Belated vindication for free speech, media, in African Commission decision

30 April 2021 · Carmel Rickard

Two women journalists, released from prison in Rwanda after serving their full jail terms for writing and publishing articles that ‘endangered national security’, have been vindicated by the African Commission for Human and Peoples’ Rights. In its decision officially published last week, the commission found that Rwanda’s laws on defamation and freedom of expression violated the African Charter and should be amended. The two journalists, Agnes Uwimana-Nkusi and Saidati Mukakibibi, were charged in connection with articles published in 2010. They were originally sentenced to far longer prison terms, but on appeal this was reduced to four and three years respectively. While they were serving their sentences, international organisations helped mount a case before the African Commission, testing whether certain of Rwanda’s laws that impact on the media, including criminal defamation, were compatible with the African Charter. The commission has now officially found these laws violate the charter and have ‘requested’ that Rwanda amend its laws so that they comply with the rights guaranteed in the Charter.

Read decision

Lawyers acting for Agnes Uwimana-Nkusi and Saidati Mukakibibi approached the African Commission on Human and Peoples’ Rights in October 2012. Both women were in jail at the time, serving sentences related to stories they had written and published, critical of Rwanda’s government and some of its policies.

Originally sentenced to 17 and seven years, their jail terms were reduced by Rwanda’s supreme court, to four and three years. According to their legal team, the laws of Rwanda under which they were charged and convicted, were incompatible with the African Charter. They therefore asked the commission to declare that the convictions and sentences violated their fair trial rights and their right to freedom of expression, both of which were protected by the Charter.

They also wanted a declaration that Rwanda’s laws on criminal defamation violated the Charter and an order that Rwanda’s government amend its laws accordingly. The laws under which they were charged for ‘threats to national security’ should also be declared in violation of the right to freedom of expression and Rwanda should be requested to change them.

‘Emotional suffering’

The commission was also asked to order that Rwanda pay compensation to both journalists for the violation of their rights, lost income and as compensation for emotional suffering.

The case wound its way through the commission’s complex structures and systems, with the matter made more difficult as Rwanda did not make submissions within the time laid down. An oral hearing took place in August 2015; the commission considered the matter in July 2019, and the final outcome was released on April 16.

Most of the relief sought by the journalists was granted: the commission agreed that certain of Rwanda’s laws violated the African Charter, said a change to these laws was needed so they conformed with Rwanda’s obligations as a signatory of the Charter and that the state pay compensation to the two women. But the decision came years after both journalists had served the whole of their respective sentences.

‘Political consciousness’

In its argument before the commission, Rwanda justified its laws and its actions against the journalists by referring to the 1994 genocide. Laws passed since then, and which the two had infringed, were intended to ensure that no-one advocated national, racial or religious hatred.

Was the journalists’ right to freedom of expression unjustifiably limited by Rwanda?

In a strong restatement of the importance of this right, the commission wrote that ‘freedom of expression and information, including the right to seek, receive and impart information and ideas … is a fundamental and inalienable human right and an indispensable component of democracy.’ It also quoted from its own earlier decisions that freedom of expression was ‘vital to an individual’s personal development and political consciousness’.

‘Illusory’

While a state could legitimately restrict or limit that right, the limitation could never result in the right itself becoming ‘illusory’.

In another section that will be seen as significant, the commission dealt with similar questions that had arisen before other regional commissions and courts. Its final conclusion about the journalists’ articles on Rwanda’s Gacaca courts – traditional bodies repurposed to hear 1.2 million cases arising from the genocide and which are widely seen as achieving only mixed success – was that they ‘could not be seen as a call for hatred, violence or intolerance towards the Gacaca courts. Rather … construed as a whole, [the articles] concerned a matter of public interest, which is whether the objective for which the courts were created were met.’

Commenting on other articles that infringed Rwanda’s laws, the commission said they contained ‘elements which advocate reconciliation, unity, peace and stability in Rwanda, all of which, taken together, are incompatible with an intention to threaten national security.’

‘Not necessary’

It concluded that the ‘restrictions imposed on the freedom of expression [of the journalists] for the protection of national security were not necessary in a democratic society that has the particular history and context of Rwanda’.

As to criminal defamation, public officials ‘must tolerate a higher degree of scrutiny of their actions and must be willing to accept criticism from the press, particularly in the context of political debate, as without such criticism, the public would have no way of holding them accountable and there would be no limits to the exigencies of public officials’ powers.’

The articles complained of as committing the offence of criminal defamation concerned the President of Rwanda. As a public figure, a higher degree of tolerance was expected of him, and laws on dishonouring or tarnishing his reputation ‘should not provide for more severe sanctions than those relating to ordinary members of society.’

‘Insults’

The articles concerned the effectiveness of the President in dealing with Rwanda’s difficult past. This was an issue of general public concern ‘which ought to be openly debated’, and, since he was a public figure, ‘a greater degree of criticism ought to be allowed in order to guarantee public debate’.

Rwanda’s penal code had been amended to exclude a general provision on criminal defamation, the focus of the journalists’ complaint. But the original law was in operation at the time they were convicted and besides, the amended law still sent people to prison for ‘insults or defamation against the President’ and criminalised ‘insults’.

The commissioners therefore found Rwanda had violated some of the rights complained of by the journalists, but that Rwanda’s current laws that criminalised and laid down prison terms for defamation and insults, still violated the right to freedom of expression as protected by the Charter.

Compensate

As a result, Rwanda was ‘requested’ to amend its defamation laws to comply with the Charter and to compensate the journalists for the violation of their rights.

The decision ends with the usual request that the commission be informed within 180 days of the measures taken to implement the decision.

It’s unlikely that any steps will in fact be taken by Rwanda. But for the journalists, and their struggle for freedom of expression in that country, the decision is still important. For one thing, it indicates to Rwanda’s government that, despite the country’s genocide history, it is not seen by Africa’s human rights arbiters as automatically entitled to take the moral high ground when it insists on draconian powers to curb the media.

Carmel Rickard

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