Opinion; Subjects: RWANDA, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.12-18249
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its sixty-fourth session, 27–31 August 2012
No. 25/2012 (Rwanda)
Communication addressed to the Government on 13 March 2012
Concerning Agnès Uwimana Nkusi and Saïdati Mukakibibi
The Government did not reply to the communication within the 60-day deadline.
The State is a party to the International Covenant on Civil and Political Rights.
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the former Commission on Human Rights, which extended and clarified the Working
Group’s mandate in its resolution 1997/50. The Human Rights Council assumed the mandate
in its decision 2006/102 and extended it for a three-year period in its resolution 15/18 of 30
September 2010. In accordance with its methods of work (A/HRC/16/47, annex, and Corr.1),
the Working Group transmitted the above-mentioned communication to the Government.
2.
The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or her
sentence or despite an amnesty law applicable to the detainee) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the International Covenant on Civil and Political Rights (category II);
(c)
When the total or partial non-observance of the international norms relating to
the right to a fair trial, established in the Universal Declaration of Human Rights and in the
relevant international instruments accepted by the States concerned, is of such gravity as to
give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or remedy
(category IV);
United Nations
A/HRC/WGAD/2012/25
General Assembly
Distr.: General
22 November 2012
Original: English
A/HRC/WGAD/2012/25
2
(e)
When the deprivation of liberty constitutes a violation of international law for
reasons of discrimination based on birth; national, ethnic or social origin; language; religion;
economic condition; political or other opinion; gender; sexual orientation; or disability or
other status, and which aims towards or can result in ignoring the equality of human rights
(category V).
Submissions
Communication from the source
3.
Agnès Uwimana Nkusi, a national of Rwanda, usually residing in Kivugiza,
Nyamirambo sector, Nyarugenge district, Rwanda, is a newspaper journalist and editor. Ms.
Uwimana has practiced journalism for over 10 years, first with Umuseso, then as editor with
Umurabyo, an independent Kinyarwanda-language newspaper published bi-weekly and
having a circulation of approximately 100 readers. Prior to the ongoing period of detention,
Ms. Uwimana had been arrested on 12 January 2007 for publishing in Umurabyo an
anonymous letter allegedly written by a former member of President Paul Kagame’s party,
the Rwandan Patriotic Front (RPF). Ms. Uwimana, who lacked access to a lawyer, pleaded
guilty to charges of divisionism and defamation in exchange for a sentence reduction from
five years to one year. She had been released on 19 January 2008.
4.
Ms. Saïdati Mukakibibi, a national of Rwanda, usually residing in Kabagesera, Runda
sector, Kamonyi district, Rwanda, is a newspaper journalist for Umurabyo.
Arrests and pretrial detention between July 2010 and February 2011
5.
It is reported that on 9 July 2010, Ms. Uwimana was arrested by members of the
Kigali police at Cyangugu, Rwanda at the home of her in-laws. Ms. Uwimana was not
presented with an arrest warrant. She was only informed of the charges against her one week
following her arrest. Ms. Uwimana was allegedly deprived of access to a lawyer for two days.
6.
It is reported that on 10 July 2010, Ms. Mukakibibi was arrested by members of the
Kigali police at the Kigali police station while visiting Ms. Uwimana after having learned
about her arrest the previous day. Ms. Mukakibibi was only informed of the charges against
her one week after her arrest. She did not have access to a lawyer for two days.
7.
According to the information received, both women were placed at Kigali Central
Prison, where they reportedly remain. During the first weeks after their arrests, their
whereabouts were unknown to family members and they were not allowed visits. Only after
one week in detention were they formally informed of the charges. Until then they were
reportedly told that their arrest was based on newspaper articles that had appeared in
Umurabyo, and the Rwanda genocide law was cited.
8.
During their pretrial detention, Mmes. Uwimana and Mukakibibi requested bail twice
and were denied such requests by the Nyarugenge Intermediate Court because of the alleged
seriousness of the charges against them. During this period, the pretrial detention of Mmes.
Uwimana and Mukakibibi was based on articles 93 and 94 of the Penal Code, which allow
pretrial detention of suspects for whom “there are concrete grounds” for prosecution. When a
person is charged with crimes punishable with at least two years of imprisonment, there are
no additional requirements to justify pretrial detention.
The charges and sentencing of Ms. Uwimana
9.
