RWANDA’S LAW ON “REPRESSING THE CRIME OF GENOCIDE, CRIMES AGAINST HUMANITY AND WAR CRIMES” IS LEGALLY FLAWED

Rwandan government is on its defensive over Amnesty International campaign for freedom of expression in Rwanda. The campaign, under the theme “Unsafe to Speak out: Restrictions on Freedom of Expression in Rwanda”, is meticulous on the government’s numerous vague laws that pose unnecessary restrictions on people’s freedom of expression. One such law is the law on “repressing the crime of genocide, crimes against humanity and war crimes”, commonly referred to as the “genocide ideology” law. The major criticism is that the “genocide ideology” law is an instrument for government clampdown on, and criminalizing, President Paul Kagame’s critics. In a piece published by Rwanda’s newspaper, the New Times, the Prosecutor General of Rwanda endeavored, in vain, to justify the rationale and legality of the infamous “genocide ideology” law. A big number of leading opposition leaders and independent journalists have been prosecuted and convicted under this law. Thousands of high profile Rwandans fled the country for fear of being prosecuted under the vindictive “genocide ideology” law. Professor Peter Erlinder, a renowned American criminal lawyer and former lead defense counsel at the International criminal Tribunal for Rwanda, is awaiting trial in Rwanda under the same law.

Rwanda’s Prosecutor General, Mr. Martin Ngoga, advanced two arguments in support of the government premise that Rwanda needs the “genocide ideology” law. First, the Prosecutor drew a litany of regional groupings and countries which have ‘similar’ laws. He argued that because countries like France, Belgium, Australia, and Israel have ‘similar’ laws, Rwanda ‘needs’ the “genocide ideology” law. Second, Mr. Martin Ngoga argued that the crimes the “genocide law” seeks to punish are international in nature. Therefore, no issue should arise over Rwanda’s “genocide ideology” law. The Prosecutor General concluded that “[…] apart from the usual contempt with which the west holds Africans and their processes, where is the evil in the Rwandan Law?” The Prosecutor General’s arguments are fallacious and irrelevant to the discourse. Whether similar laws exist elsewhere is not in issue. The issue is whether or not the law on “genocide ideology” in Rwanda meets the international standards any law that imposes limits on people’s fundament rights must conform to. The concern is the quality of the law that punishes genocide or any other crime. In issue is not whether or not laws that punish genocide exist in any country. The principle is that people’s fundamental freedoms and rights must be protected. Where a state has compelling interest in limiting people’s fundamental freedoms and rights, the law thereto must meet some prescribed minimum international standards. Unlike the Prosecutor General’s unsubstantiated argument, the problem is not about the ‘west’ vis-à-vis Africans. Amnesty International, like other human rights bodies, is calling on the government of Rwanda to protect and preserve the citizens’ inalienable rights.

The law No 33 bis/2003 of September 6, 2003 “Repressing the crime of genocide, crimes against humanity and war crimes”, article4, provides that “ Shall be sentenced to an imprisonment of ten (10) to twenty (20) years, any person who will have publicly shown, by his or her words, writings, images, or by any other means, that he or she has negated the genocide committed, rudely minimised it or attempted to justify or approve its grounds, or any person who will have hidden or destroyed its evidence. Where the crimes mentioned in the preceding paragraph are committed by an association or a political party, its dissolution shall be pronounced”.  

Rwanda’s “genocide ideology” law is laden with vague, ambiguous and over generalized terms. It is ‘a catchall’ law. The law confuses genuine incidents of hate speech and legitimate freedom of thought and expression. Article 4 of the “genocide ideology” law curtails pluralism, tolerance and openness in debating issues of national concern. For examples, which conduct, under article 4 of the “genocide ideology” law, consists or does not consist of ‘negating genocide’? What action or speech consists of ‘rudely minimizing genocide’? The law does not define which conduct is within the scope of “negating genocide” and “minimizing genocide”. There is no certainty over which conduct is prohibited or not prohibited. Law abiding Rwandans are not put on notice of the forbidden conduct or speech. However, it is an established tenet that laws restricting people’s freedom of speech and right to opinion must be accessible, unambiguous, drawn narrowly and with precision. Article 4 of law No. 33 bis/2003 fails on these standards.

