Treading a Fine Line: the lngabire Victoire Umuhoza v. Rwanda Judgement (Part One)


In this two-part post, I am going to look at the African Court on Human and Peoples’ Rights (African Court) most recent judgement on the merits, lngabire Victoire Umuhoza v. Rwanda. In this first part, I will introduce the case, give some background and briefly review the jurisdiction and admissibility issues. I will then delve into the merits, specifically on the African Court’s findings on the right to fair trial. In part two of this post, to be posted in the coming few days, I will continue looking at the merits, this time concerning the right to freedom of expression, before finishing with some analysis and concluding remarks.



Regular African Court followers will likely be very familiar with this case, even before judgement was handed down on 24 November 2017. For those who may be coming a little late to the party, in brief, the case has secured its place in African Court history due to Rwanda’s withdrawal of its Article 34(6) Additional Declaration during the case’s pre-judgement stage. I have written on this issue previously here, here, here and here, but in short, the day of the scheduled public hearing, Rwanda informed the African Court it was going to withdraw its Article 34(6) Additional Declaration (which allowed Rwandans and Rwandan NGOs to petition the African Court directly). It argued that by doing so, the African Court no longer had jurisdiction over cases involving Rwanda, including this one, and promptly refused to comply with the African Court pending further review. The African Court considered Rwanda’s decision to withdraw, finding that Rwanda was entitled to withdraw its Additional Declaration, but that this withdrawal would be subject to a 12 month cooling-off period (regular readers will recall we added a “Rwexit” countdown to our homepage). This meant that Ingabire’s case remained within the African Court’s jurisdiction.

This judgement is therefore the conclusion of a rollercoaster of a case for the African Court. Whilst this background is incredibly interesting and impactful not only on Rwanda, but also on the African Court’s future relationship with all AU member states, the judgement itself also deserves to analysed. In particular, the judgement raises interesting points on the right to fair trial (Article 7 of the African Charter) dealt with in this post and the right to freedom of expression (Article 9 of the African Charter and Article 19 ICCPR) that I will look at in part two.



The applicant in this case is Rwandan political leader lngabire Viotoire Umuhoza (Ingabire). Between 2003 and 2010 Ingabire made a number of comments, including at the Kigali Genocide Memorial, concerning the 1994 Rwandan genocide and Rwanda’s current leaders. Ingabire was prosecuted for making these comments under various laws designed to prevent the minimisation, or derogation of the Rwandan genocide. In particular, in October 2012 Ingabire was convicted at the High Court of Kigali of “conspiracy to undermine established authority and violate constitutional principles by resorting to terrorism and armed force” and “minimization of the genocide” and sentenced to eight years’ imprisonment with hard labour. Ingabire appealed these convictions. In December 2013, on appeal, the Rwandan Supreme Court reclassified Ingabire’s convictions, finding her guilty of “conspiracy to undermine the Government and the Constitution, through acts of terrorism, war or other violent means, of downplaying genocide, and of spreading rumours with the intent to incite the population against the existing authorities”. Ingabire was re-sentenced to 15 years imprisonment.

In her application before the African Court, Ingabire alleged that her arrest, detention, trial and convictions violated the African Charter on Human and Peoples’ Rights and the ICCPR, specifically the right to fair trial (Article 7 of the African Charter) and the right to freedom of expression (Article 9(2) of the African Charter and Article 19 of the ICCPR).


Jurisdiction and Admissibility

For regular African Court followers there’s not much new to report in terms of jurisdiction or admissibility. Rwanda attempted to argue the now familiar “Appeals Court” line often favoured by member states in cases involving criminal convictions. In essence, this argument runs along the lines that the applicant is using the African Court as a further criminal appeal court to overturn convictions, which is not the African Court’s purpose. The African Court swiftly disposed of this argument as is has recently done in other cases such as Ernest Francis Mtingwi v. Malawi, Alex Thomas v. Tanzania and Mohamed Abubakari v. Tanzania. The African Court once again agreed that it cannot act as a criminal appeal court per se, but what it can do is consider whether criminal convictions, and the process and trial that lead up to them, comply with the African Charter or other international human rights instruments signed by the member state in question.