On 4 February 2011, the High Court convicted and sentenced Ms. Uwimana to a total
of 17 years of imprisonment and a fine of 250,000 Rwanda francs (approximately US$ 420)
for four offences: (a) endangering national security under article 166 of the Penal Code (five
years’ imprisonment); (b) denying the genocide under article 4 of the genocide law (10 years’
A/HRC/WGAD/2012/25
3
imprisonment); (c) defaming the President under article 391 of the Penal Code (one year’s
imprisonment), and (d) creating divisions under article 1 of the divisionism law (one year’s
imprisonment).1
10.
Offence of endangering national security. Article 166 of the Penal Code punishes by a
prison term of 2 to 10 years “any person who, by holding any kind of speech in a meeting or
in a public place, or by any kind of writing, print, pictures or any symbols, which are posted,
distributed, sold, put for sale, or exposed to the public, or by knowingly spreading rumours,
incites or attempts to incite the population against the authorities, or incites or attempts to
incite citizens against each other, or alarms the population so as to seek to create civil unrest
in the Republic”. This charge against Ms. Uwimana was based on a series of articles that
appeared in issues No. 15 and No. 21 of Umurabyo.
11.
The first story, appearing in issue No. 15, was entitled “Rwandans have spent 15 years
in a coma”, and criticized the President Kagame regime for favouring the Abega clan, to
which he belongs. According to the information received, the Prosecution claimed that the
article incited the population to resist the Government’s programmes and incite hate towards
the authorities. The same issue of Umurabyo contained an article entitled “The war between
Kagame’s regime and the population”. This article alleged that the Rwandan Army returned
from the war in the Congo having enriched themselves with gold; and that rich people,
including those in the military, had occupied an entire region and taken over farms by force,
preventing people from cultivating and thereby contributing to starvation. The article further
criticized a government agricultural programme that prohibited farmers from planting the
crops of their choice, forcing them to plant crops to feed the livestock of the wealthy, and
alleged that the authorities had uprooted a farmer’s banana plantation. The Prosecution
characterized this article as factually unfounded, and as inciting the population against the
authorities.2
12.
In its judgement, the High Court made a series of findings generally confirming that
Ms. Uwimana had written the above statements. The Court further found that none of the
facts alleged in the articles could be proven or supported, and that through the articles,
Ms. Uwimana had incited the population against the authorities. The Court cited only the
articles as proof of Ms. Uwimana’s intent to incite the population against the authorities.
13.
In issue No. 21 of Umurabyo, an article entitled “Kagame in difficult times” criticized
the gacaca system of traditional community courts, which try individuals suspected of
participating in the 1994 genocide.3 In this article, Ms. Uwimana also suggested that
Rwandans had only four choices in 2010 (to be imprisoned, to go into exile, to die or to
survive). The article also alleged that jobs were being given to some groups, and not others.4
Finally, the article suggested that military chiefs were suspected of being responsible for the
growing insecurity in the country by supplying the hand grenades that were used in attacks in
Kigali.5
14.
The Prosecution argued that the article attempted to show that the Government
oppresses and imprisons citizens, caused citizens to lose confidence in the authorities, and
incited the population to flee the country and turn against the Government.6
1 The source refers to the High Court judgement against Ms. Uwimana and Ms. Mukakibibi, RP
0082/10/HC/KIG, 4 February 2011, para. 85.3 (hereinafter the High Court judgement).
2 Ibid., paras. 14-16.
3 Ibid., para. 27.
4 Ibid, para. 34.
5 Ibid., paras. 38-39.
6 Ibid., paras. 28 and 34.
A/HRC/WGAD/2012/25
4
15.
The High Court ruled that Ms. Uwimana breached article 166 of the Penal Code,
emphasizing the fact that the assertions made in the articles were unfounded rumours and
these were spread to call the population to act against the Government, thus threatening
national security. The Court rejected Ms. Uwimana’s defence that her articles caused no
actual insecurity in the country, stating that achieving actual insecurity is not a requirement
for finding a violation of article 166 of the Penal Code.
16.
Offence of denying the genocide. Article 4 of the genocide law prohibits anyone from
“publicly show[ing], by his or her words, writings, images, or by any other means, that he or
she has negated the genocide committed, rudely minimized it or attempted to justify or
approve its grounds or any person who will have hidden or destroyed its evidence”. The
charge was based on the following statement made by Ms. Uwimana in issue No. 21 of
Umurabyo: “Rwandans lived for a long time with this hatred until they ended up killing each
other after [former President] Kinani [Habyarimana]’s death.”7
17.
Ms. Uwimana argued that the article did not deny the genocide. On its face, the cited
passage appears to acknowledge the genocide, rather than deny it. The High Court held that
the single sentence in issue No. 21 amounted to genocide denial, thereby contravening article
4 of the genocide law.8
18.
