African Commission rules on criminal defamation and the right to freedom of expression

Agnès Uwimana-Nkusi & Saidati Mukakibibi v Rwanda

Reference: Communication No. 462/12

Tribunal: African Commission on Human and Peoples’ Rights (ACHPR)

Adopted at the 65^th Ordinary Session of the ACHPR

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Factual background

In July 2010, two Rwandan journalists, Agnès Uwimana-Nkusi and Saidati Mukakibibi (the complainants) were arrested for the publication of various articles.  The articles critiqued President Kagame, discussed corruption by officers of the Rwanda Patriotic Front, and noted various human rights violations in the country. In terms of the domestic laws of Rwanda, Uwimana-Nkusi was found guilty of defaming President Kagame, threatening national security, divisionism and genocide denial, and was sentenced to 17 years in prison. Mukakibibi was found guilty of divisionism and threatening national security, and was sentenced to 7 years in prison.

On appeal to the Supreme Court of Rwanda in 2012, the convictions for genocide denial and divisionism were quashed, and their sentences were reduced to 4 and 3 years, respectively.

Submissions regarding freedom of expression

Before the ACHPR, the Complainants made four submissions relating to the right to freedom of expression:

• First, that the Rwandan laws under which they were convicted were incompatible with the right to freedom of expression as provided for by article 9 of the African Charter on Human and Peoples’ Rights (African Charter), and that their application and interpretation breached their right to freedom of expression.
• Second, that the Rwandan Supreme Court applied the wrong threshold for the permissible restriction of freedom of expression.  In this regard, it was acknowledged that freedom of expression may be restricted if it threatens national security, but it was argued that the threshold for doing so should be high and that the publications should amount to a real or actual threat to national security.
• Third, that defamation under Rwandan law was overly broad and did not sufficiently safeguard the right to freedom of expression, making it incompatible with article 9 of the African Charter.  It was submitted that a healthy democracy requires the ability to criticise those in power and that public figures, by virtue of their office, should tolerate a higher degree of public scrutiny.
• Fourth, that the imposition of criminal sanctions was disproportionate and serious interference with freedom of expression, which in turn impaired the important watchdog role played by the media.

Ruling

The ACHPR acknowledged that a state may legitimately restrict the right to freedom of expression, but that doing so must be prescribed by law, serve a legitimate public interest and be strictly necessary to achieve such interest.

According to the ACHPR, the restrictions were indeed prescribed in Rwandan law and their aims – national security and the protection of the reputations of others – were legitimate.  In determining whether the restriction was necessary, the ACHPR reiterated that a state must take the least intrusive measure to achieve the purpose and that the punishment should be proportionate to the offence.  It noted that: “[F]reedom 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.”

The ACHPR noted further that while consideration should be given to the actual likelihood of harm, as dictated by international jurisprudence, it was also important to consider the context of the country and its history of ethnic conflict and mass atrocities.  The ACHPR found that the Rwandan laws which define the offence of threatening national security were compatible with the African Charter and international law.  It found, however, that the state had failed to prove that the articles published by the complainants actually threatened national security.

Concerning the restriction on freedom of expression to protect the reputations of others, the ACHPR was of the view that criminal defamation violated freedom of expression and impeded development in democracies. It noted that such laws “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 practising their profession in good faith, without fear of censorship.”

The ACHPR found that the articles related to an issue of public interest: they reviewed the Kagame administration, which was necessary for a democratic society.  Furthermore, the ACHPR recognised that President Kagame is a public figure and, by virtue of his position, is exposed to more severe criticism, and accordingly a higher degree of tolerance should be afforded to guarantee public debate.

The ACHPR went on to find that the state had failed to show how imprisonment was necessary to protect the reputation of others and was a disproportionate limitation on freedom of expression. It found further that the sentences prescribed for defamation under Rwandan law violated the right to freedom of expression under Article 9 of the African Charter, stating 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”.

Accordingly, the ACHPR requested the Republic of Rwanda to take the following measures:

• Amend its laws on defamation and insult to bring them in compliance with article 9 of the African Charter by repealing custodial sentences or 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, including reflecting the higher standard imposed in relation to public officials.

• Pay adequate monetary compensation to the complainants in accordance with the applicable domestic law for the violation of their rights.
• Inform the ACHPR of all measures taken to implement the ruling within 180 days.

The full ruling can be downloaded here.

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