UNION AFRICAINE
AFRICAN UNION
UNIAO AFRICANA
African Commission on Human & Peoples' Rights
Commission Africaine des Droits de /'Homme & des Peuples
31 Bijilo Annex Layout, Kombo North District, Western Region,P. 0. Box 673, Banjul, TheGambia
Tel: (220) 44105051 4410506; Fax: (220) 4410504
E-mail: au-ban ·ut africa-union.or • Web www.ach r.or
Communication 426/12
Agnes Uwimana-Nkusi & Saidati Mukakibibi
(represented by Media Legal Defence Initiative)
V
Rwanda
Adopted by the
African Commission on Human and Peoples' Rights
during the 65"' Ordinary Session,from 21 October to 10 November 2019
Banjul, The Gambia
. . . .m
.....
'. Ms. Lindiwe Khumalo
Ag. Secretary to the Afiican Commission
on Hmnan and Peoples' Rights
Communication 426/12 - Agnes Uwimana-Nkusi & Saidati Mukakibibi (represented
by Media Legal Defence Initiative) v. Rwanda
Summary of the Complaint
1.
The Secretariat of the African Commission on Human and Peoples' Rights (the
Secretariat), received a Complaint on 05 October 2012 from the Media Legal
Defence Initiative acting on behalf of Agnes Uwimana-Nkusi (First
Complainant) and Saidati Mukakibibi (Second Complainant) hereinafter jointly
referred to as the Complainants. The Complainants were Rwandan journalists
serving jail terms of four (4) and three (3) years respectively, at the time the
Complaint was submitted to the African Commission on Human and Peoples'
Rights (the Commission). The Complaint is submitted against the Republic of
Rwanda, a State Party to the African Charter on Human and Peoples' Rights (the
African Charter).
2.
The Complainants, who are both journalists for the bi-weekly Kinyarwanda
journal, Umurabyo (Lightening, in English), allege that they were arrested in July
2010 because of several articles they wrote in the journal. The Complainants claim
that they were denied bail and kept in detention until their trial, six months after
which they were convicted and sentenced to prison terms of seventeen (17) years
and seven (7) years respectively for the First and Second Complainant. The First
Complainant was found guilty of defamation of the president, threatening
national security, divisionism and genocide denial while the Second Complainant
was found guilty of divisionism and threatening national security.
3.
The Complainants state that the judgment of the Rwanda High Court (the High
Court) was appealed to the Supreme Court of Rwanda (the Supreme Court). On
30 and 31 January 2012, the Supreme Court quashed the convictions for genocide
denial and divisionism, reducing the sentences to four (4) and three (3) years for
the First and Second Complainant respectively.
4.
The Complainants allege that the remaining convictions were based on three
articles written for Umurabyo, the first of which critically outlined both the
achievements made by President Kagame as well as the shortcomings of his
Government; tl1e second discussed corruption among high ranking officers of the
Rwanda Patriotic Front (RPF), and the third critically discussed a number of social
issues including human rights violations in the country and the treatment of the
media by tl1e Rwandan Government.
According to the Complainants 1 , tl1e three articles which u
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' Parng,aphs 14 to 17 of the Compla;nants' subm;ssions on the Medts, and Annex
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6.
(i)
The article "Kagame in big trouble", published in Umurabyo on 1 May 2010
and authored by the First Complainant, 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 current
issues to suggest that Rwanda still suffers from its prior problems.
(ii)
The article "A review of the cri,nes committed in 16 years", published in
Umurabyo on 17 May 2010 and authored by the First Complainant, discusses
corruption in the higher echelons of government and calls into question
whether the current leadership is taking adequate action to address the
matter.
(iii)
The article "King Kigeli is heading to (the country of) Gasabo", published in
Umurabyo on 5 July 2010 and authored by the Second Complainant, reports
on the return of King Kigeli to Rwanda and the possible benefits of this
event. The article is critical of the Kagame administration and makes
reference to examples of endemic corruption and the increased problems
faced by the country before, during and after the genocide.
The terms of the laws under which the Complainants were convicted are set out
below 2:
(i)
Threatening national securihJ
An offence of threatening national security contrary to Article 166 of the
Law No. 21/ 77 is defined as follows:
"Whoever, whether by a speech in a public meeting or public place, whether by
writings, printed matter, any images or emblems fly-posted up, displayed,
distributed, sold, put up for sale or exposed to the eyes of the public, whether by
deliberately spreading false rumours, has or has tried to excite the population
against the established power, or has brought citizens to rise up against each other
or attempted to do so, or has alarmed the population and sought in this way to bring
troubles to the territory of the Republic, will be punished by imprisonment of 2 to
10 years and a fine of 2,000 to 5,000 francs or only one of these 0.
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without prejudice of stronger penalties provided for in the present r ~
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Defamation
An offence of defamation contrary to Article 391 of Law No. 21/ 77 is
defined as follows:
"Whoever has maliciously and publicly imputed to someone a precise fact whose
nature is to undermine the honour or the standing of this person, or to expose them
to public contempt will be punished with imprisonment of 8 days to 1 year and a
fine of 10,000 francs, or only one of these punishments."
7.
The Complainants aver that a request for Presidential Pardon was sent on their
behalf to the Office of the President of Rwanda, which was denied.
Articles of the Charter alleged to have been violated
8.
The Complainants allege violations of Articles 7 and 9 of the African Charter.
Prayers of the Complainants
9.
The Complainants seek the following relief from the Commission:
i.
a declaration that the Complainants' criminal convictions and in particular,
their prison sentences are in violation of their right to a fair trial as protected
under Article 7 of the African Charter;
ii. a declaration that the Complainants' criminal convictions and, in
particular, their prison sentences are in violation of their right to freedom
of expression as protected under Article 9 of the African Charter;
iii. a declaration that Rwanda's laws on criminal defamation are in violation of
the right to freedom of expression as protected by the African Charter, or,
alternatively, that the penalty of imprisonment for defamation is in
violation of the right to freedom of expression as protected by the African
Charter and an order to the Government of Rwanda to amend its laws
accordingly;
iv. a declaration that the Rwandan laws on threatening national security are in
violation of the right to freedom of expression and an order that the
Republic of Rwanda amend its laws accordingly;
v. an order to the Republic of
nda to release the First Complainant from
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national security and defamation was released in if4 after serving her 4 years' sentence.
3
v1. an order to the Republic of Rwanda to make monetary reparations to the
Complainants, consisting of, amongst others, lost income, lost profits and
compensation for emotional suffering.
Procedure
10.
The Complaint was received at the Secretariat on 5 October 2012. The Commission
was seized of the Communication during its 52nd Ordinary Session held from 9 22 October 2012.
11.
By Note Verbale dated 1 November 2012, the Respondent State was informed of
the seizure and a copy of the Complaint was transmitted to it. The Complainants
were also informed of the seizure on the same date and requested to submit on
admissibility in accordance with Rule 105 (1) of the Commission's Rules.
12.
On 6 February 2013, the Complainants forwarded submissions on the
Admissibility of the Communication to the Secretariat which acknowledged
receipt of the same on 8 February 2013, and transmitted the submissions to the
Respondent State on the same date, requesting the State to submit its observations
in accordance with Rule 105 (2) of the Commission's Rules.
13.
Consideration of the Communication was deferred during the 53rct Ordinary
Session of the Commission held from 9 - 23 April 2013 due to non-submission of
the Respondent State's submissions on Admissibility.
14.
By a Note Verbale dated 15 May 2013, the Respondent State was reminded of its
non-submission on the Admissibility of the Communication and informed that the
Commission would proceed to take a decision on the Admissibility of the
Communication on the basis of the information before it. The Complainant was
also informed on the same date.
15.
The Communication was declared admissible at the 14th Extraordinary Session of
the Commission held from 20 - 24 July 2013. Both parties were informed of the
decision by correspondence dated 6 August 2013 and the Complainants were
requested to submit on the Merits in terms of Rule 108 (1) of the Commission's
Rules of Procedure.
16.
On 3 October 2013, the submissions of the Complainants on the Merits were
received at the Secretariat which acknowledged receipt on 8 October 2013 and
transmitted same to the Respondent State for its observations.
their comments in accordance with Rule 108 (2) of the Commission's Rules of
Procedure.
18.
The Complainants' comments on the Respondent State's observations were
received at the Secretariat on 3 March 2014.
19.
On 15 April 2014, the Respondent State requested for an oral hearing on the Merits
of the Communication. By correspondence of 22 May 2014, the Commission
requested for more information from the Respondent State on the request for Oral
Hearing within one month. The information was not received within the stipulated
period.
20.
On 29 September 2014, the Secretariat received correspondence from the
Respondent State in which the Respondent State explained that it had failed to
respond to the Commission's request for insights into why it requested an Oral
Hearing. The Respondent State alleged that the Note Verbale failed to reach the
relevant institution within its own systems on time even though the Secretariat
had timeously transmitted the same.
21.
On 13 November 2014, the Secretariat received another request from the
Respondent State to be given the chance for an Oral Hearing. In this request, the
Respondent State indicated that it wished to use the opportunity of an Oral
Hearing to provide insights on new information regarding the Communication.
22.
The decision to grant the Oral Hearing was reached at the 17th Extra-Ordinary
Session of the Commission held from 19 to 28 February 2015, but after a decision
on the merits of the Case had already been reached at the Commission's 16th ExtraOrdinary Session held from 20 to 29 July 2014, and both parties had been informed
of this decision. In that regard, the Commission decided pursuant to Rule 111(2)
of its Rules of Procedure to set aside its original decision on the Merits to allow for
an Oral Hearing in the interest of justice.
23.
The Oral Hearing was held on 3 August 2015, during the 18 th Extra-Ordinary
Session of the African Commission on Human and People's Rights held from 26
July to 7 August 2015, in respect of which additional submissions were made by
the Parties.
24.
At its 26 th Exb·a-Ordinary Session, held from 16 to 30 July 2019, the Commission
considered the Merits of the Communicatio ;»""f.~0N"UM4~• ~ o ~
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25.
At the Admissibility stage, the Complainants provide information indicating that
all the admissibility requirements under Article 56 of the Charter have been met.
26.
With regard to the exhaustion of local remedies in particular, the Complainants
submits that they appealed the decision of the High Court of 4 February 2011 to
the Supreme Court, which handed down its final decision on 5 April 2012.
According to the Complainants, this constituted the final judicial local remedy that
they could resort to.
27.
The Complainants point out that on 5 June 2012, they submitted a request for
Presidential Pardon, the formal rejection of which was transmitted to their Counsel
by the High Commissioner of the Republic of Rwanda in London. The
Complainants submit that the rejection of the request for pardon demonstrates that
they have made every effort to seek redress within the domestic context.
28.
However, at this stage, the Respondent State did not make any submissions on
admissibility notwithstanding that several correspondences were addressed to it
in that regard.
Analysis of the Commission on Admissibility
29.
The Admissibility of Communications submitted to the Commission is governed
by the requirements contained in Article 56 of the African Charter. Article 56 sets
out seven requirem ents which must be cumulatively complied with for a
Communication to be admissible. The Complainants submit that all these
requirements have been met.
30.
