Should defamation be decriminalised?

The new draft Penal Code currently under review has particularly caught the attention of local journalists as it proposes longer jail terms for persons guilty of defamation.
Rwandan media practitioners during an interview at a past event. File.
Rwandan media practitioners during an interview at a past event. File.

The new draft Penal Code currently under review has particularly caught the attention of local journalists as it proposes longer jail terms for persons guilty of defamation.

The development comes at a time when media practitioners were anticipating decriminalisation of defamation based on deliberations with policy makers.

Under article 288 of the current penal code, defamation carries 6 months to one year imprisonment and a fine of between Rwf1m to Rwf5m.

Any person who, maliciously and publicly, commits a specific act against another person which is likely to damage the honour or dignity, or bring him/her to public contempt shall be liable to a term of imprisonment of six (6) months to one (1) year and a fine of one million (1,000,000) to five million (5,000,000) Rwandan francs or one of these penalties, the article reads.

But the draft penal code proposes tougher penalties with Article 169 indicating that when convicted, one is liable to a jail term of not less than two years but not exceeding three years and a fine of not less than Rwf3 million but not exceeding Rwf5 million.

Journalists who spoke to The New Times last week expressed worry that criminal prosecution can be intimidating and serve as restriction in the course of their work.

A journalist said that introduction of tougher penalties comes as a surprise given the expectations to the contrary.

“First of all I would say that the spirit has been to decriminalise it and that’s what we’ve been talking about. Introducing harsher articles in the penal code therefore come as a surprise,” he said.

With such tougher penalties being proposed, he said, there ought to have been consultations in the process of arriving at the proposal.

“We were not consulted as far as we know, be it Rwanda Media Commission or Association of Rwandan Journalists (ARJ). It is surprising that such articles could reach parliament without consulting stakeholders,” he said.

He said that there was concern that the development was likely to roll back progress made over the years in regards to media development.

To remedy the situation, he proposed that the issues of handling defamation be left to the Rwanda Media Commission, which in recent years has proved its capacity in handling such matters.

“We are concerned by the harsher punishments being introduced. We believe decriminalising defamation is the way to go, anything else is a step backwards. RMC has the capacity and has proved over the years that it can handle such cases,” he added.

For instance, out of the more than 240 cases brought before RMC, about 50 were on defamation and were competently handled through right of reply, apologies and suspensions without needing litigation in courts, he said.

Gonza Muganwa, the executive secretary of ARJ, noted that in the event that a petitioner is not contented with the commission’s action, it ought to be civil case as opposed to a criminal one.

“As journalists we wish that these cases are handled under the media self-regulation mechanism as are mostly done currently. A threat of a prison term has a chilling effect on the practice of free expression and media, yet the defamed person is not repaired. Also, there is no proportionality in such a punishment,” he explained.

If the draft law is passed as it is, he expressed fear that it will break the goodwill needed for media self-regulation.

Venuste Kamanzi, a journalist with Umuseke, a local online outlet, also observed that passing of the law in its current state would in a way put a barrier to journalistic processes.

“I think this article that continues to criminalise defamation is not fair for us as journalists. It is going to be like a barrier for us,” he added.

Efforts to get a comment from the Justice minister Johnston Busingye were futile.

But Thierry Kevin Gatete, a lawyer by training and researcher, said that the law seems to attempt to shield public officials from scrutiny which their positions attract.

“When a person accepts to occupy a public office, they must open themselves to public scrutiny, the Rwandan lawmakers seem to believe by virtue of appointment to public duty one is shielded from public scrutiny,” Gatete said.

He termed the state of affairs as unfortunate as it could shield a section of civil servants and public officials from scrutiny, thus limiting accountability.

Gatete said the law, if passed as it is, risks undermining and interfering with the journalism and the values it upholds.

editorial@newtimes.co.rw

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