Offence of defaming the President. Article 391 of the Penal Code prohibits anyone
from “maliciously and publicly imputing to a person a specific fact which is likely to harm the
honour or reputation of such person, or subject him to public contempt” under the penalty of
imprisonment up to a year and a fine up to 10,000 RF (approximately US$ 16).9 The
statements must “manifestly affect” the targeted individual.10 This charge brought against
Ms. Uwimana was based on two articles published in Umurabyo.
19.
The first article on which the defamation charge was based was published in issue
No. 23 of Umurabyo. In this article, Ms. Uwimana claimed that President Kagame
encouraged and covered up the misconduct of a government official (Colonel Dodo), and that
another government official (James Kabarebe) helped a military chief (General Kayumba)
critical of the government flee the country.11 Ms. Uwimana countered that the charges of
corruption and a cover-up were widely and publicly discussed.12
20.
The High Court ruled that Ms. Uwimana’s article amounted to defamation of the
President and that proof of the malicious intent resulted from the offensive nature of the terms
used and because the imputed facts affected the President’s reputation. The Court further
noted that Ms. Uwimana knew that the article would reach many citizens, as Umurabyo was a
bi-weekly publication “distributed everywhere”.13
21.
The second article appeared in issue No. 29 of Umurabyo. In that article,
Ms. Uwimana included a photograph of President Kagame with a Nazi swastika symbol in
the background. The Prosecution argued that Ms. Uwimana had superimposed the symbol in
the background and that this was a defamatory image. Ms. Uwimana contended in her
defence that the photograph had not been faked, but rather was taken when the President
visited a German Holocaust memorial site and, in fact, that same picture had been published
7 Ibid., para. 42.
8 Ibid., paras. 44–46.
9 Ibid., para. 56.
10 Ibid.
11 Ibid., paras. 51 and 57.
12 Ibid., paras. 53-54.
13 Ibid., paras. 55-56.
A/HRC/WGAD/2012/25
5
on the President’s official Internet website.14 The High Court agreed that there was no
evidence that Ms. Uwimana had doctored the picture and acquitted her of this defamation
charge.15
22.
Offence of divisionism. Article 1 of the divisionism law of 2001 prohibits “the use of
any speech, written statement or action that divides people, that is likely to spark conflicts
among people, or that causes an uprising which might degenerate into strife among people
based on discrimination”. Discrimination in the law is defined as “any speech, writing, or
actions based on ethnicity, region or country of origin, the colour of the skin, physical
features, sex, language, religion or ideas aimed at depriving a person or group of persons of
their rights as provided by Rwandan law and by International Conventions to which Rwanda
is party”.
23.
The charge of divisionism was based on an article that appeared in issue No. 21 of
Umurabyo, which claimed that jobs were reserved for specific groups of people.16 The charge
against Ms. Uwimana was also based on an article that appeared in issue No. 15 of
Umurabyo, in which it was stated that members of the Abega clan, to which President
Kagame belongs, were more favoured than members of the Abanyiginya clan. The article also
addressed more generally the conflicts between these two clans.17
24.
Ms. Uwimana claimed that her statements were true and that none of the subjects
about whom she wrote commented upon or denied her statements.18
25.
The High Court held that the lack of any denial of the articles’ statements by any
concerned party did not absolve Ms. Uwimana of guilt under the divisionism law. The Court
ruled that Ms. Uwimana’s statements regarding President Kagame’s favouritism of one clan
over another, as well as her statements regarding the conflict between the two clans, were
intended to create conflicts and thus violated the divisionism law.19
The charges and sentencing of Ms. Mukakibibi
26.
On 4 February 2011, the High Court convicted and sentenced Ms. Mukakibibi to a
total of seven years for endangering national security under article 166 of the Penal Code.20
The charge was based on an article published by Ms. Mukakibibi entitled “King Kigeli is the
solution to national unity and reconciliation”, which appeared in issue No. 29 of Umurabyo.
The article stated, inter alia, that:
• President Kagame’s governance did not please a majority of the Rwandese
population;
• The goal of fighting injustice that had been used to defeat the Habyarimana regime
had been abandoned;
• On the one hand, a majority of Rwandese agreed that the overthrow of the
Habyarimana regime had been justified because of its abuse of power, but that on
the other hand, Habyarimana should not have been replaced with Kagame;
• Since President Kagame had taken power, assassinations had increased and security
had deteriorated, discrimination had continued to divide the Rwandan people, the
14 Ibid., paras. 47-48.
15 Ibid., para. 50.
16 Ibid., para. 58.
17 Ibid., para. 59.
18 Ibid., para. 60.
19 Ibid., paras. 61–64.
20 Ibid., para. 90.
A/HRC/WGAD/2012/25
6
economy had worsened, the quality of education had fallen, economic welfare had
worsened, and there were allegations of killings, imprisonments and other human
rights violations.21
27.