As indicated above, the Respondent State has not submitted its observations on
admissibility. In the present circumstances, in accordance with the established
practice of the Commission as enunciated in the case of Institute for Human
Rights and Development in Africa v. Republic of Angola, "in the face of the
state's failure to address itself to the complaint filed against it, the African
Commission has no option but to proceed with its consideration of the
Communication in accordance with its Rules of Procedure." 4 Conseq
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para. 34; See also Communication 155/96 Social and Economic Rights Action Center, Center , f&n<i'ilftut':~"-~:,
and Social Rights v. Federal Republic of Nigeria, and 159/96 Union Inter Africaine des Droits de
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Federation Internationale des Ligues des Droits de !'Homme, Rencontre Africaine des Droits de !'Homme,
Organisation Nationale des Droits de !'Homme au Senegal and Association Malienne des Droits de
!'Homme v. Republic of Angola.
6
Commission must give due weight to the Complainants' allegations insofar as
these have been adequately substantiated.
31.
In the absence of any submissions from the Respondent State, the Commission
after carefully examining the information provided by the Complainants is
convinced that all the requirements under Article 56 have been complied with: the
authors have been indicated as the Media Legal Defence Initiative; s the
Communication is compatible with the provisions of the Charter and the
Constitutive act of the African Union as it outlines a prima Jacie case of the violation
of Articles 7 and 9 of the Charter; 6 it is not written in disparaging or insulting
language 7; it is not exclusively based on news disseminated through the mass
media; 8 local remedies have been exhausted as further outlined below; 9 the
Communication was submitted within a reasonable time, six months after local
remedies were exhausted;10 and there is no information to the knowledge of the
Commission indicating that the Communication has been settled through otl1er
international procedures. 11
32.
The Commission will examine in detail, the compatibility of the Communication
with Article 56(5) given its centrality in the consideration of the admissibility of
Communications. In that regard, it has been explained by the Complainants, with
evidence adduced, that they appealed the decision of the High Court of 4 February
2011 to the Supreme Court of Rwanda, which handed down its final decision on 5
April 2012. It has been pointed out that the Supreme Court of Rwanda is the
highest judicial body to which they could have recourse. It has also been explained
that a request for Presidential Pardon was made to the President of Rwanda, which
request was rejected.
33.
The Commission has held that the generally accepted meaning of local remedies,
which must be exhausted prior to any Communication /Complaint procedure
before the Commission, are the ordinary remedies of common la
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jurisdictions and normally accessible to people seeking justice.
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10 Article 56 (6).
11 Article 56 (7).
12 Communication No 242/01 Interights, Institute for Human Rights and Development in Africa, and
Association Mauritanien11e des Droits de l'Ho111me/ lsla111ic Republic of Mauritania (2004) ACHPR, at para 27.
V.)
7
has also held in Alfred Cudjoe v Ghana13 and reaffirmed in Good v Botswana14
that the internal remedy to which Article 56(5) refers entails a remedy sought from
courts of a judicial nature. The Commission has also maintained that such a
remedy must not be subordinated to the discretionary power of public
authorities. 15
34.
TI1e Commission notes that the Complainants approached all the courts of a
judicial nature, including the Supreme Court of Rwanda. Since it is not in dispute
that the Supreme Court of Rwanda is the Respondent State's Court of final
jurisdiction, the Commission considers that there were no other remedies left to be
exhausted. Consequently, the Commission holds that local remedies were duly
exhausted.
35.
In view of the above, the Commission declares tl1e Communication admissible.
Merits
The Complainants' Submissions on the Merits
36.
The Complainants submit that their conviction and sentencing by the Courts of the
Respondent State as well as the laws under which they were tried and convicted
are incompatible with the provisions of Articles 7 (1) (b), 7 (2) and 9 of the African
Charter.
Alleged violation of Article 7 of the Charter
37.
The Complainants aver that tl1e conduct of the Respondent State is in violation of
Articles 7 (1) (b) and 7 (2) of the Charter.
The right to be presumed innocent
38.
Concerning Article 7 (1) (b), tl1e 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· . n.iati
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Communication 48/90 - AnmeshJ International v S11dm1, 50/ 91 Co111ite Loosli Bache/a 'n~
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Lawyers Committee for Human Rights v Sudan, 89/ 93 Association of Members of the Episcopal
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human rights m echanisms in support of their case.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.
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. 1 7
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 fundamentally at odds with requiring the
Prosecution to prove all elements of the offence.
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.
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
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Paras 17, 40 and 72 of the Supreme Court Judgment, Annex 1 B to the Complainants' submissions.
9
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 certninty
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.
45.
In that regard, they contend that, in its judgement, while the Rwandan Supreme
Court stressed the limited scope of the right to freedom of expression, it fell short
of determining the parameters in 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.
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.
Consequent to the above, the Complainants allege that the Respondent State has
violated the Complainants' right to a fair h·ial 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 tha__t- =:::cway of its opaque reasoning, the Supreme Court also failed to respect the P, •~ \ -~
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48.
The Complainants submit that their convictions and the subsequent failure of the
Rwandan Supreme Court to quash them amount to breaches of their right to
freedom of expression under Article 9 of the African Charter. The Complainants'
submission that their right to free expression was improperly abrogated by
Rwanda is based on the following two grounds:
i.
The Rwandan laws under which they were convicted (Articles 166 and 391
of the Rwandan Penal Code) are incompatible with the right to free
expression as guaranteed by Article 9 of the African Charter
ii.
The interpretation and application of the laws in their case breached their
right to free expression as guaranteed by Article 9 of the African Charter.
49.
They submit that given the importance of the fundamental rights protected by
Article 9 of the African Charter, restrictions of the right must be narrowly
construed, and also noted that the Declaration of Principles on Freedom of
Expression in Africa (2002) permits the restriction of the right to freedom of
expression only if all of the following three conditions are satisfied:
(i)
the restriction is provided by law;
(ii)
the restriction serves a legitimate interest; and
(iii)
the restriction is necessary in a democratic society.
50.
They contend that these criteria were not met in the present case as 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'. As such they allege that their treatment amounts to a breach of Rwanda's
obligations under Article 9 of the African Charter.
On Threat to National Securitl{ - Article 166
51.
52.
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".
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 unfe
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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.
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:
1.
ii.
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;
The Court failed to justify or substantiate its conclusions that the articles
threatened national security.
55.
In the Complainants' view, the Supreme Court, when considering the element of
Article 166 that prohibits the proliferation of false 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.
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.
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 mu
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58.
In that regard, the Complainants cite the decision of the Commission in Liesbeth
Zegveld and Mussie Ephrem v. Eritrea, 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'.
59.
Furthermore, they contend that imprisoning the Complainants
'disproportionate' restriction to their right to freedom of expression.
is
a
On Defamation - Article 391
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".
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.
62.
To this end, the Complainants submit that no such safeguards are visible in the
law or tl1e application thereof by the Rwandan Supreme Court. The First
Complainant further notes that tl1e 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 d
.'
18
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13
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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.
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.
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 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.
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.
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.
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
t the criterion that the restriction is
55
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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.
Respondent State's Submissions on the Merits
69.
The Respondent State submits that throughout the trial of the Complainants, due
process was observed, both procedurally and substantively and their rights,
including under national and international law, were fully respected. It avers that
they were fairly treated and had all means of redress they required with the help
of a good number of assisting counsels.
70.
Concerning the alleged violation of Article 7 (1) (b) of the Charter, the Respondent
State points out that it fulfilled its positive obligation to ensure that the
Complainants were heard by independent and well-functioning courts necessary
to ensure a fair trial. The Respondent State further points out that the
Complainants were charged with threatening national security by deliberately
spreading false rumours and the Prosecution led evidence of the Complainants'
criminal acts within the scope of the offence in accordance with Rwandan
legislation.
71.
In that regard, the Respondent State argues that it is natural that in these
circumstances, the Complainants should have, in their own defence, dismissed the
prosecution's evidence by demonstrating that what the prosecution presented to
the court as false rumours were in fact not rumours.
72.
The Respondent State contends that the Complainants' allegations that they
needed to prove their innocence in order to avoid a conviction is a
misrepresentation of the fact. It affirms that the burden of proof in all criminal
proceedings is on the prosecution, both under Rwandan laws and in international
instruments. The Respondent State points out that in the present case, the
prosecution proved that the Complainants' conduct constituted a criminal offence
punishable under Rwandan criminal law. In the circumstances, the Respondent
State maintains that it was therefore the responsibility of the Complainants to
demonstrate the contrary. In the face of the Complainants' fai
tQ. do so,
uncontested evidence presented by the prosecution would prev: 'i"~.:~~~~;~,•?o~
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73.
TI1e Respondent State concludes that the inability of the Complainants to disprove
evidence presented by the prosecution cannot be regarded as reversing the burden
of proof and amounting to a violation of the right to a fair trial.
74.
Regarding the alleged violation of Article 7 (2) of the Charter, the Respondent State
outlines that the offence of threatening national security and the offence of
defamation were punishable offences at the time the Complainants were charged.
The Respondent State points out that the two offences are provided respectively
in Article 166 and 391 of Decree No 21 of 18 August 1977. It argues that there was
no legal uncertainty as the law clearly defines these offences and determines facts
falling within the scope of the offences.
75.
Concerning the alleged violation of Article 9 of the Charter, the Respondent state
agrees with the Complainants that freedom of expression is a fundamental and
indispensable human right in a democratic society. The Respondent State also
affirms that the right is not absolute and can be limited by the law if deemed
necessary. The Respondent State affirms further that limitations to the right to
freedom of expression have to be exercised in a responsible manner in order to
meet certain standards and keep the right meaningful.
76.
The Respondent State points out that Article 9 of the Charter recognizes that the
right of individuals to disseminate opinions has to comply with the laws of the
land. It points out further that Article 27 (2) of the Charter imposes duties on the
beneficiaries of rights to exercise these rights with due regard to the rights of
others, collective security, morality and the common interest.
77.
In view of the above, the Respondent State contends that the challenged Supreme
Court decision clearly shows that the Complainants exercised their right to
freedom of expression in infringement of the restrictions set out in the Penal Code.
It avers that the Court did not only base its decision on domestic criminal law but
also on international law, particularly Article 19 (3) of the International Covenant
on Civil and Political Rights (ICCPR).
78.
According to the Respondent State, although journalists have the right and
freedom to disseminate their opinions, the guarantee of this right does not allow
any propaganda of war, advocacy of national, racial or religious hatred that
constitute incitement to discrimination, hostility or violence. It maintains that the
Supreme Court found that as journalists, the applicants did not uphold their duties
and responsibilities within the spirit of Article 9 of the Charter, and that in reaching
its conclusions, the Court fairly analysed the matter by also noting the legal limits,
duties and obli •
~t come along with those rights, whether one is a
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79.
The Respondent State points out that Rwanda has been a victim of violence
throughout its history; violence which culminated in the genocide in 1994. It
emphasizes that the media was among the enablers of this horrible crime and it is
therefore important that when guaranteeing the right to freedom of expression,
the specific context and environment of Rwanda must be borne in mind. It
emphasizes further that the limitation of this right is not particular to Rwanda and
that each country sets limitations to rights with due regard to its history, context
and environment, and that failure to justifiably limit this right would lead to chaos
and circle of violence which will ultimately violate others' rights.
80.
Finally, the Respondent State submits that the limitations are within the scope of
Article 9 of the Charter and therefore not in violation of Article 9.
Complainants' Observations on the Respondent State's submissions
81.
The Complainants argue that the Respondent State's submissions on Article 7 (1)
(b) and 7 (2) misinterpret and/ or misunderstand the substance of their
submissions. The Complainants, in respect of Article 7(1) (b), reiterate that the
Respondent State has failed to include any reference to the requisite standard of
proof that must be met by the prosecution. In doing so, it incorrectly reverses the
legal burden and determines that "it was therefore tl1e applicants' obligation and
responsibility to demonstrate the contrary as a defence.
82.
