In the same years that some Rwandan officials were reforming technical and formal aspects of judicial administration, others were carrying forward a far-reaching campaign against what in Rwanda is known as divisionism and genocide ideology. This campaign has had broad impact on many aspects of Rwandan life, including judicial operations. Although it has not specifically targeted the judicial system, it involves judicial officials as well as administrative officials, political leaders, the press, the clergy, teachers, civil society and, indeed, all Rwandans. The campaign has had impact particularly in the domains of judicial independence and the rights of the accused to present witnesses, to be presumed innocent, and to have equal access to justice.
In 2002 divisionism (then called sectarism) was made a crime, but the law prohibiting it offered only a broad and vague definition of the term. It reads: The practice of sectarism is a crime committed by any oral or written expression or any act of division that could generate conflicts among the population or cause disputes.91 When asked to define divisionism, not one judge interviewed by Human Rights Watch researchers was able to do so, despite each having adjudicated and convicted defendants on divisionism charges.92 Judicial decisions have thus far failed to settle the meaning and scope of this crime.
Genocide ideology as such was made a crime only in a law adopted in June 2008 and still awaiting the presidential signature as of this writing, but the term has been used loosely for at least five years to mean several kinds of conduct referred to in the Constitution of 2003 and made criminal in the 2003 law punishing genocide. In the Constitution of 2003, Rwandan authorities committed the nation to undertake fighting the ideology of genocide, a concept that until that time had not been isolated but rather subsumed within the crime of genocide. The concept itself, not one known as such in the past, was referred to by the relatively new term, Ibengabyitekerezo bya jenocide, meaning literally the ideas that lead to genocide. In article 13 the constitution specified that revisionism, negationism (i.e., denial) and the minimization of genocide were punishable by law while article 33 stated that all ethnic, regionalist, and racial propaganda, and any propaganda based on any other form of division is punishable by law. 93
In the 2003 law punishing the crime of genocide, crimes against humanity, and war crimes, article 4, prohibited denial, gross minimalization, and any attempt to justify or approve of genocide as well as any destruction of evidence of the genocide.94 Neither the constitution nor the 2003 law provided specific definitions of the terms revisionism, denial or gross minimization.
Under the 2002 law persons guilty of divisionism were liable to imprisonment for up to five years and to loss of their civil rights. Under the 2003 law punishing genocide, persons condemned for denying or grossly minimizing genocide, attempting to justify genocide or destroy evidence related to it were liable to a minimum of ten years and a maximum of twenty years in prison. According to the law on divisionism, that crime is imprescriptible; the law on genocide crimes and crimes against humanity made these crimes imprescriptible but without specific mention of the crimes enumerated in article 4.95
The issues at the core of divisionism and genocide ideology address the nature of ethnicity and the history of the genocide. During a scholarly debate in 2004 about the nature of the genocide, one academic expert remarked on the value of discussing different truths. A high-ranking official in the audience immediately demanded the floor to insist, There is one truth and we know it. Three tenets of that truth relevant to judicial issues and frequently mentioned by officials are:
Although many, both in the academic community and outside it, accept some portions of the truth as it is defined by the RPF, others challenge several pointssuch as the extent of RPF war crimes and of justice for these crimes. Indeed representatives of four UN agencies as well as international and Rwandan NGOs have documented these crimes.97
In the text of Rwandan laws about divisionism and genocide ideology, and in countless public presentations, Rwandan officials say they seek to eliminate these ideas in order to prevent future violence. While this goal is certainly legitimate and helps explain their efforts, it is not the authorities only impetus for seeking to eliminate certain views they deem inappropriate.
Promoting conformity on certain important questions has been central to RPF practice from its early days, even before the genocide. According to notes taken by an RPF recruit during training sessions in 1993, for example, the content shows remarkable continuity with the curriculum that was prescribed for a solidarity camp in 2006.98 The solidarity camps have provided intensive ideological training for periods ranging from a week or two to three months for thousands of Rwandans since the current government was established in 1994. Camp sessions are organized to include people from the same background, such as prisoners just released from jail, refugees returning from exile, students, teachers, or officials of a particular branch of government. In addition, public officials reinforce many of the same ideas at community meetings, as do many clergy, teachers, and journalists, each in his or her own domain of activity.
