Making defamation a criminal offence worrying

Sunday November 26 2017

Rwanda Parliament

Rwanda Parliament. The provisions on defamation are a worry as such laws are usually abused by those in power. PHOTO FILE | NATION 

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Worries have risen over the provisions made on defamation in the draft penal code, which was adopted by a Cabinet meeting chaired by President Paul Kagame on October 4.

This was followed by an endorsement by parliament on October 18. However, criminalising defamation would be a reversal of freedom of expression in the country. 

The move contradicts the existing media policy, which provides for decriminalisation of defamation.

It also puts into question the government’s commitment to implement 50 recommendations that the government accepted when it appeared before the Human Rights Council Working Group for the second cycle of the Universal Periodic Review (UPR).

Rwanda had committed to decriminalise defamation in order to “strengthen legislation to eliminate all provisions that undermine freedom of expression in the roadmap for implementation of Rwanda’s UPR recommendations.”

In the draft penal code, article 169, “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 that is likely to adversely affect the other person’s reputation or dignity or degrade him (her) in public opinion commits an offense.”

Harsher sentence

If convicted, the penalty is imprisonment of not less than two years but not exceeding three years and a fine of not less than Rwf3 million ($3,508) but not exceeding Rwf5 million ($5,847) or one of these penalties.

The proposed penalties are harsher than the previous ones, which gave a prison term of between six months to one year and a fine of between Rwf1 million ($1,169) to Rwf5 million ($5,847) or one of these penalties.

There is global consensus that defamation laws are abused by the powerful to limit criticism and to stifle public debate.

The threat of harsh criminal sanctions also limits freedom of expression, despite it being guaranted in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the African Charter on Human and People’s Right, Rwanda’s Constitution, which was revised in 2015 especially article 38 on regulating media.

Rwanda is a member of The African Commission on Human and Peoples’ Rights, which has recognised in their Resolution 169 that criminalising defamation interferes with the right to freedom of expression and the role of the media, and has called on countries to decriminalise it.

Criminal prosecution

I believe that defamation may become an ideal tool for criminal prosecution and retaliation against journalists who need special protection due to the nature of their work.
Sometimes legislators conflate decriminalisation with impunity, which shouldn’t be the case. Laws that punish defamation should compensate for harm done on a person’s reputation and that harm cannot be compensated by sending persons to jail.

Criminal sanctions are inappropriate responses to the damage inflicted on a person’s reputation. Also, prosecutors would agree that it is difficult to prove that statements are entirely false and that they were made with the specific intention to cause harm on a person.

The penal code being used in defamation cases in Rwanda has been pointed out as the cause of self-censorship by many media outlets, who avoid reporting on sensitive issues, events or statements by politicians and high ranking personalities for fear of being prosecuted.

The right thing to do is to repeal criminal defamation in favour of civil defamation. This will not mean that people are not protected against defamation.

Where possible compensations can be awarded in civil cases as it’s done in countries like the UK, Maldives, Jamaica, Cyprus, Estonia, Ireland and Romania.

At the time when defamation was being criminalised, there was no media regulatory body to deal with such offences and there was no code of ethics for media practitioners.

But, the Rwanda Media Commission has since been established.

Freedom of expression is a prerequisite to developing media in Rwanda.

Jean Paul Ibambe is a Legal Officer at the Rwanda Media Commission. E-mail: [email protected] Twitter: @IbambePaul