They contend that it is implicit in the principle of presumption of innocence that
there remains no obligation on an accused to adduce evidence in order for an
acquittal to be found. Should the Prosecution fail to adduce evidence that proves
the guilt of an accused beyond a reasonable doubt, then an acquittal would be
required.
83.
Regarding Article 7 (2) of the Charter, the Complainants argue that whilst the
offences in question are proscribed in articles 166 and 391 of Law 21/77, both were
the subject of judicial interpretation by tl1e Supreme Court. However, the
reasoning applied by the Supreme Court is alleged to be lacking, as it was for the
Supreme Court to determine the types and kinds of statements that would qualify
as tl1ose that defame or tlueaten national security. The Supreme Court's position
in this regard was allegedly never apparent.
84.
restricting the right to freedom of expression in principle, reference to these aims
does not give the State carte blanche to restrict all expression it does not approve
of under the guise of protecting those interests.
85.
TI1e Complainants also contend that the Respondent State has failed to specifically
address their submissions on the merits which argue that the Complainants'
convictions, and especially the criminal sanctions imposed on them, violate the
principles of necessity and proportionality.
Oral Hearing
86.
TI1e Oral Hearing gave both parties a chance to expound on the application of the
domestic legislation to the Complainants' case, and to evaluate the extent to which
the domestic courts' interpretation of the law was in conformity with the Charter.
Oral submissions from the Respondent State:
Article 7
87.
In respect of Article 7 (1) (b), the Respondent State maintains its arguments in its
submissions on the Merits and argues that it fulfilled its positive obligations to
ensure that the Complainants were heard by independent and well-functioning
Courts necessary to ensure a fair trial, both in the High Court and on appeal in the
Supreme Court.
88.
It asserts that the Prosecution sufficiently proved in accordance with the Penal
Code that what the Complainants did as described in the indictment and
judgment, constituted a criminal offence punishable by Rwandan criminal law. It
also reiterates that, although the Prosecution gave evidence of criminal acts falling
within the scope of the offence as provided for by the law, the Complainants failed
to counter the Prosecution's evidence inter-alia by demonstrating that what the
Prosecution presented to the Court as criminalized false rumours were in fact not
false rumours . It concludes that, in the absence of evidence to the contrary, the
uncontested evidence presented by the Prosecution prevailed.
"Rwandans also affirm that Hnbyarirnana should not have been replaced by a person like
Paul Kagame. When the lnter assumed power, killings increased instead of being stopped,
insecurih; crossed boarders, Rwnnda 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)
"There are four ways in 2010, it is your choice: between imprisonment, to flee the Country,
die and survive" ... "Gacncn courts were established as a tool for revenge, one's neighbor has
become his or her enemy, agony between a parent and a child, a person who was not able
to run and flee the Country had to keep silent, it was not pleasing to anyone but there was
no choice". (Umurabyo nO 21 of 01-15 May 2010).
90.
As regards the offence of defamation, it submits that the Complainants have not
contested it, at any stage of the proceedings that, they have maliciously and
publicly imputed to the President facts that are meant to undermine his honour or
standing and expose him to public contempt, by publishing in their article
Umurabyo, nO 23 of 17-31 May 2010 that: "It has always been said that President
KA GAME falsely defends him in the performance ofhis day to day mistakes, which means
thnt he works for him so as to share the money that the later steals from Nyabugogo
drivers".
91.
The State also submits in respect of Article 7 (2) that this right is not only
guaranteed by the Charter and other international instruments but is also
guaranteed by the Rwandan Constitution, pursuant to which a punishable
conduct must be clearly known to the offender when acting or committing the
offense, and to this end, avers that the Complainants knew before acting that their
conduct was prescribed by law and very well knew penalties along with such a
conduct, consequent to which what was punished was deliberate infringement of
the law in force. It submits that these two offences are respectively and clearly
provided in article 166 and 391 of the Decree- Law nO 21/77 of 18 August 1977. Yet
the Complainants were accused of offences they committed during the year 20092010.
92.
Furthermore, it contends that if the Complainants find the prov1s10ns were
ambiguous or unclear, they could have seized the Supreme Court sitting in
constitutional matters or the Parliament in order for these competent institutions
to clarify or correct such provisions and make them consistent with article 20 of
the Constitution, but that this was not done, and therefore cannot be raised at the
stage of this Communica •
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93.
In respect of Article 9, the Respondent State maintains its argument that Articles
166 and 391 of the Penal Code set the limitations in the exercise of freedoms of
speech and information guaranteed by the Constitution. It also argues that the
limitations established by these provisions are read within the spirit of the
Constitution. The Respondent State argues that the issue whether these limitations
were inconsistent with the Constitution or any other international instrument
including the Charter has never been contested by the Complainants through
competent domestic institutions.
94.
Further, the Respondent State argues that the statements made by the
Complainants were indeed inflammatory, in particular when the Complainants in
their articles stated that "the Gncncn Courts were established as a tool for revenge; once
neighbor hns become his/her enemy, agony between n parent nnd n child, a person who wns
not able to run and flee the CountnJ had to keep silent. It was not pleasing to anyone but
there wns no choice." The Respondent State argues that this statement was
deliberately made to incite people against the established power and to bring
citizens to rise up against each other or to attempt to do so to and to bring trouble
to the territory of Rwanda. The Respondent State argues that the Prosecution
demonstrated the capacity of these words to disturb the peace and the
Complainants' defence was not enough to dispel this assertion.
95.
It concluded that the judgment of the Supreme Court clearly reveals that
journalists like other citizens enjoy the rights herein discussed as an individual
and/ or professional, while expressly recalling that no one is permitted to such
enjoyment at the expense of others and in violation of established legal norms. It
therefore invites the Commission to view and understand the restrictions on the
rights and freedoms under Articles 9 of the Charter in light of permitted legal
restrictions thereto, and requests the Commission to reject the communication
because its purpose and aim is baseless and intends to promote the culture of
impunity, foster and encourage the violation of legal rules and rights of those
affected by the criminal acts of the Complainants.
Oral Submissions from the Complainants
96.
97.
They state that, the Supreme Court of Rwanda in its judgement repeatedly stated
that the Complainants did not provide any evidence for what they wrote rather
than focusing on whether or not the prosecution had convincingly established that
what the Complaints wrote was false or defamatory. In the Complainants' view,
this focus on what the Complainants did or did not prove, is incorrect because
requiring the Complainants to prove that what they wrote is true, instead of
requiring the prosecution to demonstrate how it is false or defamatory, is a reversal
of the burden of proof. The Complainants argue that this reversal has left the
Complainants guilty until proven innocent which violates their fundamental right
to be presumed innocent under Article 7 of the Charter.
98.
The Complainants again, argue that in its judgment, the Supreme Court failed to
respect the principle of legal certainty, one of the fundamental aspects of the rule
of law explicitly recognized in the African Charter as part of the right to fair trial.
The principle of legal certainty requires, in essence, that the law must provide
those subject to it with the ability to regulate their conduct. What is or is not an
offence must be clearly understandable by those who are subject to the law. To
assert that threatening national security and criminal defamation were punishable
offences under the Rwandan Law only addresses one aspect of the principle of
legal certainty. These laws must be clear and able to be narrowly construed by the
Courts. In practice, this requires not only that there are laws in books or that these
laws are clearly worded but also that the decisions of Courts are definite and clear.
99.
The Complainants argue that the judgment of the Rwandan Supreme Court is
anything but clear. They also argue that the right to freedom of expression is not
absolute, and that like other rights it may be subject to limitations and that
determining the parameters of the right to freedom of expression is important.
However, they also state that these parameters must be exercised in a clear and
unambiguous manner in order for individuals to be able to regulate their conduct
accordingly. The Complainants argue that the Supreme Court's approach failed to
provide clarity on the limits of the right to freedom of expression which runs
contrary to the principle of legal certainty and that this violated their right to fair
trial under Article 7 of the Charter.
100.
The Complainants restate that in international law restrictions on freedom of
expression must be provided by law, serve a legitimate aim and be necessary in a
democratic society. In arguing that the restrictions are not provided by law, the
Complainants state that these provisions are overly broad. They argue that
"provided by law" does not mean as the Respondent State appears to assert that
they simply need to enact the restriction in order for it to be legitimate, as that
would allow any State basically to unilaterally opt out of any international
obligation it would take on by signing on to an international human rights treaties
such as the Charter or lCCPR. Rather, they assert that "Provided by law" ,, ~~"..,
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21
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that the law in question should be of sufficient quality and precision to allow
citizens to regulate their conduct and this would also then minimize the possibility
for abuse by authorities.
101.
The Complainants also argue that the Respondent State insufficiently
demonstrated that there was a legitimate aim in restricting the Complainants'
Rights under Article 9 of the Charter. They state that for the conviction on grounds
of defamation, no legitimate aim has been argued at all and for the alleged
threatening of national security, the Respondent State has failed to demonstrate
that there was an actual concrete threat posed by the Complainants' 'publications.
In the Complainants' view, a claim that a statement is a threat to national security
cannot be made on grounds of fictitious hypothetical threats, there has to be a real
risk of harm and a close causal link between the expression and the harm and such
risk was not demonstrated by the Respondent State.
102.
Lastly the Complainants argue that the imprisonment of the First Complainant for
the publication was disproportionate and therefore cannot be considered as
necessary in a democratic society. They state that it is the consistent case law of
international human rights tribunals, including this Commission, that when a
right is restricted, the least invasive measure should be applied. They cited the
decision of the African Court on Human and Peoples' Rights in Konate vs. Burkina
Faso19 tl1at custodial sentences cannot be used to sanction speech except in serious
and very exceptional circumstances such as incitement to international crimes,
public hatred, discrimination or violence. They argue that the Complainants'
publications addressing matters of public interest in a journalistic manner do not
fall into any of those categories.
Additional Facts and Arguments on Admissibility
103.
The Respondent State also indicates that its understanding of Rule 99(2) and (3) of
the Commission's Rules of Procedure is that it gives an opportunity to either party
to present new or additional facts or arguments concerning all issues relating to
the cases, and in this regard, 'present[s] additional facts and arguments pertaining
to the admissibility of the Communication'. To tl1is end, the Respondent State
indicates that it had not been given the opportunity to challenge the Admissibility
of the Communication, and requests the Commission to re-open the case on
Admissibility, on the grounds that the C ~ t did not satisfy the requirements
of Articles 56(2) and (7) of the Charter ~,,r,~oN""~4\•ho
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22
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104.
Regarding Article 56(2), the Respondent State argues that the Complaint is
incompatible with the Charter because it attempts to make the Commission sit as
an "appellate court" and review Rwandan Courts' decisions. The Respondent
State also argues that the African Charter and the Constitutive Act of the African
Union do not allow the Commission to operate as an "appellate court" to review
national Courts' decisions. It asserts that the intention of the African Union
members was rather to give the Commission power to examine whether any of the
guarantees stated in the African Charter were not observed by national Courts.
105.
In respect of Article 56 (7) the Respondent State argues that the Complainants
failed to mention to the Commission that before submitting their Communication
to the Commission, they had a case pending before the UNESCO Committee on
Conventions and Recommendations; in violation of Article 56 (7) of the Charter.
The Respondent State argues that had the Complainants disclosed this detail, the
Communication would not have been found admissible. It concludes that the
Communication is therefore inadmissible as it is incompatible with these
instruments to which Rwanda has volw1tarily subscribed.
106.
