed is trustworthy and binding for all the parties as regard its contents

are witnessed by a civil servant or where the latter worked them out within his or her mission.

The contents of such a deed shall not be challenged except where there is prosecution for

falsification of authentic documents or where either party alleges forgery. An authentic deed

96

L.Gatete, Civil, Commercial, Labour and Administrative procedure, Course notes, University of Rwanda, Butare,

2014, P.1. 97

The law relating to Civil, Commercial, Labour and Administrative procedure, O.G.nº 29 of 16/07/2012

(Hereinafter CCLAP), Article 9. 98

Case no RCA 0263/011/TGI/MHG, NZAMUKOSHA Vs NSIGAYEHE, Case rendered by the intermediate court

of Muhanga, on 26/09/2011. 99

The law relating to evidence and its production, O.G special no of 19/07/2004, Article 11.

27

turns into evidence unless its validity is challenged by one of the parties, or an interested third

party, by the use of contrary evidence in writing, evidence corroborated by partial writing, or any

other means provided for by the law.

As a matter of focus of the research, evidences weigh differently. It is to mean that an authentic

deed values much than a private deed made by parties, as for testimonies that can be provided

witnesses in case it is deemed necessary. However, all those depend on the sole discretion of the

judge who decides the case. The next is what is provided for by the law governing land.

II.4 Land law

As a matter of focus of the research, Land related matters are also object of being proved before

courts. To certify that a given plot of land belongs to a certain person requires a certificate of

land registration.

The law governing land in Rwanda provides that Certifying that the land has been allocated or

leased shall be evidenced by a certificate of land registration issued by the registrar of land titles.

In case of loss or damage of the certificate of land registration, the registrar of land titles issued a

replacing one.100

Apart from the provisions of the law, its implementing ministerial order also

provides that” In case of loss or destruction of a duplicate Certificate, the owner may request a

new one upon production of a decision par the competent court. The new duplicate Certificate

exactly conforms to the former one as shown on the Register of Titles. It is recorded in the

Register of Titles and issued to the owner with reference to the folio of the previous certificate

and the reason for which it is issued, as well as the owner‟s undertaking.101

”

But as it will be elaborated in the next chapter, the land certificate also can be challenged through

different procedure.

In a conclusive way of this chapter, the ownership land rights have evolved according to history

of Rwanda. It is clearly indicated that, through laws, land ownership rights were provided. Those

100


The Ministerial Order N°002/2008 of 01/4/2008determining modalities of land registration, O.G of 01/08/2008, Article 60.

28

rights can be enjoyed as can be limited. They enjoyment and limitations depends on the

provisions of the law, good neighborliness, etc. Unfortunately, the worst periods of the Rwandan

history made some owners escape from their properties to the extent that, some could lose their

rights while expatriated fault of the decisions taken by courts or other restrictions imposed for by

laws like the prescription period. The following chapter is about evidences as having evolved

along the Rwandan history with relevant case laws that are analysed throughout each phase.

CHAP. II: EVIDENCES IN PROPRIETARY LAND RIGHTS: CASE LAW ANALYSIS

This chapter is the main part of the research where evidences in proprietary land rights are

developed. This is made through some identified case laws which dated from the period of 1963

up to the law of 2013 governing land in Rwanda. This chapter also construes the decided case

law of the Supreme Court of 2014, where some new features which may serve as guidelines

while solving land related disputes were given. The following section discusses evidence in

proprietary land rights as provided in the communal law of 23/11/1963.

Section I: Evidence in Proprietary land rights under the communal law/ of 23/11/1963

From 1960, the powers of transfer of ownership and lease of state land were vested in the powers

of General resident (Resident Général)102

and his assistants of the government of Rwanda and

Burundi. The two governments could transfer such powers to communes in sell and lease of

lands not beyond two (2) hectares.103

Indeed, the modes of acquisition of land under the 1960 law were determined taking into

consideration whether the land is owned under customary norms or if it has been allocated by the

authorities. During that period, those who owned lands under customary ways might request the

102

At the time, Resident géneral was the one who served as the principal administrative officer in the territorial

jurisdiction of Rwanda-Urundi. 103

The decree of 11 July, 1960 relating to land, B.O.R.U. of 11th

July, 1960, p. 1136 (published in the Codes et

Lois Usuels du Rwanda, Volume II, January, 1997), Article 1.

29

government the full acquisition of such lands in accordance with civil laws.104

The register of

land titles where the land is located could issue the title to the owner upon payment of the

required fee.105

In the meantime, communes were given the powers over lands. Such powers

were regulated by the law of 23/11/1963.

I.1 Modes of acquisition of land under the communal law/ of 23/11/1963

After the mass atrocities of 1959, where people fled to the neighboring countries, the problem of

land started being at the top of conflicts among the population. Some policies were put in place

to attribute and reallocate lands to their owners while repatriated. Among them, there are:

Attribution106

(Attribution des terres), Reallocation (Gusubizwa)107

and sharing through division

(Kugabana).108

At the time, the acquisition of land by people was under the powers of the

communes. Therefore, the modes of acquisition under this period were based two systems. Those

are the reallocation to the repatriated of 1959 and sharing through division to landless people.

I.2 Limitations of rights over land under the communal law/ of 23/11/1963

In fact, the limitation of rights over land could be due to the decision of the commune or to the

court decision. Those rights were the right to use, enjoy the fruit and alienate but under certain

conditions. 109

For instance, as highlighted in the preceding paragraphs on the modes of

acquisition of land, when one acquired land by the process of sharing through division, his/her

104



Lois Usuels du Rwanda, Volume II, January, 1997), Article 10. 105



Lois Usuels du Rwanda, Volume II, January, 1997), Article 11. 106

The process of attribution was governed by the decree of the Internal Ministry (Ministère de l‟Interieur). Those

decisions were to be communicated to all commune leaders (Bourgoumestres), all leaders of Prefectures (Préfets),

Prime Minister, General resident (Resident Géneral) across the country. 107

This mode was reserved to those who fled the country in the 1959 atrocities by leaving aside their lands. 108

The reference is taken to the act of Commune Rwamiko of 11August, 1987. It was based on the decree law of 26

September, 1974 and the decisions of 3 January, 1963. Such decision was taken by the commune leader

(Bourgoumestre) in presence of the commune council to decide on the case of Nzirabatinya Etienne who was given

the land of Ndizihiwe after being refuge in 1959. 109

The decree no 09/1976 relating to buying and selling of lands governed by customary law and other occupied

lands (J.O., 1976, P. 198), article 2. It is stipulated that “lands governed by customary laws and other lands that were

given by competent authorities through legal procedures, its owner cannot sell them without the prior authorization

of the minister of land and the council of the commune where the land is located”.

