MY LEGAL OPINION ON RWANDAN GOVERNMENT WITHDRAW/CANCELLATION OF SOME CITIZENS’ PASSPORTS By Prof. Charles Kambanda

Prof. Charles Kambanda

1. Whether or no the State retains absolute ownership of an individual’s passport

There are some things the generality of which the State owns. These include citizenship, passport and wealth. However, when the State grants any of these to an individual in accordance with the law, absent any real defense the State might have, the individual acquires ownership of that thing in its individuality/particularity.

What the State owns is THE citizenship, The Passport, THE wealth. An individual then acquires A passport, citizenship and/or wealth. Although we can touch and see a passport, ones citizenship or wealth, we cannot tough or see THE passport, THE citizenship, THE wealth… A country has only one passport. However, there are many passports in a country. Therefore, THE passport is metaphysical while “A passport” is real. The passport and “A passport” exist at different levels.

While the State owns “THE Passport”, an individual owns “A passport”. While the State’s ownership of THE passport is eternal, an individual’s ownership of “A passport” is temporal.

2. Whether or not there is a contractual relationship between the State – represented by the government – and an individual passport holder:

When the State agrees to grant “A passport” to an individual, for a specific amount, valid specific period only, there is a contractual relationship. Both sides give consideration. At this point, because an individual has paid for “A passport”, that passport becomes his personal property until it expires.

The Constitution of Rwanda is categorical. “Nobody shall be deprived of life, property … without Due Process. Because “A passport is a personal Property for the passport holder, the government which entered into a contract with that individual cannot withdraw that passport arbitrarily. The government must go to Courts of Law or else the government becomes the judge in its own case. That would defeat the basic principles of natural justice. A state cannot take a personal property of an individual except if the taking is for public use and there is compensation.

In this case, the government of Rwanda erred in law. Whereas the State owns The Passport (the generality of the Passport), when each individual acquired “A passport” (the particularity of The Passport), the individual acquired a personal right in a passport. That personal right cannot be taken away without Due Process as the Constitution of Rwanda dictates. Because personal property attached when each individual paid for, and received, a passport, the government of Rwanda cannot take that passport except if that taking is for public use and there is compensation. However, if the State has real defenses, as they apply in any contract, then the State is at liberty to raise such defenses. The most applicable real defense in this case would be Fraud. That fraud can only be fraud in factum). That can only be decided by the Court, not any executive officer.

The government of Rwanda, by withdrawing an individual’s passport, as longer as that individual paid for that passport and the passport is still valid, has committed a material breach of contract and the concerned individuals have a right to legal remedies.

Where the State claims any real defense, natural justice demands that the State cannot be the judge in its own case. In any case, the constitutional Due Process has already attached. Therefore, it must go to court. It cannot be arbitrary. That is what the 2003 Constitution says