The High Court held that the article was not duly researched or supported, consisted of
rumours that were spread with the intention of inciting the population against the
Government, and brought conflict with the intention of creating insecurity. The Court noted
that Ms. Mukakibibi knew that her article, published in Umurabyo, would be widely read by
many Rwandans.
28.
The Court acquitted Ms. Mukakibibi on the charge of divisionism under article 1 of
the Divisionism Law of 2001.22
29.
The source contends that the deprivation of liberty of Mmes. Uwimana and
Mukakibibi is arbitrary, being a result of their peaceful exercise of the rights and freedoms
under the Universal Declaration of Human Rights and the International Covenant on Civil and
Political Rights
30.
The source argues that the detention of Mmes. Uwimana and Mukakibibi is the result
of their fundamental right to freedom of expression as embodied in article 19 of the Universal
Declaration of Human Rights and article 19 of the International Covenant on Civil and
Political Rights. The source points out that none of the limitations to this right as contained in
paragraph 3 of article 19 are present in this case. The source refers to the three-tier test
elaborated by the Human Rights Committee, namely that (a) the restriction must be clearly
provided by law; (b) it must pursue one of the legitimate aims articulated in article 19,
paragraph 3, and (c) it must be proportional to, and necessary for, the accomplishment of that
objective.23 The source also points to the statement of the Special Rapporteur on the
promotion and protection of the right to freedom of opinion and expression, in which he noted
that article 19, paragraph 3, of the International Covenant on Civil and Political Rights
establishes a very high threshold: “imprisoning individuals for seeking, receiving and
imparting information and ideas can rarely be justified as a proportionate measure to achieve
one of the legitimate aims under article 19, paragraph 3” (A/HRC/17/27, para. 36).
31.
The source reports that the Government of Rwanda has promulgated several laws over
the past decade aimed at prohibiting the types of hate speech that led to the 1994 genocide.
These laws include two under which Ms. Uwimana was convicted: the divisionism law of
2001 and the genocide law of 2003. The Government has also introduced prohibitions into the
Penal Code, including the provisions prohibiting endangering State security and defamation,
to limit expression. The source submits that these laws, which served as a basis for the
convictions of Mmes. Uwimana and Mukakibibi, are in alleged violation of the State’s
obligations under the International Covenant on Civil and Political Rights. The source
presents four arguments to sustain its contention.
32.
First, criminal defamation laws, such as article 391 in the Rwandan Penal Code, are
allegedly inconsistent with international human rights standards, given that defamation is, by
definition, a non-violent act and civil remedies are considered more adequate than penal ones.
The source points out that the Human Rights Committee24 and special procedures25 have
called for a complete abolition of criminal sanctions for defamation. In any event, according
to the source, the Government has allegedly failed to provide any evidence showing that the
21 Ibid., paras. 67–70.
22 Ibid, para. 76.
23 General comment No. 10 (1983) on freedom of expression, paras. 3-4.
24 See, for example, concluding observations on Mexico (CCPR/C/79/Add.109), para. 14.
25 See, for example, A/HRC/17/27, paras. 36 and 73.
A/HRC/WGAD/2012/25
7
statements “manifestly affect[ed]” the reputation of the President, as required by article 391 of
the Penal Code.
33.
Second, in the source’s view, the application by Rwanda of article 166 (“endangering
State security”) to Ms. Uwimana’s and Ms. Mukakibibi’s expression clearly fails to meet the
stringent proportionality and necessity test required by article 19, paragraph 3, of the
International Covenant on Civil and Political Rights. As pointed out in the report of the
Special Rapporteur on the right to freedom of opinion and expression, “protection of national
security… cannot be used to justify restricting the right to expression unless the Government
can demonstrate that: (a) the expression is intended to incite imminent violence; (b) it is likely
to incite such violence; and (c) there is a direct and immediate connection between the
expression and the likelihood or occurrence of such violence” (A/HRC/17/27, para. 36). The
source reports that the Rwandan authorities gave no evidence regarding the intention and
likelihood of inciting imminent violence, nor did it identify any direct connection between the
speech of Ms. Uwimana and Ms. Mukakibibi and any threat of or actual violence. The
authorities solely relied on the articles themselves and the assertion of the alleged wide
distribution of the newspaper as sufficient proof that the articles threatened national security.
The source points out that the actual readership of the newspaper is 100 copies bi-weekly.
