• endorse the norms, values and principles set out in the Harare Declaration (1991);
• be a sovereign state; enjoy general endorsement of the application from its citizens;
• accept the use of English as the language of Commonwealth communications; and
• acknowledge the role of the British monarch as Head of the Commonwealth.The 2007 CHOGM also recommended a formalisation of the process of attaining membership, including:
• the country will express its interest to the Commonwealth Secretariat;
• more formal consultation with Heads of Government will follow;
• consultation with civil society must take place, to demonstrate popular support;
• if Heads are in agreement then the country will be encouraged to apply; and
• at the following CHOGM it will be admitted.Nevertheless, assessing applications for Commonwealth membership remains problematic. For instance, the Commonwealth Ministerial Action Group (CMAG) assesses compliance of members with Harare on a very limited basis: what it refers loosely to as “failures of democracy”.

This is based almost entirely upon whether or not the country has a democratically elected government. Commonwealth states that commit serious human rights abuses are not placed formally upon CMAG’s agenda.2 CHRI believes that the procedure for admission to the Commonwealth must include a full and comprehensive review of the situation of human rights in the applicant country.
CHRI stands by its previous submissions to the Secretariatthat successful applications must be a “badge of honour”, indicative of the high human rights standards that the member countries and the Commonwealth must observe. Applicant countries should expect to be vigorously scrutinised both at the point of application and subsequently to ensure all members arecompliant. There is no mechanism for monitoring the extent of general public endorsement of the application in the applicant country.

There must be a process to ensure that these criteria are met. Furthermore, the process of admitting only those states that comply with stringent standards should be paralleled by better monitoring of current members’ compliance with the Harare Principles.

Although the current membership criteria appear to be supportive of such an approach, there are no benchmarks for membership, and no process for monitoring - the final decision is more one of subjectivity and politics than transparency and consistency. Shifting the negotiation prior to CHOGM does not in itself make it any more transparent, and, given the lack of any mechanism for sounding out civil society, a democratic deficit will remain.

Without clear benchmarks for monitoring compliance, the political wranglingwill continue. The emphasis will shift from CHOGM to pre-CHOGM diplomacy and issues such as human rights and civil society participation will continue to be secondary.III Rwanda: history and backgroundRwanda, a former Belgian colony, has a population of about 10 million which consists of three ethnic groups: the Hutu (about 85 percent), Tutsi (14 percent) and Batwa (1 percent).

The colonial categorisation of the people into ethnic groups (as elsewhere in Africa) was based more on European racist anthropology than historical reality, but it had a profound impact on the way that the colonial state was organised and on the development of politics and political parties in the run up to, and after, independence. These categories were based on European assumptions of the superiority of some African tribes over others, and mistook social classes or grouping for ethnic categories.

This made the social, economic, and political system rigid, built onimagined differences, and changed the basis for the relations and co-operation between different communities.Co-operation and mobility between communities were replaced by rigid and hierarchical and competitive relations. These racial categories have continued to bedevil independent Rwanda and are the source of genocide and other forms of extreme violence that has marred its recent history.

Pre-colonial Rwanda was highly organized and had a centralized system of administration. The kingdom was presided over by Umwami (King) from, mainly, the Nyiginya clan of the Tutsi sub-group. The Umwamihad almost absolute powers. The relationship between the king and the rest of the population was unequal, sustained by the highly organized system of “ubuhake”, referred to as a “patron-client” or contractualrelationship between the landed gentry and ordinary subjects.

For over 400 years, peaceful co-existence marked this relationship. Pre-colonial Rwanda’s main economic activities were cattle keeping and farming.Rwandans are agreed that the term Tutsi was used in pre-colonial Rwanda to mean a cattle keeper, and therefore affluent, and Hutu to mean a farmer, and therefore less affluent. But there was mobility between the two classes, based on the accumulation of wealth.In 1899 Rwanda became a German colony under German East Africa. After World War I it became a mandate territory of the League of Nations under the administration of Belgium. In 1946 its status changed to a UN trust territory with continued Belgian administration. Over 40 years of Belgian administrationindigenous ways of life were distorted.

For practical and political reasons, the Belgians at first favoured the King and his chiefs, who were mostly a Tutsi ruling elite. When the demand for independence began,mainly by the same previously favoured Tutsi elite, under a political party, Union Nationale Rwandaise (UNAR), the Belgian authorities hastily switched support to a section of Hutu seminarians under a politicalparty called PARMEHUTU, founded on a sectarian ethnic ideology.