The Complainants however argue that there is no basis for reopening the
Communication on Admissibility for two reasons. First, the Complainants state
that the Rules of Procedure in particular Rule 107(4), provide that only a decision
by the Commission to declare a Communication inadmissible maybe reviewed at
a later date upon the submission of new evidence. The Complainants argue that
the Respondent State's request does not meet this test for two reasons: (1) the
Commw1ication was not declared inadmissible but admissible and (2) there is no
"new evidence" to be considered by the Commission. The Complainants cite the
Commission's decision in Communication 409/12-Luke Munyandu Tembani v
Angola and 14 Others;20 where the Commission stated that "under its operative
Rules of Procedure, it can only review a decision of inadmissibility".
107.
The second reason why the Complainants argue that the matter should not be
reopened is that, reconsideration of the Communication will lead to the same
conclusion, namely, that the Communication is admissible. The Complainants
state that the "new evidence" that the Respondent State refers to concerns a
communication that was filed with UNESCO's Executive Committee on 11 June
2012 by another representative unbeknown to the representatives before the
Commission. The Representatives of the Complainants were unaware of the
UNESCO Proceedings .al:tft::=ttl1e,refore were not in a position to inform the
c~ ""~4~ ••o
Commission about thj ~..,sf·\c~'i. M/1Ar "•oo
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23
108.
The Complainants acquiesced that they did mention another procedure before the
UN Working Group on Arbitrary Detention which they were aware of. They
argued however that notwithstanding these two proceedings, which commenced
more than three years before the Oral Hearing, and more than four months before
the Respondent State would have been notified of the filing of this Communication
before the Commission, the Respondent State in its own submissions confirmed
that it was actively engaged with the UNESCO procedure from the point when it
started. In other words, the Respondent State had the opportunity to raise this
point before the Commission from the very beginning, almost three years ago and
chose not to, hence it cannot speak of any "new evidence" that has come about. The
Complainants' view is that the Respondent State neglected to do so at the time
when it would have been appropriate and cannot now use this to stall the
progression of this Communication.
109.
The Complainants further argue that even if the Respondent State had made the
arguments that the UNESCO complaint rendered this Communication
inadmissible, it would not have succeeded because the UNESCO proceedings do
not constitute an international mechanism that settles disputes in the sense of
Article 56(7) of the Charter. UNESCO' s Executive Committee is a non-judicial
body, it cannot issue binding decisions and it cannot as Article 56 says "settle
disputes" as it does not have the required mandate.
110.
The Complainants also address the Respondent State's argument that the
Communication would be inadmissible due to incompatibility with Article 56(2)
of the Charter and argue that the Respondent State's assertion that the
Commission is being used as an" appellate court" is unsubstantiated and incorrect.
The Complainants assert that the Commission is being asked to exercise its proper
mandate, namely to pronounce itself on whether the Respondent State acted in
violation of its obligations under the African Charter.
The Commission's decision on the Additional Facts and Arguments on Admissibility
24
112.
Consequently, the Respondent State had the opportunity to address itself to
questions of Admissibility at the Admissibility stage of the Communication, and
the Commission's decision was validly reached by the Commission in line with its
established practice and jurisprudence.22
113.
In this regard, the Commission notes that under its operative Rules of Procedure,
it can only review a decision of inadmissibility. 23 Furthermore, it notes that Rule
103(1) of its Rules of Procedure which provides for the raising and determination
of a preliminary objection at the stage of Admissibility or before the Commission
takes a decision on the Merits of the Communication, requires a party who intends
to raise such objection to do so 'not later than thirty (30) da ys after receiving
notification to submit on admissibility or on the merits.
114.
To this end, the Commission observes that both parties to this Communication
were informed of the Admissibility decision by correspondence dated 6 August
2013, and the observations of the Respondent State on the Merits of the case was
received by the Secretariat of the Commission on 12 February 2014, which did not
contain any arguments on why the case should not have been declared Admissible.
115.
The Commission further notes that the information, upon which the Respondent
State wishes to have this Communication re-opened under Article 56(7), has been
known to the Respondent State since the Respondent State was invited to submit
its observations on Admissibility about two (2) years before these additional
submissions. This information is not new to the Respondent State and hence
cannot form good and compelling reasons why this case should be reopened.
116.
Nevertheless, and without prejudice to the foregoing, the Commission wishes to
restate, in line with its Rules of Procedure and established jmisprudence, that
'settled' under Article 56(7) means that the case 'must no longer be under
consideration under an international dispute-settlement procedure'; 24 the other
international body must have decided the case on the merits and there is a ' final
settlement' by that body; 25 it must have ' taken a decision which addresses the
concerns, including the relief being sought by the Complainant. It is r 6'~111.ou. ~>.,.
,j·"
j
:
22 See, paragraph 29 above.
23 See Rule 107 of the African Commission's Rules of Procedure and Communication 409/
24 Communication 409/ 12 (as above), para 112. Communication 361/08: J.E Zitha & P.J.L.Zi
stCR£r4r,,,._../".ot.'\.'-.
/,~
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by Prof. Dr. Liesbeth Zegveld) v Mozambique (2011) ACHPR, para 115. Communication 375 ~
Njeri Echaria (represented by Federation of Women Lawyers, Kenya and International Center for the
Protection of Human Rights) v. Kenya, (2011) ACHPR, para 145.
25 Communication 260/02: Bakweri Land Claims Committee v Cameroon, 4 December 2004, para 52 and
53.
25
°".";,~'.
for the matter to simply be discussed by these bodies' ;26 and if a State is to contest
Admissibility under Article 56(7), it must show the ' nature of remedies or relief
granted by the international mechanism, such as to render the complaints res
judicntn, and the African Commission's intervention unnecessary' .27
117.
Regarding the contestation pertaining to Article 56(2) of the Charter and without
prejudice to its finding as to why this Communication cannot be reopened on
Admissibility, the Commission also wishes to restate its position as clearly
elucidated in its jurisprudence that in line with the principle of subsidiarity and
Article 56(5) of the Charter which requires exhaustion of domestic remedies as a
prerequisite for filing Communications, it does not serve as an 'appellate body'
over national courts, and that "in assessing the compatibility of the ruling of a
national court with the African Charter, the African Commission does not act as
an appellate body with powers to overrule the decisions of national courts, but
simply discharges its mandate of ensuring compliance by a State Party, with the
provisions of the African Charter in its interpretation and application of the law." 28
118.
Consequently, the Commission in this particular case does not intend to examine
whe ther the national courts applied its national laws correctly to the facts, but
rather, what the Commission would determine is whether the law in itself and the
procedure of the court in its application of the law is consistent with the African
Charter.
Commission's Decision on the Merits
119.
The Commission is called upon to determine whether the Respondent State's
actions in convicting and sentencing the Complainants and the laws under which
they were convicted, violate their right to presumption of innocence under Article
7 (1) (b), the principle of legality under Article 7 (2), and the right to freedom of
expression under Article 9 of the African Charter.
26 Communication 301/05 - Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue Officials)
v Ethiopia, 12 October 2013, para 117.
27 Communication 279/03-296/05: Sudan Human Rights Organisation
Evictions (COHRE) v Sudan, 27 May 2009, pa ra 103.
28 Communication 375/09 (n24 above), para 36.
26
& Centre on Housing Rights and
Every individual shall have the right to have his cause heard. This comprises ...
the right to be presumed innocent until proven guilty by a competent court or
tribunal
121.
The Commission notes from the onset that the competence of the Respondent
State's courts before which the Complainants were tried and convicted is not at
issue in the present Communication, and the Commission's analysis will therefore
be confined to the issue of the presumption of innocence as raised by the
Complainants.
122.
The Commission observes that presumption of innocence is a fundamental facet
of fair trial rights which requires, inter alia, that when trying an accused person,
the court should not start with the preconceived idea that the accused has
committed the offence for which he/ she is charged. The burden of proving the
accused's guilt beyond any reasonable doubt generally lies with the prosecution,
and any doubt must benefit the accused. The accused must be treated as not having
committed any offence until the State, through the prosecuting authorities,
adduces sufficient evidence to satisfy an independent and impartial h·ibunal that
h e or she is guilty.29
The Commission recalls that the importance of this principle lies in the fact that it
gives society assurance that people innocent of a crime shall not be convicted. It
also gives individuals the confidence that the government, w ith its enormous
power and resources, cannot adjudge them guilty of a criminal offence without
convincing an impartial court of their individual guilt with utmost certainty.30
123.
124.
In the present Communication, the Complainants have submitted that their right
to be presumed innocent was violated on account of the fact that the burden of
proof was reversed. They submit that the crime of threatening national security for
which they were convicted requires the prosecution to prove that they were
d eliberately spreading false rumours; rather than for the Rwandan Supreme Court
to require them to prove the truth of their statements. They maintain that this is an
erroneous reversal of the burden of proof in a criminal trial.
125.
The Respondent State on the other hand submits that it followed due process and
the Complainants were con victed on the basis of uncontested evidence adduced
by the prosecution to prove that the Complainants' conduct constitut ~.rtri'mi
<{"' II scCRH4r.,, -f() l:J
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29
See the Commission's decision in Communication 301/05 - Haregewoin Gebre-Se ;i~
4~
;
Ethiopia, (2011), ACHPR para. 190; see also the decision of the ECHR in Barbera, Messe :e',@~ -b fsl&\
Spain, A146 (1989) para 77, and the Human Rights Committee General Comment No 13 o~e~~ • v"
-,,.....-:- -Fair Trial.
30 See V Wilson 'Shifting Burdens in Criminal Law: A Burden on Due Process' (1981) 8 Hastings
Constitutional LQ 731. 732 - 3.
27
offence, including by making the necessary linkages between relevant paragraphs
of the articles concerned and the required nctus reus and mens ren under the Penal
Code. The Respondent State has maintained that the failure of the Complainants
to enter a defence and rebut the evidence of the prosecution cannot constitute a
reversal of the legal burden of proof.
126.
The Commission notes that the decision of the High Court of Kigali convicting the
Complainants of the crimes for which they were charged was appealed on a
number of grounds including the prosecution's failure to prove the elements
necessary to establish that the crime of threatening state security had been
committed by the Complainants. The Second Complainant had contended in this
regard that the "High Court ignored that what she wrote is not rumours and that
she had no intention of endangering state security"31
127.
The Commission also observes that in the ordinary course of a trial and in keeping
with the principle of presumption of innocence, the Prosecution has the burden of
proving the charge beyond reasonable doubt,32 the accused has the benefit of
doubt such that in the event of a reasonable doubt, no conviction should follow,33
and the burden of proof never shifts to the accused. 34 The presumption of
innocence is thus primarily an evidentiary rule, providing the basis for the
standard and burden of proof, and it follows from the latter that the court must be
impartial and acquit in the event of doubt. The presumption of innocence is also a
non-derogable right.35
128.
Nonetheless, it notes that while the accused has the right not to be compelled to
testify against him or herself or to confess guilt, as well as that his/her silence may
not be used as evidence to prove guilt and no adverse consequences may be drawn
from the exercise of the right to remain silent36, and where the Prosecution makes
a prima facie case, the accused, in this case, the Complainants, have th ·"; , , •~ !_le
lf:t!i-''ff/ ')i.CRETAf:t,4't D , 0 ~
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32 "Right to be Presumed Innocent and Privilege against Self-Incrimination", Chapter Fiv~~gfo'fcf.]).~ '-'<o • , '/
International Fair Trial Rights, published by the OSCE Office for Democratic Institution~Buman
Rights (ODIHR), Warsaw, Poland (2012), available at https://www.osce.org/odihr/94214. p. 89.