30

rights fell limited by the back of the real owner of such land when repatriated.110

As stipulated

also under the decree no 09/1976 relating to buying and selling of lands governed by customary

law and other occupied lands, the owner of the land has limited rights over his/ her land in terms

of transferring through sale contract. For instance, selling a part of the land requires the

ministerial approval, upon consideration of the commune council and after having proved that

the seller remains with at least two hectares and that the buyer has shown the reasons of the

buying the land.111

I.3 Authentication of land under the communal law/ of 23/11/1963

By definition, authentication is a process or an act of confirming the truth of an attribute of a

single piece of data claimed true by a person or an entity.112

During this period, people were

given lands by the State on a temporal (provisional) basis, but with the option of getting full

ownership after a certain period of time.113

The lands allocated to people were recorded in the

registers of the commune. So, the endorsement/ confirmation of land at the period was proved by

“A Certificate of ownership issued by communes”.114

Such certificate should lose its validity in

case it is proved that, it was issued to an unlawful occupant or through maneuvers.

I.4 Analysed case laws

Under this part, three case laws were referred to, to show how courts come up with decision to

land disputes. The three cases take their origin to the 1959 political atrocities when people fled

the country by leaving behind their lands but at their back, they found them occupied by

110

This was motivated in the case no RC0336/011/TB/KBH. Under this case, Karangwa Rosalie fled the country in

1959 leaving their land located in Mata sector. During their refuge period, the land was occupied by Havugimana

Philippe. At the return of the former, she claimed it from the latter but absolutely refused to release it alleging that

he acquired it from the state (it is the state that has given him the land). Thereafter, Rosalie started the proceedings

of recovering her land before the court, which come up with a decision in her favour. 111

The decree no 09/1976 relating to buying and selling of lands governed by customary law and other occupied

lands, (J.O., 1976, P. 198), article 3. 112

X., “Authentication”, available at https://en.m.wikipedia.org/wiki/Athentication, accessed on 20th

April, 2016 113

Intermediate court of Muhanga, Case no RCA 0025/15/TGI /MHG (Appeal of the case no RC.

0642/013/TB/RHGO, Case decided on 22/01/2015), Kanobana Viateur and Umulinga Marceline Vs Mukansoro

Esther, case decided on 29/12/2015, para. 5-7. 114

Primary Court of Kibeho, case no RC0336/011/TB/KBH, Karangwa Rosalie Vs Hvugimana Phillipe, para.2, case

decided on 30th

October, 2010.

https://en.m.wikipedia.org/wiki/Athentication

31

others.115

Some plaintiffs were granted their proprietary rights whereas others were totally

deprived of them as shown below in cases under analysis.

I.4.1 Case no RC0336/011/TB/KBH, Karangwa Rosalie Vs Hvugimana Phillipe

1.4.1.1 Presentation of facts and applicable law

In this case, the parties are: Karangwa Rosalie (Plaintiff) assisted by Me Sindayigaya Abson and

Havugimana Philippe assisted by Me Karinganire Steven (Defendant). The object of the

litigation in the case is land “Isambu”.

In fact, Karangwa Rosalie with her husband fled the country in 1959. They left their land located

in the today Rwinanka village, Mata sector, Nyaruguru district, Southern province. While

repatriated, their land was occupied by Havugimana Philippe. They requested him to leave but

the latter refused, asserting that he acquired it from the state. Rosalie started the proceedings of

how she could get back her land. The following are the steps followed before the Primary Court

of Kibeho.

Under this case at hand, the legal question to be analysed and decided by the court was to

determine the exact owner of the land basing on evidences presented by parties to the case.

By the application of laws in the case, the following laws were referred to by the court to settle

the dispute: The Law relating to evidence and its production in its article, 35, 65, 110 and the

Ministerial decree no 661/Org.Com of 26 April, 1961 on the attribution of land in its page 3,

paragraph 3.116

1.4.1.2 Application of law to facts and decision of the court

Before the Primary court of Kibeho, the two parties presented their facts with supporting

evidences. The plaintiff bases her facts to testimonies of her neighbor witnesses who all testified

115

Primary Court of Kibeho, case no RC0336/011/TB/KBH, Karangwa Rosalie Vs Hvugimana Phillipe, case

decided on 30th

October, 2010, the Case no RCA 013/14/TGI/NGBE, Mapyisi Ladislas Vs Karambizi Vincent and

Mukaruzamba Epiphanie, case decided by the Intermediate Court of Nyamagabe on 5/6/2014 and the case no RCA

0025/15/TGI /MHG, Kanobana Viateur and Umulinga Marceline Vs Mukansoro Esther, case decided on

29/12/2015. 116

Primary Court of Kibeho, case no RC0336/011/TB/KBH, Karangwa Rosalie Vs Hvugimana Phillipe, para3-12

32

that the land is hers. She supported her arguments with the provision of the Ministerial decree of

1961 on land allocation whereas the defendant presents his facts basing on the certificate of

ownership issued by commune Rwamiko.

After the presentation of their facts, the court applied different laws to them. In doing so, the

court takes reference to the provision of the Ministerial decree of the Internal Ministry (Ministère

de l‟interieur) on allocation of land and the law relating to evidence and its production.

With regards to the provision of the Ministerial decree of 1961 on the allocation of land, it

provides that “Certains territories ont été abandonées par des habitants qui sont refugiés lors

des derniers événements politiques. Afin de ne pas provoquer la dégradation de ces terres et

pour conserver la productivité du sol national, il est autorisé à louer ces terres à d’autres

habitants de la commune. Mais la location ne veut pa dire appropriation”117

, This can be

translated as follow: certain lands were abandoned by people during the last political tensions. In

the view of not provoking the degradation of those lands and conserve their productivity, it is

authorised to allocate them to other people of the commune. However, the allocation does not

mean appropriation.118

In addition, the court bases the law relating to evidence and its production. Under article 65, the

law states that “Only the court can assesses the relevance, pertinence and admissibility or

rejection of testimonial evidence. It shall not be influenced by the number of witnesses. It shall

mainly their knowledge of facts and the objectivity and sincerity of their testimonies”119

Furthermore, the court also bases on article 35 and 110 of the stated law. It reads that” A copy of

an original document, kept under the custody of an authorised public officer, is valid without

having to prove the authority or the signature or the thumbprint of the public officer. A copy,

photocopy, or other reproduction which has been certified in conformity the original, is always

valid until it is disapproved by other evidence. A copy, photocopy or other reproduction which

has not been certified in conformity with the original is valid unless supported by other evidence

not prohibited by law; loten the original cannot be produced. And that “A judicial admission

117

Primary Court of Kibeho, case no RC0336/011/TB/KBH, Karangwa Rosalie Vs Hvugimana Phillipe, para9 118

Primary Court of Kibeho, case no RC0336/011/TB/KBH, Karangwa Rosalie Vs Hvugimana Phillipe, para9

(Author‟s Translation). 119

The law relating to evidence and its production, O.G special no of 19/07/2004, Article 65.