In 2002 officials began a campaign against divisionism, transforming it by 2004 into a campaign against genocide ideology as well. In public meetings and in the media, administrative officials, political leaders, teachers and clergy used these terms to denounce many different kinds of words and actions, further broadening and confusing the meaning of the terms.99
Between 2003 and 2008 four parliamentary commissions investigated and condemned alleged cases of divisionism and genocide ideology. The first commission, which effectively destroyed the Democratic Republican Movement (MDR), the only political party strong enough to challenge the RPF, interpreted divisionism to mean opposition to such government programs as administrative decentralization, establishment of gacaca jurisdictions, and the creation of a Local Defense Force (a government-sponsored paramilitary force). Foreshadowing in its 2003 report the link to come between accusations of divisionism and genocide ideology, the commission also charged MDR adherents with minimizing the genocide, opposing compensation to genocide survivors, and speaking of crimes by RPA soldiers as if they were genocide.100
The second commission, created to investigate killings of genocide survivors and other instances of genocide ideology, reported hundreds of cases of violence, threats and insults to genocide survivors. But its June 2004 report also included investigations of alleged cases of opposition to government policies (such as land reform), supporting political candidates who were not part of the RPF, and speaking of RPA war crimes.101 A third commission issued a report in June 2006 in which it defined genocide ideology as including references to unpunished RPF crimes, as well as to the idea that Hutu are detained on basis of simple accusation (i.e., without adequate investigation or proof).102 A fourth parliamentary commission established at the end of 2007 reported finding genocide ideology in 26 of 32 schools visited.103
Government officials denounced hundreds of people and dozens of Rwandan and international organizations,104 many of them selected by state security agents or through accusation at public meetings in which Rwandans were pressed to identify persons or groups who held the disapproved ideas. With little or no verification and no judicial process whatsoever, the names of the accused were publicized in the parliamentary reports, on the radio, and at public meetings. The persons so labeled enjoyed no presumption of innocence; some suffered loss of employment, expulsion from school, and social isolation. Speaking of the consequences of being accused of harboring genocide ideology a Rwandan not herself accused said, Everyone distances himself from the accused. We all say, better not to walk near that one.105
After the fourth report was issued, officials and school personnel who had been denounced were again dismissed.106 The Anglican archbishop made the fight against genocide ideology the theme of his Christmas sermon.107 Education officials announced that school committees would monitor student behavior daily and specially formed local committees undertook to visit schools regularly.108 Six thousand teachers were trained in fighting genocide ideology and members of parliament planned to visit every school in the country to help root it out.109 The parliamentary commission recommended that in some schools, teachers begin every class every day with three minutes criticizing genocide ideology.110
According to a report on judicial activity 2007-2008 cited by Deputy Prosecutor General Alphonse Hitiyaremye, Rwandan courts initiated 1,304 cases involving genocide ideology, some including acts of violence such as murder or damage to property, discrimination, and otherwise undefined threats. In addition 243 persons were charged with negationism and revisionism. In the proceedings concluded by the time the report was issued, eight persons were convicted and sentenced to life in prison, two persons were sentenced to more than 20 years in prison, 36 others were sentenced to between 10 and 20 years in prison, 96 drew sentences of between 5 and 10 years and 91 were sentenced to less than 5 years in prison. One hundred and two persons were acquitted.111 A score of jurists told Human Rights Watch researchers that the broad and ill-defined charges of divisionism or genocide ideology have been frequently used to serve political or personal interests.112 Several prosecutors and judges have refused to pursue some of these cases, saying they lack substance.113
At least one prosecution seems to have been carried out primarily because the speaker, Célestin Sindikubwabo, made a statement that challenged the tenet of the official truth about RPF war crimes. At a gacaca trial in the southern district of Nyakizu in October 2006, Sindikubwabo said that the defendant had fled to Burundi because he had seen RPF soldiers killing local people. The defendant was acquitted, but Sindikubwabo was arrested several days later. Brought to trial in March 2007, he was sentenced to 20 years in prison for gross minimization of the genocide.114
