The right to be presumed innocent

1. 38. Concerning Article 7(1)(b), the Complainants submit that their right to the presumption of innocence was violated by the Respondent State. To this end, they outline the relevant international legal principles related to this right and cite the jurisprudence of the Commission as well as that of other regional and international human rights mechanisms in support of their case.Footnote ¹⁶ They submit, amongst others, that the right to be presumed innocent imposes the obligation on the State’s prosecutorial authorities to prove the relevant charges beyond reasonable doubt, subject to permissible presumptions of law and fact.

2. 39. The Complainants submit further that contrary to this generally accepted principle that the prosecution must prove the accused’s guilt beyond reasonable doubt, the Supreme Court of Rwanda in the present case required the Complainants to prove their innocence in order to avoid conviction. They cite parts of the Supreme Court Judgment which required the Complainants to present evidence justifying that what they wrote were not rumours.Footnote ¹⁷

3. 40. The Complainants maintain that an offence of threatening national security, contrary to Article 166 of the Law No 21/77, requires them to be deliberately spreading false rumours, while the offence of defamation contrary to Article 391 of the Rwandan Penal Code requires a malicious and public imputation of a fact. According to the Complainants, it was the Prosecution’s responsibility to prove that they were deliberately publishing false rumours and malicious facts. The Supreme Court however required them to prove that their statements were true, and thereby required them to prove their innocence in order to avoid a conviction. The Complainants aver that such a finding erroneously reversed the burden of proof in a criminal trial and is [Page 269] fundamentally at odds with requiring the Prosecution to prove all elements of the offence.

4. 41. In addition to being contrary to their fair trial rights, the Complainants emphasize the political impossibility of being able to submit the proof required by the Supreme Court. The Complainants note human rights case law which allows for the evidential burden to be placed on an accused in certain circumstances, but maintain that these presumptions must be reasonably proportionate and the accused must have an opportunity to actually make the required showing.

5. 42. They state that in the present case, no clear indication is given by the Supreme Court as to what evidence would have been adequate to prove the allegation. According to them, they possessed abundant evidence to prove their statements. However, given that the Rwandan Government had previously been willing to imprison those who allegedly disagree with the Government’s interpretation of genocide, they felt compelled to withhold this line of defence during the trial in order to prevent risk to themselves and their counsel.

6. 43. They contend that given the burden of proof in criminal proceedings, it was their legitimate expectation that the decision to withhold such evidence would not be held against them when it came to determining whether the burden of proof had been satisfied. Further, they claim that many of the statements in the relevant publications constitute opinions, which could not be empirically demonstrated to be true or false like a factual claim. In the Complainants’ words, no individual could have satisfied the Supreme Court’s burden; not only was it legally erroneous, it was an impossible standard.

The principle of legal certainty

1. 44. The Complainants submit that the Supreme Court’s ruling violated the principle of legality provided for in Article 7(2), of the Charter, which provides that “[n]o one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed”. They aver that in order to constitute a criminal offence, the law prescribing the conduct must be clear and unambiguous, so that the individual is able to meaningfully understand the conduct which she is required to refrain from engaging in, and that in order to ensure such clarity, statutes must be construed narrowly within the possible scope of interpretation.

2. 45. In that regard, they contend that, in its judgment, while the Rwandan Supreme Court stressed the limited scope of the right to freedom of expression, it fell short of determining the parameters in [Page 270] order to allow other journalists to ascertain whether their articles will amount to offences before they publish them. Accordingly, they submit that the Rwandan Supreme Court’s interpretation of the applicable law on national security was too broad to understand the types and kinds of statements that would qualify as those that defame or threaten national security, and that it failed to establish how the Complainants’ publications threatened national security or qualified as defamation of the government of Rwanda.

3. 46. The Complainants contend that the Supreme Court’s reasoning is so opaque that it cannot comply with the principle of legal certainty that is required when interpreting a penal statute.

4. 47. Consequent to the above, the Complainants allege that the Respondent State has violated the Complainants’ right to a fair trial under Article 7 of the African Charter on two occasions, in that, not only did the Supreme Court reverse the burden of proof, which violates the right to be presumed innocent, but also that by way of its opaque reasoning, the Supreme Court also failed to respect the principle of legality.

On threat to national security—Article 166

1. 51. Concerning the laws under which they were convicted and sentenced, the Complainants aver that the offence of threatening national security under Article 166 of the Rwandan Penal Code of 1977 is incompatible with Article 9 of the Charter as it is overly broad and fails to meet the criterion of “provided by law”.

