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Judgment in Victoire Ingabire Umuhoza’s case against Rwanda

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On November 24, 2017, the African Court on Human and Peoples’ Rights (AfCHPR) held that Rwanda violated Victoire Ingabire Umuhoza’s right to freedom of opinion and expression, as well as her right to an adequate defense. See AfCHPR, Ingabire Victoire Umuhoza v. The Republic of Rwanda, App. No. 003/2014, Judgment of 24 November 2017, paras. 173(viii)-(ix). Specifically, the African Court held that Rwanda violated the African Charter on Human and Peoples’ Rights (African Charter) and the International Covenant on Civil and Political Rights (ICCPR) because the criminal conviction and sentence imposed on Ingabire for a speech that, the African Court found, did not minimize the genocide was a disproportional and unnecessary restriction on her freedom of speech; however, the Court further found that the law criminalizing the minimization of genocide may impose a legitimate restriction on the right to freedom of expression for purposes of preserving public order and national security. See id. at paras. 141, 161-163. The Court’s analysis on the right to freedom expression draws on the only other judgment from the Court to weigh on an alleged violation of that right and relies, as that previous judgment did, on comparative international human rights jurisprudence to develop the right to freedom of expression in its own case law, including to recognize that the right protects opinions that “offend, shock or disturb.” See id. at paras. 120-63; AfCHPR, Lohé Issa Konaté v. Burkina Faso, App. No. 004/2013, Judgment of 5 December 2014.

While Ingabire’s case was pending before the Court, Rwanda moved to withdrawal its declaration allowing individuals to appeal directly to the AfCHPR; while the withdrawal has gone into effect, it does not affect those cases that the Court already had jurisdiction over, including Ingabire’s case. [IJRCSee AfCHPR, Ingabire Victoire Umuhoza v. The Republic of RwandaApp. No. 003/2014, Ruling on Jurisdiction, 5 September 2016.

Case Background

Ingabire, a Hutu Rwandan national who lived abroad from 1993-2010, brought the case to the AfCHPR after she was arrested, tried, and convicted of terrorism and speech related crimes following her return to Rwanda in January 2010. See Amnesty InternationalRwanda: Justice in Jeopardy: The First Instance Trial of Victoire Ingabire (2013), 6. While abroad, Ingabire founded the political party Rassemblement Républicain pour la Démocratie au Rwanda (the Republican Rally for Democracy in Rwanda, RDR), an opposition party to the sitting government in Rwanda, the Rwandan Patriotic Front (RPF). See id. at 7; Ingabire Victoire Umuhoza v. The Republic of Rwanda, Judgment of 24 November 2017, para. 5. RDR merged with two other opposition parties to create les Forces démocratiques Unifiées, the United Democratic Forces-Inkingi (FDU Inkingi), which was led by Ingabire. See Ingabire Victoire Umuhoza v. The Republic of Rwanda, Judgment of 24 November 2017, para. 5.

Ingabire returned to Rwanda in January 2010 in order to register FDU Inkingi as a political party according to Rwandan law so that she could run in the upcoming national elections. See id. at para. 6. On her first day back in Rwanda, Ingabire gave a speech at the Genocide Memorial Centre in Kigali, where she spoke of problems with reconciliation and ethnic violence. See Amnesty International, Rwanda: Justice in Jeopardy: The First Instance Trial of Victoire Ingabire, 6. On April 21, 2010, the State, which claimed Ingabire’s remarks minimize genocide, arrested Ingabire on charges of spreading the ideology of genocide, aiding and abetting terrorism, undermining the internal security of the State, establishing an armed branch of a rebel movement, and attempting terrorism and any form of violence to destabilize authority and violate constitutional principles. See Ingabire Victoire Umuhoza v. The Republic of Rwanda, Judgment of 24 November 2017, paras. 7, 8, 32.

Ingabire was convicted and sentenced to eight years in prison; on appeal to the Supreme Court of Rwanda, her conviction was upheld, and her sentence increased to 15 years. See id. at paras. 23, 32. Ingabire claimed that the State violated articles 7 (right to fair trial) and 9 (right to receive information and free expression) of the African Charter, and articles 14 (right to a fair trial), 15 (prohibition on retroactivity of the law), and 19 (right to hold opinions without interference) of the ICCPR. See id. at paras. 77-78.

African Court’s Analysis

Freedom of Expression

The AfCHPR found that the State violated Ingabire’s right to freedom of expression under Article 9(2) (right to freedom of expression) of the African Charter and Article 19 (right to freedom of expression) of the ICCPR. See id. at para. 173(ix). The Court reiterated that States have the right to implement laws restricting the right to freedom of expression, provided that the restrictions are provided by law, serve a legitimate purpose, are necessary in a democratic society, and proportionate to the legitimate aim. See id. at para. 133.

