Freedom of Association and Assembly / Protests, National Security, Political Expression
Maseko v. The Prime Minister of Swaziland
Closed Expands Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The African Court on Human and Peoples’ Rights (Hereinafter referred to as “AfCHPR” or the “African Court”) found that the Republic of Rwanda was responsible for the violation of Article 9(2) of the African Charter on Human and Peoples’ Rights (“the Charter”), and Article 19 of the International Covenant on Civil and Political Rights (“ICCPR”) against Ingabire Victoire Umuhoza. The case concerned the criminal conviction of Ingabire Victoire Umuhoza following her declarations made on the Kigali Genocide Memorial regarding the Rwanda Genocide of 1994 and her public statements criticizing the government and certain public officials. In this vein, the Court held that any form of effort to coerce the right to freedom of expression, insofar as it is disproportionate or unnecessary in a democratic society, should be punished pursuant to international standards on the matter. Hence, the African Court concluded that imprisoning the Applicant based on her statements and speeches amounted to a violation of her right to freedom of expression.
The Applicant is the leader of the political party named “Forces Démocratiques Unifiées.” On 10 February 2010, following her declarations on the Kigali Genocide Memorial, the Applicant was summoned at the Criminal Investigation Department (“CID”) for the alleged commission of the following criminal offenses: “…aiding and abetting terrorism, punishable under Article 12 of Law No. 45/2009 of 9 September 2008…”, and “…spreading the ideology of genocide, sectarianism, and divisionism”. [para.10] The Applicant’s declarations, which gave rise to the criminal investigation, concerned her opinion on the Rwanda Genocide of 1994, notably that crimes against humanity were also committed against the Hutus, not only the Tutsis.
On 21 April 2010, the Applicant was arrested and presented before the Gasabo High Court. The following day, the Applicant was released on the condition she reported to the National Prosecution Department (“ONPJ”) twice a month, remained in the city of Kigali, and submitted her passport to the authorities. Nonetheless, on 14 October 2010, the Applicant was arrested and charged with terrorism, sectarianism, and propagation of ideology of genocide, among other offenses.
A) The trial before the High Court
The Applicant was brought before the Gasabo High Court and charged with the following criminal offenses:
On 30 October 2012, the Gasabo High Court found the Applicant guilty of the “offenses of conspiracy to undermine established authority and violate constitutional principles by resorting to terrorism and armed force (…) and of minimization of the genocide”, sentencing the Applicant to eight years’ imprisonment. [para. 23] During the trial, the Applicant raised concerns as to the violation of specific legal principles and standards, namely the lack of jurisdiction of the Court, the retroactive application of the law, the constant body searches performed on her, and the legality of the offenses. However, on 13 October 2011, the High Court dismissed all of her objections and requests. The Respondent State did not contest any of these facts.
B) Challenging the constitutionality of the Law 33 Bis/2003
On 16 May 2012, during the High Court trial, the Applicant lodged a complaint before the Supreme Court of Rwanda challenging the constitutionality of the Laws No.33 bis of 6 September 2003 and 18/2008 of 23 July 2008 concerning the crime of genocide. According to the Applicant, the wording of the legal instruments mentioned above was too broad and ambiguous, allowing its use for political purposes. However, on 18 October 2012, the Supreme Court of Rwanda issued a decision finding the Applicant’s requests groundless.
C) Appeal before the Supreme Court of Rwanda
Both the Applicant and the Prosecutor appealed to the Supreme Court of Rwanda. In particular, the Applicant complained that she had been convicted for a crime she did not commit and that the trial proceedings led by the High Court did not comply with the general rules of a fair trial. On the other hand, the Prosecutor argued that the sentence handed down by the High Court was not severe enough considering the criminal offenses Ingabire Victoire Umuhoza was convicted for and that she must also be convicted for organizing an armed group to destabilize national security and spreading rumors to cause strife.
On 13 December 2013, the Supreme Court of Rwanda, acting on appeal, upheld the High Court’s decision along with the Prosecutor’s petitions that the Applicant committed acts of terrorism and incitement of public outrage, notably by undermining the genocide of 1994, a behavior that was punishable pursuant to Rwanda’s Penal Code. Thus, the Applicant was sentenced to 15 years of imprisonment. The Respondent State did not contest these facts as presented by the Applicant.