33 As above, p. 91 & 92.
34 As above.
35
Paragraph R, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa;
General Comment 29 on Article 4 of the ICCPR.
36
See paras 6 (a), (d)(ii) & (f) of the Principles and Guidelines on the Right to a Fair Trial and Legal
Assistance in Africa, available at http:/ / www.achpr.org/ files/ instruments/ principles-guidelines-rightfair-trial/ achpr33_guide_fair_trial_legal_assistance_2003_eng. pdf. See also, as above.
31 Paragraph 14, SC Judgement.
28
f
a defence disproving the State's case. 37 In this case, a prima Jacie case would mean
that the Prosecution should have proven what the Complainants wrote were
rumours as well as their intention to endanger state security or at the very least,
real risk of their statements threatening national security.38
129.
130.
Notwithstanding and without prejudice to the foregoing, it is the Commission's
view that the starting point that the accused person does not bear the burden of
proof should be qualified as, for instance, an accused person could be asked to
explain something in more detail of substantiate his/her reliance on a defence, in
which case he/ she then then bears the evidential burden of proof, which in
practice comes down to sowing doubt. This must be distinguished from the legal
burden of proof on the prosecution whereby the judge(s) must be convinced
'beyond reasonable doubt' that the accused person is guilty. The presumption of
innocence therefore stipulates that the legal burden is upon the prosecution.39
Notably, the European Court of Human Rights has also accepted that the right of
an accused to silence is not absolute so that, in situations that clearly call for an
explanation to be given by an accused, the accused's silence can be taken into
account in assessing the persuasiveness of the evidence adduced by the
prosecution and/ or the credibility of an explanation later given by the accused. 40
What is impermissible, is, to base the conviction of an accused solely or mainly on
the accused's silence or on her/his refusal to answer questions or give evidence
during the trial.41
131.
With regard to the case at hand, the Commission notes that, as it does not serve as
an appellate body over the findings of national courts, its role is limited to
ascertaining whether in reaching its decision, the Supreme Court of Rwanda
indeed shifted the burden of proof to the Complainants as alleged in this
Communication, in contravention of Article 7(1)(b) of the Charter, and its analysis
of the proceedings before the Supreme Court will only be for this purpose.
132.
On the basis of the above legal principles, and from its review of the decision of
the Supreme Court, the Commission observes that the Supreme Court, in
considering the Complainants' appeal and in particular, contention as reg~§J!:le
establishment of the mens rea and nctus reus of the offence of viola~
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37 As above.
38 Para 18, Supreme Court's Decision.
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39
Elies Van Sliedregt, A Contemporary Reflection on the Presumption of Innocence, 2009/ ,, ~},'.'8.0~.,w.~ )
to 267, at p. 260, available at https: / / www.cairn.info/ revue-internationale-de-droit-penal-2 (l~.g_H.~$ -.,..
247.htrn#.
40 (n32 above), p. 102.
41 As above, p. 101 .
29
security, not only alluded to the arguments of the Prosecution, 42 but further
proceeded to analyze the submissions before it, including the arguments and
evidence provided by the Complainants in contestation of the allegations as well
must consider whether
as records of the trial courts, indicating, inter nlia, that it
the words made public by the appellants through the newspaper Umumbyo
correspond to what is provided by the section of the law mentioned in this
paragraph so that they can be convicted for violating the safety of the State",
following which it reached a conclusion in the affirmative. 43 The same analysis was
done with respect to the charge of defamation, following which the Court found
that what the First Complainant wrote 'corresponds' to the offence of defamation
as defined in Article 391 of the Penal Code. 44
11
•• •
133.
The Commission further observes that the First Complainant, for instance,
provided contrary arguments and evidence in an attempt to disprove the some of
the allegations of the State, including showing motives that indicate that the
contents of her articles do not evince the intention to threaten national security,
and as well, with respect to the charge of defamation, to demonstrate that the
contents of her article was based on a radio broadcast or a survey and she had
published the same
.in the scope of 'reporting', 'analysis by a journalist',
'opinion', 'recording', etc... ", thus attempting, unsuccessfully, to establish the
factual basis for the said ' opinion',' journalistic analysis' or' reporting' as they were
described. Some of these arguments and evidence by the Complainant were upon
evaluation accepted by the Court, while some were not. 45
11
..
134.
42 Paras 15 and 34, Supreme Court's Decision
43 See e.g., paras 15 to 20, paras 32 to 36, Supreme Court Decision
44 Para 69-75, Supreme Court Decision.
45
Paras 38, paras 69-75 of the Supreme Court Decision. See also paras 25 and 41. The jurisprudence of the
ECHR which addresses the distinction between facts and value judgements in defamation cases, while
finding that value judgments or statements of opinion are not capable of being proven, however requires
that value judgments should be founded on a sufficient factual basis, such that the complete absence of
proof for a statement of fact or of any factual basis for a value judgment has often led the Court to find in
favor of the right to reputation of the plaintiff. See, e.g., Pederse11, App. No. 49017/99, Falter Zeitschriften
GmbH v. Austria (dee.), App. No. 13540/04.
30
Complainant's grounds of appeal in that these articles were not intended to
undermine the security of the State.46
135.
All the above are indicative that the Court conducted its independent analysis of
each of the issues set out before it.
136.
Accordingly, the Commission notes that the cited references by the Supreme Court
in some parts of its decision, that the failure of the Complainants to indicate what
they relied on for their articles and to give evidence to establish its truth led the
Court to find that they have written are only rumors knowingly spread by them47,
were made in the context of the overall analyses of the submissions and evidence
placed before the Court, and would thus, not amount to a reversal of the burden
of proof requiring the Complainants to prove that their statements were true, and
thereby prove their innocence in order to avoid a conviction. Rather, the inference
was that in the absence of any contrnry evidence by the Complainants and
considering the State' s submission and the Court's analysis, no other conclusion
was possible.48 Notably, it is not the Commission's prerogative to interrogate the
evaluation of evidence by the Supreme Court, but to assess the compatibility of its
conduct with the applicable standards under the Charter and relevant
international human rights law.
137.
In view of the foregoing, the Commission finds that there was no reversal of the
legal burden of proof on the prosecution, and accordingly finds no violation of the
Complainants' right to be presumed innocent as provided for under Article 7 (1)
(b) of the Charter.
Alleged violation of Article 7 (2)
138.
Article 7 (2) of the Charter provides as follows:
46 Para 25, Supreme Court's Decision.
47 See e.g. paras 17, 22, 23, 30 and 72, as above.
48 See ECHR, 28 Octobe r 1994 (M11 rrny v. U11 ited Ki11gdo111), Series A no. 300-A (1995), p. 54, w here the ECHR
ruled that attaching ad verse infe rences to the accused person's silence did not result in a reversal of the
burden of proof, in a situation where there was already a primafrzcie case without ' adverse inferences', as,
according to the ECHR, value was attached to the pri111rz facie case already made, and the adverse infe rences
were necessary, in the sense that no other conclusion was possible.
31
139.
Article 7(2) of the Charter guarantees what is commonly known as the principle of
legality; whose effect is that an act can be punished only if, at the time of its
commission, the act was the object of a valid, sufficiently precise, written criminal
law to which a sufficiently specific sanction was attached.
140.
Embodied in the principle of legality is the requirement of certainty which serves
to ensure that criminal conduct is defined in such a manner that the individual
knows from the wording of tl1e definition of the criminal conduct, which acts or
omissions are prohibited.
141.
As recently confirmed by the African Court on Human and Peoples' Rights in the
case of Konnte v. Burkina Fnso, to be considered as 'law', norms must be drafted
witl1 sufficient clarity to enable an individual to adapt his behaviour to the rules
and have to be made accessible to tl1e public. The law cannot give persons in
charge of its application unlimited powers of decision on the restrictions of
freedom of expression.49
The principle of legality is designed to protect citizens against State arbitrariness
and the exigencies of power. It provides individuals with foreseeability and
calculability in the exercise of their rights. This protection is crucial within the
realm of criminal law because this body of law expresses the highest legal
condemnation of acts in a society and provides for the highest legal sanctions. 50
142.
143.
The Complainants submit that the Supreme Court's interpretation of the law on
national security was too broad and did not enable them to understand the kinds
of statements that would qualify as threatening national security. They maintain
that the Supreme Court's reasoning d oes not comply with the principle of legal
certainty required when interpreting the statute.
144.
The Respondent State on the other hand argues that the offences for which the
Complainants were convicted were punishable offences even before the time they
were charged with committing them. It argues that the principle of legality was
not violated given that the law clearly defines the offences and determines facts
falling within their scope as well as the punishment.
145.
The Commission notes that the offences in question are proscribed in Articles 166
and 391 of Law 21/77. Article 166 of the Law No. 21/ 77 provides that:
"Whoever, whether by n speech in n public meeting or public place, whether by
writings, printed mntter, nny imnges or emblems fly-posted
~
v;\,
Konnte v. Burki11n Fnso, (f19 above), par. 128.
so Permanent Court of International Justice, Co11siste11C1J of Certni11 Dn11zig Lcgislntiv
Co11stitutio11 of the Free CihJ [Advison; Opi11io11 of 4 Dece111ber 1935] 56).
49See
}
,, •,--,<·EDES..
32
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distributed, sold, put up for sale or exposed to the eyes of the public, whether by
deliberately spreading false rumours, Jzas or has tried to excite the population
against the established power, or has brought citizens to rise up against each other
or attempted to do so, or has alarmed the population and sought in this way to bring
troubles to the territory of the Republic, will be punished by imprisonment of 2 to
10 years and a fine of 2,000 to 5,000 francs or only one of these punishments,
without prejudice of stronger penalties provided for in the present code."
Article 391 of Law No. 21/ 77 provides that:
146.
"Whoever has maliciously and publicly imputed to someone a precise fact whose
nature is to undermine the honour or the standing of this person, or to e:xpose them
to public contempt will be punished with imprisonment of 8 days to 1 year and a
fine of 10,000 francs, or only one of these punishments."
The Commission also notes that the offences in question are indeed provided by
law and define with sufficient clarity the kinds of conduct proscribed, and as well
that the laws were in force before the Complainants' conviction. The existence and
certainty of the law is therefore not in issue. What the Complainants query is the
interpretation of the law by the Court which according to them did not determine
the kinds of statements that would qualify as those that defame or threaten
national security.
147.
What the Commission is tasked with, is to assess whether the judicial
interpretation of the law in question spelled out the kinds of actions that would
constitute relevant crimes with such precision as to remove doubt in the minds of
citizens as to what those actions are.
148.
The Commission notes that the progressive development of criminal law through
judicial :interpretation is a balancing act between certainty and the risk of
stagnation and rigidity. Although progressive development must be reasonably
foreseeable and consistent with the essence of the offence, the Commission
considers that it cannot be reasonably expected of the courts to interpret the law
to the level of precision demanded by the Complainants since this will lead to
unnecessary stagnation and rigidity.
149.
The important thing is whether the Complainants' conducts could reasonably be
situated within the confines of the laws under which they were charged. There is
no doubt that this was the finding of the national courts in
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33
Communication, based on its analysis of the law and the facts before it 31 .
Consequently, in the present circumstances, the Commission cannot find a
violation of Article 7 (2) of the Charter.
Alleged violation of Article 9 of the Charter
150.
It is the Complainants' contention that the interpretation and application of the
laws of Rwanda on national security and defamation was in violation of the right
to freedom of expression protected under Article 9 of the Charter. The
Complainants also maintain that the Respondent State's laws on national security
and defamation are not in conformity with Article 9 of the Charter. Article 9
provides as follows:
(1) Every individual shall have the right to receive information
(2) Every individual shall have the right to express and disseminate his opinions
within the law.