On 1 July 1962, Rwanda became independent. Hutu elite politics of 1959 and events leading to independence were crucial to the political life of Rwanda. The first republic excluded Tutsi from all positions of leadership and limited their access to education. All political and economic power was concentrated in the hands of a few members of the Hutu elite from the central region. Serious strife erupted in December 1963 with large-scale massacre of Tutsis. Thousands of Tutsi fled to neighbouring countries.

In 1965 Rwanda was declared a one-party state under MDR/PARMEHUTU, which was the architect of the racist ideology that was to be consolidated in the Second Republic under President Major-General Juvenal Habyarimana and the Mouvement RevolutionaireNationale pour le Developpement (MRND). A coup, and what was by now perceived as ethnic division, combined with intermittent flows of returning Tutsi refugees in a country where land is both scarce andmain source of livelihood, resulted in ethnic clashes, culminating in the 1994 genocide in which over 800,000 Rwandans, mainly Tutsi, but also moderate Hutu and Batwa, were murdered.

The genocide followed the death of Habyarimana when his plane was destroyed by a missile as he returned from Arusha after peace talks. This was suspected to be the work of the Rwanda Patriotic Front (RPF), organised mainly by Tutsi refugees, which had been fighting a civil war with the government since1990.

The genocide ended when the RPF seized most Rwandan territory and drove the genocidal regime into exile (killings continued for a while, but this time more Hutu than Tutsi were victims).5 The RPF hasruled the country since 1994, at first under interim constitutional arrangements, sharing power with a limited number of political parties, and since 2003 under a new constitution which it was instrumental indrafting. Its leader, Paul Kagame was elected to a seven-year term in largely peaceful but seriously marred elections.

The constitution was intended to herald a period of democratic and accountable political system, with the separation of power, multi-partyism with elements of power sharing, strong protection ofhuman rights, and emphasis on equality and national consensus and unity. It has a number of innovative provisions for accountability and power sharing.3Under this constitution, the RPF has continued to dominate the legislature and the executive.

It has made significant progress in bringing political stability and economic development to the country. It claims to eschew ethnic politics, and to promote national unity by recognizing merit and integrity, and emphasizingthe equal rights and obligations of citizenship. It has set up a comprehensive system to achieve justice and the rule of law. It credits itself with healing the wounds of the ethnic conflicts and genocide, and the determination to ensure reconciliation and harmony among all the people.

It has earned abroad thereputation of being an honest and efficient government, and aspires to play a leading, constructive role in Africa. President Kagame has been widely acclaimed as an enlightened and purposeful leader.However, not every one agrees with this assessment. International human rights organizations have generally been critical of what they regard as the RPF’s opportunistic approach to human rights. The dominance of the RPF is said to negate the separation of powers mandated by the constitution.

Elections are manipulated to ensure RPF victories. Decentralisation is likewise dismissed by critics as the means of co-opting and controlling local leaders. Rwanda has been accused of pursuing pro-Tutsi policies under the guise of a non-ethnic approach and the penalization of discussion of ethnic issues. Its economicrecovery is attributed to the massive infusion of foreign aid.

Given the importance of democracy and rights to Rwanda’s credentials, and the very different perceptions of its record, an essential task of the CHRI was to make its own independent assessment.IV Assessing Rwanda’s recordRwanda’s application for the membership of the Commonwealth raises firstly, the general question of how the expansion of the Commonwealth affects its values, ambience and procedures, and secondly, the specific issue whether Rwanda meets the prescribed criteria.

It is not sufficient that an applicant satisfies the criteria, although whether the test of the Harare Declaration is satisfied, is a matter of judgment on which there can be differences among reasonable people. In other words, the membership criteria go tothe eligibility, not the entitlement, of the applicant. There has to be a very good reason why a country without any prior constitutional link to the Commonwealth should be admitted. But before we proceed tothese considerations, we deal with the formal criteria.

There is little doubt that Rwanda is a sovereign state. It has accepted English as an official language. The constitution and laws are published in English as in other official languages (Kinyarwanda and French).Many Rwandans, including senior politicians and public servants read, write and speak English (particularly those who grew up in exile in Uganda and Tanzania).