On 3 October 2014, the Applicant filed a complaint before the AfCHPR arguing, inter alia, that the Respondent State violated Articles 3, 7, 9 of the Charter and Articles 7, 14, 15, 18, and 19 of the ICCPR. However, the case file suggests the Applicant only submitted arguments in relation to the rights to a fair trial, equality before the law, and freedom of expression; it was thus incumbent upon the AfCHPR to limit its examinations of the case to the parties’ allegations on the aforementioned human rights.
In the present case, the central issue for consideration was whether the restriction imposed on the Applicant’s right to freedom of expression was “…admissible, in that, it was provided by law, served a legitimate purpose, and was necessary and proportional in the circumstances of the case”. [para. 134] In this sense, the Applicant argued that in convicting her for her declarations on the Rwanda Genocide of 1994, the Respondent State restricted her right to freedom of expression without it being necessary nor proportionate in a democratic society. According to the Applicant, her declarations in the Kigali Genocide Memorial did not minimize nor deny the Rwanda Genocide of 1994, meaning that arguments put forward by domestic courts to arrest, trial, and convict her were devoid of any legal basis and evidence. In the Applicant’s view, national laws concerning the crime of genocide were vague and ambiguous, allowing for her illegal arrest and subsequent conviction.
During her declarations in the Kigali Genocide Memorial, the Applicant expressed that “…we are honoring at this Memorial the Tutsis victims of Genocide, there are also Hutus who were victims of crimes against humanity and war crimes, not remembered or honored here. Hutus are also suffering. They are wondering when their time will come to remember their people.” [para. 153]
On the other hand, the Respondent State submitted that due to Rwanda’s history and internal situation, penalizing the minimization and denial of the crime of Genocide was of paramount significance to achieve national stability. In this regard, the Respondent State claimed that penalizing criminal offenses through national laws fell within the margin of appreciation afforded to States parties to the Charter. The Respondent State also argued that since States parties are primarily in charge of guarantying the fulfillment and enjoyment of the Charter rights, they should also be given the opportunity to comply with such responsibility in a manner they see fit in light of their social context and history.
The National Commission for the Fight against Genocide (“CNLG”), which submitted an amicus curiae brief, in this case, argued that the Applicant’s declarations on the Kigali Genocide Memorial fit the theory of “double genocide,” which consists of a strategy to deny the genocide of the Tutsis that took place in Rwanda in 1994. In accordance with the CNLG, such theory implies that two genocides happened in 1994, meaning that the Tutsis are as guilty as their perpetrators. In the CNLG’s words: “…the theory of double genocide is intended to transform the 1994 genocide against Tutsis in Rwanda into an inter-ethnic massacre, and at the same time, exonerate the perpetrators..”. [para. 128]
As regards the controversies over the alleged restriction of the Applicant’s freedom of expression, the African Court analyzed the following:
A) Whether the interference was provided by law
In this regard, the Applicant complained that national laws that punished genocide were extremely vague and ambiguous. To this end, the African Court noted that “…the reference to the law in Article 9(2) of the Charter and other provisions of the Charter must be interpreted in the light of international human rights standards, which require that domestic laws on which restrictions to rights and freedoms are grounded must be sufficiently clear, foreseeable and compatible with the purpose of the Charter and international human rights conventions and has to be of general application.” [para. 136]
However, albeit Rwanda’s national laws were ambiguous and could be subject to different interpretations, the African Court considered that addressing the crime of genocide with precision is a difficult task to attain due to the nature of the offense. The African Court also held that designing national laws to criminalize certain offenses fell within the margin of appreciation afforded to States parties to the Charter. Thus, the African Court ruled that Rwanda’s national laws on genocide fulfilled international standards as per Article 9(2) of the Charter.
B) Whether the restriction served a legitimate purpose
The Respondent State pointed out that grounds for convicting the Applicant were meant to preserve and protect national order and security, considering Rwanda’s past events. In this sense, the Respondent State argued that the Applicant’s declarations in the Kigali Genocide Memorial could have led to public outrage and strife against the government; therefore, according to the Respondent State, restricting the Applicant’s freedom of expression followed a legitimate aim as per Article 9 of the Charter.
