Report on Rwanda s Application for Membership of the Commonwealth

Report on Rwanda s Application for Membership of the Commonwealth: An assessment against Core Criteria

CHRI 2009

CHRI Commonwealth Human Rights Initiative working for the practical realisation of human rights in the countries of the Commonwealth Commonwealth Human Rights Initiative.

The Commonwealth Human Rights Initiative (CHRI) is an independent, non-partisan, international non-governmental organisation, mandated to ensure the practical realisation of human rights in the countries of the Commonwealth. In 1987, several Commonwealth professional associations founded CHRI. They believed that while the Commonwealth provided member countries a shared set of values and legal principles from which to work and provided a forum within which to promote human rights, there was little focus on the issues of human rights within the Commonwealth.

The objectives of CHRI are to promote awareness of and adherence to the Commonwealth Harare Principles, the Universal Declaration of Human Rights and other internationally recognised human rights instruments, as well as domestic instruments supporting human rights in Commonwealth member states.

Through its reports and periodic investigations, CHRI continually draws attention to progress and setbacks to human rights in Commonwealth countries. In advocating for approaches and measures to prevent human rights abuses, CHRI addresses the Commonwealth Secretariat, member governments and civil society associations. Through its public education programmes, policy dialogues, comparative research, advocacy and networking, CHRI’s approach throughout is to act as a catalyst around its priority issues.

The nature of CHRI’s sponsoring organisations allows for a national presence and an international network.* These professionals can also steer public policy by incorporating human rights norms into their own work and act as a conduit to disseminate human rights information, standards and practices. These groups also bring local knowledge, can access policy makers, highlight issues, and act in concert to promote human rights.

CHRI is based in New Delhi, India, and has offices in London, UK, and Accra, Ghana.
International Advisory Commission: Sam Okudzeto - Chairperson. Members: Eunice Brookman-Amissah, Murray Burt, Yash Ghai,
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and Maja Daruwala - Director.
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ISBN: 81-88205-68-0

© Commonwealth Human Rights Initiative, 2009. Image: ©iStockphoto.com/Duncan Walker.
Research & Background Writing: Lucy Mathieson; Editing: Heather Collister; Administrative Support: CHRI London Office
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Rwanda’s Application for
Membership of the Commonwealth:
Report of a Mission of
the Commonwealth Human Rights Initiative
Prepared by:
Prof. Yash Ghai
With the assistance of Lucy Mathieson, CHRI
Table of Contents
I Introduction 1
IIThe Commonwealth and rules for membership 1
IIIRwanda: history and background 3
IV Assessing Rwanda’s record 4
1. The genocide ideology of “negation”, “revisionism” and “trivialization” 5
2. Compatibility with the Harare Declaration 7
(a) Democracy and governance 7
(b) Fundamental human rights 7
(i) Freedom of expression 8
(ii) Freedom of association and assembly 10
(c) Rule of law and the independence of the judiciary 10
(i) Gacaca courts and transitional justice 11
(d) Civil Society 11
(e) International relations 12
V Considerations for a policy on admission 12
VI Recommendations 14
VII Annexure - List of Organisations Consulted 16

Rwanda’s Application for
Membership of the Commonwealth: Report of a Mission of the Commonwealth Human Rights Initiative

I Introduction

Rwanda has applied for membership of the Commonwealth. The application is likely to be considered at the next meeting of the Heads of Commonwealth Governments meeting in November 2009. The Commonwealth
Secretariat has already made an assessment of the application (although its report is, unfortunately, still confidential). As the question of Commonwealth membership is not merely a matter for governments, but also
for the peoples of the Commonwealth (the Commonwealth being primarily an association of the people of member states), the Commonwealth Human Rights Initiative (CHRI), which represents several key pan-Commonwealth civil society organisations and collaborates with many more, decided to make its own
assessment of the application against the criteria for membership. For this purpose it sent a mission to Rwanda in May 2009.1 The mission paid particular attention to the state of human rights and the role of civil society, in
accordance with the criteria and the terms of the Harare Declaration. It also considered the implications of the expansion of Commonwealth membership, particularly of states which have had no historical links with the
Commonwealth. The mission met a number of government and state officials, members of several independent commissions, NGOs, the media, human rights organisations, and of the international community. It also undertook
a systematic survey of the literature, including several important reports by independent local and international organisations. Due to the fact that many of the individuals and organisations with whom CHRI interviewed,
held fears for their safety if directly cited, CHRI has maintained their anonymity.
This report is based on that mission, and on considerable reading about the history and current situation of Rwanda. A longer document with more examples and further references has been prepared by CHRI and can
be obtained from them.