The AfCHPR found that the prohibition of the minimization of genocide is provided by law and serves a legitimate purpose. The Court found the former because the law meets the margin of appreciation given to States in defining and prohibiting acts under its own law, and because the law is sufficiently clear so as to allow individuals to adapt their behavior to the law. See id. at paras. 135-138. On the latter, the AfCHPR found that with Rwanda’s history of genocide, the restrictions on Ingabire’s right to freedom of expression through the application of the minimization of genocide law serve the legitimate interests of national security and public order. See id. at paras. 139, 141.

Next, the AfCHPR examined whether the restriction imposed against Ingabire through the application of the criminal law was necessary and proportionate to serve the legitimate interests of preserving national security and public order. See id. paras. 142-163. In its analysis, the AfCHPR noted that it is important that restrictions on fundamental freedoms must be justified under the particular circumstances of each case. See id. at para. 148. Drawing on European and universal human rights standards, the Court found that the right to freedom of expression protects not only informative expressions and favorable opinions, but also statements and opinions that “offend, shock or disturb” the State or the public. See id. at para. 143. Additionally, reiterating a previous AfCHPR decision, political speech aimed at the government or officials, or speech that comes from public figures, the Court further found, “deserve a higher degree of tolerance than others,” and therefore, the form of speech should be taken into consideration in analyzing whether it is necessary and proportionate to the legitimate aim sought. See id. at para. 142; Lohé Issa Konaté v. Burkina Faso, Judgment of 5 December 2014, paras. 155.

First, the Court had to reconcile conflicting records of Ingabire’s statement at issue. The Court accepted the version more favorable to Ingabire, in which she discussed Hutus as victims of crimes against humanity and war crimes, over Rwanda’s Supreme Court’s record of her statement in which she referenced “another side of genocide: the one committed against the Hutu.” See Ingabire Victoire Umuhoza v. The Republic of Rwanda, Judgment of 24 November 2017, paras. 151, 153, 154, 156-157.

In light of Ingabire’s statement, the Court found that the restriction placed on her speech through her conviction was not necessary in a democratic society. See id. at para. 162. While the AfCHPR found that States with a history of genocide should restrict opinions that deny or downplay the magnitude or effects of the genocide because the statements “fall outside the domain of the legitimate exercise of the right to freedom of expression,” Ingabire’s statement, the Court held, did not deny or minimize the genocide against Tutsis because, in the statement accepted by the Court, she did not make reference to a genocide against Hutus. See id. at paras. 158-59. The AfCHPR also found that restrictions on Ingabire’s criticism of the government and officials was not necessary and proportional to the aims sought, even when the language Ingabire used included potentially inflammatory language such as “fighting” the yoke of poverty, unjust courts, and repression; the statements, the Court stated, must be allowed and tolerated in a democratic society because “public officials cannot be immune from criticisms,” and the statements “cannot reasonably be considered as capable of” threatening national security and public order. See id. at paras. 160-61. The Court conceded that Rwanda could have taken less restrictive measures to achieve the legitimate aims sought in a way that is necessary and proportionate. See id. at para. 162.

Fair Trial

The AfCHPR also found a violation of Ingabire’s right to defense under Article 7(1) of the African Charter. See id. at para. 173(viii). Having found that the right to defense includes access to witnesses, the ability of counsel to consult with the client, to question witnesses, and to have access to the evidence, among other rights, the Court determined that threats and intimidation of one of the witnesses by prison officials, the use of evidence against Ingabire that was produced through that intimidation and never shown to the defense, and difficultly defense counsel had in questioning one witness were all in violation of the right to defense. See id. at paras. 86-87, 98.

The other allegations relating to the right to a fair trial – specifically, on the right to presumption of innocence, the right to a neutral and impartial tribunal, and the right to non-retroactivity of criminal law – were rejected by the Court. See id. at para. 173(viii). The Court’s findings were based first, on a lack of evidence to support the allegations on violations of the rights to presumption of innocence and to a neutral and impartial tribunal. See id. at paras. 84-85, 105. Second, the Court found that while the principle of non-retroactivity of criminal law prevents the application of a criminal law to an act that occurred before the criminal law was adopted, there is an exception if the application of the current law would be more favorable to the defendant, such as if a lighter sentence would be imposed under that law; in this case, the Court held that Ingabire was better off under the criminal law to which she was held than that in force at the time of her actions. See id. at paras. 110, 117.

The African Court will later rule on forms of reparations and on costs in a separate ruling. See id. at paras. 173(x)-(xiii).

Rwanda’s Withdrawal from the Court’s Jurisdiction over Individuals and NGOs

On February 29, 2016, Rwanda submitted its withdrawal of its declaration accepting the competence of the African Court to receive cases brought by individuals. Rwanda had previously made a unilateral declaration under Article 34(6) of the Protocol to the African Charter on Human and Peoples’ Rights (the Protocol) allowing individuals and non-governmental organizations to bring claims directly to the Court against Rwanda. Rwanda stated that its reason for withdrawal was that its declaration under Article 34(6) was being exploited by “convicted genocide fugitives,” likely referring to the Ingabire case. [Ministry of Justice Press Release]

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