In this respect, the African Court noted that “…the general limitation clause under Article 27(2) of the Charter requires that all rights and freedoms must be exercised ‘with due regard to the rights of others, collective security, morality, and common interest.’ In its case law, the Court has also acknowledged that restrictions on freedom of expression may be made to safeguard the rights of others, national security, public order, public morals, and public health.” [para. 140] Having due regard to the foregoing, the AfCHPR echoed the arguments submitted by the Respondent State and concluded that restricting the Applicant’s right to freedom of expression served a legitimate purpose since the crime of genocide was directly linked to Rwanda’s national security and public order.
C) Whether the restriction was necessary and proportional
In primis, the African Court recalled that political discourse should be afforded a wider margin of tolerance. In this sense, public and governmental figures can be legitimately subject to political opposition, encouraging governmental transparency. The African Court also noted that freedom of expression protects not only pacific and pleasing speech but declarations that may disturb or offend an individual or even a sector of the society. In this regard, the Respondent State submitted that the Applicant’s speech on the Rwanda Genocide of 1994 intended to minimize the crime of genocide and incite public outrage against the government, conduct punishable under Rwanda’s Penal Code. On the other hand, the Applicant maintained that her conviction and further imprisonment did not comply with the principles of proportionality and necessity in a democratic society.
On the basis of public order, the African Court found that national laws punishing the minimization of genocide were ultimately necessary given Rwanda’s social context and history. Nonetheless, the Court added that “…the laws in question should not be applied at any cost to the rights and freedoms of individuals or in a manner which disregards international human rights standards.” [para. 148] Thereafter, the African Court concluded that to determine whether restricting the Applicant’s freedom of expression obeyed the principles of proportionality and necessity, an evaluation of the Applicant’s speech had to be performed to confirm if it minimized the genocide of 1994 or promoted the theory of “double genocide.”
According to the High Court, during the Kigali Genocide Memorial, the Applicant expressed that “…we are honoring at this Memorial the Tutsis victims of Genocide, there are also Hutus who were victims of crimes against humanity and war crimes, not remembered or honored here. Hutus are also suffering. They are wondering when their time will come to remember their people.” [para. 153] Considering the Applicant’s speech, the African Court concluded that her declarations did not deny nor minimize the crimes committed against the Tutsis; quite the contrary, in her speech, the Applicant acknowledges the violations suffered by both the Tutsis and the Hutus. The Court also held that nothing in the Applicant’s speech hinted that a double genocide occurred in 1994.
The African Court also indicated that “the contexts in which statements are expressed may imply a different meaning than the ordinary message they convey.” [para. 159] However, considering the accuracy of the Applicant’s declarations in the Kigali Genocide Memorial, the AfCHPR held that the Respondent State had no grounds to restrict the Applicant’s freedom of expression. Furthermore, the AfCHPR stated that convicting individuals such as Ingabire Victoire Umuhoza based on social contexts and history could potentially inhibit the right to freedom of expression of others and render the prerogative an illusion.
Concerning the Applicant’s interviews and statements against the government, the African Court held that “these statements are of the kind that is expected in a democratic society and should thus be tolerated, especially when they originate from a public figure as the Applicant is.” [para. 161] The African Court further noted that these statements did not incite strife nor pose a threat to national security. In the Court’s words: “An examination of these statements cannot reasonably be considered as capable of inciting strife; creating ‘divisions among people’ or ‘threatening the security of the State.’ In fact, even though these statements were made at different times before the Applicant was jailed for the same, there is no evidence showing that the statements caused strife, public outrage, or any other particular threat to the security of the State or public order.” [para. 161] Therefore, convicting the Applicant based on her statements against the government and the Rwanda Genocide of 1994 was not necessary nor proportionate in a democratic society, resulting in a violation of Article 9(2) of the Charter and Article 19 of the ICCPR.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The sub examine judgment expands freedom of expression since the African Court ruled that restricting an individual’s freedom of expression based exclusively on social contexts and history could potentially inhibit the right to freedom of expression of others and render the prerogative an illusion; therefore, in such conditions, a restriction of the freedom of expression would not be deemed necessary nor proportionate in a democratic society. The present decision also emphasizes the importance of disagreeing, dissenting, and protesting based on one’s beliefs. In this respect, the Court conducted an appropriate assessment when it affirmed that “the laws in question should not be applied at any cost to the rights and freedoms of individuals or in a manner which disregards international human rights standards. The legitimate exercise of rights and freedoms by individuals is as important as the existence and proper application of such laws and is of paramount significance to achieve the purpose of maintaining national security and public order.” [para. 148]
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Let us know if you notice errors or if the case analysis needs revision.