English is rapidly becoming the medium of instructionin higher education, and increasingly at other levels. Rwanda has introduced elements of the common law in its legal system (aiming, as the Minister of Justice explained, at drawing on the best of the commonand civil laws). Since the RPF assumed power, Rwanda has made a deliberate effort to distance itself from the francophonic connections that had constituted such an important part of its identity, state system and international relations (at least in part because of its resentment at French assistance to previousHutu dominated regimes), and to move closer to the English speaking world.

And undoubtedly it acknowledges the role of the Queen as the Head of the Commonwealth.That leaves two criteria which are not so straightforward—general endorsement of the application by citizens, and democracy and human rights. It is exceedingly hard to say what Rwandans think of the Commonwealth, even if they have heard of it.

As this report shows, there is not much of a civil society that would be interested and would have views on the application. There are strict restrictions on freedom of expression, and opposition to the position or policies of the government is not easily or readily expressed. So even if there is opposition to membership, it would not be easy to detect it.

However, the chances are that the people know little about the application and probably care less. As this report has indicated, there is little guidance in the membership criteria as to how the will of the people is to be discovered—as by informing and engaging the people on the issue (the Rwanda constitution provides for a referendum to decide important national issues like this, Art. 109, but this might be considered too cumbersome and expensive). Perhaps it is not too late for the Commonwealth to adopt some benchmarks and procedurefor ascertaining public opinion, to be applied to this application.

The Commonwealth has already accepted as part of the process of admission that the government must consult with the people and must demonstratetheir support.There is substantial evidence on the record (laws as well as practice) of democracy and human rights, in accordance with general norms as well as those adopted in the Harare Declaration. But, as this reporthas hinted, it is not easy to assess the evidence against the standards that Rwanda must meet. In as objective a manner as possible, the report tries to make a judgment of compatibility with the letter and spirit of the Declaration.

The Declaration reiterates the long standing principles of the Commonwealth,among them the following:

• belief in the liberty of the individual under the law, in equal rights for all citizens regardless of gender,race, colour, creed or political belief, and in the individual’s inalienable right to participate by meansof free and democratic political processes in framing the society in which he or she lives;
• recognition of racial prejudice and intolerance as a dangerous sickness and a threat to healthydevelopment, and racial discrimination as an unmitigated evil; and
• opposition to all forms of racial oppression, and commitment to the principles of human dignityand equality.It then re-commits the Commonwealth to:
• the protection and promotion of the fundamental political values of the Commonwealth: democracy,democratic processes and institutions which reflect national circumstances, the rule of law and theindependence of the judiciary, just and honest government; fundamental human rights, includingequal rights and opportunities for all citizens regardless of race, colour, creed or political belief;
• equality for women, so that they may exercise their full and equal rights;
• provision of universal access to education;
• commitment to fight poverty and promote economic and social development;
• recognition of the importance of the role of non-governmental Commonwealth organizations inpromoting these objectives, in a spirit of co-operation and mutual support; and
• promotion of international understanding and co-operation.

The fundamental principles that are addressed in this report are therefore: democracy, the rule of law (including the independence of the judiciary), fundamental human rights regardless of race or creed,gender equality and equity, and socio-economic rights—and the recognition of the significance of civil society. But before turning to them, the report discusses the broad framework within which most social and political activity is viewed and regulated, and which has an impact on most principles of the HarareDeclaration.

1. The genocide ideology of “negation”, “revisionism” and “trivialization”Understandably, the RPF government wished to establish a regime in which there would be both an accountability of past atrocities and prevention of future acts of political and ethnic killings. The preamble of the 2003 constitution sets out the people’s “resolve to fight the ideology of genocide and all its manifestations and to eradicate ethnic, regional and any other form of divisions” (the “ideology of genocide” appears in Kinyarwanda as the relatively new term, “Ingengabitekerezo bya jenocide”, meaning literally the ideas that lead to genocide).

The experience of genocide also led the regime to emphasis the unity of the country (“one Rwanda”) and its people, and to ban ethnicclassifications or any discussion of the country’s diversity.Several provisions of the constitution reflect this approach. A fundamental principle is the “eradication of ethnic, regional and other divisionsand promotion of national unity” (Art. 9, para 3).

Article 13 specifies that revisionism, negationism (i.e., denial) and the minimization of genocide were punishable by law while Article 33 states that all ethnic, regionalist, and racial propaganda, and any propaganda based on any other form of division,are punishable by law. The reference to culture is always to “national culture” (Arts. 50 and 51).Political parties cannot be based on ethnicity, tribe, clan or “any other division which may give rise to discrimination” (Art. 54). Party lists of candidates at elections must reflect these principles (presumably ignoring ethnic considerations (Art. 77, para 3)).

