KAYUMBA: Make defamation a civil offence to bolster media self-regulation

Tuesday November 7 2017

The problem isn’t that defamation shouldn’t be

The problem isn’t that defamation shouldn’t be classified as an offence, but that it should be a civil not criminal offence punishable by imprisonment. ILLUSTRATION | JOHN NYANGAH 

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As reported last week, the revised penal code now under review in parliament represents a setback in the progress made in creating a conducive legal environment for media freedom and free speech to flourish.

The problematic articles in the penal code are 169 on defamation and 257 on insulting the president. The problem with these articles isn’t that defamation shouldn’t be classified as an offence, but that it should be a civil not criminal offence punishable by imprisonment.

Article 169 state that “Any person abusing his/her freedom of expression guaranteed by the State, who, in public and maliciously attributes to another person, an act or behaviour, which is likely to adversely affect the other person’s reputation… commits an offence”

It concludes: “When convicted by a court, he/she is liable to a term of imprisonment of not less than two years but not exceeding three years and a fine of not less than Rwf3 million ($3,511) but not exceeding Rwf5 million ($5,852)or one of these penalties.”

Article 257 says: “Any person who insults or defames the President of the Republic commits an offence,” and “When convicted, he/she is liable to a term of imprisonment of not less than five years but not exceeding seven years and a fine of not less than Rwf5 million ($5,852) but not exceeding Rwf7 million. ($8,194)”

The main reasons for saying these articles are a setback is because of their capacity to weaken government policy of media self-regulation and the broader governing philosophy of seeking to solve problems through dialogue.

Criminal defamation

Traditionally, criminal defamation is viewed as retrogressive because it invites self-censorship in the media; undercuts free expression of opinions and undermines a society’s ability to hold free discussion.

The two articles are bad as currently formulated for three main reasons.

Firstly, they undermine the policy of promoting media self-regulation and the progress that has been made under this policy where more people are turning to the Rwanda Media Commission (RMC) instead of formal courts to seek redress whenever they are defamed.

Secondly,article 257 isn’t informed by context or culture and is a duplication of article 169. For instance, in the past twenty years, only two individuals (journalists Agness Uwimana and Saidath Mukakibibi of Umurabyo newsletter) were accused and convicted of defaming the president. At the time (in 2011), this article didn’t exist and the ordinary defamation clause in the penal code was used.

Finally, I would say that, broadly, both articles are contrary to the governing philosophy of striving to solve problems through dialogue as enshrined in the Constitution and promoted by leaders under the banner of “homegrown solutions” to challenges.

Good progress

Legally speaking, the country has made good progress since the 1994 Genocide against the Tutsi, in regard to putting in place a legal framework that promotes media freedom.

From the Constitution, which guarantees a free press; the 2013 Access to Information Bill, to the media law of 2013, which scrapped statutory regulation in favour of media self-regulation, it is clear that the legal environment has improved.

In fact, since its inauguration in 2013, self-regulation under the RMC has discharged over 240 cases and more Rwandans, including public officials, are increasingly taking their complaints to the commission instead of courts.

The only legal constraint that journalists keep requesting the government to remove is criminal defamation.

Bearing in mind that the spirit of self-regulation was to discourage prosecution of media cases in formal courts and instilling the culture of professional responsibility in journalists, the two articles undermine this initiative.

Since there is no convincing reason against civil defamation, members of parliament would have done a great service to the nation by decriminalising defamation.

Doing that would advance the policy of media self-regulation and the “homegrown” governing philosophy of solving problems through dialogue while, at the same time, leaving defamed individuals with recourse to justice.

Christopher Kayumba, PhD. Senior Lecturer, School of Journalism and Communication, UR; Lead consultant, MGC Consult International Ltd. E-mail: [email protected]; twitter account: @Ckayumba Website:www.mgcconsult.com