2. 52. They state that Article 166 permits the restriction of expression beyond that which is permissible under Article 9 of the African Charter. The law is therefore alleged to be imprecise and fails to demarcate the limits of the offence, and individuals are not able to ascertain from this law what expression will be subject to restriction and which will not. The Complainants argue that it is therefore a law without proper restriction or limit, which allows unfettered discretion to those enforcing it, leaving it open to misapplication or abuse.

3. 53. According to the Complainants, Article 166 fails to provide any readily understandable definition of the offence in such a way that individuals could regulate their conduct to conform with the law and therefore cannot qualify as a restriction of free expression that is “provided by law”, as required under international human rights law. Moreover, the Article offers a virtually unlimited discretion to the courts and the prosecution, leaving it open to misapplication or abuse.

4. 54. Regarding the interpretation and application of the above mentioned law, the Complainants claim that the Rwandan Supreme Court erred in its interpretation and application for the following reasons:

   • i. The Court used its conclusions on the truth or falsity of the contents of the articles to justify its conclusion that the articles threatened national security;

   • ii. The Court failed to justify or substantiate its conclusions that the articles threatened national security.

5. 55. In the Complainants’ view, the Supreme Court, when considering the element of Article 166 that prohibits the proliferation of false [Page 272] rumours should have been guided by principles established under Article 9, as the article does not permit the proscription of statements that are merely deemed to be false unless they meet the criteria for a justifiable restriction. They contend that truthfulness or falsity of a statement is not a factor that can solely be used to justify a restriction of free speech.

6. 56. The Complainants contend that State authorities are under a duty to promote diversity of expression and foster a range of information and ideas and those opinions are covered by this protection including opinions which may be considered false or incorrect. The Complainants affirm that free expression may be restricted if it threatens national security. The threshold to impose such a restriction, however, is a high one. The Complainants allege that Rwandan domestic courts failed to apply this high threshold in their case because it was not shown that the articles published by the Complainants amounted to a real or actual threat to national security. The Complainants claim that the Supreme Court’s suggestion that the article “may well be a cause of disorder and unrest among the population” is only an assertion of a hypothetical risk.

7. 57. The Complainants aver that the low threshold applied by the Rwandan Supreme Court is not in compliance with the applicable standards under international human rights law, including the African Charter. According to international human rights law there must be a real risk, or an actual likelihood, of harm before a restriction will be justified.

8. 58. In that regard, the Complainants cite the decision of the Commission in Liesbeth Zegveld and Mussie Ephrem v. Eritrea,Footnote ¹⁸ wherein the Commission held that restrictions on the right to freedom of expression will be interpreted and applied pursuant to international human rights standards. Accordingly, the Complainants state that limitation of the right to freedom of expression as enshrined in Article 9 of the African Charter is therefore only permissible under strictly defined circumstances which were not met in the present case, given that the conviction and subsequent prison sentences imposed on the Complainants were not provided by law, served no “legitimate interest” and were not “necessary in a democratic society”.

9. 59. Furthermore, they contend that imprisoning the Complainants is a “disproportionate” restriction to their right to freedom of expression.

[Page 273] On defamation—Article 391

1. 60. The First Complainant also claims that the offence of defamation under Article 391 of the Rwanda Penal Code is incompatible with Article 9 of the African Charter as it is overly broad and does not sufficiently safeguard the right to free expression as it is vulnerable to an unlawfully wide interpretation and application. She claims that Article 391 does not provide the limits and safeguards that protect the right to free speech, as required by international human rights law and the Rwandan Courts retain an unlawfully wide discretion; consequently, it therefore fails to meet the criterion of “provided by law”.

2. 61. The First Complainant recalls the provisions of the Commission’s Declaration of Principles on Freedom of Expression in Africa (2002) which require States to ensure that their laws relating to defamation conform to certain standards, including that: (i) no one shall be found liable for true statements, opinions or statements regarding public figures which it was reasonable to make in the circumstances; and (ii) public figures shall be required to tolerate a greater degree of criticism; thus prohibiting liability for true statements, opinions and statements regarding public figures, and requiring public figures to tolerate a greater degree of criticism.

3. 62. To this end, the Complainants submit that no such safeguards are visible in the law or the application thereof by the Rwandan Supreme Court. The First Complainant further notes that the ability to criticize those in power is of central importance to a healthy democracy, and that the media’s right to freedom of expression is elevated from a basic right to a profoundly important duty. She contends that public figures, such as the President, should therefore not only tolerate more criticism as compared to ordinary individuals but also expect and welcome it as a mark of a healthy democratic society.

4. 63. The First Complainant also submits that the Rwandan courts failed to take into account the public figure status of the principal subject of her articles. She asserts that the Rwandan Courts should have considered President Kagame to be a public figure who is required to tolerate a greater degree of criticism than an ordinary individual and should have taken this into account in determining her case.