In terms of admissibility, Rwanda argued failure to exhaust local remedies which, I think, every Member State has raised before the African Court to date.  In particular, Rwanda argued that Ingabire had failed to exhaust local remedies as she could still challenge the laws that underpinned her convictions before the Rwandan Supreme Court on constitutional grounds, as well as the opportunity to seek a review of her convictions. These arguments are, again, familiar. Member State’s often point to the possibility of constitutional challenges or the review of decisions, which fall outside the usual line of trial-appeal-appeal. As the African Court has done before, it dismissed these arguments. In doing so, the African Court noted that Ingabire did in fact bring a constitutional challenge to the laws which was unsuccessful. The African Court further found that in the “circumstances of this case” application for review would be an extraordinary remedy which would not be effective and efficient remedy, and therefore Ingabire was not required to have persuaded it, referring to Alex Thomas v. Tanzania.


The Merits – the Right to a Fair Trial

Whilst jurisdiction and admissibility bring little new, the merits of the case bear further scrutiny. As mentioned above, Ingabire alleged that her convictions violated the right to fair trial (article 7 of the African Charter) and the right to freedom of expression (Article 9 of the African Charter and Article 19 ICCPR). In this part we will look at the right to fair trial, whilst part two will look at the right to freedom of expression.

The African Court broke the right to fair trial analysis down it down into four parts: i) the right to presumption of innocence; ii) the right to defence; iii) the right to be tried by a neutral and impartial court; and iv) the principle of legality of crimes and penalties and non-retroactivity of criminal law.

Right to Presumption of Innocence

Concerning the right to presumption of innocence, the African Court confirmed that this is a fundamental right, as found in Article 7(1)(b) of the African Charter, and Article 14(2) of the ICCPR. However, the African Court dismissed Ingabire’s allegation that her trial had suffered from a lack of presumption of innocence for lack of evidence.

Right to a Defence

As to the right to defence, the African Court clarified that the right to defence is not limited to choosing one’s own counsel, but also includes the right to call defence witnesses. It found in turn, defence witnesses themselves deserve protection from intimidation and reprisals to ensure that they can assist the accused and the authorities to reach a just decision. Ingabire alleged that this right had been violated through her defence counsel being searched on entry to the Rwandan High Court and the searching of defence witnesses at prison.

The African Court was not convinced however that searching defence counsel at court, and searching witnesses in prison violated Ingabire’s right to a defence. It found that both policies were in line with normal security practice. The African Court was however concerned with the allegations that documents were taken during these searches that were later used in evidence against Ingabire. Furthermore, it highlighted unease over the allegation that the High Court Judge in Ingabire’s trial had refused to allow defence counsel to ask questions in court, and that a defence witness was subject to threats and intimidation after testifying. The African Court also noted defence counsel’s difficulties visiting Ingabire in prison, and the appearance of a co-accused’s statement after he had stayed in a “military camp”. Notably, the African Court remarked that none of these allegations were specifically refuted by Rwanda, which had instead made a general denial that the right to defence had been violated.

In relation to these additional allegations, the African Court recalled that the right to defence includes principles such as access to witnesses, and the opportunity for counsel to express themselves, consult with their clients and to examine and cross-examine witnesses. Moreover, the African Court found that the right to defence also includes the right to know and examine documents used against one’s trial. ln Ingabire’s case, the African Court found that difficulty encountered by defence counsel in putting questions to Ingabire’s co-accused, the threats and environment of intimidation faced by the defence witness and the use of documents seized, that were later used against her without giving her the chance to examined it, were incompatible with international standards pertaining to the right to defence. The African Court therefore held that Ingabire’s right to defence was violated, contrary to Article 7(1)(c) of the African Charter.

In addition, with regards to the questioning of the defence witness by prison authorities over the testimony they gave in Kigali High court, the African Court noted that this is not a conduct consistent with standards that aim to promote a fair trial. Such actions may have an intimidating effect on witnesses’ willingness and disposition to cooperate and adduce evidence against a member state. This is especially so for witnesses in detention or already serving prison sentences. However, the African Court found that as the questioning happened after the witness had given testimony, it concluded that in the circumstances of the case, this did not violate the right to defence of the Ingabire.