The Senate must supervise the observance ofthese principles (Art. 87). There is an emphasis on resolution of disputes between parties by a political parties’ forum, operating on the principle of consensus (Art. 56). Power sharing is secured by the requirement to have a multi-party government, a provision which restricts the majority partyto not more than half the seats in the cabinet, (Art. 116, para 5), and the rule that the President of the Republic and the President of the Chamber of Deputies cannot come from the same party (Art.58).

Citizens are also obliged to promote social solidarity: “Every citizen has the duty to relate to other persons without discrimination and to maintain relations conducive to safeguarding, promoting and reinforcing mutual respect, solidarity and tolerance” (Art.46).This approach and these provisions are consistent with the emphasis in the Harare Declaration on equality and non-discrimination, and against racism.

But many critics allege that this superstructure hides thereality of the way in which state power is exercised—that the prohibition of ethnic discrimination and the disregard of ethnic factors is a ruse to build and maintain the dominance of the Tutsi. They argue thatpolitical and legal prohibition of “genocide ideology” is used to suppress public discussion and criticism of the past and present conduct of the RPF, particularly the violence that led to its capture of state powerand in its continuing hold on power—the violence which is still manifested nationally and in its armed excursions in neighbouring states.6

They say power sharing is a means of co-opting opposition parties,as is the emphasis on consensus, and that goals and strategies of reconciliation are geared towards entrenching the power of the RPF. It is undoubtedly the case that the politics of genocide ideology hasbecome central to Rwandan politics (as this report shows in its discussion of democracy and human rights).

As a preliminary to that discussion, the report examines legislation on genocide ideology.In the 2003 law punishing the crime of genocide, crimes against humanity, and war crimes, Article 4 prohibits denial, gross minimalisation, and any attempt to justify or approve of genocide as well as any destruction of evidence of the genocide.

Neither the constitution nor the 2003 law provides specificdefinitions of the terms “revisionism,” “denial” or “gross minimization.” Persons guilty of “divisionism” are liable to imprisonment for up to five years and to loss of their civil rights. Those convicted of denying orgrossly minimizing genocide, attempting to justify genocide or destroy evidence related to it, are liable to a minimum of ten and a maximum of twenty years in prison.

In June 2008 the parliament adopted a law that criminalises what has been termed “genocide ideology.”Genocide ideology is defined as “an aggregate of thoughts characterized by conduct, speeches, documentsand other acts aiming at exterminating or inciting others to exterminate people based on ethnic group,origin, nationality, region, colour, physical appearance, sex, language, religion or political opinion, committed in normal periods or during war”.

“Negationism” (used in Article 13 of the Constitution) is usually used to refer to the denial of Tutsi genocide and conditions around its implementation and claiming that there was “double genocide” and other crimesagainst humanity committed during the war launched by the RPF, and acts of revenge after the 1994 genocide. “Revisionism” refers to movements that attempt to deny an “established fact or ideology”.

The2008 law penalizes “marginalizing, laughing at a person’s misfortune, defaming, mocking, boasting, despising, degrading, creating confusion aiming at negating the genocide which occurred, stirring up illfeelings, taking revenge, altering testimony or evidence for the genocide which occurred”.

Individuals as well as organizations can be punished under this law, with severe penalties. Its vagueness induces extremecaution on the part of both, even when their work is the investigation of the violation of rights or the integrity of state agencies, understandably because the judiciary has failed to balance the charges againstthe freedom of expression and other rights. Politically motivated accusations of divisionism have been used to attack civil society organizations, the press, and individuals.

Accusations of divisionism or “genocidal ideology” are among the most effective tools for silencing critics.What this says about the prospects of “one Rwanda” for the future is uncertain, but including any questionor debate around the deaths of Hutus as the result of retaliation by RPF’s armed forces under genocideideology, does not bode well for reconciliation or the coming to terms with the past, or for the protection ofthe freedom of expression.

The politics of the genocide ideology pervades so many aspects of officialpolicies and their impact on society that it is now central to any examination of the attitude of the statetowards human rights, governance and civil society (as will be obvious from the following assessment ofRwanda’s record on rights and governance).