5. 64. In light of the above, the First Complainant contends that the lack of relevant safeguards in the application of Article 391, as set out in their arguments, has been manifested by the Rwandan Supreme Court, whose conclusion in relation to the offence of defamation was based on its finding that the Complainant had not submitted any evidence of her sources and that therefore her statements were “false rumours”. She [Page 274] argues that the Supreme Court failed to consider the possibility that her statements were true or that they were mere opinions or reasonable. She further argues that the Supreme Court did not consider the principle that those in elected office should expect greater criticism.

6. 65. On the requirement of “legitimate interest”, the First Complainant submits that even though Rwanda has not argued that there was a legitimate interest to restrict her right to freedom of expression and that the restriction was necessary for the protection of the rights of others, for instance the reputation of President Kagame, the other two parts of the cumulative three-part test have not been met.

7. 66. Finally, the First Complainant submits that the criminal sanctions imposed on her were disproportionate and impermissibly severe. She recalls the clear trend in international law, citing international standards and jurisprudence which consider criminal defamation laws as a serious interference with freedom of expression and an impediment to the role of the media as a watchdog. She argues that although there are limited circumstances under which criminal sanctions would be appropriate and permissible, such circumstances only arise in response to cases of serious human rights abuses, hate speech and/or a serious threat to the enjoyment of the human rights of others.

8. 67. In the present case, the First Complainant submits that despite no such circumstances applying in the present case, she suffered the most serious sanction possible—deprivation of liberty—and that her imprisonment on the grounds of allegedly having defamed one of the most prominent people in public office, therefore exceeds all boundaries of permissible restrictions to the right to freedom of expression, and accordingly fails to meet the criterion that the restriction is “necessary in a democratic society”.

9. 68. The Complainant urges the Commission to take into account the context and background of this specific case in which the impugned statements were uttered against the background of a political debate on a matter of public interest. She argues that the use of criminal law even against an incorrect statement in these circumstances, when a civil sanction is available, can never be considered “necessary” or “proportionate” unless there is clear evidence of a threat to public order.

(a) On threat to national securityFootnote ⁸²

1. 181. The Commission has stipulated in its jurisprudence and elaborations on Article 9 that freedom of expression may only be restricted on the grounds of national security where there is a real risk of harm and a close causal link between the expression and the harm.Footnote ⁸³

2. 182. In that regard, the Commission has, in its jurisprudence, illustrated that the failure of a State Party to justify in explicit terms [Page 302] the relationship between the imposition of limitations and public order or national security interests, would amount to a violation of Article 9, and that States Parties have tended to make general statements linking national security and limitations. For instance, in the Constitutional Rights Project case, the Commission concluded that Nigeria had failed to produce sufficient evidence to demonstrate that its limitation of the freedom of expression was in the interest of national security or public order, and in the Kenneth Good case, it held that “[t]he lack of any tangible response from the State on how the article poses a threat to the State or Government leaves the Commission with no choice but to concur with the Complainants”.Footnote ⁸⁴

3. 183. The Commission also observes that the jurisprudence of the Human Rights Committee (HRC) is in the same direction, the HRC has ruled against the Republic of South Korea, in Communication 518/1992: Jong-Kyu Sohn v. Republic of Korea (1995) HRC and Communication 926/2000: Shin v. Republic of Korea (2004), primarily for its failure to demonstrate the specific nature of the threat presented by the expression in question and the threat posed. The HRC’s findings are consistent with its General Comment, which states that “[w]hen a State party invokes a legitimate ground for restriction of freedom of expression, it must demonstrate in specific and individualized fashion the precise nature of the threat … in particular by establishing a direct and immediate connection between the expression and the threat”.Footnote ⁸⁵

4. 184. As well, the Inter-American Commission has also indicated, in line with international jurisprudence, that the imposition of sanctions for abuse of freedom of expression on charges of incitement to violence (understood as incitement to commit crimes, the threat to public order or national security) has to be based on the actual demonstration that the person was not simply expressing an opinion (even if harsh, unjust or provocative) but also that had the clear intention of inciting violence, as well as the current, real and effective possibility to achieve his objectives,Footnote ⁸⁶ and the European Court has taken the view that “it is necessary to [Page 303] demonstrate that the concept of ‘order’ is not authoritarian, but a democratic one, understood as the existence of structural conditions for all people, without discrimination, to exercise their rights in freedom, with vigour and without fear of being punished for it. If this concept is invoked as a ground for limiting human rights, it must be strictly interpreted, taking into account the balance between the different interests at stake and the need to preserve the object and purpose of the Convention.”Footnote ⁸⁷

5. 185. On what constitutes “national security”, the Commission, in Communication 279/03-296/05: Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v. Sudan, defined the same as “how the State protects the physical integrity of its citizens from external threats, such as invasion, terrorism, and bio-security risks to human health”,Footnote ⁸⁸ which interpretation would extend to the prohibition of any propaganda of war, advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, as established by international human rights law and jurisprudence.