33

refers to statements the accused or his or her representative makes before the court. Such

statements shall serve as plaintiff arguments. It prohibited to retract portions of the statements

and to use them as counterarguments against the party. A person cannot retract a judicial

admission unless it can be proved that the admission was a result of physical torture or it was a

mistake of fact. He or she cannot retract under the pretext that he or she was misdirected by an

error in law.120

”

As a result of the case, basing on the presented evidences and their analysis, the court decides in

favour of Karangwa Rosalie. It bases on the provision of the ministerial decree by emphasizing

that those who got lands for the purposes of avoiding their degradation and conserving their

productivity should not allege it as if they were given proprietary rights over them. The

allocation made by the State was for those purposes and does not mean appropriation.

I.4.1.3 Analysis of the case

As far as the breakdown of the case no RC0336/011/TB/KBH, Karangwa Rosalie Vs

Havugimana Phillipe is concerned, it is clear that the court has considered a positive approach in

making the analysis, investigation of the case so as to come up with a good decision. Specific

issues to be considered in this case are all based to force of evidences presented by parties and

their considerations by the court.

In fact, the court did not considered by the fact of possessing duplicate of the certificate issued

by Commune Rwamiko. Rather it entered in details by understanding witnesses, making site

inspections with local authorities to come up with concise decision of the subject matter.

I.4.2 Case no RCA 0073/13/TGI/MHG, MUKAMUSONI Assia Vs MUSONERA Venuste,

HAGABIYAREMYE Innocent, et. al.

1.4.2.1 Presentation of facts and applicable law

In this case, the parties are: Mukamusoni Assia (Plaintiff) assisted by Me Rwabukumba Mussa

and Musonera Venuste, Hagabiyaremye Innocent, et. al., assisted by Me Cyiza Faustin

120

The law relating to evidence and its production, O.G special no of 19/07/2004Article 35 and 110.

34

(Defendant). The object of the litigation in the case is land “Isambu”(Appeal of the case RC

0648/13/TB/RHGO). The plaintiff is a spouse of Rwabukombe. She filed a case before the

Primary court of Ruhango requesting the land that they left in 1959 after fleeing the country.

That land was occupied by Manjwe Marc, who asserted that he acquired it through legal

proceedings (he was given by the State). The primary court ruled against her request and the

latter filed the appeal before the Intermediate court of Ruhango.

At the appeal level, she alleged that the court did not consider witnesses‟ testimonies, and other

motives that she provided. Legal question to be solved before the court was to see if evidences

presented by the plaintiff were not considered.

1.4.2.2 Application of law to facts and decision of the court

Before the intermediate court of Muhanga, Mukamusoni Assia assisted by Me Rwabukumba

Mussa presented their fact, showing how the land in question was left in 1959 and how it gets

into the hands of the defendants. After that, they also mention how the Primary court rejected

evidences that they presented including the testimonies from witnesses and her request of sharing

the land with the defendants, where Manjwe has accepted but others refused. On the part of the

defendants: Musonera Venuste, Hagabiyaremye Innocent, et. al., assisted by Me Cyiza Faustin,

they show how there are no inconsistencies within the primary court decision, since Manjwe has

acquired the land from the state in 1963.

In rending the decision therefore, the intermediate court referred to the law of evidences and the

law relating to civil, commercial, labour and administrative procedure. Taking reference to

article 35 of the law of evidences, it stipulates that “A copy, photocopy or other reproduction

which has not been certified in conformity with the original is valid unless supported by other

evidence not prohibited by law; loten the original cannot be produced.121

” Upon the motivation

of the decision, the court motivated that the deed of 1963 was corroborated by the testimony of

witnesses saying that Manjwe was given the land by Bourgoumestre.

Regarding the law on civil, commercial, labour and administrative procedure, the court relied on

article 9 which stipulates that “Every plaintiff must prove a claim. Failure to obtain proof, the 121

The law relating to evidence and its production, O.G special no of 19/07/2004Article 35, para. 3.

35

defendant wins the case. Likewise, a party who alleges that he/she has been discharged from an

obligation that has been established must prove that the obligation no longer exists. Failure to do

so, the other party wins the case.”122

On this point, the court ruled that the plaintiff did not

discharge from the obligation. Therefore, saying that they have left their land without any deed

or testimony that may be referred to prove it, does not induce the court.

1.4.2.3 Analysis of the case

In final analysis of this case, one could consider that, the way that the court (Intermediate court

of Muhanga) has decided on it, differs completely from the way that the court (Primary court of

Kibeho). It is clear that the first has restituted the lost ownership rights whereas in the second

case, the plaintiff remains losing them, fault of lack of evidences as provided by laws.

For that reason, as it has been demonstrated in the above cases under this section, evidences in

proprietary land rights remained questionable. Laws are clear, but it is challenge how two

persons, with similar cases get different court decisions. To that, there should be a consistence

built on case laws, so that persons could not be abruptly deprived of their ownership rights.

The following section talks about evidences in proprietary land rights as per the 2005 organic

law on the use and management of land, with related analysed case law.

122

The law relating to Civil, Commercial, Labour and Administrative procedure, O.G.nº 29 of 16/07/2012

(Hereinafter CCLAP), Article 9.

36

SECTION II: EVIDENCE IN PROPRIETARY LAND RIGHTS UNDER THE 2005

LAND LAW

The coming into force of the 2005 organic law on the use and management of land in Rwanda

was considered as a solution to many problems and challenges that characterised land tenure

system and other issues related to land in Rwanda. It came into force to address a number of

questions like the very high density of population and pressure on land, excessive partitioning of

family agricultural plots, soil degradation and loss, scarcity of land and a large number of

landless, negative consequences of war and genocide, bad agricultural practices and overgrazing,

the predominance of customary law and inadequacy of written land law, lack of a viable and

efficient cadastral system, the inadequacy of human, material and financial resources123

.

On the other point, matter of evidences in proprietary land rights also remained in question; to

the extent that land related matters, specifically in evidences provided by the owners still remain

unaddressed. Even the process of land registration and issuance of land titles that come after the

organic law in 2008, also did not come up with a concise and clear solution to matters of

evidence over land. Below, is detailed the way lands were registered and how titles were issued.

II.1 Land registration and Issuance Land titles

Land registration is the system of registering, at local branch offices of land registry, certain

legal estates or interests in land. It is an effective system which entails the allocation of the land

to its owner by providing him/her a land title.

Eventually, the idea of land registration has come when customary law was no longer able to

cope with new conditions where land boundaries have become imperative, where permanent

crops have replaced seasonal ones, where credit is required on the scarcity of land, where in fact

individual proprietary rights have arisen and land has acquired a negotiable value.124

Through

land registration process, there raised different problems due to instruments that were presented

123

D. M.Kayihura, F. Kigenza, Property and Land Law, Op.Cit, p.144. 124

C.K.Meeks, Land Law and Customs in Colonies, 2nd

Ed., Frank Cass and Co Ltd, 1986, p. 326.

37

by people without taking into account their sources/ origin and the way they have been

obtained.125

Under the 2005 organic law governing the use and management of land, Land registration was

obligatory.126

Usually, land registration has in effect the declaration of new rights, which never

existed and therefore having constitutive character.