True, freedom of speech and the right to opinion under the Constitution of Rwanda and International human rights law instruments are not absolute. Article 34 of Rwandan constitution subjects the enjoyment of the right of freedom of press and information to: “respect of public order and good morals, the right of every citizen to honour, good reputation and the privacy and family life and the protection of the youth and minors”. Article 9 (2) of the African Charter on human and people rights stipulates that “every individual shall have the right to express and disseminate his opinion within the Law”. Article 19 of the 1966 International Covenant on Civil and Political Rights, also allows for reasonable limitations on freedom of speech and the right to opinion. However, any such limit must confirm to specific international human rights law principles.

Any restriction to people’s freedom of expression and right of opinion must be subjected to the twin principles of necessity and proportionality. The principle of necessity requires that restrictions on the people’s right of expression and opinion serve permissible purposes and are necessary to protect those purposes. First, the Rwandan law confuses genuine incidents of hate speech and legitimate freedom of thought and expression. Second, the law does not strike a balance between prohibiting hate speech and supporting freedom of opinion and expression. Consequently, the law paralyzes   any meaningful debate on social and political issues that have any bearing on genocide. Ultimately, the purpose of the “genocide ideology” law is to ban meaningful debate. This is not permissible purpose.

Article 4 of law No. 33 bis/2003, does not indicate any required mental element for “negating and minimizing” genocide. It is unclear whether the law requires that the accused intentionally or knowingly or recklessly “negated” or “minimized” genocide. This law criminalizes all bonafide speech that touches on the controversy over the causes, victims and perpetrators of the 1994 genocide.

Penal statutes that restrict people’s freedom of expression because the subject matter is controversial are inconsistent with the demands of protecting people’s freedom of speech as required by Article 33 of Rwanda’s constitution. Article 33 of Rwandan constitution provides that “Freedom of thought, opinion, conscience, religion, worship and the public manifestation thereof is guaranteed by the State …” No condition or restriction may broadly stifle people’s freedoms and rights. The United States Supreme Court in, Shelton v Tucker, 364 US 479, 488 (1960), is categorical that “ […] Even though the Government’s purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved”.

The ultimately purpose of Rwanda’s “genocide ideology” law ought to be prevention of genocide. The root cause of genocide is failure by groups of people to co-exist with others they consider “bad” people. Genocide is a symptom of failure, by society, to embrace pluralism, diversity and other democratic values. The narrowest way of preventing genocide is to institutionalize co-existence of people with diverse views. Rwandan political culture is characterized by genocide, ethnic based hatred and elimination of political opponents. By curtailing objective political debate in the country, the “genocide ideology” law has the effect to exclude and eliminate government critics and promote violation of people’s human rights. In Organization for a Better Austin v Keefe, 402 US 415, 419 (1971) the United States Supreme court observed that “Criticism of public measures or comment on government action [definitions] however strongly worded is within reasonable limits and is consistent with the fundamental right of freedom of speech and expression. This right is not confined to informed and responsible criticism but includes the freedom to speak foolishly and without moderation. So long as the means are peaceful, the communication need not meet standards of common acceptability”

The spirit and letter of Article 4 of law No. 33 bis/2003 fails to recognize that freedom of opinion and expression cannot be limited to information and ideas that are favorably received or regarded as offensive. Freedom of opinion and expression extend also to information that offend and shock or disturb the state or any sector of the population. The European Court of Human Rights, in Handyside v United Kingdom (EHRR) 737 (1979-80), reasoned that “such are the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society”. Rwanda’s “genocide ideology” law goes deep into the country’s social and political fabrics to ruin the foundations of democracy.

Some provisions of Rwanda’s law on “Repressing the crime of genocide, crimes against humanity and war crimes” are inconsistent with the international human rights legal instruments Rwanda signed and ratified. It is a bad law to the extent it is vague, ambiguous and overbroad. In its current form, the Rwandan law on “genocide ideology” does not serve any legitimate purpose. The law is unnecessary. The “genocide ideology” law fails on the basic principles of a good penal statute to the extent it does not put law abiding people on notice of the forbidden conduct or speech. The “genocide ideology” law does not provide sufficient and specific limits on enforcement discretion of the police; it fails on definiteness and clarity. It appears the statute is meant for other purposes, not justice.

By

Charles KM KAMBANDA, Dip.Phil. BA., LLB., MA. ETPM., MBA., MA. HRTs., LLM., PhD