There is the danger of the ideology becoming an obsessionwith the RPF, disabling it from an objective analysis of political and economic situation in the country,curbing the freedom of expression, discussion and consultation that is necessary for it to come to termswith, and avoid the errors of, its past. A perceptive commentator on Rwanda, Gérard Prunier, by nomeans unsympathetic to the Tutsi, says that “any mention of the word “Tutsi” or “Hutu” is strictly forbiddenby law.9
This means that any lucid examination of the relationship between Tutsi and Hutu before, duringand after the genocide is now impossible. […] Rwanda is now locked into an ideological straight-jacketproviding a relentless and official interpretation of history from which all shades of meaning havebeen sanitised.”

2. Compatibility with the Harare Declaration(a) Democracy and governance The Commonwealth commitment to democratic principles must be viewed and applied as more thanrhetoric, it must seek to ensure that all of a country’s democratic institutions reinforce one another. Theseinstitutions, whether legislative, judicial or executive, must be transparent in their deliberations andaccountable for their decisions. Each institution has a distinct role to play in addition to checking andbalancing other institutions.

Rwanda’s constitution provides for a democratic system, with separation ofpower, representative institutions, accountability of the government, and a comprehensive bill of rights.However, many persons told the CHRI mission that the executive was both powerful and authoritarian.The mechanisms for multi-party government were used to co-opt and neutralise the opposition parties.

The manipulation of the law on genocide ideology, with its broad and vague definition, plus the indoctrinationthat the reconciliation strategies facilitate, enhances the influence of the government in all state institutions,including the judiciary and security forces. Although the constitution establishes a number of independentinstitutions (including commissions on the electoral process, prevention of genocide, reconciliation, human rights, and complaints against the administration), they tend to be staffed by supporters of the government.

And, given a weak civil society, Rwanda gives a strong impression of a one party state.The 2003 presidential and parliamentary elections presented Rwandans with only a limited degree of political choice. Most election observers found fault with the elections, including intimidation. Although marred by a lack of transparency, procedural shortcomings and intimidation,11 which precluded any genuine challenge to the RPF, the 2003 elections were presented by the RPF as part of a continuing evolution toward democracy in the country. The regime has, according to some analysts, become even more repressive since the end of the transition period in 2003.

12 Contests for officials at the next higher levelused secret ballots, but it was reported that there were numerous irregularities, including stuffing of ballotboxes and intimidation of candidates. In a number of contests, voters did not have a choice, as only onecandidate stood.

13 The earlier local elections had been conducted by local authorities dominated by theRPF, and had dispensed with the secret ballot, with voters lining up in different queues.The RPF dominates the political arena. Eight other political parties associate themselves with thegovernment.

The constitutionally mandated Political Party Forum, to which all parties must belong, operates on the principle of consensus, and in practice the RPF guides its deliberations. The constitution officially permits political parties to exist— but under certain conditions. They must not base themselves on race,ethnic group, tribe, religion “or any other division which may give rise to discrimination” (Art. 54).

Political parties closely identified with the 1994 massacres are banned, as are parties based on ethnicity or religion.The Senate can bring charges against a political party which violates these principles; such a party ifguilty is dissolved, and all its members in the House of Deputies would lose their seats.

A number ofapplications for the registration of political parties have been rejected.The legislative and judicial branches of government have done little to counterbalance the executive ormitigate the influence of the military in policy making. In practice, power remains firmly concentrated inthe hands of a small inner circle of military and civilian elites, predominantly former Tutsi refugees. In thisway the diversity of Rwanda is negated.

(b) Fundamental human rightsRwanda has ratified most international and regional human rights treaties. Its constitution contains agenerally excellent chapter on human rights, including socio-economic rights. Both in this chapter andother parts, there are provisions for the promotion of gender equality and women’s participation in publicaffairs.

The rights of the marginalised communities (though not directly identified or defined) are givenspecial consideration, as are those of the disabled and the survivors of the genocide. There is, as alreadymentioned, great emphasis on non-discrimination and the equality before the law.

The constitution protects the right to choose one’s employment, and guarantees equal pay for equal work. It ensures to workersand employers the right to form collectives, for negotiations and other purposes, and additionally, toworkers a qualified right to strike. Free and compulsory primary education is to be provided by the state,which, together with the people, has commitments to provide medical services.

However the practice of human rights is generally different from the constitutional provisions. An exceptionis the impressive improvement in the situation of women, who are well represented in the legislature,executive and public administration. But even here, with the reduction of public space in which civil society organizations operate, women’s organizations that had been very effective in lobbying thegovernment on women’s issues in the past have avoided tackling issues that are not in line with thegovernment’s policy directives.