6. 186. Specifically, the Commission observes that the European Court has through interpretation prohibited incitement to violence and hatred, amongst others, by relying on Article 17 of the European Convention on Human Rights, which prohibits acts that destroy the rights or freedoms enshrined in the Convention.Footnote ⁸⁹ Notably, in the case of Gündüz v. Turkey,Footnote ⁹⁰ the European Court stressed in particular that statements which may be held to amount to hate speech or glorification of or incitement to violence, cannot be regarded as compatible with the notion of tolerance and run counter to the fundamental values of justice and peace set forth in the Preamble to the Convention. Consequently, it held that the provision of deterrent penalties in domestic law may be necessary where conduct reaches such level of expression and becomes intolerable, negating principles of a pluralist democracy.

7. 187. Also, the European Court has in its jurisprudence recognized a Respondent State’s historical experience as a “weighty factor” in determining the legality of limitations on free speechFootnote ⁹¹ —a position which has [Page 304] equally been taken by the African Court in the case of Ingabire v. Rwanda. Footnote ⁹²

8. 188. The Commission is equally mindful that the International Covenant on Civil and Political Rights (ICCPR) and the American Convention on Human Rights (American Convention) also explicitly prohibit hate speech under Article 20 and Article 13(5) respectively.

9. 189. Based on the foregoing legal principles, jurisprudence and arguments before it, it is the Commission’s considered view that freedom of expression constitutes one of the essential foundations of a democratic society, a basic condition for the progress of society and development of every person. Freedom of expression is “applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population”, in line with principles of pluralism, tolerance and broadmindedness, without which there is no “democratic society”.Footnote ⁹³ On the other hand, the Commission is also mindful that, “as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance …, provided that any ‘formalities’, ‘conditions’, ‘restrictions’ or ‘penalties’ imposed are proportionate to the legitimate aim pursued”.Footnote ⁹⁴

10. 190. Against this background, the Commission has reviewed Article 166 of Law No 21/77 of Rwanda, which defines the offence of threatening national security, and observes that it seeks to prevent expressions which have the effect of or are capable of exciting the population against the established power, bringing citizens to rise up against each other or alarming the population and seeking in this way to cause disorder in the territory of the Republic of Rwanda. The Commission is of the view that such restrictions are compatible with the Charter provisions and international law standards set out above, and that the imposition of deterrent penalties in domestic law may be necessary and proportionate to the legitimate aims of ensuring national security and public order. The historical context of Rwanda, as set out in this Communication, is equally a weighty factor in making this finding on the legality of the limitations on freedom of expression imposed by Article 166 of the Penal Code.

11. [Page 305] 191. With regard to the application of the law to the Complainants by the State and its agents and whether this meets the requirement of necessity and proportionality, the Commission observes that the relevant paragraphs of the articles published by the Complainants and identified as dangerous and prohibited include the following:Footnote ⁹⁵

    Rwandans also affirm that Habyarimana should not have been replaced by a person like Paul Kagame. When the later assumed power, killings increased instead of being stopped, insecurity crossed boarders, Rwanda became an enemy to the neighbors, racial discrimination continued to divide Rwandans, collapse of the economy and many other things to the extent that the Government of FPR is killing people in addition to Genocide survivors.

    (Umurabyo no 29 of 05-19 July 2010)Footnote ⁹⁶

(Umurabyo no 23 of 17-31 May 2010)Footnote ⁹⁷

(Umurabyo no 21 of 01-15 May 2010)Footnote ⁹⁸

1. 192. The Commission understands that the Gacaca courts were set up as a method of transitional justice, designed to promote communal healing and to rebuild Rwanda in the wake of the Genocide of 1994. It understands that the Respondent State has focused on community rebuilding and fostering social cohesion since the tragic occurrence of the genocide, and is in that regard mindful that the issue of the Gacaca courts is critical for national cohesion and inter-ethnic peaceful coexistence. The Gacaca courts are also important to the interests of victims of the genocide, whose rights to justice and reparation have been affirmed through public acknowledgement of their suffering.

2. 193. To that end, the Commission recognizes that there is need for journalistic articles on the Rwandan genocide to pay due regard to the sensitivity of the issue and to avoid reigniting inter-ethnic acrimony. It therefore does not endorse the disregard or even belittling of the [Page 306] suffering of the genocide victims, who received justice through the Gacaca courts. The Commission is cognizant that a lack of such sensitivity and due care has the potential to result in the provocation of acrimony that is capable of disrupting peace and denigrating the dignity of victims of the Rwandan genocide.