To the extent of proving one‟s ownership rights over land, the law provided that “Certifying that

the land has been allocated or leased on sustainable basis shall be indicated by a certificate

approving the registration of land issued by registrar of land authentic deeds.”127

This is also

substantiated by the Ministerial order on modalities of land registration that “The private

ownership of land and the empyteutic lease can only be legally established by a Certificate of

Registration of the title recognised or granted by the State”.128

With these provisions, it is clear

that, whatever means used by the proprietor of a given land to obtain a land title certifying

his/her ownership, he/she will be deemed the owner.

During the process of land registration, Land Officers were appointed to keep land registers and

issue certificates approving ownership of land.129

This was a significant shift away from the

previous land tenure ship practice, in which only a fraction of all land was titled. This universal

registration provided land users with more certain rights and thereby impacted on the promotion

125

D. Ruzirampuhwe, Land ownership rights under Rwandan law: A critical analysis of the Organic Law no

08/2005 of 14/07/2005 determining the use and management of land in Rwanda, Op. Cit, p.33. Here, one can

consider the dispute where two people claimed their lordship/ ownership based on different certificates that each of

them possessed. It is a dispute between Gashugi and a Wife of Munyambo Ildefonse. They both had certificate

d’enregistrement d’une propriété foncière over the same piece of land. The latter repatriated finding the former

settled in his land which he acquired from the administrative and competent authorities in legal and cumulative

procedures. The authorities granted the latter a portion with 47% of that land. Mean while, he invested in the capital

borrowed from I&M Bank (Rwanda): the former BCR an amount worth 59.635.547 frw by constructing houses and

installing other beneficial activities on it. It is clear that, though land registration policy was put in place, there are

still gaps that are not regulated and which causes inconsistencies before courts while deciding on the real owner of

the land. 126

Organic Law n° 08/2005 of 14/07/2005 determining the use and management of land in Rwanda, O.G of

14/07/2005, Article 30. 127


14/07/2005, Article 26. 128

The ministerial order determining modalities of land registration in Rwanda, O.G of 01/08/2008, Article 4. 129


14/07/2005, Article 31.

38

of investment of labour and capital in increased productivity, and the sustainable development

and management of land resources.130

II.1.1 Land titles

A land title is a written document confirming a person‟s right to land, which is governed by

written laws and delivered according to the law by competent authority. It applies the

emphyteutic lease as well as the freehold or any other form of land tenure legally provided for.131

It is a document issued by land registry to the proprietor of a registered land as a proof of

ownership.132

A land title is an official record of who owns a piece of land. It can also include

information about mortgages, covenants, caveats and easements133

.

Along the procedure of land registration and issuance of land titles, there has been some

Challenges including: Unclaimed land (people outside Rwanda), Children born out of marriage

and orphans, Inheritance, Widowed women, Land registration on Islands and in Gishwati,

Former Natural Forest, Low collection of lease titles, Lease fees claimed to be high.134

The

procedure and mode of acquiring land title is discussed in the following part.

II.2.2 The 2008 procedure of land titling

Land registration process is one of major measures undertaken by the government of Rwanda to

manage the available land in order to sustain the life of 10.6 millions of Rwandans who

essentially live on agriculture production.

This process has been done and in order to implement the national land policy and the organic

law determining the use and management of land in Rwanda. Land registration, as stipulated in

the article 30 of the organic law determining the use and management of land in Rwanda is

130

D. G. Sagashya, Building Land Administration in Rwanda Through Systematic Land Registration, Geospatial

World Forum – Amsterdam 2012, p. 10. 131

The Law no 43/2013 of 16/06/2013 governing land in Rwanda, OG of 16/06/2013, Article 2, 270.

132 J. Law and E. A. Martin, A Dictionary of law, 7

th ed., Oxford university press Inc., New York, p. 315.

133 Victoria State Government, Department of Environment, Water and Land, available at

<http://www.dtpli.vic.gov.au/property-and-land-titles/land-titles, accessed on 10th March, 2016. 134

D. G. Sagashya, Building Land Administration in Rwanda Through Systematic Land Registration, Geospatial

World Forum – Amsterdam 2012, p.16.

http://www.dtpli.vic.gov.au/property-and-land-titles/land-titles

39

obligatory. The procedures through which land registration is carried out are defined by a

ministerial order N° 002/2008 of 01/4/2008.135

It generally describes systems by which matters concerning ownership, possession or other rights

in land can be recorded to provide of title, facilitate transactions and to prevent unlawful

disposal. Definitely, the registration and issuance of the lease title guarantee rights to a land

parcel.136

Hereunder is briefly discussed the procedure through which land registration was carried out:137

On the first step, when the person who wishes to register a land do not have parcel‟s

number, he/she must have a deed plan of the land designed by a land surveyor using Global

Positioning System (GPS)138

. The following step is to find out a property certificate issued by the

sector in which the land is located to ensure that the land owner has not any disputes. After,

person who wishes to register pay registration fees as recommended by the Ministerial

instructions related to fees paid for systematic land registration. The fees fixed to 5,000 RWF in

urban areas and 1,000 RWF in rural areas are deposited in Rwanda Revenue Authority. Through

the District (especially in its land bureau office) in which the land is located, you can get the

number of your parcel.

After these steps are fulfilled, the land lease title is prepared and issued by the Deputy Registrar

of Land Titles of the region in which the land is located. When the parcel‟s number to be

registered does not have full details, the person who wishes to register the land should have a

property certificate issued by the sector in which the land is located and bring it to the Deputy

Registrar of Land Titles of the region, then, a certificate of marriage or of celibacy and a copy of

your identity card.

135

Republic of Rwanda: Ministry of Natural Resources, “Provided answers to land questions”, available at<

http://www.minirena.gov.rw/index.php?id=154>, accessed on 10th

March, 2016. 136

Idem. 137

Republic of Rwanda: Ministry of Natural Resources, “Provided answers to land questions”, available at<

http://www.minirena.gov.rw/index.php?id=154>, accessed on 10th

March, 2016. 138

The Global Positioning System (GPS) is a space-based satellite navigation system that provides location and time

information in all weather conditions, anywhere on or near the earth where there is an unobstructed line of sight to

four or more GPS satellites. This instrument was used during the process of land registration while collecting data

especially on boundaries lands.

http://www.minirena.gov.rw/index.php?id=154


40

In case of Claim receipt but not a land title, the person wishing registration simply goes to

the District Land Bureau office with his/her claim receipt, and gets a land lease title in the case

the land is not under any disputes.