II The Commonwealth and rules for membership

The Commonwealth is a voluntary association of 53 independent sovereign states who were previously part of the British empire. On independence, most colonies opted to join the Commonwealth. It provides for them a framework for consultation and co-operation in the common interests of their peoples and in
the promotion of international understanding and world peace. It has no constitution or charter, but members commit themselves to certain beliefs and values set by the Heads of Government. The basis of these values is the Declaration of Commonwealth Principles, agreed at Singapore in 1971, and reaffirmed in the Harare Declaration of 1991. The fundamental political values underpinning the Commonwealth include democracy and good governance, respect for human rights and gender equality, the rule of law, and
sustainable economic and social development.

The fact that the Commonwealth is a ‘family’ of nations which have a common heritage in many fields, including a common language, enables its members to work together in an atmosphere of co-operation
and understanding. Commonwealth governments also learn from each other through their regular meetings at all levels. Apart from the summits there are meetings of ministers and senior officials. The Commonwealth
has an active programme supporting economic development in member nations, helping members meet the millennium development goals both through expert advisers and in highlighting their issues, particularly
those of small states, in international forums. Developing countries are also eligible, through the Commonwealth Fund for Technical Co-operation, for technical assistance and training programmes.

The Commonwealth is a significant voice in international forums. Its members comprise over 40 percent of the membership of the World Trade Organisation, making it influential in global trade. The Commonwealth brings together big and small states, a microcosm of the world, in equal partnership.

The rules for membership have developed over nearly 80 years, reflecting the evolution of the Empire into Commonwealth. They remained largely informal until recently. The formalisation of the rules was principally due to two factors. The first was the need to define its essential principles and values, arising
out of increased membership, with differing political systems and uneven commitment to democracy and human rights. This led to the adoption of the Harare Declaration in 1997 which, following the Singapore
Principles 1971, placed great emphasis on democracy and human rights, and the Millbrook Commonwealth Action Programme Principles (1995) which establishes sanctions for fundamental breach of the
Commonwealth Principles.

The second was the interest shown by states with no previous constitutional link to the Commonwealth or its member states for membership. Mozambique was admitted without formal rules in 1995. Concerns that this would allow open-ended expansion of the Commonwealth and dilute its historic ties prompted
the 1995 CHOGM to establish the Inter-Governmental Group on Criteria for Commonwealth Membership (the Patterson Commission). The group recommended that new members would be limited to those with
constitutional association with an existing Commonwealth member. Its recommendations were endorsed at the 1997 Edinburgh CHOGM. The rule about a constitutional link with a member state was re-examined
and rejected at the 2007 Kampala CHOGM, which decided a close relationship between a member state and an applicant state would suffice. The rules now require that the applicant state:

􀂒 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 Secretariat
that 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 are
compliant. 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 wrangling
will 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 background

Rwanda, 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 on
imagined 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 Umwami
had 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 contractual
relationship 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 administration
indigenous 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 political
party 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 Revolutionaire
Nationale 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 and
main 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 since
1990. 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 has
ruled 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 in
drafting. 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 of
human rights, and emphasis on equality and national consensus and unity. It has a number of innovative
provisions for accountability and power sharing.
3
Under 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 emphasizing
the 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 the
reputation 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 economic
recovery 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 record

Rwanda’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 to
the 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 to
these 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 instruction
in 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 common
and 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 previous
Hutu 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 procedure
for 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 demonstrate
their 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 report
has 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 means
of 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 healthy
development, and racial discrimination as an unmitigated evil; and
􀂒 opposition to all forms of racial oppression, and commitment to the principles of human dignity
and 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 the
independence of the judiciary, just and honest government; fundamental human rights, including
equal 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 in
promoting 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 Harare
Declaration.

