As has been reported in the media, parliament is currently studying the revised penal code and one of the most contentious issues is whether defamation should be decriminalised. The contention isn’t whether defamation shouldn’t be an offence; but whether it should remain criminal or be made a civil offence. The difference is that when defamation is criminal, the offender can be sent to prison but when civil, restitution is the remedy. However, the way the debate has proceeded so far, four misconceptions about defamation have been advanced without clarifying benefits of decriminalising the vice. The first misconception is that defamation concerns journalists and media outlets only. In the process, decriminalising it is presented to be akin to giving a licence to journalists to defame whoever they want without accountability. Secondly, criminal defamation is sold as proportional and a deterrent to the offence. But it’s neither proportional nor a deterrence but a disincentive to societal free debate unconstrained by the fear of prison. Thirdly, since defamation laws are in the defence of good reputation of individuals, the right to good reputation is equated to the right to freedom of expression and associated free press. Finally, proponents of criminal defamation cite hate media during the Genocide as reason to keep this law in the penal code. Yet, of course, while this reasoning negate the achievements of the RPF-led government based on a superior governing philosophy and a legal environment that promotes media freedom, including a media-self regulatory mechanism that is bearing fruits, promoters of this view forget that hate media was possible in 1994 because it was supported by the genocidal regime and there was no media freedom in the country. So, why is decriminalising defamation good for Rwanda today? Firstly, because defamation concerns every Rwandan just as freedom of expression does together with the associated freedom of thought. That tells us that de-criminalising defamation would be in the interest of everyone, not merely journalists. In fact, while defamation is an offence against an individual and the state’s involvement in it amounting to involvement in private matters, freedom of expression and associated free press are public goods that serve the wider public’s right to freely debate pertinent issues without the fear of prison. Thus, while the immediate effect of criminalising defamation is the unannounced withdraw from public debate by members of society due to fear of prison, defaming an individual only results in the loss of one’s good reputation, not society’s. These two rights aren’t therefore equal; although both aren’t absolute. To that extent then, the most important effect of criminal defamation isn’t that whoever is found guilty is made to serve a prison sentence. If that were the case, there wouldn’t be a problem, especially because while building reputation takes long, destroying it takes minutes. The problem is the chilling effect of criminal defamation on society that takes place even before any defamation has taken place or law broken. This means that decriminalising it is the best course for Rwanda as a progressive nation. Secondly, because the net effect of this generalised fear for people to freely speak undermines informed debate, it also undermines interpretive and investigative journalism. For example, researchers, scientists, the academic and opinion-makers are less inclined to debate if they think it would result in imprisonment just as ordinary citizens would be less willing to talk to journalists or in open space due to the same fear. Thirdly, and probably most importantly, while criminal defamation has been in the penal code since 1977 and hadn’t solved the problem, it’s plausible to state that the policy of media self-regulation the government inaugurated in March 2011 is bearing fruit. For instance, since the creation of the media self-regulation in 2013, over 260 cases have been brought before it and 60 of them related to defamation. These cases have amicably been resolved with 100 percent satisfaction from parties involved, including government officials. That means that media self-regulation is resolving the problem criminal defamation has failed to solve in the last 40 years! So, why would government support laws that undermine its own policy? In other words, if the home-grown media self-regulation is working and is supported by everyone including media owners, journalists and Rwandans, why interfere with it? Finally, the reasons used to keep criminal defamation in the penal code are weak and unconvincing. The first reason given to keep defamation criminal is that the media had a role in the Genocide and therefore there is need to guard against the development of the same kind of media. Secondly, that journalists are poor to afford financial restitution in case of defamation. While it’s true that the media had a role in the Genocide, it’s ahistorical to argue that this was due to media independence or because defamation wasn’t criminal! The reason why the media promoted the genocide ideology is because the then government was behind the same idea and was intolerant to media outlets that didn’t support the same ideology. Considering that in today’s Rwanda hate media is catered for under the law against divisionism and the promotion of the genocide ideology, there is reason to decriminalise defamation. But to seek to keep criminal defamation only because someone thinks probable offenders might not have monetary means to pay the damage is to punish a sector or people only because someone thinks they are poor; yet to be poor isn’t a crime! In broader terms though, that would be to seek to punish societal messengers─who are the journalists and vehicles through which Rwandans discuss critical matters only because someone suspects they don’t have the ability to give financial compensation in case an offence is committed! That would be unjust! Because it’s in everyone’s interest, decriminalising defamation is in national interest; it isn’t a licence to defame. The writer is a Senior Lecturer, University of Rwanda in the School of Journalism and Communication The views expressed in this article are of the author and do not necessarily represent those of The New Times.