3. 194. Consequently, the Commission considers that statements on genocide in the particular historical and political context of Rwanda, if not articulated in a sensitive manner, could have the real potential to threaten national security. The European Court has also articulated this in respect of a similarly catastrophic occurrence, the Jewish Holocaust, that denial of the Holocaust is not a form of protected expression under Article 10 of the European Convention on Human Rights.Footnote ⁹⁹

4. 195. In the present case, in their submissions, the Complainants admit to the intention of the article titled ‘Kagame in big trouble’, 21st edition of Umurabyo, 1 May 2010 and state that:

   This article was authored by the First Complainant and places Rwanda’s contemporary problems into a historical context. It discusses the divisions in the country along ethnic lines and how hatred and violence grew between the various groups as a consequence. It suggests that the Gacaca courts were used as a tool of revenge rather than justice and discusses the consequential displacement of Rwandans. The latter half of the article draws on modern problems to suggest that Rwanda still suffers from its prior problems and that the up-coming elections may lead to a re-surfacing of these problems.

5. 196. In its case-law, the European Court has paid specific attention to the original intention of the author of the statement, including whether it was intended to spread racist or intolerant ideas through the use of hate speech or whether there was an attempt to inform the public about an issue of general interest. This in turn may determine whether the impugned speech falls within the scope of Article 10, or is so destructive of the fundamental values of the Convention system that it is excluded from the protection of the Convention on the basis of Article 17.Footnote ¹⁰⁰

6. 197. In making its determination on the intention of the author, the Court undertakes a holistic construction of the information or information item in question. For example, in the case of Jersild v. Denmark,Footnote ¹⁰¹ the Court held that: “an important factor in the [Page 307] Court’s evaluation will be whether the item in question, when considered as a whole, appeared from an objective point of view to have had as its purpose the propagation of racist views and ideas”;Footnote ¹⁰² and in Sürek v. Turkey,Footnote ¹⁰³ the Court held that “[i]n exercising its supervisory jurisdiction, the Court must look at the interference in the light of the case as a whole, including the content of the impugned statements and the context in which they were made”.

7. 198. The content of the speech therefore also constitutes one of the key foci of the court’s deliberations and is a critical element of incitement. Content analysis may include a focus on the form, style, nature of the arguments deployed in the speech at issue or in the balance struck between arguments deployed, etc. The European Court has emphasized the importance of distinguishing between publications that exhort the use of violence and those that simply offer a genuine critique on a matter of public interestFootnote ¹⁰⁴ and the Inter-American Court has expressed the view that political speech or speech involving matters of public interest deserves special protection.Footnote ¹⁰⁵

8. 199. The Commission also recognizes that where a legitimate objective can be identified (such as “historical research, the dissemination of news and information, and the public accountability of government authorities”) for an expression, other than to incite to discrimination, hostility or violence, then the speech should fall short of the threshold.Footnote ¹⁰⁶

9. 200. Also, in his Report to the General Assembly on the Expert Workshops on the Prohibition of Incitement to National, Racial or Religious Hatred, the former United Nations High Commissioner for Human Rights had also recognized six elements in identifying the juncture at which expression traverses into hate speech as follows: (i) Context: the social and political setting prevalent at the time of the speech, the historical background to the matter may also be relevant; (ii) Speaker: the status or position of the speaker, or the sway that the [Page 308] speaker exercises over the audience; (iii) Intent: awareness of the speaker about the nature of his speech; (iv) Content and form: the actual content of the speech and the manner of delivery; (v) Extent of the speech act: the potential reach of the speech; (vi) Likelihood/Imminence: the risk of harm but not the actual occurrence of harm;Footnote ¹⁰⁷ all of which may also inform the assessment of whether an expression constitutes a threat to national security or public order.

10. 201. The foregoing analysis of relevant judicial approaches and standards reveals an emphasis on a holistic construction of the information concerned and the relevance of intention—an approach which the Commission is inclined to take in this case, both in light of Article 60 of the African Charter and the facts before it, while mindful and cautious that indeed, in the absence of such intention, words can in certain contexts have the effect of causing acrimony, including as a result of their long-term effect. As noted by the United Nations Special Adviser on Genocide Prevention, words were precursors to events such as the Holocaust in Europe.Footnote ¹⁰⁸ Hence, there is a need to carefully balance the right to freedom of expression against the duties it carries, taking into account the peculiarities of each context that comes before the Commission.