In June 2008 the parliament adopted a new law that criminalizes genocide ideology. Article 2 of the law generally adheres to definitions of genocide as found in international conventions. Article 3, however, which specifies the criteria of genocide ideology, only aggravates the already-existing imprecision and confusion surrounding the term. The article reads:
The punishments, specified in articles 4 to 13, are harshbetween 10 and 25 years in prison and a fine of 200,000 to 1 million Rwandan francs for first-time offenders, with penalties to be doubled and even increased to life imprisonment for recidivists. Persons who occupy or have occupied leadership positions, whether in government, the private sector, NGOs, or the church may be sentenced from 15 to 25 years in prison with a fine of 2 to 5 million Rwandan francs. Political and non-governmental organizations may be dissolved and fined 5 to 10 million Rwandan francs. Children are held criminally responsible at the age of 12 and may be sent away to a rehabilitation center for a year, and parents, guardians, teachers, and headmasters may be punished by 15 to 25 years in prison. Children between the ages of 12 and 18 will receive one half the penalty meted out to adults.116
The Rwandan law on genocide ideology is largely disconnected from the crime of genocide itself. It does not require that the perpetrator intend to assist or facilitate genocide, or be aware of any planned or actual acts of genocide. While it has been defended by Rwandan authorities as similar to laws banning Holocaust denial, in fact it is written in far broader terms than even laws banning incitement to racial hatred, and can cover a very wide range of speech that is unquestionably protected by international convention.
International human rights law prohibits hate speech that amounts to incitement of violence, discrimination or hostility against a protected group. Such restrictions, however, must be consistent with what is necessary in a democracy. It is inconsistent with freedom of expression to criminalize hate speech without the requirement that the speaker be proven to have intended that his words incite, and that incitement was the foreseeable and imminent result of those words. Punishing criticism of government policies, as the parliamentary commissions recommended, and prosecuting statements believed to be true by the speaker and made with no intention to incite violence, as in the case of Sindikubwabo above, represent abusive restrictions on free speech.
Human Rights Watch also maintains that the crime of genocide denial is only consistent with freedom of expression where genocide denial amounts to hate speech, that is, intentional incitement to violence, hostility or discrimination. States have a duty to recognize genocide and similar mass crimes but should not recognize mass crimes selectively, favoring some victims and ignoring others (see Equal Access to Justice below).117
91 Law no. 47/2001, article 3. The French version is used here in translation because it is clearer than the English version. The French reads: La pratique du sectarisme est un crime commis au moyen de lexpression orale, écrite ou tout acte de division pouvant générer des conflits au sein de la population, ou susciter des querelles. The English version of the law reads that sectarism is a crime committed through the use of any speech, written statement or action that causes conflict that causes an uprising that may degenerate into strife among people. Laws are drafted in Kinyarwanda; English and French are also official languages but there are sometimes discrepancies among the three versions or between two of them.
92 Human Rights Watch interviews, Kigali, May 26, 2005. When asked if he could define divisionism, one judge replied: I cant define it, but I can give an example. In one case, the accused said publicly that the government paid people to go to Arusha [to testify at the ICTR] and lie. The judge was thus employing a I know it when I see it approach to the criminal law, which violates the obligation on states to define precisely by law all criminal offences . Failure to define precisely criminal offences is considered a breach of the prohibition on the retroactive application of criminal law under international law, International Covenant on Civil and Political Rights, Article 15, and the African Charter, Article 7(2).
93 The Constitution of the Republic of Rwanda, Preamble, Articles 9, 13, and 33 (June 4, 2003).
94 Law no. 33bis/2003 of 06/09/2003 punishing the crime of genocide, crimes against humanity, and war crimes, article 4, found at http://droit.francophonie.org/doc/orig/rw/loi/fr/2003/2003dfrwlgfr1/2003dfrwlgfr1.pdf.