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, “Ibengabyitekerezo 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 ethnic
classifications 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 divisions
and 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 of
these 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 party
to 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 the
reality 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 that
political 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 power
and 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 has
become 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.7 Neither the constitution nor the 2003 law provides specific
definitions 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 or
grossly 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, documents
and 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 crimes
against 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”. The
2008 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 ill
feelings, 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 extreme
caution 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 against
the 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 question
or debate around the deaths of Hutus as the result of retaliation by RPF’s armed forces under genocide
ideology, does not bode well for reconciliation or the coming to terms with the past, or for the protection of
the freedom of expression. The politics of the genocide ideology pervades so many aspects of official
policies and their impact on society that it is now central to any examination of the attitude of the state
towards human rights, governance and civil society (as will be obvious from the following assessment of
Rwanda’s record on rights and governance). There is the danger of the ideology becoming an obsession
with 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 terms
with, and avoid the errors of, its past. A perceptive commentator on Rwanda, Gérard Prunier, by no
means unsympathetic to the Tutsi, says that “any mention of the word “Tutsi” or “Hutu” is strictly forbidden
by law.9 This means that any lucid examination of the relationship between Tutsi and Hutu before, during
and after the genocide is now impossible. […] Rwanda is now locked into an ideological straight-jacket
providing a relentless and official interpretation of history from which all shades of meaning have
been sanitised.”

2. Compatibility with the Harare Declaration
(a) Democracy and governance
The Commonwealth commitment to democratic principles must be viewed and applied as more than
rhetoric, it must seek to ensure that all of a country’s democratic institutions reinforce one another. These
institutions, whether legislative, judicial or executive, must be transparent in their deliberations and
accountable for their decisions. Each institution has a distinct role to play in addition to checking and
balancing other institutions. Rwanda’s constitution provides for a democratic system, with separation of
power, 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 indoctrination
that 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 independent
institutions (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 level
used secret ballots, but it was reported that there were numerous irregularities, including stuffing of ballot
boxes and intimidation of candidates. In a number of contests, voters did not have a choice, as only one
candidate stood.13 The earlier local elections had been conducted by local authorities dominated by the
RPF, 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 the
government. 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 if
guilty is dissolved, and all its members in the House of Deputies would lose their seats. A number of
applications for the registration of political parties have been rejected.

The legislative and judicial branches of government have done little to counterbalance the executive or
mitigate the influence of the military in policy making. In practice, power remains firmly concentrated in
the hands of a small inner circle of military and civilian elites, predominantly former Tutsi refugees. In this
way the diversity of Rwanda is negated.

(b) Fundamental human rights
Rwanda has ratified most international and regional human rights treaties. Its constitution contains a
generally excellent chapter on human rights, including socio-economic rights. Both in this chapter and
other parts, there are provisions for the promotion of gender equality and women’s participation in public
affairs. The rights of the marginalised communities (though not directly identified or defined) are given
special consideration, as are those of the disabled and the survivors of the genocide. There is, as already
mentioned, 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 workers
and employers the right to form collectives, for negotiations and other purposes, and additionally, to
workers 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 exception
is 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 the
government on women’s issues in the past have avoided tackling issues that are not in line with the
government’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 men
and women is enshrined in the Constitution of Rwanda, the Committee expresses concern that
discrimination against women exists in several fields, particularly under the Civil Code and the Family
Code, which recognizes the husband to be the head of the conjugal community. In the context of the
reform of the Civil Code and the Family Code, the State party should take measures to remove provisions
that place women in a situation of inferiority. It is of course understandable that social change takes
longer than enacting a law, but the above points are nevertheless valuable in moderating the claims that
government policies have greatly improved the situation of women.

The government scores well on education, with an impressive expansion in institutions of learning. It also
scores well on economic development, but at the cost of increasing disparities between the rich and the
poor, and urban and rural areas. Whilst the government has acknowledged the impoverished status of
the Batwa and has encouraged district governments to include Batwa and all poor citizens in housing and
tuition assistance programs, it has opposed peaceful organization among Batwa on the grounds that
such organizing violates the principle of national unity. Additionally, other marginalized groups, such as
street children, beggars, sex workers and the indigent, face social discrimination as well as government
policies 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 work
on issues related to alternate sexuality.

In 2007, Rwanda abolished the death penalty. This move was widely acclaimed internationally. But not
many noticed that it was, in most cases, replaced by life imprisonment in solitary confinement. As the UN
Human Rights Committee commented, such solitary confinement is against article 7 of the Covenant on
Civil and Political Rights. The Committee also expressed concern about reported cases of enforced
disappearances and summary or arbitrary executions in Rwanda and about the impunity apparently
enjoyed by the police forces responsible for such violations. It was also concerned about reported cases
of enforced disappearances and summary or arbitrary executions in Rwanda and about the impunity
apparently 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 accountability
of the government) and the flourishing of civil society—the freedom of expression and the media, and the
rights to associate and assemble. It is significant that unlike the formulation of most other rights, these
rights are made subject to the law, so that ultimately it is up to the executive and the legislature to
determine their scope.