11. 202. Consequent to the above, the Commission will now apply a holistic approach to construing the articles concerned. Having reviewed the article in Umurabyo no 21 of 01-15 May 2010 from which the Complainants’ quote has been extracted, it is the Commission’s view that although the Complainants reference to the Gacaca courts as “tools for revenge” could be seen as offensive and in itself, potentially inflammatory, this statement, as can be seen from the overall tenor of the Complainants’ remarks however, does not lead to a conclusion that the Complainants meant to incite violence. The article in question not only critiques the use of the Gacaca courts and their effectiveness in addressing the fissures created by the genocide, but also highlights the many achievements under the leadership of President Kagame, including as follows:

    Kagame is facing tough times. There are many achievements under his leadership for which Rwandans will remember him as long as he is still the President. [Page 309] These include water and electricity, IT development, communication tailored to everyone’s need, security of people and goods, clean city, large number of women in government institutions … There is also elimination of writing peoples’ ethnic group IDs. But he has also failed in some areas …

12. 203. In the Commission’s opinion, the Complainants’ statements, read as a whole and taken in their immediate and wider context, could not be seen as a call for hatred, violence or intolerance towards the Gacaca courts. Rather, the statements, construed as a whole, concerned a matter of public interest, which is whether the objective for which the courts were created was met.

13. 204. The Commission takes the same view regarding the other quoted offensive text in the same article. “There are four ways in 2010, it is your choice: between imprisonment, to flee the Country, die and survive”,Footnote ¹⁰⁹ which should be read together with other contents of the article. The Commission however notes that such expressions may be considered reckless, particularly bearing in mind the higher duty on the media, but nonetheless finds that this is a threshold lower than intent, and which is insufficient to demonstrate incitement or intention to threaten national security in any manner.

14. 205. Furthermore, it is the Commission’s view that the above position would also hold for the referenced quotes from (Umurabyo no 29 of 05-19 July 2010), as the same article also state that: “… It is wrong to trivialize the genocide perpetrated against Rwandans …”; “… Rwandans deserve a break (so that) they can live in peace …”; “… In order to achieve real victory, we must agree that we are the same, we should shun those dividing us …”; and “Any Rwandan, Tutsi or Hutu, whether he lived in Uganda, Congo, France, America and elsewhere, they are all Rwandans. The media that is free should play a big role …”. Thus, containing elements which advocate reconciliation, unity, peace and stability in Rwanda, all of which, taken together, are incompatible with an intention to threaten national security.

15. 206. Furthermore, and without prejudice to the findings above, the Commission notes that in reaching its decision on the aspect of the statements posing a threat to national security, the Supreme Court of the Respondent State stated as follows:

    … what Uwimana Agnes wrote in her article on the Gacaca has no link in common with what she wanted to demonstrate. Rather her article does [Page 310] demonstrate that the purpose of creating the Gacaca courts was vengeance, opposing people against one another and causing conflicts between parents and children. Those words of Agnes Uwimana Nkusi may be the source of disorder within the population. What she has written are just rumours that had the purpose of inciting people to rise up against those in power.

16. 207. While it acknowledges that international human rights law, including the African Charter, dictates generally that there must be a real risk, or an actual likelihood, of harm before a restriction on the exercise of freedom of expression is deemed justifiable in the interest of national security, it is the Commission’s view, that consideration should be had not only the immediate risk of violence but also to impact of expressions in a country with a history of ethnic conflict and mass atrocities. The Commission agrees with the UN Special Advisor on the Prevention of Genocide that the Holocaust did not start with the gas chambers. Accordingly, following the conclusion of the European Court that denial of the Holocaust is not protected under freedom of expression; the Commission holds that in Rwanda as well expressions that entail denial of the genocide against the Tutsi cannot be protected under Article 9 of the African Charter.

17. 208. In the case at hand, while it does not dismiss the Supreme Court’s view that the article “may well be a cause of disorder and unrest among the population” as being merely hypothetical in the particular context of Rwanda, the Commission however observes and concludes that the reasoning of the authorities in the present Communication fails to meet the required threshold above, for failure to sufficiently demonstrate how the articles published by the Complainants taken together in their entirety could “cause disaster or unrest among the population” or amount to denial of genocide or a threat to national security.

18. 209. For the above reasons, the Commission finds that the restrictions imposed on the freedom of expression of the Complainants for the protection of national security were not necessary in a democratic society that has the particular history and context of Rwanda.

(b) On defamation

1. 210. Regarding the necessity of the restriction on the First Complainant’s expression on grounds of protecting the reputation of others, the Commission recalls Principle 21 of its Declaration on Freedom of Expression which provides as follow:

   States should ensure that their laws relating to defamation conform to the following standards:

   [Page 311] No one shall be found liable for true statements, opinions or statements regarding public figures which is reasonable to make in the circumstances; Public figures shall be required to tolerate a greater degree of criticism.

