Rwanda: President should pardon Agnes Uwimana Nkusi and Saïdati Mukabibi

ARTICLE 19 calls upon the Rwandan President, Paul Kagame, to grant presidential pardons to two journalists, Agnès Uwimana Nkusi and Saïdati Mukabibi. The journalists were convicted of:

• threatening national security
• denying genocide
• creating 'divisionist' ideas
• inciting division and public disorder
• defaming public officials. 

On 5 April 2012, the Rwandan Supreme Court  ruled on the case and issued new prison sentences.

Nkusi and Mukabibi worked for a bi-monthly tabloid which went out of circulation in 2010. Both were charged in July 2010 and then convicted in January 2011 by the High Court. The charges were based on comments in articles published by the journalists in 2009, which the prosecution claimed had stirred hatred and dissent, threatened national security, and defamed the President of Rwanda.  In October 2011, ARTICLE 19 intervened in the case by submitting an Amicus brief to the Supreme Court.

In its decision last week, the Supreme Court cleared Nkusi of denying genocide and promoting ethnic division, but upheld her convictions for defamation of President Paul Kagame and inciting public disorder. Her total sentence was reduced from seventeen years to four. The Supreme Court also upheld Mukabibi's conviction for inciting public disorder and reduced her sentence from seven years to three.

ARTICLE 19 welcomes the fact that the Supreme Court overturned the earlier convictions for denying genocide and inciting divisionism. However we are deeply concerned by the Supreme Court's decision to uphold the convictions for public disorder and defaming public officials.

ARTICLE 19 believes that the Supreme Court failed to consider when reviewing the case international and regional standards on freedom of expression. According to these standards, legal provisions that seek to limit freedom of expression:

• must be clearly and precisely construed in order to prevent arbitrary and illegitimate violations of this right
• must pursue a legitimate aim
• must meet a requirement of necessity, which means that restrictions must be proportionate to the aim pursued amd must be least intrusive to freedom of expression

These requirements were not met in the present case and both the High Court and the Supreme Court failed to consider them in their deliberations. The crimes for which the journalists were convicted are vague and overbroad and any conviction made on the basis of such a law is also an illegitimate limitation of this right.

Moreover, as noted in ARTICLE 19's analysis of the Draft Penal Code in November 2011, strong arguments have been made for criminal defamation itself being a breach of the right to freedom of expression. The right to free expression is constitutionally protected in Rwanda as well as through the country's regional and international human rights obligations. International law  agrees that public officials are required to tolerate a higher degree of criticism than ordinary citizens as:

• open debate on matters of public interest is a cornerstone of democracy
• public officials, by virtue of their office. open themselves to deeper scrutiny
• public officials are more able to respond to any criticism or allegations than an ordinary citizen.

Also, criminal sanctions imposed on a person exercising their right of freedom of expression are incompatible with that right. Under international law, criminal sanctions are recommended only in exceptional circumstances, where other fundamental rights have been seriously infringed. Such sanctions have a negative effect on media freedom and freedom of expression. The sanctions that have been upheld by the Supreme Court will dissuade the media from discussing matters of public interest in the future. Discussions of matters of legitimate public concern by the media are vital in order for it to play its role of public watchdog.

A presidential pardon is now the only way for the decision to be overturned.

ARTICLE 19's recommendations

• ARTICLE 19 urges the President of Rwanda to grant a presidential pardon in recognition of the international standards on freedom of expression.
• We are also very concerned for the welfare of the journalists, one of whom suffers from a serious and incurable disease. 
• We urge the Rwandan Government to urgently revise its legislation, in particular the provisions on criminal defamation and incitement to genocide denial. We appreciate that steps have been taken towards decriminalising defamation,  including widespread consultation. We support this process and urge its speedy completion.