After the issuance of the deed, The Certificate of Registration on the Register of Titles is full

evidence for the right of ownership, empyteutic lease or real rights or encumbrances (real

charges) that are specified on it. The right of ownership which is recorded thereon cannot be

challenged, even though the Certificate was drawn on basis of a cancellable or invalid contract of

alienation, or a court order obtained by surprise. Causes of rescission or invalidity of the contract

or the mistakes of the order only gives rise to a cause of personal action for damages.139

II.2.3 Critics on the procedures of land registration in Rwanda

In a social context dominated by huge differences in education levels and by differential access

to the administration, there is a concern that the elite in its favor may manipulate the registration

process. Experiences with land registration and titling schemes have shown that well informed,

powerful and usually educated individuals often compete successfully for land not previously

registered to their own names, while the mass of rural poor are generally unaware of the law or

do not grasp the implications of land registration.140

Under the above provision on the conclusiveness of registered title, some critics can be raised as

on how a person who is given a deed/certificate in fraudulent ways, yet the deed/ certificate

cannot be challenged as provided therein and also it should be noted that the time that this

procedure was put in place, a great number of lands that were allocated to people by the state in

1996, 1997 etc, those that were given to people in the implementation of land sharing policy, and

there was a number of Rwandans who fled the country during the atrocities of 1994 who

expected to repatriate to their natal land. In this case, as it was before the Supreme Court case to

be discussed, people should be granted rights over their properties.

139

The conclusiveness of registered title under article 23 of the ministerial order on land registration in Rwanda. 140

T. Camilla and J. Quan, Op. cit, p. 67.

41

II.3 Authentication under the 2013 land law

To achieve the noble objective of ensuring both rational use and prudent management of land,

the Government of Rwanda has reviewed the Organic Law n° 08/2005 of 14/07/2005

determining the use and management of land in Rwanda. The revision was mainly transform the

Organic land Law into ordinary law in order to comply with the provisions of the Constitution of

the Republic of Rwanda.141

Actually, the new Law N° 43/2013 of 16/06/2013 Law governing

land in Rwanda has been promulgated in the Official Gazette no Special of 16/06/2013.142

The new Land law is found as a long term solution as it takes into consideration all aspects of the

Land policy which has been adopted by the government of Rwanda in 2004. However, it does

not respond to the issue of evidences in land related matters that was still under question before

courts of law. Judgments were rendered basing on proofs provided by parties to the case, but

there is lack of conformity in decisions of courts on the basis of their decisions.

The law governing land in Rwanda provides that Certifying that the land has been allocated or

leased shall be evidenced by a certificate of land registration issued by the registrar of land

titles. In case of loss or damage of the certificate of land registration, the registrar of land titles

issued a replacing one.143

There remains the question of analysing, identifying the origin of the

certified land in all legislations that were put in place to regulate land related matters.

II.4 Analysed case law (case no RCA 0300/14/TGI/RBV)

In the case under analysis, the parties are: MUKAMAZIMPAKA Agnès (Appellant) Vs

NYIRANDUSHYI, YAKUZE and NTARIBANANIRA (Defendants). The object of the

litigation is The land located in Nengo village, Nengo cell, Gisenyi sector, Rubavu district,

western province.

141

The Constitution of the Republic of Rwanda of 2003 revised in 2015, Article 91. 142

Republic of Rwanda: Ministry of Natural Resources, “The new law governing land has been gazetted”, available

at<http://www.minirena.gov.rw/index.php?id=61&tx_ttnews%5Btt_news%5D=180&cHash=352b7e3af44ca00eae7

8fe3b96d40794>, accessed on 10th

March, 2016. 143

The Law no 43/2013 of 16/06/2013 governing land in Rwanda, OG of 16/06/2013, Article 18.

http://www.minirena.gov.rw/index.php?id=61&tx_ttnews%5Btt_news%5D=180&cHash=352b7e3af44ca00eae78fe3b96d40794


42

II.4.1 Presentation of facts, question of law, applicable law and court decision

MUKAMAZIMPAKA Agnès is a spouse of SETAKO Euphrem. In 1959, she fled the country

due to hostilities that were taking place in the country. At her return, she found the land occupied

by NYIRANDUSHYI, YAKUZE and NTARIBANANIRA (Defendants). Before the primary

court of Jomba (Gisenyi), she requested to recover her land but the case was rejected, that her

claim has no legal basis. Discontented with the decision, MUKAMAZIMPAKA Agnès appealed

before the Intermediate court of Rubavu.

The legal question in the case was to determine if the non provision of each part of the land

occupied by each of the defendant could lead to the loss of the case and assessment of produced

evidences. The applicable law on this matter was the 2013 law on use and management of land

in Rwanda. Its article 10 provides that “private individual land shall comprise land acquired

through custom or written law. That land has been granted definitely by competent authorities or

acquired by purchase, donation, inheritance, succession, ascending sharing, and exchange or

through sharing.” Other laws that were applied to the case are: the law on evidence and its

production, the law relating to civil, commercial, labour and administrative procedure on matters

relating to evidences.

At the appeal level, the court has referred to the above laws (law on land, law of evidence and its

production, the law relating to civil, commercial, labour and administrative procedure). In fact,

the court of appeal within its credence comes with a decision to the applicability of article 9 of

the CCLAP, providing that “the court should not have based on this article by requesting

MUKAMAZIMPAKA Agnès to provide the titles of plots of land occupied by the defendants,

since she claimed the whole land and not its parts.144

”

In addition, for evidence related issues in the case, the court referred to articles 62 and 65 of the

law on evidences and its production that “Testimonial evidence is statements made in court by an

individual regarding what he or she personally saw or heard with that is relevant to the object of

trial. And that only the court can assesses the relevance, pertinence and admissibility or rejection

of testimonial evidence. It shall not be influenced by the number of witnesses. It shall mainly

144

Intermediate Court of Rubavu, Case no RCA 0300/14/TGI/RBV MUKAMAZIMPAKA Agnès Vs

NYIRANDUSHYI, YAKUZE and NTARIBANANIRA , para.9

43

their knowledge of facts and the objectivity and sincerity of their testimonies.145

Basing on that

provision, the report made by the sector and all testimonies that were made, the court found them

in conformity and declares the land to be return to its owner (MUKAMAZIMPAKA Agnès).

Furthermore, basing on article 10 of the 2013 law on land, the court decided that the defendants

did not show the exact way source/origin that they have acquired the land. For the appellant, the

court decides that, since the land was for the family of SETAKO Ephreum, it should be returned

to her as a spouse entitled with the powers of using the family patrimony.

After the analysis of all facts of the case, the court has decided in favour of

MUKAMAZIMPAKA Agnès. It declared all the land titles of the three defendants null since

they have acquired them in fraudulent way.

II.4.2. Analysis of the case

As far as the analysis of the case RCA 0300/14/TGI/RBV is concerned, it is obvious that the

court has made a good approach in the concern of analysing evidences presented by parties.

The court was not biased by the fact of possessing land titles, which are deemed irrefragable

proofs of ownership over land. Rather it entered in details; understanding witnesses, making site

inspections with local authorities to come up with concise decision of the subject matter.

The ruling of this case did not only consider the land title as a full proof of ownership as the law

provides, but also came with the element of considering the source/ origin of the land. The next

section focuses and detailed the analysis given to the Supreme Court case of 2014.

145

The Law n° 15/2004 relating to evidence and its production, O.G special no of 19/07/2004Article 62 and 65.