Discrimination against, indeed oppression of, women continues in families and communities, as noted by the CEDAW Committee in 1999. While noting that equality between menand women is enshrined in the Constitution of Rwanda, the Committee expresses concern thatdiscrimination against women exists in several fields, particularly under the Civil Code and the FamilyCode, which recognizes the husband to be the head of the conjugal community.

In the context of thereform of the Civil Code and the Family Code, the State party should take measures to remove provisionsthat place women in a situation of inferiority. It is of course understandable that social change takeslonger than enacting a law, but the above points are nevertheless valuable in moderating the claims thatgovernment policies have greatly improved the situation of women.

The government scores well on education, with an impressive expansion in institutions of learning. It alsoscores well on economic development, but at the cost of increasing disparities between the rich and thepoor, and urban and rural areas. Whilst the government has acknowledged the impoverished status ofthe Batwa and has encouraged district governments to include Batwa and all poor citizens in housing andtuition assistance programs, it has opposed peaceful organization among Batwa on the grounds thatsuch organizing violates the principle of national unity.

Additionally, other marginalized groups, such asstreet children, beggars, sex workers and the indigent, face social discrimination as well as governmentpolicies that infringe on their rights. And, lesbian, gay, bisexual, transgender and intersex peoples (LGBTI)currently are facing a new law which, if enacted, will criminalize activities that promote discussion or workon issues related to alternate sexuality.

In 2007, Rwanda abolished the death penalty. This move was widely acclaimed internationally. But notmany noticed that it was, in most cases, replaced by life imprisonment in solitary confinement. As the UNHuman Rights Committee commented, such solitary confinement is against article 7 of the Covenant onCivil and Political Rights. The Committee also expressed concern about reported cases of enforceddisappearances and summary or arbitrary executions in Rwanda and about the impunity apparentlyenjoyed by the police forces responsible for such violations.

It was also concerned about reported casesof enforced disappearances and summary or arbitrary executions in Rwanda and about the impunityapparently enjoyed by the police forces responsible for such violations.

The emphasis in this report is on political rights which are critical to democracy (including the accountabilityof the government) and the flourishing of civil society—the freedom of expression and the media, and therights to associate and assemble. It is significant that unlike the formulation of most other rights, theserights are made subject to the law, so that ultimately it is up to the executive and the legislature todetermine their scope.

(i) Freedom of expressionThe mission had some sense of the situation of freedom of expression in Rwanda, finding that manypeople it wanted to speak to were afraid to speak at all, or would only speak on the assurance of anonymity.This experience squared with the various reports of human rights organisations, and media reports.Despite some easing of tensions with broadcast media, overall media independence and freedom ofexpression have declined. Several periods marked by courageous journalism criticizing the government,the RPF, and the president have been followed by crackdowns on the media.

Freedom of conscience and opinion, and their “public manifestation” are protected (Article 33), but only“in accordance with conditions determined by law”, an expression that returns to the legislature andexecutive power that the constitution ostensibly limits. And propagation of ethnic, regional, racial ordiscrimination or any other form of division is punishable (Art. 33(2)). Article 34 protects freedom of themedia, but mentions a wider freedom of speech only to say that it must not prejudice various concernsincluding public order and morals.

Basic legal guarantees of freedom of expression and the media werecontained in the media law adopted in 2002. The law states that the press is free and censorship forbidden,but in practice the media are still tightly controlled by the government. Articles of the same law imposecriminal sanctions on the media for a wide range of offences such as divisionism and genocide ideology,punishable by one to five years in prison.

Accusations of these crimes are used to intimidate andsilence journalists.Since February 2004, when the government began easing restrictions on broadcast media, the radioairwaves have become more diverse, with several local and international radio stations broadcasting onthe FM bands. By the end of 2005, at least nine commercial, community, and religious stations wereoperating in the country along with new provincial stations belonging to state-owned Radio Rwanda.14The government has however stopped transmissions of radio stations on several occasions, including ofthe FM transmission of Radio France International on 27 November 2006.15 The BBC has been the target of a number of government complaints, which accused the Corporation in 2004 of propagating “genocideideology.”