151.
From the facts of the case, it is evident that the parties' contentions essentially
concern Article 9 (2) of the Charter and the Commission's assessment will as a
consequence be limited to that provision of the Charter.
152.
The Commission notes that the conformity of the Respondent State's laws on
freedom of expression to international norms as well as the interpretation and
application of the said laws by the Respondent State's courts have been placed
before this Commission for its determination.
153.
In summing up the case before it, the Supreme Court stated;
"Uwimana Nkusi Agnes and Mukakibibi Saidati appealed to the Supreme Court
saying thnt the High Court hns violnted laws of the cou.ntn; nnd international
conventions thnt give them the right to freely express their ideas."
It is clear that what the Complainants challenged in domestic courts was the
interpretation of the laws and their compatibility with international norms.
34
a readily understandable definition of the offences that individuals could regulate
their conduct by to conform to the law. They also argue that the law gives its
enforcers unfettered discretion and could punish all forms of expression including
private speech in a "public place." They also point out that the law does not
differentiate between fact and opinion and would hence render incorrect opinion
vulnerable to proscription. Article 391 is also contended to be overly broad and
lacking the relevant safeguards for the freedom of expression.
155.
Regarding the interpretation given by the Supreme Court, the Complainants argue
that the approach of the Respondent State in the interpretation of its laws on
national security and defamation was contrary to the spirit of Article 9 of the
Charter, including by failing to apply the required threshold for imposing
restrictions on the rights under Article 9 as well as by imposing restrictions that
served no 'legitimate interest' and were not 'necessary in a democratic society' .
156.
The Respondent State on the other hand, does not dispute the fact that the
Complainants' right to freedom of expression was interfered with or limited by its
actions but rather contends that the interferences or limitations are provided by
law, in line with limitations permitted under international law, including Article 9
of the Charter, and that the Complainants exercised their right to freedom of
expression in infringement of these restrictions. The Respondent State also
underscored the context within which the restrictions were imposed.
157.
The Commission is called upon to determine whether the Complainants' right to
freedom of expression was unjustifiably limited by the actions of the Respondent
State.
158.
The Commission recalls that freedom of expression and information, including the
right to seek, receive and impart information and ideas, either orally, in writing or
in print, in the form of art, or through any other form of communication, including
across frontiers, is a fundamental and inalienable human right and an
indispensable component of democracy. 52 It has also been held by the Commission
to be 'vital to an individual's personal development and political consc~
s§." .53
,~,,,r~~~~:;,;;;o~
52 See Principle 1 (1) of the Declaration of Principles on Freedom of Expression and A
~
1..:-:;::--.~
~
o ~,Ji uf'P~
\ ,,.fl.ifa ·on~·
_.
in Africa (Declaration on Freedom of Expression). The Declaration is an authoritati ~ i~ r retitfio ~ f"'
Article 9 of the Charter adopted by the Commission at its 65th Ordinary Session, held ~ orit. ~ ii A ~ t
10 November 2019, re placing the Declaration of Principles on Freedom of Expressior? m,:;~1J&c1~~"tJ ,
adopted at its 32nd Ordinary Session. The relevant provisions have however remained the same in"so ~far as
the issues raised in this Communication are concerned.
53Communication 140/94-141/ 94-145/ 95: Constitutio1111l RigJits Project, Civil Liberties Organisation and Medin
Rights Agenda v Nigeria, (1999) AC HPR, para 36
35
/
.;i
159.
Despite recognition of its fundamental importance, the Commission recognizes
that the exercise of this right carries with it special duties and responsibilities, on
account of which the right may be legitimately restricted or limited by State Parties
to the Charter. In particular, it is noted that Article 9(2) in itself stipulates that
freedom of expression shall be exercised "within the law". However, this does not
give leeway for open-ended qualifications to freedom of expression, as the
Commission has curtailed undue restrictions and the exercise of unfettered
discretion or attempts by States to avoid their article 1 obligations. 54 Hence, the
Commission has acknowledged that:55
"Though in the African Charter, the grounds of limitation to freedom of expression
are not expressly provided as in other international and regional human rights
treaties, the phrase 'within the law', under article 9(2) provides a leeway to
cautiously fit in legitimate and justifiable individual, collective and national
interests as grounds of limitation."
160.
The above resonates with the Commission's Declaration of Principles on Freedom
of Expression and Access to Information in Africa (2019) (Declaration on Freedom
of Expression) that any restrictions on freedom of expression must be provided by
law, serve a legitimate interest and be necessary in a democratic society.56
161.
Furthermore, based on the Commission's evolutionary jurisprudence on the
nature of duties imposed by the African Charter, article 27(2) has become the
general limitation clause of the Charter. 57 Article 27(2) permits restrictions on the
rights and freedoms guaranteed in the Charter, including the freedom of
expre~sion, when nece_ssary ~~fl _· . " ' 1•1,,~ 'rights of others, collective security,
morality and common mteresf;_--.;-i·' ,tcw~r.-,4, "<0, \
(~~~
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54
Commu nication 224/98, Medin Rigltts '~~ffa,,~ "l ¼ s v Nigerin (2000) ACHPR, paras 78-82;
Communication 87/93, Constitutio11nl Rights ProJ~ ~
~
t ofLekwot n11d Others) v Nigerin (1995) ACHPR;
Communication 211/98, Legal Resources Foundntio11 v Znmbin (2001) ACHPR paras 70, 71.
55
Kenneth Good v Botswana (2010) (ACHPR 2010) para 188; Communications 105/93, 128/94, 130/94 and
152/96) - Constit11tionnl Rights Project, Civil Liberties Orgnnizntio11 nnd Medin Rights Agendn v Nigerin, (1998)
ACH PR.
56
Principle 9 (1) of the Declaration on Freedom of Expression (n52 above).
57
C Heyns 'The African regional human rights system: The African Charter' (2004) 108 Pennsylvania State
Lnw Review 679 692, cited in AO Salau 'The right of access to information and national security in the African
regional human rights system' (2017) 17 African H11111n11 Rights Lnw Journal 367-389
http:l/dx.doi.org/10.17159/1996-2096/2017 /v17n2a2. See also AO Salau (as above) in general, on the
analysis of the freedom of expression and its restriction in relation to national security under the African
Charter.
36
162.
Consequently, the totality of the Commission's jurisprudence and elaborations
regarding restrictions to Article 9 is to the effect that a restriction must be
prescribed by 'law', serve a 'legitimate' public interest; and be strictly ' necessary'
to achieve that legitimate interest. These are similar to those found in international
human rights law and jurisprudence, including that of the African Court on
Human and Peoples' Rights.ss
163.
In view of the above, the Commission will now analyse each requirement in detail,
in order to determine whether the restrictions imposed by the Respondent State
on the freedom of expression of the Complainants in terms of the provisions and
application of Articles 166 and 391 of the Rwandan Penal Code, are: (i) provided
by law, (ii) serve a legitimate interest and (iii) necessary in a democratic society.
(i)
The restriction must be provided by law; 'within the law' (the principle of
legality)
164.
Based on it jurisprudence, as well as applicable international law and
jurisprudence, the Commission is of the view that the phrase 'within the law' in
article 9(2) accommodates only national laws that are drafted with sufficient
clarity, of general application59 and which conform with international standards
and does not allow States to evade Charter obligations60 or adopt laws inconsistent
with binding international laws. 61 The Commission has set standards to the effect
that competent authorities should not override constitutional provisions nor
underrni~e fundamental rigl:!~~D_teed by the constitution and international
human nghts standards. 62 ?-t,s•·;.cRE',r,,.:o,~:\
f/' /, .;;::-.
r•,~f
'J'~
If.,
%i
58 See e.g. Konate v Burkina Faso (f19 b~ ~ an-~ Y /ights Committee, General Comment 31, UN
~
AU-UA
t_,
Doc. CCPR/C/21/Rev.1/ Add.13 (2004r qr~ .
~c.-0
59 Communication 255/02: Garret/, A,iver ' • ~"J~
~J~' fricn (the Prince case) (2004) ACHPR, para 44.
6 Constitutional Rights Project (i11 respect ofLekwo1
thers) v Nigeria (n54 above) para 11 concerned the Civil
Disturbances (Special Tribunal) Decree, part IV, sec 8(1); Civ il Liberties Organisation (in respect of Bar
Association) v Nigeria (1995) ACHPR, para 10, concerned the Legal Practitioners' (Amendment) Decree 21
of 1993, sec 23A(1); and Civil Liberties Orga11isatio11 v Nigeria (2000) AHRLR 188 (ACHPR 1995) concerned
the Constitution (Suspension and Modification) Decree 107 of 1993 and the Political Parties (Dissolution)
Decree 114 of 1993, sec 13(1). In these decisions in respect of Nigeria, the African Commission found that
relevant laws with ouster clauses that allowed the executive branch to operate without judicial check
violated arts 7
and 26 of the African Charter.
61 Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98: Malawi African Association & Others
v Mauritania (2000) (ACHPR, para 102 (affirming that 'within the law' relate to FOE limitations permitted
unde r international norms); Law Office of G/1azi Suleiman v Sudan (I) (2003) AHRLR 134 (ACHPR 2003)
paras 37, 42-53, 56-67 (acknowledging Sudan's legitimate security concerns, but declaring Sudan's
National Security Act 1994 claim to primacy and eroding of the core of internationally-protected rights as
inconsistent with the C harter).
62Media Rights Agenda (n 53 above) para 15.
°
37
165.
In Communication 140/94-141/94-145/95: Constitutional Rights Project, Civil
Liberties Organisation and Medin Rights Agenda v. Nigeria (Constitutional Rights
Project case), the Commission stated as follows:
"According to Article 9.2 of the Charter, dissemination of opinions may be
restricted by lnw. This does not however mean thnt national law cnn set aside
the right to express and disseminate one's opinions guaranteed at the
international level; this would make the protection of the right to express one's
opinion ineffective. To permit national law to take precedence over international
law would defeat the purpose ofcodifi;ing certain rights in international law and
indeed, the whole essence of treaty making". 63
166.
The African Court has adopted the same position including in the Konate Case64 ,
where it stated that the expression "within the law" not only refers to the
provision of such limitations in domestic law but also that the limitations must be
interpreted within the scope of international norms which set out the parameters
or provide grounds upon which freedom of expression can be limited.65
167.
In light of all the above and with regard to the requirements of clarity and general
application, the Commission reiterates its finding as set out in paragraph 146
above, that the crimes of threat to national security and defamation are indeed
provided by law as they are part of the Rwandan Penal Code, and are also drafted
with sufficient clarity to enable an individual adapt his/her conduct to the Rules
and to enable those in charge of applying them determine what forms of
expression are legitimately restricted.
168.
Notwithstanding the above, the Commission's assessment of whether the crimes
of threat to national security and defamation are provided for within the law will
not be limited to the wordings of Articles 166 and 391 of the Rwandan Penal Code,
but would, in line with the above-stated criteria include an analysis of whether
these laws as interpreted, within the context of international norms, stand the test
of legitimacy, necessity and proportionality to the outcome sought, which analysis
is set out immediately below.
(ii)
The restriction
legitimacy)
a le itimate interest or
63 As above, para 40
64
65
Konate v Burkina Faso (f19 above).
Para 129, relying on Communication 54/ 91 etc. (n62 above), para 102.
38
le o
169.