44

SECTION III: THE SUPREME COURT CASE LAW OF 2014

The Supreme Court is the highest court in Rwanda. The decision of the Supreme Court are not be

subject to appeal save in terms of petitions for the exercise of the prerogative of mercy or

revision of a judicial decision. Its decisions are binding on all parties concerned whether such are

organs of the State, public officials, civilians, military, judicial officers or private individuals.

In fact, the decisions of the Supreme Court are called “case laws or precedents” and have binding

forces over other lower courts. Case law is and always has been a respected and vital part of

constitutional jurisprudence.146

Decided cases are known as stare decisis is Latin for “stand by

things decided.” In Supreme Court they become case laws because they are binding to lower

courts.147

There are two forms of stare decisis: vertical stare decisis and horizontal stare decisis.

Vertical stare decisis requires lower courts to follow the precedents of higher courts when faced

with indistinguishable facts.

In 2014, the Supreme Court has decided a rand mark case which is known as case RCAA

0018/13/CS HARERIMANA Vs. SEBUKAYIRENº. It is a case on land ownership related matters

where both parties to the case claimed their ownership rights over the same land. Details are

discussed below:

III.1 The analysis of the Supreme Court case (Case Law no RCAA 0018/13/CS)

III.1.1 Presentation of the case

In the case under analysis, parties are: HARERIMANA Emmmanuel as an appellant (in

representation of his relatives UWERA Clémentine and TURATSINZE Jean Bosco) and

SEBUKAYIRE Tharcisse as a defendant. The object of the litigation is the plot of land located in

Kamutwa cell, Kacyiru Sector, Gasabo district, City of Kigali.

146

See Kabalisa Case, Mutebwa Alphred etc as published in case law report of the Supreme Court of 2011 147

Organic Law no 03/2012 of 13/06/2012 determining the organization, functioning and jurisdiction of the

Supreme Court, Official Gazette, No. 28 of 09 July 2012, art. 47 (6).

45

III.1.2. Summary of facts, Question of Law and Application of law

HARERIMANA Emmmanuel with his relatives UWERA Clémentine and TURATSINZE Jean

Bosco are all children of HARERIMANA Gaspard and MUKANGWIJE Thérèse. In 1994, they

fled the country and left their properties including plot of land located in Kamutwa cell, Kacyiru

Sector, Gasabo district, City of Kigali. The plot of land in question was bought by

HARERIMANA Gaspard in 1988. After genocide, this plot was allocated to the father of

SEBUKAYIRE Tharcisse by the state. Along while, the three children have repatriated, but

found the properties of their parents occupied by SEBUKAYIRE.

On one hand, SEBUKAYIRE claimed the ownership basing on different proofs including «

contrat de location N° L 23134 of 11/09/95». This was issued after the allocation of this plot of

land to his father who has left it to him and the certificate of Land Titles issued by the office of

registrar of Land Titles. On the other hand, the appellant bases his claims to the contract of sale

made between his father and KARYANGO in 1988 testimonies.

Recall that the case has started before the Intermediate court of Gasabo where HARERIMANA

Emmanuel won the case. At this level, SEBUKAYIRE was ordered to reimburse the plot of land

to the concerned children. Being unsatisfied by such a decision, he appealed before the High

court Kigali. The HC considered the proofs and evidences of ownership ( contrat de location N°

L 23134 of 11/09/95, and the land title issued by the Registrar of land title) and ruled the case in

his favor. Unfortunately, HARERIMANA Emmanuel appealed before the Supreme Court which

decided the considerable land-mark jurisprudence and allocate the plot in question to him.

In adding up, before the Supreme Court, HARERIMANA Emmanuel appeals basing on different

reasons: having ruled the case illutra-vires (have changed the object of the litigation), the non

differentiation of the plot of land and land in the city148

, to this, the Court decided that the case

should have started before the primary court.149

The Court ruled the case null and rejects it.

148

Supreme Court case RCAA 0018/13/CS HARERIMANA Vs. SEBUKAYIRE, para.3 149

The Organic Law Nº 51/2008 of 09/09/2008 determining the organization, functioning and jurisdiction of courts,

Article 67, para 2; It reads that “ Cases involving land, livestock and their succession are under the jurisdiction and

competence of primary courts”.

46

In this case, the legal question to be analysed was to know who the real owner of the land in

question is. The applicable law on this matter was the 2005 organic law on use and management

of land in Rwanda. Its article 5 provides the way of obtaining land in Rwanda: either

customarily, purchase, or from a competent authority. Other laws that were applied to the case

are: the law on evidence and its production, the law relating to civil, commercial, labour and

administrative procedure on matters relating to evidences.

III.2 Decision of the court

Having reviewed and analysed all matters in question, the Supreme Court come up with a

decision in favor of HARERIMANA Emmanuel. Its bases were taken on the fact that,

SEBUKAYIRE Tharcisse did not persuade the court on the origin of the land. From that, the

certificate of land title owned by SEBUKAYIRE Tharcisse was declared null. The court

requested the latter to reimburse the property to HARERIMANA Emmanuel and is relatives.150

III.3 Position of the court

Considering the motivation given by the Supreme Court, it has made a very remarkable decision

which has to be taken as exemplary by other courts. The motivation was based on laws relating

to land (the decree of 1920, the law governing land, the ministerial order determining modalities

of land registration, the presidential order determining the powers of the registrar of land titles),

evidences produce by both parties, and other relevant techniques (site inquiries) used by the

court to come up to the decision.

III.4 Innovations from the decided case law by Supreme Court

From the analysis, it is noteworthy that the Supreme Court has brought some new elements over

cases on evidences in proprietary land rights. Under those elements, the following are identified:

150

Supreme Court case RCAA 0018/13/CS HARERIMANA Vs. SEBUKAYIRE, para. 20-28.

47

Consideration of the origin of land in question.

During the hearings before the Supreme Court, the legal counsel of HARERIMANA Emmanuel

has requested the court to ask his opponent to show the origin of the land in question.151

The

defendant on his side provided the contrat de location N° L 23134 of 11/09/95, which was

assigned to his father only for a period of three years. This evidence was issued during the

transitional period of 1995-1996 when a number of refugees of the 1994 Genocide perpetrated

against Tutsi were repatriating. Under this period, the government of Rwanda allocated lands to

people for temporal use.152

Apart from that contract of temporal use of the land, he also proved his proprietorship rights on

the basis of the land title issued by a competent authority (the office of Registrar of Land Titles).

He argued that, since he possesses the land title, he is the real owner since an authentic deed is

one, which has been drawn or received in accordance with all the required formalities, by a

public officer authorised to officiate in the place where the deed was drawn.