(i) Freedom of expression
The mission had some sense of the situation of freedom of expression in Rwanda, finding that many
people 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 of
expression 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 and
executive power that the constitution ostensibly limits. And propagation of ethnic, regional, racial or
discrimination or any other form of division is punishable (Art. 33(2)). Article 34 protects freedom of the
media, but mentions a wider freedom of speech only to say that it must not prejudice various concerns
including public order and morals. Basic legal guarantees of freedom of expression and the media were
contained 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 impose
criminal 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 and
silence journalists.

Since February 2004, when the government began easing restrictions on broadcast media, the radio
airwaves have become more diverse, with several local and international radio stations broadcasting on
the FM bands. By the end of 2005, at least nine commercial, community, and religious stations were
operating in the country along with new provincial stations belonging to state-owned Radio Rwanda.14
The government has however stopped transmissions of radio stations on several occasions, including of
the 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 “genocide
ideology.” In late 2007, the government accused a BBC journalist, Yusuf Mugenzi, of exacerbating ethnic
differences 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 on
several 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 been
repeatedly harassed and threatened for their criticism of the government, and the publication has been
censored. Copies have been seized, the editor forced into hiding for while, an Umuco journalist was
arrested in 2005, just after he published an article in which he accused Gacaca officials in Gitarama
province of mismanagement and witness tampering17 and imprisoned for nearly 11 months on a charge
related 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,19
and in August 2006, Rwanda’s highest court upheld a ruling imposing a one-year suspended prison
sentence and ordering editor Charles Kabonero to pay the equivalent of US$2,000 damages for defaming
the 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 and
had been under surveillance by military intelligence for criticizing Economy and Finance Minister, James
Musoni.21 The director of Umurabyo was jailed in January 2007 for publishing an anonymous letter that
criticized 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 of
government 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 between
the country’s Tutsi and Hutu populations.

The Government of Rwanda has begun preparing a new law governing the media. This reportedly contains
provisions criminalising non-disclosure of journalists’ sources, and will require editors to hold master’s
degree qualifications in journalism and/or media. It is thought that the law will cause the closure of many
of the already struggling independent local media. The recent legislation, currently awaiting presidential
approval, 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 assembly
The 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 law
protects the right to form, join, and participate in trade unions; however, unions must follow the same
onerous certification and registration process as other NGOs. Overall, trade unions are able to advocate
for the interests of their members to a limited degree. Freedom of assembly has rather weak protection
under the Constitution (Art. 36); it is guaranteed “within the limits fixed by law”23), and is not fully guaranteed
in practice. Protests and demonstrations in support of RPF or government policies occur on a regular
basis. 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 judiciary
The constitution commits the state to observe the rule of law. The rule of law underlies the principle of
legality, and is critical to the supremacy of the constitution. It requires that all laws must be compatible
with the constitution, and state policies and administration must be compatible with the constitution as
well as laws. State power can only be exercised in accordance with the constitution and valid laws. The
rule of law is also critical to the protection and enforcement of fundamental rights—and the effective
functioning of the economy.

The rule of law depends on the general respect for the constitution and laws. The government and other
agencies of the state must be committed to the principle of legality. Courts, as the primary interpreter and
enforcers of the constitution and the law, must be free, impartial and competent. So should the prosecutorial
authorities. The law must be accessible to the people. Access to justice in a broader sense must be
ensured, including access to legal advice and representation. Most of these elements are provided in the
constitution. Rwanda had made great strides in building the infrastructure of the rule of law. However, the
refusal to incorporate some experienced Hutu judges and prosecutors, who remained in the country or
who returned after the RPF’s victory, as well as the arrest, assassination or departure into exile of a
number of them, has led to a lack of experienced personnel. It also gives rise to the suspicion that the
government wants to control the legal system.

A truly independent legal system is essential to end the culture of impunity. It would require the systematic
prosecution of RPA military responsible for human rights violations. In cases where such abuses have
caused international concern (such as the large-scale massacres of Hutu refugees in Eastern Congo),
the official RPF line has been that those responsible would be prosecuted and punished. However, despite
some reports that transparency and efficiency of the military justice system are improving, prosecution
and punishment seem to remain rather the exception than the rule. Recently President Kagame was
granted immunity for any offences he may have committed prior to his impending retirement (the CHRI
understands that the immunity would cover war crimes and crimes against immunity).