Despite lacking evidence, 5 years of Ms. Uwimana’s 17-year sentence and all 7 years of Ms.
Mukakibibi’s sentence stemmed from their alleged violations of article 166 of the Penal Code.
34.
Third, although the Rwandan authorities may lawfully restrict genocide denial under
international law, Ms. Uwimana’s expression (“Rwandans lived for a long time with this
hatred until they ended up killing each other after [former President] Kinani [Habyarimana]’s
death”) does not constitute genocide denial. The source conveys that this statement can be
interpreted as an acknowledgement rather than denial of genocide. Moreover, the statement
clearly does not amount to genocide denial when considered in the context of the article as a
whole, in which Ms. Uwimana criticized ethnic divisions in the country, and in the context of
her other articles, including an article in issue No. 23 of Umurabyo. In the latter, she expressly
acknowledged both the existence of the genocide and the Government’s achievement in
bringing the genocide to an end. This being said, 10 years of her 17-year sentence were
attributed to this charge. The source submits that regardless of whether her expression could
be construed as genocide denial, such a severe prison sentence fails to meet the
proportionality test as established under article 19, paragraph 3, of the International Covenant
on Civil and Political Rights.
35.
Finally, the source points out that the divisionism law under which Ms. Uwimana was
convicted and sentenced to one 17-year term is in breach of the State’s obligations under the
International Covenant on Civil and Political Rights on its face and as applied to
Ms. Uwimana’s freedom of expression. In support of its contention, the source refers to the
concern expressed by the Human Rights Committee that the use of the divisionism law
against journalists could be incompatible with the obligations of the Government of Rwanda
under article 19, paragraph 3, of the Covenant.26 The source submits that the provisions of the
divisionism law are unclear and do not give sufficient predictability for individuals as to the
limits of his or her conduct prohibited by law. In any event, the source contends that
Ms. Uwimana’s conviction under the divisionism law for alleging discrimination in the
Government’s employment policy is a violation of article 19, paragraph 3, of the International
Covenant on Civil and Political Rights. This conviction was based on Ms. Uwimana’s
statements regarding President Kagame’s favouritism of one clan over another, as well as her
statements regarding the conflict between the Abanyiginya and Abega clans. The source
states that not only is it unclear how her expression meets the test set forth in the law itself but
26 Concluding observations on Rwanda (CCPR/C/RWA/CO/3), para. 20.
A/HRC/WGAD/2012/25
8
also how it would be justifiable under the Covenant’s article 20 requirement that “advocacy of
national, racial or religious hatred that constitutes incitement to discrimination” be prohibited.
36.
The source submits that the deprivation of liberty of Mmes. Uwimana and Mukakibibi
is arbitrary as a result of grave breaches of their right to a fair trial. The source presents six
arguments to support its contention.
37.
First, the failure of the arresting and detaining officers to inform Ms. Uwimana and
Ms. Mukakibibi of the charges against them for approximately one week violated their right
under article 9, paragraph 2, and article 14, paragraph 3 (a), of the International Covenant on
Civil and Political Rights to be informed immediately of the charges against them.
38.
Second, the repeated denial of bail without adequate justification by the Nyarugenge
Intermediate Court violates, according to the source, the general prohibition against pretrial
detention where not required by administration of justice or maintenance of security contained
in article 9, paragraph 3, of the International Covenant on Civil and Political Rights and
principle 36, paragraph 2, of the Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment.
39.
Third, the source maintains that the approximately six-month period between the time
of arrest and the time of the High Court hearing and the approximately one-year period
between the time of the issuance of the High Court judgement and the Supreme Court appeal
hearing is in breach of Ms. Uwimana’s and Ms. Mukakibibi’s right to be tried “without undue
delay” pursuant to article 14, paragraph 3 (c), of the International Covenant on Civil and
Political Rights and principle 38 of the Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment.
40.
Fourth, the High Court allegedly violated the right of Ms. Uwimana and Ms.
Mukakibibi to be presumed innocent until proven guilty, a right contained in article 11,
paragraph 1, of the Universal Declaration of Human Rights, article 14, paragraph 2, of the
International Covenant on Civil and Political Rights and article 19 of the Rwandan
Constitution. The source maintains that the High Court treated the statements in the articles
that the Government alleged were rumours as false and instead required Mmes. Uwimana and
Mukakibibi to prove their veracity.27 In doing so the Court reversed the burden of proof in
violation of the general principle of the presumption of innocence.
41.