To be legitimate, a restriction must apply in clearly-established circumstances and
uphold a public interest. In this regard, the Commission has set out in its
jurisprudence that the reasons for possible limitations must be brzsed on legitimate
public interests and the disadvantages of the limitation must be strictly proportionate to
and absolutely necessary for the benefits to be gained" 66, and as well that a limitation
may never have rzs a consequence thrzt the right itself becomes illusory"67 .
II
II
170.
Furthermore, the condition of "legitimate interest" has been interpreted as sh·ictly
limited to the conditions prescribed under Article 27 (2) of the African Charter, in
that the only legitimate reasons for limitations of the rights and freedoms of the African
Charter are found in article 2 7(2), that is, that the rights of the Charter shall be exercised
with due regard to the rights of others, collective security, morality and common
interest." 68 This position is in line with relevant international law principles on this
subject69 and has also been adopted by the African Court. 70
II
171.
The Commission observes that in the instant case, the Respondent State has
explained that the resh·iction on the Complainants 'right to freedom of expression
as provided in Articles 166 and 391 of the Rwandan Penal Code was meant to serve
the interest of national security and the protection of the reputation of others.
Indeed, the State underscored the specific context of Rwanda, which has been a
victim of violence throughout its history - the violence which culminated in the
genocide in 1994.
172.
The Commission is of the view that the grounds given for the restrictions are
legitimate objectives within the purview of Article 27(2) of the Charter, and
accordingly that the restrictions thus imposed on the right to freedom of
expression in Articles 166 and 391 of the Rwandan Penal Code are consistent with
international standards in this area. 71
173.
Having reached the conclusion that the restrictions on freedom of expression
under Articles 166 and 391 of the Rwandan Penal Code are provided within the
....--=--::--....
A,9~' 0~ ''"V4\1 . ~........
~ Media mghts Agenda, (n53 above), parn 69.
/~/' /
,,CW◄•, ,"•0)\
1(5 . , ~ ' \ ~
Legal Resources Fo1111datio11 (n54 above) para 72.
I.
~.~§ l!t ~
See The Prin~e Case (n60 above), para 43; Communication 15/96: Social and Econo1111~ )g/Ji ~m!Jn<:>,ffentf,e
& Another v Nigeria, (2001) ACHPR, para 165.
<'01.,;~,,c.
,,~to"\'<-~·//
:::-,, -.. .,:;:.i,9-69
See e.g. Art. 10(2) of the European Convention on Human Rights and Fundamental Freedom§; Art. 13 of
the American Convention on Human Rights, w hich stipulate similar limitations.
70 See the Konate Case (n19 above), paras 132-134.
71
See also lngabire Victoire Umuhoza v. Republic of Rwanda, App. No. 003/2014 AfCHPR, para 141,
where the African Court held that the crimes for which the Applicant was convicted "were serious in nature
with potential grave repercussions on State security and public order" and consequently, that "the
restrictions made [by the Respondent State] on the Applicant's freedom of expression served the legitimate
interests of protecting national security and public order."
t(
7
6
68
1
39
law and also respond to legitimate purposes, the Commission must now examine
if these restrictions are necessary to achieve the referenced legitimate purposes. In
that regard, while appreciating that the national authorities understand the local
realities and context better, the Commission must not simply defer to their
reasoning but must ensure that the same is in conformity with the international
standards enshrined in the Charter.
174.
This brings to fore the third aspect of the test.
(iii).
The restriction must be necessan1 to achieve the legitimate purpose (the principle
of necessity)
175.
'Necessity' relates to the concern for proportionality between the extent of the
limitation measured against the nature of right involved and aims to prevent
unreasonably excessive limitations. 72 In determining the element of necessity, the
Commission had stated in the Constitutionrzl Rights Project's case that " (t]he
justification of limitations must be strictly proportionate with and absolutely
necessary for the advantages which follow. Most important, a limitation may not
erode a right such that the right itself becomes illusory." 73 Even where a limitation
is found to be necessary, a State Party has a duty take the least inh·usive or erosive
measure available,74 and any limitation must be rationally related to its purpose. 75
176.
The Commission further recalls its decision in the case of Zimbabwe Lmvyers for
Human Rights & Associrzted Newspapers of Z imbrzbwe v. Zimbabwe76, wherein it held
that "in law, the principle of proportionality or proportional justice is used to
describe the idea that the pw'lishment for a particular offence should be
proportionate to the gravity of the offense itself. The principle of proportionality
seeks to determine whether, by State action, there has been a balance between
protecting the rights and freedom of the individual and the interest of the society
as a whole. Thus, in order to d etermine that an action is proportional, a number of
questions should be asked, such as: Are there sufficient reasons to justify the
action? Is there a less restrictive solutio .,,
.
action destroy the essence of
. h ts guaranteed by th e Charter.?" .:;;,ii /, CR~ 4fo4r <o\
the ng
1 {(~t
\'
0
ri
\\
~ ~ ~}~
72
'-'
~
<n
Communication 297/05: Sca11le11 & Holderness v. Zi}(lb:m~.ia/ig(~.<tHPR, paras 94-98
73
(n53 above), para 42.
~iti;;;~~~;{:
74
See Comm. 279/03-296/05 (n27 above); Communication .2'42"/1001: Interights, Institute for Human Rights
and Development in Africa, and Association Maurita11ie11ne Des Droits De L'lwmme v. Mauritania (2004) ACHPR.
75 Comm. 242 (as above), paras 64-75.
76
Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of
Zimbabwe/ Zimbabwe.
77 As above, para 176.
40
177.
As well, in its Declaration on Freedom of Expression, the Commission has also laid
down the rule that "sanctions should never be so severe as to interfere with the
exercise of the right to freedom of expression." 78
178.
The Commission also notes that the European Court of Human Rights (European
Court), in The Observer and The Guardian v. United Kingdom (Observer and Guardian
case), described necessity as "not synonymous with 'indispensable' or as flexible
as 'reasonable' or 'desirable,' but [as] ... [implying] the existence of a pressing social
need" .79
179.
Also, in elucidating on the principles that are essential to a democratic society
European Court, in Handyside v. the United Kingdom (Handyside case) identified
pluralism, tolerance and broadmindedness as characterizing a democratic
society, 80 a position which was similarly adopted by the Commission in
Communication 313/05: Kenneth Good v. Republic of Botswana, wherein the
Commission referred to the same principles to support its stance that there needed
to be a higher degree of tolerance for political speech. 81
180.
Any limitation on freedom of expression must be therefore be adjudged in light of
its importance to democracy and the impact such a limitation would have on the
principles considered as fundamental to a democratic society. This sets a high
threshold, ensuring that States exercise limitations only under exceptional
circumstances.
(a) On Threat to National Securit1182
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
.f harm and a close causal link between the
security where there is a resk •
8
expression and the harm. : •.•~"' ';~~;;~;:<~~
'°~~\
fl-
i\
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,,
78 (n52above), Principle 21 (1) (c).
I
/
I
'-.:?:_se;P~~1.-'" ,,
79 The Obseruer and The Guardian v. United Kingdom
(1991) ECHR (Application No. 13585/88) para 71.
80 Handyside v. the United Kingdom (1976) ECHR (Application No. 5493/72) para 49.
81 (n55 above).
82 See generally, AO Salau 'The right of access to information and national security in the African regional
human rights system' (n57 above).
83 Principle 22 (5) of its Declaration on Freedom of Expression (n52 above); Principle 6 of its Johannesburg
Principles on National Security, Freedom of Expression and Access to Information.
41
182.
In that regard, the Commission has, in its jurisprudence, illustrated that the failure
of a State Party to justify in explicit terms the relationship between the imposition
of limitations and public order or national security interests, would amount to a
violation of Article 9, and that State 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 h eld 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 n o choice but to concur with the Complainants".84
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 Salm v. Republic of Korea
(1995) HRC and Communication 926/2000 - Shin v . Republic of Korea (2004),
primarily for its failure to d emonstrate the specific nature of the threat presented
by the expression in question and the threat posed. The HRCs 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
d emonstra te 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" .ss
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, 8 6 and the European Court has taken the view that " it is n~~;.r, _ , ,~\•••o,
,t:: ,..:'-J.1 ':ic.cRETJt,:,4 ,. t04
/;f
~
~.'fJI
t
/i-/~ ~ ff1..1} )' l!1 %~
(n55 above), para 200.
~
General Comment 34 "Article 19: Freedoms of opinion and expression" HRC, (1998) para\ 3~ " AU-UA fi-.f
86
Posenato, Naiara. (2016). TH E PROTECTION OF THE RIGHT TO FREEDOM OF EX~~~t , ..1••~ 11'{.-;,?f/
PANORAMA OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS CASE LAW/ A PRO1ffi_<$ff .1/
DO DIREITO A LIBERDADE DE EXPRESSAO: UM PANORAMA DA JURISPRUDENCIA DA CORTE
INTERAMERICANA DE DIREITOS HUMANOS. Espa<;o Juridico: Journal of Law [EJJL] - Qualis A2. 16.
51 . 10.18593/ejjl.v16i3.9770, p.60, available at
https: / / www.researchgate.net/ publication/ 295244849_THE_PROTECTION_OF_THE_RIGHT_TO_FRE
EDOM_OF_ EXPRESSION_A_PANORAMA_OF_THE_INTER84
85
42
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. 87"
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"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.
186.
Specifically, the Commission observes that the European Court has through
interpretation prohibited incitement to v iolence 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 Convention89 .
Notably, in the case of Gii.ndiiz v. Turkey 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.
187.
Also, the European Court has in its jurisprudence recognized a Respondent State's
• •
the legality of
historical experience as a "weighty factor" in det
•✓,;c,,r,C> \''~1•1,00
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DE_DE_EXPR~SAO_UM_PANORAMA_DA_JURISPRUDENCIA_ ~~_9.,,1-:.-,:."~t:~~~ /
87
Posenato, Na1ara. (as above), p.65.
·--.::~0_"";•,.,.
88 (n27 above), para 174. See also Provision 30 of the Commission's Model Law on Access to Information in
Africa.
89 See e.g. Roj TV A/5 v. Den11111rk judgement of 17 April 2018; Siirek (no. 1) v. Turkey, judgement of 8 July
1999; G11r11udy v. Fmnce Judgement of 24 June 2003; M'B11/11 M'B11/a v. France, judgement of 20 October 2015
90 Judgement of 13 November 2003.
43
limitations on free speech 91 - a position which has equally been taken by the
African Court in the case of Ingabire v. Rwanda. 92
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.
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' 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" 94 .
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 Ii • ations on freedom of expression imposed by Article 166
of the Penal Cod ,»"sr•~N•c~,;~~
\.icf~
i;t:CRtrAr,,,"1, "'°'to~\
'/ ~ li~\
91
Case of Perinrek V. Switz ~:
J4.
r;,~
~~ • ,~ pplication No. 27510/08, para 242.
"<;;~"'-~ / /
93
Handyside v. the United King tt~~D,~b6ve).
94 Erbakan v . Turkey judgment of 6 July 2006, at para 56.
92 ( n 71 above) , para 158.
,
•!;<,
<7,.0 ,,1,,.
0,
'ftC.•1~.: 0~ 7
.,, /
/
44
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 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 n0 29 of 05-19 July 2010). 96
"There are four ways in 2010, it is your choice: between imprisonment, to flee the
Country, die and survive". 97 (Umurabyo n0 23 of 17-31 May 2010).
"Gacaca courts were established as a tool for revenge, one's neighbor has become his or her
enemy, agony between a parent and a child, a person who was not able to run and flee the
CountnJ had to keep silent, it was not pleasing to anyone but there was no choice" .
