Press Freedom, Defamation / Reputation
Palin v. The New York Times
Closed Expands Expression
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The African Commission on Human and Peoples’ Rights (“ACmHPR” or the “Commission”) held Rwanda responsible for the violation of Article 9 of the African Charter on Human and Peoples’ Rights (“the Charter”). The instant case concerned the conviction and further sentencing of journalists Agnes Uwimana-Nkusi and Saidati Mukakibibi following the publication of three articles reporting, inter alia, on Rwanda’s government’s shortcomings, alleged corruption charges among high ranking government officials, and the ethnic division occurring at the time of the events. Having due regard to the victims’ conviction on the grounds of defamation and threatening of national security pursuant to Law No. 21/17, the Commission held that criminal defamation laws are not compatible with Article 9 of the Charter since they restrict journalists’ freedom of expression and the public’s right to access valuable information. In this sense, the Commission recalled the importance of freedom of expression in democratic societies, mainly in encouraging political debate and personal development. Furthermore, in light of the criminal sanctions imposed on the victims on the grounds set forth above, the Commission concluded that depriving the victims of their liberty as a means to regulate or restrict their right to freedom of expression was neither necessary nor proportionate in a democratic society.
Note: This case was adopted by the African Commission on Human and Peoples’ Rights during the 65th Ordinary Session from 21 October through 10 November 2019, but was only officially published on 16 April 2021.
The instant case concerned the application submitted by the Media Legal Defense Initiative on behalf of Agnes Uwimana-Nkusi and Saidati Mukakibibi, two journalists sentenced by the Rwandan High Court to 17 and 7 years of prison respectively on the grounds 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” as per Articles 166 and 391 of the Law No. 21/17 [p.1].
In July 2010, the victims were arrested on the basis of three articles published in the “Umurabyo” journal, where they both worked as journalists. The three articles that triggered the events dealt with allegations of corruption among high-profile public officers, the human rights situation in Rwanda, and other government shortcomings. The three articles drafted and published by the victims were as follow:
The victims further appealed to the Supreme Court of Rwanda against the High Court’s decision. However, between 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” [para. 3]. The victims also submitted a pardon request before the Office of the President of Rwanda, which was further denied. Therefore, having exhausted all available domestic remedies, on 5 October 2012, the Applicant filed a complaint to the Commission arguing Rwanda had committed a violation of Articles 7 and 9 of the Charter, which enshrines the victims’ rights to a fair trial and freedom of expression respectively. In July 2013, the Commission declared the admissibility of the complaint.
The Applicant argued that the victims’ conviction constituted an illegal restriction of their right to freedom of expression as per Article 9 of The Charter. In this regard, the Applicant submitted that the Rwandan Penal Code was not compatible with the Charter and that implementing Rwanda’s defamation provisions was not necessary in a democratic society, did not pursue a legitimate aim, and was not provided by law as per the Charter, therefore amounting to a violation of the victims’ right to freedom of expression. The Applicant added that Rwanda’s national courts did not consider that the victims’ articles reported on government officials, which are required to endure a higher degree of criticism based on their capacity as public figures.
The Respondent State first pointed out that the right to freedom of expression is not absolute; hence, individuals’ right to freedom of expression can be restricted to prevent further violation of others’ rights, preserve national security and morality, and protect the common interest as per Article 27(2) of the Charter. Furthermore, the Respondent State maintained that the Supreme Court’s decision followed the restrictions imposed by Articles 166 and 391 of Law No. 21/17 to the letter in order to protect national security. According to the Respondent State, the victims’ articles intended to incite violence and strife against the government by using defamatory statements devoid of evidence.
In the present case, the central issue for consideration was whether the restrictions imposed on the victims’ right to freedom of expression pursuant to Articles 166 and 391 of Law No. 21/17 were compatible with the spirit of the Charter. In this vein, the Commission recalled that freedom of expression constitutes an inalienable human right and one of the cornerstones of democratic governance. As such, freedom of expression is essential to individuals’ development and promoting civic participation in political affairs. However, as indicated by the Respondent State, freedom of expression is not an absolute right; therefore, it can be restricted pursuant to Article 27 of the Charter, which “…permits restrictions on the rights and freedoms guaranteed in the Charter, including freedom of expression, when necessary to protect the rights of others, collective security, morality, and common interest.” The restriction must also be provided by law, pursue a legitimate aim, and be proportionate and necessary in a democratic society [para. 161].