95 Law no. 33bis/2003 of 06/09/2003, article 4 and law no. 47/2001, article 1, paragraph 2 and article 3, paragraph 2, articles 5 and 15.
96 National Unity and Reconciliation Commission, Manuel pour les camps de solidarité et autres formations, October 2006, pp. 81, 83, 154, 162.
97 R. Degni-Ségui, Report on the situation of human rights in Rwanda, submitted by R. Degni-Ségui, Special Rapporteur of the Commission on Human Rights, under paragraph 20 of Commission resolution, E/CN.4/S-3/1 of 25 May 1994, E/CN.5/1995/7, 28 June 1994, pp. 3, 13; United Nations, The United Nations and Rwanda, 1993-1996, Blue Books Series, volume X, (New York: United Nations, 1996), UN High Commissioner of Human Rights, Report to the Secretary-General on the investigation of serious violations of international humanitarian law committed in Rwanda during the conflict, annexed to Letter dated 21 July from the Secretary-General to the President of the Security Council transmitting the report on the violations of international humanitarian law in Rwanda during the conflict, prepared on the basis of the visit of the United Nations Hugh Commissioner for Human Rights to Rwanda (11-12 May, 1994), pp 313-315; UN High Commissioner for Refugees, Update on the Rwanda emergency by the Executive Committee of the Programme of the United Nations High Commissioner for Refugees, 26 September 1994, paragraph 13, p. 338; and UN Secretary-General, Letter dated 1 October 1994 from the Secretary-General to the President of the Security Council transmitting the interim report of the Commission of Experts on the evidence of grave violations of international humanitarian law in Rwanda, including possible acts of genocide, paragraphs 146-150 of the Commission report, p. 361. See also See Security Council Resolution 1503, August 28, 2003, S/RES/1503 (2003) and Security Council 1534, August 26, 2004, S/RES/1534 (2004); Final Report of the Commission of Experts established pursuant to Security Council Resolution 935 (1994), UNSC, UN Doc. S/1994/1405 (1994), paras.146 -147.
98 The curriculum treats the last century of Rwandan history in some detail but goes far beyond it to discuss such fundamental questions as the nature of humanity and the different stages of history in terms heavily influenced by Marxism-Leninism. It gives great importance to ideology which, says the curriculum, makes the difference between military leaders who have defeated dictators and are now working for the development of their people (Castro, Khadifi, current Rwandan President Kagame) and bad military leaders who have committed horrors (Amin, Bokasa, former Rwandan President Habyarimana). National Unity and Reconciliation Commission, Manuel pour les camps de solidarité et autres formations. Handwritten notebook, notes of training session, December 23, 1993 and copy of the manual (in French) in the possession of Human Rights Watch.
99 See, for example, the wideranging debate led by government officials on Radio Rwanda, Discussion on Genocidal Ideology, October 24, 2005, 10:30 am to 12:45 pm.
100 Republique Rwandaise, Assemblée Nationale, Rapport de la Commission Parlementaire de controle mise en place le 27 decembre 2002 pour enqueter sur les problemes du MDR, accepted by the National Transitional Assembly, April 14, 2003, p. 19. See also See Human Rights Watch, Preparing for Elections: Tightening Control in the Name of Unity, May 2003, http://hrw.org/backgrounder/africa/rwanda0503bck.htm.
101 République Rwandaise, Rapport de la Commission Parlementaire ad hoc crée en date du 20 janvier 2004 par le Parlement, Chambre des Députés, chargée dexaminer les tueries perpetrées dans la province de Gikongoro, lidéologie génocidaire et ceux qui la propagent partout au Rwanda, accepted by the National Assembly June 30, 2004, pp. 36, 38, 43, 45, 50, 61, 66, 69, 82, 86, 87, 95, 115, 118, 122, 123, 126, 144, 145, 158.
102 Rwandan Senate, Rwanda, Genocide Ideology and Strategies for Its Eradication, 2006, p. 18, notes 5-7.
103 National Assembly, Rapport danalyse sur le problème didéologie du genocide evoquée au sein des établissements scolaires, December 2007, (unofficial translation).