(Umurabyo n0 21 of 01-15 May 2010).98
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.
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 endors~
regard
~
~
I
'
'
=
'
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f
This _reflects the content of paragraphs 13 and 14 of Annex 4B to the Compla~ .aant '. p~ lio-hn ore the
Comm1ss1on.
'\, '!?.:,
UA
~,,,
97 The translation from the Complainants read "There are four choices for the year 20~ ~W,1~.@,Jt~fxile, death
and survival. See para 10, Umurabyo no. 21 in Annex 2B to the Complainants' )iefilicm before the
Commission.
98 This reflects the content of para 32 of the Supreme Court Judgement and See para 8, Umurabyo no. 21 in
Annex 2B to the Complainants' pe tition before the Commission. The referenced article was however not
provided to the Commission.
95 Paras 31 and 34 of the Respondent State' s submission on Oral Hearing.
96
45
194.
195.
or even belittling of the 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.
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. 99
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 wns authored by the First Complainant nnd places Rwanda's
contemporary problems into n historicnl 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 Gacncn courts were used as n 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."
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 a bout an issue of general interest. This in turn
may determine whether the impugned speech falls witl1in 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_100
46
example, in the case of Jersild v. Denmark101 , the Court held that: "[a]n important
factor in the 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 ideas102; and in Siirek v. Turkey, 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".
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 interest 104 and the Inter-American Court has expressed the view that
political speech or speech involving matters of public interest deserves special
protection. 105
•
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.106
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
aker:
speech, the historical background to the matter may also be relevan • ••
/2
('_NJ~l1..-Jd.\u1,o
/;'~•l.,':· s-cCRl:iAf:,,.r clo.c
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f ti, ti)
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102 Para. 31. Cited in Toby Mendel, Study on International Standards Relating to Jnci • mt't t t
'enoc· f!cS I
Racial Hatred, a study for the UN Special Advisor on the prevention of Genocide, A il\g_~ ~!;ffe ,t
http:/ /www.concernedhistorians.org/ content_files/ file/TO/239. pdf. See also, The ~ ulf,tso11dv5(Frnr1ce
U.N. Doc. CCPR/C/58/D/550/1993(1996), paras. 9.6-9.7.
'-~~_er~•~'
103 (No. 4) Application no. 24762/94, Judgement of 8 July 1999, paras 54(iii) & 58.
104 Ergin v Turkey (No 6), judgment of 4 May 2006, Application No 47533/99 at para 34. Otto-PremingerInstitut v Austria judgment of 20 September 1994, Application No 13470/87, para 49.
10s Posenato, Naiara. (n86 above), p.57.
106 Analogy to analysis of Media Cases at the !CTR in Gregory S. Gordon, "A War of Media, Words,
Newspapers, and Radio Stations": The !CTR Medin Trial Verdict and a New Chapter in the International Law of
Hate Speech, 45 VA. J. INTL L. 139, 150 (2004-2005). Cited in Mendel, Op cit., 2006
.
.
10122 August 1994, Application No. 15890/89.
47
the status or position of the speaker, or the sway that the 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 tlze speech net: the potential reach of the speech (vi) Likelihood/Imminence:
the risk of harm but not the actual occurrence of harm;107 all of which may also
inform the assessment of whether an expression constitutes a threat to national
security or public order.
201.
TI1e foregoing analysis of relevant judicial approaches and standards reveal 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. 10s
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.
202.
Consequent to the above, the Commission will now apply a holistic approach to
construing the articles concerned. Having reviewed the article in Umurabyo n0 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, it 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:
"Kngnme is facing tough times. There nre nznny achievements under his leadership
for which Rwnndnns will remember him ns long ns he is still the President. These
include water nnd electricihJ, IT development, communication tai[O,lja:,;_=.::u'J..
0
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107
Report of the United Nations High Commissioner for Human Rights on the expert woijho s/{f.:i
~
pro~ibition _of inciteme~t ~o national, racial or re_ligious hatred, an~exed to ~e Annual repo • ·.o ~" e ~ t e'ci ,, '
Nations High Comm1ss10ner for Human Rights (2013), Umted Nations General A , f;liifitk u c;,: /'
A/HRC/22/17/ Add.4, available at
·-~~:;~::;~E/'"·:
https://www.ohchr.org/Documents/Issues/Opinion/SeminarRabat/Rabat_draft_outcome.pdf"->"0 "
108
See Adama Dieng, United Nations Special Adviser on genocide prevention, "Words kill as bullets",
available at https:/ / www .facebook.com/ unitednations/ posts/ we-have-to-bear-in-mind-that-words-killwords-ki 11-as-bullets-u nited-nations-s pe/ 10157572276280820/.
48
-
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 ... "
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.
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" 109, which should be read together with other contents
of the article. TI1e 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.
205.
Furthermore, it is the Commission's view that the above position would also hold
for the referenced quotes from (Umumbyo n0 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 cnn 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.
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:
populrztion. What she has written are just rumours that had the purpose of inciting
people to rise up against those in power."
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.
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.
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 ~
ocratic society that has the particular history and
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Regarding the neci ~~~~
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o. r,, •• , .. • fS ~ sttiction on the First Complainant's expression on
grounds of protectirig;tli.ti~ii~putation of others, the Commission recalls Principle
21 of its Declaration on Freedom of Expression which provides as follow:
·~ l:
210.
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1
"States should ensure that their laws relating to defamation conform to the
following standards:
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. "
so
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." no 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." 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." 112
212.
Relying on the above reasoning and more recently in the Konate Case, 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" 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 tl1ose relating to offenses against tl1e honour or reputation of an
ordinary individual." 115
213.
The jurisprudence of the Inter-American Court and the European Court is in the
same direction, 116 thus establishing that international human rights law accords
greater protection to speech criticizing public officials and other public figures,
~
....
./~~
/ / _,,~
no Communications 105/93 etc. (n55 above), para 74.
111
As above.
l/;/,,·'
113 (n19 above). See also the Ingabire Case (n71 above), para 161.
114 As above, para 155.
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112 Kenneth Good v. Botswana, (n 55 above), para 200.
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115 As above, para 156.
116 See e.g. IACtHR, Case of Herrera- Ulloa v
Costa Ricn, Ser. C No. 107 (2004), par. 129; ECtHR, Lingens v .
Austria, App. 9815/82 (1986), par. 42. See also in general, Prof. Dr. Dirk Voorhoof, Freedom of Expression
and Information and the Case Law of the European Court of Human Rights and the Court of Justice of the
European Union: Overview and Highlights, Conference Paper, Justice for Free Expression in 2014, 10 May
2015, available at https:// globalfreedomofexpression.col umbia.ed u/ wp-content/ uploads/ 2015 /
05/EUROPE2014.VOORHOOF.11 MA Y15.Final_.pdf
51
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. 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, State 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.
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.
215.
In the Konate 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" .ns It further
II
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." 119
216.
In a separate opinion in the same case, it was further noted that indeed, 11 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 State Parties to the African
Charter, these two issues are separate and distinct from defamation. In this regard,
-·~
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;f':;~1>~' s1:CR0 '"1:,~;u ~;~<~
117
V,;•0 :►
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See e.g. Lingens V. Austria, ECHR Appl No. 9815/82, at 26; Axel Springer AG V. Ger _ y .r~ii2)l
Rf
Appl. No. 48311/ 10 and Brosa v. Germany, ECHR, Appl. No. 5709/09.
\\ • 'i \ \:· , i'! ;,
118 As above, para 165.
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52
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" .
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. 120
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."
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_ He: ~/.~ ~~~~ s forming the basis of the conviction
for the offence of defamation. 2p~"-., ~~~,'t" ,,,, 10~
//,,,,
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Resolution 169: Resolution on Re peal~g (,: ·mi111tat' Defamation Laws in Africa, ACHPR/ Res.169
(XVIII)l0. See also Inte r-American Commissi~ jt1fJ"u:rri:an Rights, Inter-American declaration of principles on
,;I
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120
freedom of expression (19 October 2000), availa6fe-...-at:Ji:ttp: / / www.cidh.oas.org/ declaration.htm.
121 Paras 69 - 75, Suprem e Court Decision. According to the records, the First Complainant had provided
contradictory indications that the Article was based on a radio broadcast, o n an interview and on a
survey that she had conducted.
53
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.
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. 122
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 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.
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.
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 co1:,.~
ff:.
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(n52 above).
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54
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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 d oes not deal with a case of hate speech,
or propaganda for war or incitement to hatred, which in any event transcend the
scope of d efamation and for which a severe punishment such as imprisonment
would have been necessary and proportionate, as opposed to the criticism of a
public official.
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 d ebate on matters of general public interest in
a democratic society. 123 The Commission considers as a consequence that
sentencing the First Complainant to a prison term was in the circumstances very
severe and disproportionate.
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 p enalty 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.
227.
Finally, in relation to its foregoing conclusion, the Commission is aware that the
relevant penal code of Rwanda has since been amended to exclude a general
provision on criminal d efamation as was provided in Article 391 of Law No. 21/77
which is being contested in this Communication.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 125 ; and (ii) the revised law still retains custodial sentences for
"insults or d efamation against the President of the Republic" 126 which is relevant,
for purposes of the Commission formulating its recommendations as regards its
conclusion on criminal d efa~
, The new law also contains other provisions
127
that criminalize insults. &·
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123 See ECHR case of Blndet Trol/lse n,1 _ 'stf t { n~~#fo
~8']j,'f\ ppl. no. 21980/ 03.
124 See Law N°68/ 2018 of 30/ 08/ 201~'i=eti?httili:ili'&"Wfe t es and Penalties in General, Rwandan Official
1
~- <,;~;'.i:~-,,~.,.~•;~,
Gazette No. Special of 27/ 09/ 2018.
125
See Communications 27 / 89, 46/ 91 and~ J~.E.' Organisation Mondiale Contre la Torture etal v. Rwanda
(1996) f\CHPR; and Communicatio ns 222/ 98 and 229/ 99 - Law Office of Ghazi Suleiman v, Sudan, (2003)
ACHPR.
126 f\rticle 236 (n124 above).
127 See f\rticles 161 and 218 (n124 above).
0
55
Findings
228.
Based on the above, the African Commission on Human and Peoples':
1.
Finds that the Republic of Rwanda has violated Article 9(2) of the
African Charter on Human and Peoples' Rights;
u.
Finds no violation of Articles 7(1) (b) and Article 7(2) of the African
Charter on Human and Peoples Rights; and
iii. Finds that Rwanda's current laws which criminalize and stipulate
custodial sentences for defamation and insults are in violation of the
right to freedom of expression as protected by the African Charter;
iv. Requests the Republic of Rwanda to:
a) Amend its laws on defamation and insult to bring them in compliance
with Article 9 of the African Charter on Human and Peoples Rights by
repealing custodial sentences for acts of defamation and insults, and
ensuring that sanctions against defamation are necessary and
proportionate to the legitimate aim served as guided by principles of the
African Charter on Human and Peoples' Rights, including reflecting the
higher standard imposed in relation to public officials;
b) Pay adequate monetary compensation to the Complainants in
accordance with the applicable domestic law for the violation of their
rights as found by the Commission in paragraphs 209, 226 and 228 (i)
and (ii) above; and
c) Inform the Commission of all measures taken to implement this decision
within 180 d~
ne with Rule 112 (2) of the Commission's Rules of
Procedu
l e ✓-.,,,'= .c~• ,,,,~~
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Done in Banjul, Republic of The Gambia, at the 65th Ordinary Session of the
African Commission on Human and Peoples' Rights held from 21 October 10 November 2019
56