2. 211. This principle has been upheld in the Commission’s jurisprudence, which has limited criminal penalties for defamation to the State interest in protection of security and public order, as it has made clear that “[i]t is important for the conduct of public affairs that opinions critical of the government be judged according to whether they represent a real danger to national security” rather than “merely an insult towards [the government] or the Head of State.”Footnote ¹¹⁰ The Commission explained its decision in part by stating that “[p]eople who assume highly visible public roles must necessarily face a higher degree of criticism than private citizens, otherwise public debate may be stifled altogether.”Footnote ¹¹¹ More recently, the African Commission found that “[a] higher degree of tolerance is expected when it is a political speech and an even higher threshold is required when it is directed towards the government and government officials.”Footnote ¹¹²

3. 212. Relying on the above reasoning and more recently in the Konaté Case,Footnote ¹¹³ the African Court, in assessing the need for restrictions on freedom of expression by the Respondent State to protect the honour and reputation of others, deemed it necessary to consider the function of the person whose rights are to be protected, that is, whether the person is a public figure or not, and expressed the view that “freedom of expression in a democratic society must be the subject of a lesser degree of interference when it occurs in the context of public debate relating to public figures”,Footnote ¹¹⁴ and also that “[g]iven that a higher degree of tolerance is expected of him or her, the laws of States Parties to the Charter and the Covenant with respect to dishonouring or tarnishing the reputation of public figures, such as the members of the judiciary, should therefore not provide more severe sanctions than those relating to offenses against the honour or reputation of an ordinary individual.”Footnote ¹¹⁵

4. 213. The jurisprudence of the Inter-American Court and the European Court is in the same direction,Footnote ¹¹⁶ thus establishing that [Page 312] international human rights law accords greater protection to speech criticizing public officials and other public figures, and requires a careful balancing of the protection of reputation with interests of open debate in a democratic society including the role of the press as a public watchdog. Thus requiring a State, in the instance of defamation in such a context, to establish a pressing social need for putting the protection of the person over and above the right to freedom of expression.Footnote ¹¹⁷ Any interference with political expression must therefore be placed under intense scrutiny, and in assessing the need for restrictions on freedom of expression to protect the honour and reputation of others, States Parties must assess the function of persons whose reputation or honour has allegedly been affected against the severity of the restriction and the sentence imposed.

5. 214. 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. Also, while limitations on the exercise of Article 9 of the Charter seek to protect the reputation of all individuals including public officials, the requirements of such protection have to be weighed against the interests of debate on issues of public interest.

6. 215. In the Konaté Case, the African Court held that “apart from serious and very exceptional circumstances for example, incitement to international crimes, public incitement to hatred, discrimination or violence or threats against a person or a group of people because of specific criteria such as race, colour, religion or nationality, the Court is of the view that the violations of laws on freedom of speech and the press cannot be sanctioned by custodial sentences”.Footnote ¹¹⁸ It further noted that “other criminal sanctions, be they (fines), civil or administrative, are subject to the criteria of necessity and proportionality, which therefore implies that if such sanctions are disproportionate, or excessive, they are incompatible with the Charter and other relevant human rights instruments.”Footnote ¹¹⁹

7. [Page 313] 216. In a separate opinion in the same case, it was further noted that indeed, “once a so-called criminal defamation amounts to say hate speech or incitement, it is no longer criminal defamation; it mutates into one of the already existing and well known specific crimes such as sedition or high treason and there would be no talk of criminal defamation”. In essence, although sedition and high treason may be recognized as crimes in the domestic laws of many States Parties to the African Charter, these two issues are separate and distinct from defamation. In this regard, the separate opinion further stated that Article 27(2) of the Charter “cannot justify the criminalization of expression of speech by way of criminal defamation laws of any kind, whether punishable by incarceration or not”.

8. 217. Bearing in mind its elaborations over the years on the relationship between defamation and Article 9 of the Charter, the Commission aligns itself to the above position that Article 27(2) is not a justification for the imposition of criminal sanctions for defamation. The Commission has recognized the serious abuses perpetrated under the colour of the criminal defamation laws and has called for their repeal, concluding that criminal defamation laws are an affront to the right to freedom of expression. This position is consistent with international jurisprudence and reflects the growing recognition that laws imposing criminal penalties for defaming or insulting public figures reflect the policy of governments to stifle opposition and limit public debate. It is the Commission’s view that criminal defamation and insult laws not only violate Article 9 of the African Charter but impede development in open and democratic societies. As such, laws of such a nature, inter alia, constitute a serious interference with freedom of expression, impeding the public’s right to access information, and the role of the media as a watchdog, preventing journalists and media practitioners from practicing their profession in good faith, without fear or censorship.Footnote ¹²⁰

9. 218. Against this normative and jurisprudential framework, the Commission notes that Article 391 of the Rwandan Penal Code provides that defamation occurs when someone:

   … maliciously and publicly imputes a precise fact which undermines the honour or the standing of a person or exposes them to public contempt.