He also based his argument on the the fact that the Certificate of Registration on the Register of

Titles is full evidence for the right of ownership, empyteutic lease or real rights or encumbrances

(real charges) that are specified on it. The right of ownership which is recorded thereon cannot

be challenged, even though the Certificate was drawn on basis of a cancellable or invalid

contract of alienation, or a court order obtained by surprise. Causes of rescission or invalidity of

the contract or the mistakes of the order only gives rise to a cause of personal action for

damages.153

However, pursuant to the way the case was interpreted, the court granted proprietorship rights to

HARERIMANA Emmanuel and his relatives since they produced worth evidences that showed

the origin of the land.154

151

Supreme Court case RCAA 0018/13/CS HARERIMANA Vs. SEBUKAYIRE, para. 12 152

The situation of letting those refugees occupy those lands resulted in the 1996 regulations on the temporary

management of abandoned land in Rwanda. It was regulated by the ministerial order no 01/1996 regarding the

temporary management of land property, (Instruction ministérielle no. 01/1996 du 23 septembre 1996 portant

mesures de gestion provisoire des propriétés foncières, du 23 September 1996, available at:

http://www.refworld.org/docid/3ae6b50017.html.), accessed on 10th

March, 2016Article 13. 153

The ministerial order on land registration in Rwanda, O.G of 01/08/2008 Article 23. 154

Supreme Court case RCAA 0018/13/CS HARERIMANA Vs. SEBUKAYIRE, para. 35.


48

Consideration of the legality of all evidences produced by parties

Evidences over a given property can be obtained in legal, fraudulent or forcible way. As far as

the issue of evidences produced in the case is concerned, the contrat de location N° L 23134 of

11/09/95 and the land title produced by SEBUKAYIRE were deemed to be obtained in good

faith, but lacks the necessary elements on how it was obtained; origin of the land that was

registered on his name. Consequently, the court declares him “Unlawful occupant”155

, since the

evidences of proprietorship were declared null.

As concluding remarks of the chapter, it is clearly indicated that evidences in land related matters

pose categorical difficulties vis à vis courts rulings. As discussed from the hierarchy of laws that

regulated land related matters from 1963 up to the new law of 2013, courts decisions were

rendered. However, the way that they considered the powers and legality of evidences produced

by parties to cases manifests a form of contradiction regarding what is provided for by laws.

III.5 Declaration of Nullity of Land Certificate

Nullity is defined as an act that something is legally invalid; the state of being legally invalid.156

Such act must be nullified by a competent organ or by the court in accordance with the law.

Under the Rwandan context, issues related to nullity of land titles may create complexity while

declaring the cancellation such deeds. The ministerial order determining modalities of land

registration stipulates the conclusiveness of land certificate. On the other hand, the presidential

order determining the functioning and powers of the land registrar provide the person (organ)

who bears the powers to cancel a certificate of land registration in legally provided procedures.

Pursuant to the ministerial order determining modalities of land registration, the right of

ownership which is recorded on the land certificate cannot be challenged, even though the

Certificate was drawn on basis of a cancellable or invalid contract of alienation, or a court order

155

According to Law no 43/2013 of 16/06/2013 governing land in Rwanda, O.G of 16/06/2013, under its article 2,

250, an unlawful occupant is a unauthorised person who owns other persons‟ properties whether he or she may have

acquired them without any certificate to authorise him or her to do so, or he or she may have employed fraud to

acquire the certificate. 156

A. H. Blackwell, The Essential Law Dictionary, 1st Edition, Library of Congress Cataloging-in-Publication Data,

USA, 2008, p. 347.

49

obtained by surprise.157

Causes of rescission or invalidity of the contract or mistake of the order

only give rises to a cause of personal action for damages.158

Nonetheless, when the right of

ownership over the property is still with the acquirer, causes of rescission or invalidity of the

alienation that was made to him give rise for the assignor to a cause of action for reassignment of

the property with damages, if need be.159

With regards to the Presidential Order determining the functioning and competences of the

Office of the Registrar of Land titles, it sets out their powers and does provide for the power to

nullify or cancel the land certificate. Those powers are subdivided into those of the council of

registrars of land titles and those exercised by the Chief registrar and registrar of land titles.

On the side of those exercised by the council of registrars of land titles, there are: to decide on

the cancellation of land title, decide the removal of dispute which was registered during the

systematic land registration, examine and approve instructions of the Chief Registrar of Land

Titles.160

With reference to those exercised by the Chief registrar and registrar of land titles, there are: to

sign certificates of Land Titles and emphyteutic leases, certify that land has been allocated,

certify that land is leased under a long term or is under freehold, issue another certificate of land

registration in case of loss or damaged one, cancel certificate of land registration in accordance

with the law, update the land registry, certify land transaction by putting his/her signature on

transaction documents, give access to information related to land ownership in accordance with

the law.161

Considering the provisions of the above instruments, it is clearly indicated that the

institution which has the powers to cancel the title of land registration is the “Office of land titles

in accordance with the law”. By the point of view, as the registrar has the powers to sign, certify

157

The ministerial order on land registration in Rwanda, O.G of 01/08/2008 Article 23, para. 2. 158

The ministerial order on land registration in Rwanda, O.G of 01/08/2008 Article 23, para. 3. 159

The ministerial order on land registration in Rwanda, O.G of 01/08/2008 Article 23 para. 4. 160

Presidential Order n° 97/01 OF 18/6/2014 determining the functioning and the competences of the registrar of

land titles, O.G. nᵒ 27 of 07/07/2014, Article 6, para.1. 161


land titles, O.G. nᵒ 27 of 07/07/2014, Article 10, para.1.

50

the allocation of land titles, as well as the prerogatives of cancelling them in accordance with

laws. 162

Thereafter, pursuant to the Supreme Court decision, the conditions of nullifying a land certificate

are met in case its holder is found “Unlawful occupant”, and has acquired such certificate in a

“fraudulent way”.

162


land titles, O.G. nᵒ 27 of 07/07/2014, Article 6, para.1. and Article 10, para.1.

51

GENERAL CONCLUSION

All in all, as defined by the law, Land is the surface of the earth identified by specific

boundaries, including the airspace above that portion of surface, the minerals beneath it, and

surrounding biodiversity, erections and developments on that surface. In legal terms, it is an

immovable and permanent asset inclusive of rights associated with the surface of the earth from

the centre to the infinite sky. Land is a fundamental resource of the nation state. Without land,

without territory, there can be no nation state. Housing, agriculture, natural resource use, and

national security concerns are all based upon land management and use. Hence, land is seen as

one of the most important and fundamental natural resource that is exploited by people to get

their daily living means.

Its exploitation and use depend on how laws, rules, regulations and policies of a given state are

built. For the Rwandan point of view, a number of legislations were passed from the arrival of

colonisers up to now. All were meant to regulate land related matters. Apart from a few scattered

land regulations, Rwanda had never had a proper land policy nor had it ever had a land law, a

situation that enhanced the duality between the very restrictive written law and the widely

practiced customary law, giving rise to insecurity, instability and precariousness of land tenure.

On one hand, there was the customary law, which governed almost all the rural land and

promoted the excessive parceling out of plots through the successive father-to-son inheritance

system. And on the other, there was the written law, which mostly governed land in urban

districts and some rural lands managed by churches and other natural and legal persons.

