Free speech and criminal speech

Since the arrest of “criminal defense lawyer” Peter Erlinder on 28th May 2010, different individuals and media have accused the government of Rwanda of the violation of peoples’ right to freedom and expression using the law against negation of the genocide perpetrated against the Tutsis in Rwanda in 1994.

Since the arrest of “criminal defense lawyer” Peter Erlinder on 28th May 2010, different individuals and media have accused the government of Rwanda of the violation of peoples’ right to freedom and expression using the law against negation of the genocide perpetrated against the Tutsis in Rwanda in 1994.

Not unexpected the French news agency AFP had a screaming news Article with the headline “Rwanda arrests opposition figure’s US lawyer”; Chicago Tribune quoting Erlinder’s daughter, Sarah reported that, “A local Rwandan attorney and a U.S. attorney were able to see Erlinder on Saturday, but they were denied access Sunday and told to pay up if they wanted Erlinder to continue to eat in jail”.

David Gespass of the (US) National Lawyers Guild was quoted as saying, “Peter has been arrested by the Rwandan government under that countries’ genocide law for defending unpopular defendants”. Josh Kron and Geoffrey Gettleman wrote in the The New York Times under the headline “American Lawyer for Opposition Figure Is Arrested in Rwanda” that, “Rwandan authorities on Friday arrested an American lawyer who is representing a leading Rwandan opposition figure, the latest sign of an increasingly repressive atmosphere there”.

Lies and falsehoods apart is there a limit to free speech and freedom of expression? Does the Law in Rwanda against negation, falsification and denial of the genocide against the Tutsi in 1994 curtail the freedom of expression of Rwandans? Is the law unique to Rwanda? Is the law “a tool against political opposition?

On 10th December, 1948 the United Nations General Assembly sitting at Palais de Chaillot in Paris, France passed the Universal Declaration of Human Rights to which many colonized countries then have since assented to plus its provisions.

Article 18 of the declaration states that:  “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance” while Article 19 states that: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers” and yet many countries have laws in place and have penalized individuals and groups for their speeches, thoughts and expressions. “Speech” is not limited to public speaking and is generally taken to include other forms of expression.  Is there a line of division between free speech and criminal speech?  

UN resolutions are not legally binding in their entirety on members of the UN unlike treaties and different treaties have different laws, many deeply rooted in their history that may seem to contradict the Universal Declaration of Human Rights.

Many countries have laws that reflect their peculiar history and will jealously guard against speech that is likely to antagonize their unity, development, economy or international relations.

In India the “biggest democracy in the world” for example, all citizens have the right to freedom of speech and expression; to assemble peaceably and without arms; to form associations or unions; to move freely throughout the territory of India; to reside and settle in any part of the territory of India; and to practice any profession, or to carry on any occupation, trade or business however that freedom cannot be used  carry out activities that affect: The integrity of India; the security of the State; friendly relations with foreign States ; public order ; decency or morality; contempt of court; defamation or incitement to an offence and criticism supreme court judgments is punishable by three month imprisonment in jail.

The French ‘Declaration of the Rights of Man and of the Citizen’ in article 11 states that “the free communication of thoughts and of opinions is one of the most precious rights of man: any citizen thus may speak, write, print freely, save [if it is necessary] to respond to the abuse of this liberty, in the cases determined by the law” however, French law prohibits public speech or writings that incite to racial or religious hatred, as well as those that deny the Holocaust while insulting the national flag or anthem will land one  six months’ imprisonment.

For the Germans Freedom of expression is granted by the Basic Law for the Federal republic of Germany under article 5 which states; “Every person shall have the right freely to express and disseminate their opinions in speech, writing, and pictures and to inform themselves without hindrance from generally accessible sources.

Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed.
There shall be no censorship”.

Insult, malicious gossip and hate are punishable under the law, however while Holocaust Denial is punishable. In fact many countries punish denial of the holocaust; denial of the Holocaust in Lithuania will fetch the convict two years in prison; in Switzerland one year; Italy three years; Israel one year.

Heavy sentences for denial of genocide by the Nazis against Jews in Europe have been meant to deter other would be deniers and examples abound: on 11th March, 2009, Horst Mahler was sentenced to 5 years imprisonment in Germany; on  15th  January, 2008 Mahler wife Sylvia Stolz had been convicted and sentenced to prison  for three and a half years in Germany; on  Jan. 14, 2008, Wolfgang Frohlich  was sentenced  to  six and a half years while  on 20th  February, 2006, David Irving was sent to one  year imprisonment both  in  Austria  for denial of the Holocaust.

Ernst Zundel who had lived in Canada for over forty years had his applications for citizenship rejected in 1966 and again in 1994 and was deported to his native Germany whence upon arrival at Frankfurt airport  was immediately arrested and detained in Mannheim prison for inciting racial hatred.

On February 15, 2007, Zundel was sentenced to a five year term in prison over his views which centred on Holocaust denial and glorification of Adolf Hitler and his government’s policies.

Mohammed Siddique in the United Kingdom, was sentenced to eight years of imprisonment for possession and distribution of videos inciting people to martyrdom; on 6th December, 2007, Malik Samina was convicted and sentenced to a nine-month suspended jail sentence for possession of illegal literature while in 2009, Stephen Whittle and Sheppard Simon were sentenced to prison for publishing material that was likely to incite racial and religious hatred. In Sweden, a bastion of liberal laws and policies Ahmedi Rami was sentenced to 6 months in prison for ‘incitement against a group of people’ and Radio Islam’s transmission permit was revoked for a year in 1990.

In October 2000, Rami was again convicted and fined by the Swedish court. His successor at the Radio Islam David Janzon was convicted on similar charges 1993.

In Rwanda, bearing in mind the role of propaganda before, during and after the genocide against the Tutsi and attempts at falsifications; attempts to minimize and understate the numbers of victims, misconstrue the facts; praising the killers’ achievements or stated objectives; possible reoccurrence of the genocide and efforts at rewriting historical facts concerning the genocide, Parliament enacted Law n°18/2008 of 23/07/2008 relating to the Punishment Of The Crime Of Genocide Ideology.

Whereas the law has national jurisprudence, many groups and individuals have stated that it impinges on the right of expression of Rwandans as it is stated in the Universal Declaration of Human Rights.

However many of these arguments are based on prejudice against Africans in general and Rwandans in particular and arrogance on part of some people based on the colour of their skin or countries of origin. Rwanda as an independent country has a right and an obligation to make and pass national laws that safeguard the interests of its nationals.

Freedom of expression and criminal speech are different; you do not have to deny the genocide took place or threaten its reoccurrence to enjoy freedom of expression.

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