10. [Page 314] 219. The Commission also observes from the submissions before it that the First Complainant argues that her statements were mere opinions, and that from the record of Appeal before the Supreme Court, she had attempted, unsuccessfully, to establish the factual basis for the said “opinion”, “journalistic analysis” or “reporting” as they were described, following which the Supreme Court concluded that they were statements of fact and false rumours, and also that they undermined the honour and esteem of the Head of State, thus forming the basis of the conviction for the offence of defamation.Footnote ¹²¹

11. 220. Given that the issue of whether the statement is a fact or an opinion has been dealt under the Commission’s analysis on the alleged violation of Article 7(1)(b) pertaining to the procedural and evidentiary burden, the role of the Commission at this point is to examine whether the restriction of the First Complainant’s freedom of expression on grounds of the protection of the reputation of another within the purview of Article 391 of the Rwandan Penal Code, satisfies the foregoing proportionality requirements under international human rights law.

12. 221. Construing the article published by the First Complainant as a whole, the Commission observes that it relates to an issue of public interest, as it is a critical review of the Kagame administration, which refers to examples of endemic corruption and the increased problems faced by the country before, during and after the genocide. The article notably recognizes the achievements of the Rwandan Patriotic Front (RPF), while noting that some of their acts did not please the people. The Commission takes the view that such a journalistic article is necessary in a democratic society, and protected in terms of Article 9 of the Charter and Principle 2 of the Declaration on Freedom of Expression.Footnote ¹²²

13. 222. Furthermore, the Commission finds that the context within which these statements were made and the person against whom they were directed should also have been taken into consideration by the national courts. There is no doubt in the Commission’s view that the impugned statements were directed at the President or that the President of the Republic of Rwanda is a public figure. Given his role and position, he is more exposed than an ordinary individual and is subject to many and more severe criticisms. Given that a higher degree [Page 315] of tolerance is expected of him, the law that relates to dishonouring or tarnishing his reputation should not provide for more severe sanctions than those relating to ordinary members of society. In any case, civil proceedings in defamation should always be preferred to criminal proceedings.

14. 223. The Commission recalls that the article in question related to the President’s aptitude in addressing Rwanda’s difficult past and fostering national unity. These issues are issues of general public concern which ought to be openly debated. Given that the President is a public figure, a greater degree of criticism ought to be allowed in order to guarantee public debate.

15. 224. The Commission observes that the First Complainant was sentenced to a prison term as punishment for the crime of defamation. While the Commission notes the historical context of the Respondent State and the role that hate speech couched as freedom of expression played in activating the genocide giving rise to the need to put in place laws to ensure that freedom of expression is exercised responsibly, it recalls that the article under consideration does not deal with a case of hate speech, or propaganda for war or incitement to hatred, which in any event transcend the scope of defamation and for which a severe punishment such as imprisonment would have been necessary and proportionate, as opposed to the criticism of a public official.

16. 225. The Commission also recalls that the Complainant as a journalist ought to be offered a high level of protection under Article 9 of the Charter given the important contribution of journalists to public debate on matters of general public interest in a democratic society.Footnote ¹²³ The Commission considers as a consequence that sentencing the First Complainant to a prison term was in the circumstances very severe and disproportionate.

17. 226. In view of the above, the Commission considers that the stipulation of custodial sentences for defamation in the Rwandan Penal Code violates the requirement of Article 9 of the African Charter as the State failed to show how a penalty of imprisonment is a necessary limitation to freedom of expression in other to protect the reputation of others, and as well that its application to the First Complainant, including her sentencing amounts to a disproportionate and unjustifiable limitation of her right to freedom of expression, in violation of Article 9(2) of the Charter.

18. 227. Finally, in relation to its foregoing conclusion, the Commission is aware that the relevant penal code of Rwanda has since [Page 316] been amended to exclude a general provision on criminal defamation as was provided in Article 391 of Law No 21/77 which is being contested in this Communication.Footnote ¹²⁴ It therefore wishes to make two observations in this regard: (i) the Commission has always treated Communications by ruling on the alleged facts at the time of submission of the Communication;Footnote ¹²⁵ and (ii) the revised law still retains custodial sentences for “insults or defamation against the President of the Republic”Footnote ¹²⁶ which is relevant, for purposes of the Commission formulating its recommendations as regards its conclusion on criminal defamation. The new law also contains other provisions that criminalize insults.Footnote ¹²⁷