Fifth, by failing to consider mitigating circumstances and by imposing
disproportionate and unjust sentences – 7 and 17 years – the High Court has allegedly
violated the prohibition on cruel and inhuman punishment under article 5 of the Universal
Declaration of Human Rights, article 7 of the International Covenant on Civil and Political
Rights and article 15 of the Constitution of Rwanda. In the source’s view, the High Court
failed to consider three compelling mitigating circumstances – the health status of Mmes.
Uwimana and Mukakibibi, the fact that their dependents have been left without proper care,
and the lack of actual damage caused – despite the discretion of the Court to do so under
article 82 of the Rwandan Penal Code. Specifically, pursuant to article 83 of the Penal Code,
the High Court could have reduced the sentences of both Mmes. Uwimana and Mukakibibi to
one year, which they have already served.
42.
Finally, the source submits that the High Court failed to act as a competent and
independent judiciary in alleged breach of article 10 of the Universal Declaration of Human
Rights, article 14 of the International Covenant on Civil and Political Rights and Rwandan
domestic law.
27 High Court judgement, paras. 21, 25, 31 and 36.
A/HRC/WGAD/2012/25
9
Current status of detention
43.
Ms. Uwimana is HIV-positive. Although she receives anti-retroviral medication from
a local hospital, her medical care in the prison is inadequate. She has recently developed
rashes, and her blood count has been low.
44.
Ms. Mukakibibi is diabetic and has blood pressure problems, which require regular
medication. During her ongoing detention, she has also developed an ulcer. Currently,
Ms. Mukakibibi receives the necessary medicine, on an irregular basis, solely from her
daughter during the latter’s prison visits.
45.
Mmes. Uwimana and Mukakibibi are currently being detained in Kigali Central
Prison, where they have been held since their arrests in July 2010.
46.
It is reported that the Supreme Court of Rwanda heard the appeal of their convictions
on 30 and 31 January 2012, and a judgment will tentatively be issued on 16 March 2012.
Response from the Government
47.
By letter dated 13 March 2012, the Working Group transmitted to the Government the
allegations contained in the source’s submission in order to obtain its response thereto.
48.
Upon expiry of the 60-day deadline without a request for extension being filed by the
Government, the Working Group decided to adopt an opinion in accordance with paragraph
16 of its methods of work.
Further comments from the source
49.
By letter dated 28 August 2012, the source informed the Working Group that on 5
April 2012, the Supreme Court had cleared Ms. Uwimana on the charges of genocide denial
and divisionism. However, it had upheld her convictions for defamation and endangering
national security. Ms. Uwimana’s sentence was reduced from 17 years to 4 years in prison.
50.
The source further informed the Working Group that on 5 April 2012, the Supreme
Court had upheld Ms. Mukakibibi’s conviction for endangering national security. Her
sentence was reduced from seven years to three years in prison.
Discussion
51.
Mmes. Uwimana and Mukakibibi, journalists in Rwanda, were arrested on 9 and 10
July 2010, respectively, for having published newspaper articles. They were charged with
crimes against national security, genocide denial, defamation of the President and
divisionism. They were tried by the High Court on 4 February 2011 and condemned to 17 and
7 years of imprisonment, respectively, with accompanying fines. According to the further
comments received from the source, the Supreme Court reduced Ms. Uwimana’s sentence to
four years in prison for defamation and endangering national security. Ms. Mukakibibi’s
sentence was reduced to three years in prison for endangering national security.
52.
The Working Group recalls that its mandate does not consist in acting as an appeal or
cassation procedure to national jurisdictions, but rather to verify in accordance with its
methods of work whether the detention complies with the relevant international norms and
standards. Similarly, the examination of the conformity of the national law with the applicable
international human rights law instruments and standards falls within the Working Group’s
mandate.
53.
From the outset, it is important to recall the events of the 1994 genocide in Rwanda,
the climate of instability that followed and the long process of reconstruction and
reconciliation, all having negatively impacted the right to freedom of expression, which is at
stake in the present case before the Working Group.
A/HRC/WGAD/2012/25
10
54.
Article 19 of the International Covenant on Civil and Political Rights guarantees this
right, providing in its paragraph 3 situations under which the exercise of the right may be
limited. However, any such restriction must be provided by law and proportional to and
necessary for the respect of the rights or reputations of others, and the protection of national
security or of public health or morals.
Concerning the charges brought against Ms. Uwimana and Ms. Mukakibibi and their
conformity with the international human rights law
55.