104 Among the international organizations accused of supporting divisionist and genocidal ideas by one or both of the parliamentary commissions were CARE International, Trocaire, Norwegian Peoples Aid, 11-11-11, Kolping Family, Pax Christi, Voice of America (VOA), British Broadcasting Corporation (BBC) and Human Rights Watch as well as the Catholic Church, the Association of Pentecostal Churches in Rwanda, Jehovahs Witnesses, Seventh Day Adventists, the International United Methodist Church, and the Mennonites. République Rwandaise, Rapport de la Commission Parlementaire ad hoc crée en date du 20 janvier 2004 par le Parlement, Chambre des Députés, chargée dexaminer les tueries perpetrées dans la province de Gikongoro, lidéologie génocidaire et ceux qui la propagent partout au Rwanda, p. 161; Rwandan Senate, Rwanda, Genocide Ideology and Strategies for Its Eradication, 2006.
105 Human Rights Watch interview, February 27, 2005.
106 National Assembly, Rapport danalyse sur le problème didéologie du genocide evoquée au sein des établissements scolaires, December 2007, (unofficial translation); Panapress, Rwanda: Suspension d'enseignants accusés de prôner le genocide, December 27, 2007; Eugene Mutara, School directors move to squash genocide ideology, The New Times, (accessed January 13, 2008)
http://www.newtimes.co.rw/index.php?issue=1392&article=3221; Florence Mutesi and James Buyinza, Ministry to blacklist teachers with genocide ideology, The New Times (accessed January 13, 2008)
http://www.newtimes.co.rw/index.php?issue=1390&article=3175.; Bonny Mukombozi Gakenke district leaders sacked, The New Times, (accessed March 27, 2008),
107 G. Muramila, J.Buyinza and F. Mutesi, Uproot Genocide Ideology in SchoolsBishop Kolini, The New Times (accessed January 13, 2008) http://www.newtimes.co.rw/index.php?issue=1390&article=3171
108 The New Times, Upcountry insight: How ready are students for the new school term? (accessed Jan 13, 2008)
http://www.newtimes.co.rw/index.php?issue=13403&article=3392; Bonny Mukombozi, New measures to fight genocide ideology in schools, The New Times (accessed January 19, 2008)
109 P. Kayiggwa and J. Buyinza, 6,000 teachers equipped to fight genocide ideology, The New Times (accessed January 19, 2008)
http://www.newtimes.co.rw/index.php?issue=13412&article=3603; James Buyinza and Ignatius Ssuna, MPs re-launch anti-Genocide campaign in schools (accessed February 24, 2008)
110 National Assembly, Rapport danalyse sur le problème didéologie du genocide evoquée au sein des établissements scolaires, December 2007.
111 Fondation Hirondelle, Rwandan Official Proposes Rehabilitation of Persons Convicted for Genocide Ideology, May 30, 2008.
112 See below cases of Tuyishime, Kavutse, Gakwandi, Biseruka, and Nyirakabano.
113 Human Rights Watch interviews, lawyers, Kigali, February 3, 2005, September 10, 2007; judge, August 17, 2007; electronic communication, February 8, 2006.
114 Court of Higher Instance, Huye, No. RP 0015/07/TGI/HYE RPGR 40832/S2/06/MR/KJ, Prosecutor versus Célestin Sindikubwabo, 24/4/07.
115 The French text is as follows:
Charactéristiques du crime didéologie du genocide
Les charactéristiques du crime didéologie du genocide consistent en des comportements qui se manifestent par les tendances visant à déhumaniser un individu ou un groupe dindividus ayant en commun certains traits comme dans les conditions suivants:
116 The proposed Law on genocide ideology, had been adopted by both the National Assembly and the Senate but not yet officially published as of this writing.
117 Dinah PoKempner, A Shrinking Realm: Freedom of Expression since 9/11, Human Rights Watch World Report 2007, http://www.hrw.org/wr2k7/essays/shrinking/1.htm.