In late 2007, the government accused a BBC journalist, Yusuf Mugenzi, of exacerbating ethnicdifferences through the Imvo n’imvano program, which brings together leading - and at times controversial- figures from the Rwandan diaspora. Government officials accused the programme of giving airtime to“genocide fugitives,” referring to the Democratic Forces for the Liberation of Rwanda (FDLR), a Hutu rebel group based in eastern Congo, some of whose members took part in the 1994 genocide and continue to threaten stability in the region. There have been threats of suspension of BBC broadcasts onseveral occasions and in 2009 its Kinyarwanda broadcasts were in fact stopped.

Since 2005, one of the few independent newspapers, the biweekly Umuco, and its personnel have beenrepeatedly harassed and threatened for their criticism of the government, and the publication has beencensored. Copies have been seized, the editor forced into hiding for while, an Umuco journalist wasarrested in 2005, just after he published an article in which he accused Gacaca officials in Gitaramaprovince of mismanagement and witness tampering17 and imprisoned for nearly 11 months on a chargerelated to the 1994 genocide of which he had previously been acquitted.18

Another independent paper,Umuseso, has been the target of similar treatment; several of its journalists were forced to flee the country,19and in August 2006, Rwanda’s highest court upheld a ruling imposing a one-year suspended prisonsentence and ordering editor Charles Kabonero to pay the equivalent of US$2,000 damages for defamingthe deputy speaker of parliament in a 2004 article.20

Reporters Without Borders reported in August 2006,that Bosco Gasasira, the editor of the weekly Umuvugizi, had been receiving threatening phone calls andhad been under surveillance by military intelligence for criticizing Economy and Finance Minister, JamesMusoni.21 The director of Umurabyo was jailed in January 2007 for publishing an anonymous letter thatcriticized the administration of President Kagame.22 In March 2009, the UN Human Rights Committee expressed concerns over reports that the Rwandan government had subjected journalists critical ofgovernment policies to intimidation and harassment and had charged other journalists with “divisionism,”a crime vaguely defined under Rwandan law as spreading ideas that encourage ethnic animosity betweenthe country’s Tutsi and Hutu populations.

The Government of Rwanda has begun preparing a new law governing the media. This reportedly containsprovisions criminalising non-disclosure of journalists’ sources, and will require editors to hold master’sdegree qualifications in journalism and/or media. It is thought that the law will cause the closure of manyof the already struggling independent local media. The recent legislation, currently awaiting presidentialapproval, would make defamation a criminal offence in addition to other civil and administrative sanctions,and would impose a wide range of restrictions on gathering and reporting information.

(ii) Freedom of association and assemblyThe Constitution recognizes freedom of association, but it is restricted in practice, and again the expression“such freedom shall be exercised under conditions prescribed by law” appears (Art. 35) Rwandan lawprotects the right to form, join, and participate in trade unions; however, unions must follow the sameonerous certification and registration process as other NGOs.

Overall, trade unions are able to advocatefor the interests of their members to a limited degree. Freedom of assembly has rather weak protectionunder the Constitution (Art. 36); it is guaranteed “within the limits fixed by law”23), and is not fully guaranteedin practice. Protests and demonstrations in support of RPF or government policies occur on a regularbasis.

To hold a demonstration, the sponsoring groups must apply for a permit. Between 2004 and 2007,no demonstrations against government policies or critiquing the RPF had taken place.(c) Rule of law and the independence of the judiciaryThe constitution commits the state to observe the rule of law. The rule of law underlies the principle oflegality, and is critical to the supremacy of the constitution. It requires that all laws must be compatiblewith the constitution, and state policies and administration must be compatible with the constitution aswell as laws. State power can only be exercised in accordance with the constitution and valid laws.

Therule of law is also critical to the protection and enforcement of fundamental rights—and the effectivefunctioning of the economy.The rule of law depends on the general respect for the constitution and laws. The government and otheragencies of the state must be committed to the principle of legality. Courts, as the primary interpreter andenforcers of the constitution and the law, must be free, impartial and competent. So should the prosecutorialauthorities. The law must be accessible to the people.

Access to justice in a broader sense must beensured, including access to legal advice and representation. Most of these elements are provided in theconstitution. Rwanda had made great strides in building the infrastructure of the rule of law. However, therefusal to incorporate some experienced Hutu judges and prosecutors, who remained in the country orwho returned after the RPF’s victory, as well as the arrest, assassination or departure into exile of anumber of them, has led to a lack of experienced personnel.

I) Ces tueurs tutsis, un peuple étrange!