Although Mmes. Uwimana and Mukakibibi had their charges of divisionism cleared
by the Supreme Court, the Working Group deems it appropriate to recall the finding of the
Human Rights Committee in its concluding observations on the third periodic report of
Rwanda, according to which the State party should “make sure that any restriction on the
exercise of their activities is compatible with the provisions of article 19, paragraph 3, of the
Covenant and cease to punish acts of so-called ‘divisionism’. The State party should also
conduct investigations into the above-mentioned acts of intimidation or aggression and punish
their perpetrators” (CCPR/C/RWA/CO/3, para. 20). Similarly, the Independent Expert on
minority issues noted that:
The current wording of Rwandan laws relating to genocide ideology, divisionism and
sectarianism is problematic and ill-defined. Equally, implementation of the laws has
gone considerably beyond the limits to freedom of expression envisaged in article 20,
paragraph 2, of the International Covenant on Civil and Political Rights and article 4 of
the International Convention on the Elimination of All Forms of Racial
Discrimination. These laws must be revised as a matter of urgency and safeguards
should be implemented to guarantee that they are not used to silence dissent or restrict
the legitimate activities of political opposition (A/HRC/19/56/Add.1, para. 89).
56.
The Working Group also notes that the charge of genocide denial was cleared by the
Supreme Court as far as Ms. Uwimana’s case is concerned. The Working Group emphasizes
nonetheless its concern regarding the application of such charge in practice, often brought
without adequate demonstration of intentionality of the accused.
57.
Regarding the charge of endangering national security, which was upheld by the
Supreme Court for both Ms. Uwimana and Ms. Mukakibibi, the Working Group stresses that
the restrictions pursuant to article 19, paragraph 3, of the International Covenant on Civil and
Political Rights must not be overbroad.28 Indeed, “when a State party invokes a legitimate
ground for restriction of freedom of expression, it must demonstrate in specific and
individualized fashion the precise nature of the threat, and the necessity and proportionality of
the specific action taken, in particular by establishing a direct and immediate connection
between the expression and the threat”.29 Having examined the specific content of expression
in different articles that were published in Umurabyo, the Working Group considers that these
merely reflect an opinion and, in no way, incite to undermining the national security of
Rwanda. Nor do they pose any actual, imminent or hypothetical threat to national security of
Rwanda as is required under article 166 of the Penal Code. In the Working Group’s view,
statements such as “Rwandans have spent 15 years in a coma”, “the war between Kagame’s
regime and the population” or “Kagame in difficult times” cannot be regarded as establishing
a sufficient causal link to endangering national security. Nor do paragraphs 14 to 42 of the
decision of the Supreme Court of Rwanda establish beyond a reasonable doubt that
28 For a similar rationale, see Human Rights Committee, general comment No. 34 (2011) on the
freedoms of opinion and expression, para. 34.
29 Ibid., para. 35; see also Human Rights Committee, communication No. 926/2000, Shin v. Republic of
Korea, Views adopted on 16 March 2004.
A/HRC/WGAD/2012/25
11
Mmes. Uwimana and Mukakibibi intended to incite any conduct that would undermine
national security.
58.
Concerning the charge of defamation pursuant to article 391 of the Penal Code, which
was upheld by the Supreme Court in the case of Ms. Uwimana, the Working Group recalls
that the ability to criticize public officials and, in particular, Heads of State or representatives
of the Government, is an inherent component of the right to freedom of expression and
opinion. The principle of proportionality underlying article 19, paragraph 3, of the
International Covenant on Civil and Political Rights, “must also take account of the form of
expression at issue as well as the means of its dissemination. For instance, the value placed by
the Covenant upon uninhibited expression is particularly high in the circumstances of public
debate in a democratic society concerning figures in the public or political domain”.30
59.
In paragraph 47 of its general comment No. 34, the Human Rights Committee
underscored that:
Defamation laws must be crafted with care to ensure that they comply with [Article 19],
paragraph 3, and that they do not serve, in practice, to stifle freedom of expression. All
such laws, in particular penal defamation laws, should include such defences as the
defence of truth and they should not be applied with regard to those forms of expression
that are not, of their nature, subject to verification. At least with regard to comments
about public figures, consideration should be given to avoiding penalizing or otherwise
rendering unlawful untrue statements that have been published in error but without
malice. In any event, a public interest in the subject matter of the criticism should be
recognized as a defence. Care should be taken by States parties to avoid excessively
punitive measures and penalties. Where relevant, States parties should place reasonable
limits on the requirement for a defendant to reimburse the expenses of the successful
party. States parties should consider the decriminalization of defamation and, in any
case, the application of the criminal law should only be countenanced in the most serious
of cases and imprisonment is never an appropriate penalty. It is impermissible for a State
party to indict a person for criminal defamation but then not to proceed to trial
expeditiously – such a practice has a chilling effect that may unduly restrict the exercise
of freedom of expression of the person concerned and others.