Right to be Tried by a Neutral and Impartial Court

With regards to the right to be tried by a neutral and impartial court, Ingabire made several allegations that the judges in her cases were not impartial. Whilst the African Court confirmed that Article 7 (1)(d) of the African Charter provides for trial by an impartial court or tribunal, when examining the evidence adduced by Ingabire against the guidelines found in the African Commission’s Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, it found that the evidence was not sufficient to demonstrate such impartiality.

The Principle of Legality of Crimes and Penalties and Non-Retroactivity of Criminal Law

Finally, the African Court turned its attention to the principle of legality of crimes and penalties, and non-retroactivity of criminal law, going into significant detail. In particular the African Court looked at compliance with Article 7(2) of the African Charter which states:

No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed…

Ingabire alleged that she was first charged and convicted for the crime of propagating the ideology of genocide at the Kigali High Court. Subsequently, she argued, the Rwanda Supreme Court found her guilty of minimising genocide, thus requalifying her acts under a new law, which entered into force on 28 October 2013, some three years after the comments which underpinned her conviction occurred. According to her, the use of this new law by the Rwandan Supreme Court violated the principle of non-retroactivity of the law and the non-retroactive application of the criminal punishment.

The African Court made clear that the non-retroactivity of criminal law is an important rule intrinsic to the principle of legality that stipulates, among others, that criminal responsibility and punishment must be based only on the prior promulgation of laws which prohibit a particular conduct. It recalled that the principle of legality requires that society is informed of prohibited behaviour before the law prohibiting or criminalising such behaviour comes into force. ln other words, the prohibited conduct must be clear and verifiable, and the punishment that an infringement entails should be specified before individuals are held accountable for the same.

The African Court also made clear that the rule of non-retroactivity forbids the retrospective application of a criminal law to acts committed before the enactment of that law. Referring to Article 15(1) of the ICCPR, the African Court noted that the only exception to this is where a criminal law applied retroactively favours an individual by decriminalising a previous criminal conduct which they are accused of, or provides a lighter penalty than the law which was in force at the time of the criminal conduct.

In Ingabire’s case, the crimes she was convicted of occurred between 2003 and 2010. During this time, there were four Rwandan criminal laws under which Ingabire was charged, two of which had some offences which overlapped. However, in 2013 two of these laws were replaced by newer legislation covering similar offences relating to the genocide. These newer laws, covered the offence of minimisation of genocide, but reduced the sentence from a range of 10 to 20 years, to five to nine years imprisonment. Similarly, for crimes of conspiracy and threatening state security and the constitution, and spreading rumours with intent to incite the population against the existing authorities, the older laws allowed for punishment up to life imprisonment, whilst the new law set the range between 20 and 25 years.

The African Court noted that Ingabire was initially charged with propagating the ideology of genocide, however, the Kigali High Court re-qualified the charge and convicted her for the crimes of revisionism of genocide and treason to threaten state security and the constitution, and sentenced her to eight years’ imprisonment. On appeal, the Rwandan Supreme Court sustained the conviction but rejected the mitigating circumstances and crimes of which she was acquitted at the Kigali High Court. The Rwandan Supreme Court, citing the existence of concurrence of crimes, imposed a punishment of 15 years imprisonment on for the crimes of minimising genocide and crimes of conspiracy and threatening state security.

The African Court was of the view that the rule of non-retroactivity of the law does not preclude the requalification of a criminal charge during a criminal trial resulting from the same facts. What is prohibited it found, was the application of new criminal laws, in this case the two newer 2013 laws, to crimes alleged to have been committed before the coming into force of such law. However, the African Court found that in this case these new laws carried lesser sentences than the old laws. It therefore found that since these newer laws were in general favourable to Ingabire they complied with the exception to the rule of non-retroactivity.

The African Court held that the fact that the punishment imposed by the Rwandan Supreme Court of 15 years was higher than the penalty that was initially imposed by the Kigali High Court (eight years) was not because of the retroactive application of the new laws, but rather because the Rwandan Supreme Court had rejected the mitigating circumstances considered by the Kigali High Court, and convicted the Applicant for an offense for which she had been acquitted by the Kigali High Court. Accordingly, this was not a violation of the principle of non-retroactivity of criminal law.

Part Two of this post will be added in the coming days, looking at the right to freedom of expression and opinion, analysis and conclusions.

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