As regards the “provided by law” requirement, the Commission ruled that Articles 166 and 391 of Law No. 21/17 were designed and drafted with sufficient precision and clarity, allowing individuals to adapt their behaviors and act accordingly to the provisions referred above. On the other hand, concerning the “serve a legitimate interest” requirement, the Commission noted that according to the Respondent State Articles 166 and 391 of Law No. 21/17 intended to preserve national security given Rwanda’s history and social context, particularly the genocide that occurred in 1994. In this sense, the Commission held that “…the grounds given for the restrictions are legitimate objectives within the purview of Article 27(2) of the Charter, and accordingly Articles 166 and 391 of the Rwandan Penal Code are consistent with international standards in this area” [para. 172].
At last, the Commission assessed whether the restrictions imposed by Articles 166 and 391 of Law No. 21/17 were necessary to preserve Rwanda’s national security. According to the Commission, the necessity requirement “…relates to the concern for proportionality between the extent of the limitation measured against the nature of the right involved and aims to prevent unreasonable excessive limitations.” In this sense, the Commission cited its jurisprudence on the Constitutional Rights Project’s case in which it established that “the 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” [para. 175].
Furthermore, the Commission emphasized that for a restriction to be considered proportionate, a balance between the individual’s rights and the interest of the society shall be struck. In addition, the Commission noted that the potential impact of a restriction in a democratic society must be taken into consideration to determine whether such limitation was compatible with the incumbent State’s international obligations. In view of the foregoing, special consideration must be given to the concept of “national security” since, according to the Respondent State, the laws under which the victims were convicted intended to preserve Rwanda’s national security and stability. In this respect, the Commission held that national security concerns “…’how the State protects the physical integrity of its citizens from external threats, such as invasion, terrorism, and bio-security risks to human health,’ which interpretation would extend to the prohibition of any propaganda of war, advocacy of national, racial or religious hatred…” [para. 185].
In the instant case, the Commission considered Rwanda’s social context and history to determine whether the articles published by the victims incited violence against the government or ethnic divisionism and whether implementing Articles 166 and 391 of the Rwandan Penal Code was necessary and proportionate to the aim pursued by the Respondent State. The Commission relied on the European Court of Human Right’s understanding that protection of public “order” must be understood within the context of democratic, rather than authoritarian governance, and it relied on the Inter-American Commission’s definition of incitement that there must be clear evidence that the person not only intended to incite violence, and that there was also a “current, real and effective possibility” that violence could result [para. 184]. Taking account of the preceding, the Commission acknowledged that the lack of sensitivity towards the Rwanda Genocide of 1994 could amount to an abusive exercise of the right to freedom of expression. However, after studying the victims’ articles, the Commission concluded that they did not call for hatred or strife against the governmental apparatus, nor did they threatened national security and stability; hence, the victims’ articles fell within the scope of Article 9 of the Charter. In this sense, the Commission indicated 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 a denial of genocide or threat to national security” [para. 208].
Likewise, the Commission held that the victim’s articles did not interfere with others’ rights. In this regard, the Respondent State complained that the victims based their articles on mere opinions devoid of any evidence or support, which violated Rwanda’s defamation provisions. Nonetheless, the Commission stated 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 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 of censorship” [para. 217].
To further support its line of reasoning, the Commission recalled that “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 official’s power. 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 interest of debate on issues of public interest” [para. 214].
Having due regard to the criminal sanctions imposed on the victims on the grounds of defamation and threatening of national security pursuant to the Rwandan Penal Code, the Commission held that depriving the victims’ of their liberty as a means to regulate or restrict their right to freedom of expression was not necessary nor proportionate in a democratic society.
Therefore, the Commission was of the view that the facts before it disclosed an infringement of Article 9 of the Charter.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expanded the right to freedom of expression by reaffirming the incompatibility of criminal defamation laws with the African Charter and the importance of freedom of expression in democratic societies, notably in encouraging political debate and personal development. Having due regard to the criminal sanctions imposed on the victims on the grounds of defamation and threatening of national security, the Commission concluded that depriving the victims’ of their liberty as a means to regulate or restrict their right to freedom of expression was not necessary nor proportionate in a democratic society. Likewise, the Commission ruled that defamation provisions enshrined in the Rwandan Penal Code do not conform to Article 9 of the Charter and that the Respondent State failed to demonstrate, inter alia, how a penalty of imprisonment was necessary in the present case to avoid the violation of other’s right and preserve national security. In this sense, the Commission held that for a restriction of the right to freedom of expression to be necessary and proportionate in a democratic society, it must balance the individual’s rights with the general interest and be adequate to achieve and protect the legitimate aim in question.
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