60.
The Working Group subscribes to the aforementioned view of the Human Rights
Committee, according to which States parties should decriminalize defamation and
imprisonment is never an appropriate penalty for defamation.
61.
Moreover, in the present case, the Working Group has examined paragraphs 68
through 75 of the judgment rendered by the Supreme Court of Rwanda in April 2012, where it
considered the defamation conviction based on Ms. Uwimana’s statement in the article
published in issue No. 23 of Umurabyo. In that article, Ms. Uwimana claimed that President
Kagame encouraged and covered up the misconduct of government official Colonel Dodo,
namely that of stealing money from workers in Nyabugogo. She stated in court that she had
produced the aforementioned statement on the basis of an interview transmitted by Radio
Rwanda but she could not bring any supporting evidence.
62.
Without going into the merits of the case before the Supreme Court, the Working
Group notes the following. Firstly, the analysis made by the Supreme Court does not establish
beyond a reasonable doubt any bad faith or malicious intention on behalf of Ms. Uwimana’s
statement. Secondly, the Court based its reasoning on the fact that Ms. Uwimana knew that
her article would be read by a broad audience and would harm the honour or reputation of the
President. Thirdly, the Court did not demonstrate specifically how the statements “manifestly
30 Human Rights Committee, general comment No. 34, para. 34.
A/HRC/WGAD/2012/25
12
affect[ed]” the reputation of the President, which is one of the constituent elements of the
offence, prescribed under article 391 of the Penal Code.
63.
In the light of the foregoing observations, the Working Group reaches the conclusion
that the charges on the basis of which Mmes. Uwimana and Mukakibibi have been convicted,
as well as the resulting periods of detention, flow directly from their peaceful exercise of the
right to freedom of opinion and expression as guaranteed under article 19 of the Universal
Declaration of Human Rights and article 19 of the International Covenant on Civil and
Political Rights. Thus, their detention falls under category II of the methods of work of the
Working Group.
Concerning Ms. Uwimana’s and Ms. Mukakibibi’s right to a fair trial
64.
As far as the procedural violations of the right to a fair trial are concerned, the source
invokes six counts in its submission. To recall, Mmes. Uwimana and Mukakibibi were
arrested on 9 and 10 July 2010, and tried by the High Court on 4 February 2011. The
Supreme Court rendered its judgment in April 2012.
65.
The Working Group agrees with the source’s contention that the failure to inform the
petitioners of the charges and their rights after almost one week in detention amounts to a
violation of article 9 of the Universal Declaration of Human Rights and article 9, paragraph 2,
and article 14, paragraph 3 (a), of the International Covenant on Civil and Political Rights.
Similarly, the Working Group finds that by placing the burden on the defendants to make a
prima facie case of the veracity of their newspaper statements in court, their right to be
presumed innocent until proven guilty pursuant to articles 10 and 11, paragraph 1, of the
Universal Declaration of Human Rights, article 14, paragraph 2, of the International Covenant
on Civil and Political Rights and article 19 of the Constitution of Rwanda was violated. These
two elements alone support the finding of the Working Group that the partial non-observance
of Ms. Uwimana’s and Ms. Mukakibibi’s right to a fair trial has been of sufficient gravity so
as to render their detention arbitrary. Having established the arbitrary character of detention
under category III, the Working Group does not need to delve into the additional counts of
procedural violations as put forward by the source.
Disposition
66.
In the light of the foregoing, the Working Group renders the following opinion:
The detention of Ms. Uwimana and Ms. Mukakibibi is arbitrary, being in violation of
the provisions contained in articles 9, 10, 11, paragraph 1, and 19 of the Universal
Declaration of Human Rights and article 9, paragraphs 1 and 2, article 14, paragraphs
2 and 3 (a), and article 19, paragraph 2, of the International Covenant on Civil and
Political Rights. The detention falls within categories II and III of the arbitrary
detention categories referred to by the Working Group when considering the cases
submitted to it.
67.
The Working Group requests the Government of Rwanda to proceed with the
immediate release of Ms. Uwimana and Ms. Mukakibibi, to ensure that they are in good
health and to promptly provide them with adequate reparation in accordance with article 9,
paragraph 5, of the International Covenant on Civil and Political Rights. The Working Group
recommends that the Government of Rwanda bring into conformity the provisions of its Penal
Code that may jeopardize the exercise of the right to freedom of opinion and expression.
Finally, the Working Group invites the Government to better cooperate with its procedures in
the future pursuant to the relevant resolutions of the Human Rights Council.
[Adopted on 29 August 2012]