The coming into force of all those decrees, laws, rules, regulations and policies does not give

clear solutions to evidences in land related matters in Rwanda. In the course of Rwandan history,

evidences to land were: Certificates of ownership issued by communes, Agreement of temporal

allocation issued in accordance with the 1996 Ministerial order on temporal management of

Lands, the Contrat de location issued in 1995 as well as land certificates issued in accordance

with the Ministerial order determining the modalities of land registration.

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Eventually, the way that laws were passed and applied before courts, and the way that land

disputes/ cases were dealt before courts also creates controversies in decisions taken by courts.

Some based only on land title as the full evidentiary element to prove one‟s proprietary rights

while others went beyond the land title by making more investigations on the disputes (site

inquiry, hearing testimonies) and decided otherwise. The applicability of the law relating to

evidence and its application, the law on civil, commercial, labour and administrative procedure

also impacted on the decision making of courts. Several courts only considered the land title

(authentic deed) as the full evidence of ownership rights which cannot be opposed in any way.

As for the Supreme Court case, it is remarkable that it has made improvement while deciding on

matters of evidence to land on the analysed case of HABIMANA Versus SEBUKAYIRE (2014). In

its land mark decision, to prove one‟s ownership rights, it has considered two important things:

The origin of land in question as well as the legality of produced evidences.

However, given the way the court has decided, the powers to nullify the land certificate by the

court is also questionable in all analysed cases. Therefore, there should be a clear and common

understanding between court rulings on the powers conferred to registrars of land titles to cancel

land certificates.

RECOMMENDATIONS

The history of our country did not allow people to live consistently (intact) in their places. Some

fled the country in different periods of their history, they left behind their property; land

inclusive. At their repatriation, they sometimes found them occupied by others and started

proceedings of recovery of their ownership rights.

Considering the analysed landmark case law of the Supreme Court (case Nº RCAA 0018/13/CS

(HARERIMANA Emmanuel Vs SEBUKAYIRE Tharcisse before the Supreme Court), and other

analysed cases, the author recommends that, courts should not base only on land titles as the full

evidence of proprietary rights. Indeed, they should examine the way those titles were obtained

and their legality. In settling land related disputes, Courts should consider all presented

evidences. In doing so, they should carry out more investigations, look for the source of the land

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in question, site visits and inquiry on the subject matter, hear testimonies, and assess their

applicability, relevance and their force in proving the reality of the dispute. Thus, courts should

take reference to Supreme Court case law to build a consistent case law that should serve in

settling all land related disputes especially in matters of evidences while proving the ownership

rights.

As an alternative, there should be a harmonisation laws and court decisions to overcome

stipulated contradictions (Land law, law of evidence, Civil, commercial, labour and

administrative procedure). Such harmonisation will serve as the process of creating common

standards between courts decisions and the provisions of the law. Harmonisation

54

BIBLIOGRAPHY

Legislations

1. The Constitution of the Republic of Rwanda of 4th

June, 2003 revised in 2015, O.G. n°

Special of 24/12/2015.

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Rwanda, O.G of 14/07/2005.

3. Organic Law n° 04/200508/04/2005 determining modalities of protection, conservation

and promotion of environment in Rwanda, O.G. nº 09 of 01/05/2005.

4. Organic Law no 03/2012 of 13/06/2012 determining the organization, functioning and

jurisdiction of the Supreme Court, O.G., no. 28 of 09 July 2012.

5. Law no 43/2013 of 16/06/2013 governing land in Rwanda, O.G of 16/06/2013.

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16/07/2012.

7. Law n° 15/2004 relating to evidence and its production, O.G special no of 19/07/2004.

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nº Special of 30 May 2012.

9. Law n° 32/2015 of 11/06/2015 relating to expropriation for public interest, O.G no 35 of

31/08/2015.

10. Presidential Order n° 97/01 OF 18/6/2014 determining the functioning and the

competences of the registrar of land titles, O.G. nᵒ 27 of 07/07/2014.

11. Ministerial Order n°002/2008 of 01/4/2008 determining modalities of land registration,

O.G. of 01/08/2008.

12. The ministerial order no

01/1996 regarding the temporary management of land property

(Instruction ministérielle no. 01/1996 du 23 septembre 1996 portant mesures de gestion

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13. Decree of 20 July1920 establishing the Civil Code Book II relating to property

(hereinafter CCBII).


55

14. Decree of 31 July 1912 relating to property as modified to date (B.O., 1912, p. 799),

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15. Decree of 30/7/1888 establishing the Civil Code Book III (hereinafter CCBIII) governing

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16. Ministerial order no 01/1996 of 1996 regarding the temporary management of land, 23

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17. Arusha Peace Agreement between the Government of the Republic of Rwanda and the

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18. Decree of 1932 and 1953 published in B.O., 1956 no 16 of 15/ August/1956.

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30 January, 1975 (J.O., 1975, p. 191); Decree law no 21/79 of 23 July, 1979 (J.O., 1979,

no 14 bis, p.1); Decree law n

o 36/79 of 13 November,1979 (J.O. 1979, P.721); Law n

o

11/1985 of 07/05/1985 (J.O. 1985, p.647); Law no 16/1985 of 31/07/1985 (J.O. 1985,

p.767) and the Law no 31/91 of 5/08/1991, (J.O, 1991, p.1127), published in the Codes et

Lois Usuels du Rwanda, Volume II, January, 1997.

22. The decree no 09/1976 relating to buying and selling of lands governed by customary law

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http://www.amategeko.net/

56

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57

38. Sebucensha L., Property and Land Law, Student Manual, University of Rwanda, Butare,

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58

51. Sagashya D. G., Building Land Administration in Rwanda through Systematic Land

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HARERIMANA Vs. SEBUKAYIRE, case decided by the Supreme Court on

24th

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53. Intermediate court of RUSIZI; Case no RCA 0076/10/TGI/RSZ: KANYABASHI Jean Vs

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Agnès Vs NYIRANDUSHYI, YAKUZE and NTARIBANANIRA, case decided by the

Intermediate Court of Rubavu, on 14th

042015.

56. Intermediate Court of Nyamagabe, Case no

RCA013/14/TGI/NYBE, MAPYISI Ladislas

Vs KARAMBIZI Vincent and MUKARUZAMBA Epiphanie, Case decided on

05/06/2014.

57. Primary court of Kibeho, case no RC 0336/O11/TB/KBH, KARANGWA Rosalie Vs

HAVUGIMANA Phillipe, Case decided on 30/10/2014.

58. Primary court of Ruhango, Case no RC 0642/013/TB/RHGO, Case decided on

22/01/2015.

59. Intermediate court of Muhanga, case no RCA 0025/15/TGI /MHG, Kanobana Viateur

and Umulinga Marceline Vs Mukansoro Esther, case decided on 29/12/2015.

60. Intermediate court of Muhanga, Case no RCA 0073/13/TGI/MHG, MUKAMUSONI

Assia Vs MUSONERA Venuste, HAGABIYAREMYE Innocent, et. al., case decided on

15/10/2015.

59

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http://www.dtpli.vic.gov.au/property-and-land-titles/land-titles


http://web.stanford.edu/~isegal/prights.pdf

LLB DISSERTATION

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