ITV's Kambanda interview: There are restrictions to freedom of expression

A couple of weeks ago, former Rwandan prime minister Jean Kambanda was featured in an interview with the UK-based ITV News in which he claimed innocence despite his conviction by the ICTR for genocide and crimes against humanity that occurred in Rwanda in 1994. Kambanda’s conviction was upheld by the ICTR Appeals Chamber where it articulated that “no reason to disturb the decision of the Trial Chamber’. He is currently in the prison walls of Mali serving his life sentence. In Kambanda’s interview, he said “I can’t express regrets for something I have not done, someone else did it”. He claims he was effectively tricked into confessing; that at his trial he was denied a lawyer of his choice. On the contrary, Kambanda pleaded guilty probably in hope for a less sentence. However, as clarified by the Appeals Chamber, Kambanda’s guilty plea was disregarded because the crimes for which he was convicted were of the most serious nature in the light of international law. As a matter of evidence, on May 1, 1998, Kambanda pleaded guilty of the six counts contained in the indictment against him, namely, genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, complicity in genocide, crimes against humanity (murder) and crimes against humanity (extermination). And his guilty plea was accepted by the Trial Chamber. Under international legal practice, in accepting the validity of the guilty plea agreement, three components must materialise: 1) voluntary, 2) informed, and 3) unequivocal. “Voluntariness” involves two elements; first an accused person must have been mentally competent to understand the consequences of his actions when pleading guilty. Secondly, the plea must not have been the result of any threat or inducement other than the expectation of receiving credit for a guilty plea by way of some reduction for sentence. “Informed” the person pleading guilty must understand the nature and consequences of his plea to what precisely he is pleading guilty. He must be knowledgeable of the nature and distinction between alternative charges and the consequences of pleading guilty to one rather than the other. “Unequivocal” the person pleading guilty must be aware that the said plea could not be refuted by any line of defence. Both the ICTR Appeals Chamber and Trial Chamber were fully satisfied with Kambanda’s guilty plea based on sufficient facts of the crime he participated in. It seems cynical and puzzling to imagine how Kambanda turns around and confesses his innocence, yet he pleaded guilty in broad daylight and in a manner that validly comports with the acceptable standards of international tribunals. After going over his interview, two fundamental questions sprung to my mind: what is the legal position with respect to contact with the media (in the right of freedom of expression) by internationally detained persons? What implication did the interview portray? Many of the rules governing the conditions of detention at the tribunal are not publicly available and could only be obtained by visiting the UN tribunal and by asking the detention authorities for copies. Equally, these legal rules pursuant to the conditions of detention of internationally convicted persons, or prisoners of the international community if you like, after their transfer to so-called States of enforcement in order to serve their sentences are not publically accessible. Broadly speaking, the internationally convicted persons do enjoy inherent right to freedom of expression like anyone else universally, as laid down in Article 19 of International Covenant on Civil and Political rights and Universal Declaration of Human Rights. However, the freedom of expression is not absolute and states are entitled to limit it for certain legitimate reasons recognized by a democratic society. In the case of internationally convicted persons, first and foremost, they inevitably lose the right to liberty. With regard to the contact of the media in the sense of the right to seek, receive and impart information or ideas, they are restricted on communication unless where there are compelling reasons to forbid this for the maintenance of safety and security, in the public interest or in order to protect the integrity of victims. More specifically, the ICTR Rules of Detention preclude the right of the detainees’ contact with the media. Although it has been difficult to access the agreement signed between ICTR and Mali for the transfer of convicted persons, the fact that ICTR curtails the convicts from having contact with the media, likewise, it should have precluded that right in the agreement. According to the ICTY, in the case of Miloševic´ and Šešelj, detainees’ communication with the media was similarly ruled out because such contact was thought to undermine the tribunal’s mandate. Although the face-to-face interviews were totally banned under the ICTY Rules of Detention, the ICTY Vice-President in the Karadzic case considered that such a prohibitory clause may only be justified where detainees have alternative means of communication with the media. I must say that Jean Kambanda’s confession of being guiltless did not only tarnish the tribunal’s credibility but also had grievous effects to Rwandans in general. The writer is a lecturer and international law expert

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ITV's Kambanda interview: There are restrictions to freedom of expression