The Arusha Tribunal has expressed doubts about justice in Rwanda Courts, at least in cases involving
charges of genocide. They have expressed concern about the safety of witnesses because of reports of
harassment, detention and even murder of witnesses or potential witnesses. And according to the 2006
Rwandan Senate report, questioning the legitimacy of the detention of a Hutu is one manifestation of
“genocide ideology”. In several cases documented by Human Rights Watch, witnesses who appeared for
the defence at the Tribunal, were arrested after their return to Rwanda

The House of Lords in the UK has also blocked extradition to Rwanda on the ground that the accused
would not receive justice. It said that “the question whether a court is independent and impartial cannot
be answered without considering the qualities of the political frame in which it is located. We have had no
day-by-day details from the GoR of the conduct of the Rwandan High Court’s business. No details of
trials; of defences run, successfully or unsuccessfully; no details of any of the myriad events that show a
court is working justly. We have reached a firm conclusion as to the gravity of the problems that would
face these appellants as regards witnesses if they were returned for trial in Rwanda. Those very problems
do not promise well for the judiciary’s impartiality and independence. The general evidence as to the
nature of the Rwandan polity offers no better promise. When one adds all the particular evidence we
have described touching the justice system, we are driven to conclude that if these appellants were
returned there would be a real risk that they would suffer a flagrant denial of justice”.24
Rwanda has a small and for the most part, inexperienced legal profession. Many members are providing
a useful service to the community. It has its own association which is committed to the independence and
ethics of the profession. Its members provide free or inexpensive legal assistance to those who cannot
afford it (although there are difficulties of getting legal advice and representation in political charged
cases). In recent months, the independence of the profession has come under threat of government
intervention, under proposals for a new law governing the profession, which would increase the
representation of the government in its governing council and make inroads into lawyer-client confidentiality.

(i) Gacaca courts and transitional justice
A particular problem for Rwanda’s justice system is the persistence of gacaca courts (based loosely on
traditional conflict resolution mechanisms) which were established to try complex genocide cases. The
dilemma the government faced was that the international tribunal at Arusha could deal with only a limited
number of accused, and that at great cost. Yet there were thousands of persons who had participated in
the genocide who had also to be brought to justice. Given the limited resources and a preference for
reconciliation, it was decided to use the gacaca courts.

The government began implementing gacaca courts in 2005 following a pilot phase, reforms, and
numerous delays. In 2002, the government had decided to implement the courts to try the bulk of
genocide cases. In March 2005, following the preliminary phase of trials, approximately 761,000 suspects
stood accused of genocide.25 The majority of these suspects remain in their communities as the gacaca
courts continue trials; however, unknown numbers have been arrested or rearrested and returned to
prison. The use of these courts has gone on well beyond the original date; and increasing numbers of
persons who were expected to be tried by the formal courts have now been transferred to the jurisdiction
of the gacaca courts, and it is likely that they will continue for some years to come. A number of studies
of their operation have pointed to major deficiencies: the lack of any formal training of judges, their
relative lack of independence, few formal rules of procedure, and fears of victimization, and lack of
security for witnesses. A 2009 report by HRW, noting that in 2008 the government shifted thousands of
the most serious genocide cases from conventional courts to gacaca courts, commented that instances
of faulty procedure, judicial corruption, and false accusations undermine trust in gacaca jurisdictions
among victims as well as the accused. The UN Human Rights Committee has expressed similar
reservations about these courts.

Understandably, achieving justice for the 1994 genocide remains a huge problem. The vast majority of
survivors and families of those who were killed have yet to receive any reparations. Large numbers of
survivors, especially women—many of whom were raped during the genocide and suffer from AIDS—live
in extreme poverty. Many Rwandans continue to suffer the effects of trauma. The government has
established a Fund for Assistance to Genocide Survivors that provides some support to defray the costs
of education and health care. However, a law on reparations has never been finalized and the law
establishing the provision of a fund for legal aid has yet to be realised. With the launching of Gacaca
courts nationwide in 2005, many segments of society began to feel less secure. In some regions, genocide
survivors have been threatened by people who did not want to be accused of genocide crimes, and
gacaca judges have been threatened or harassed. Transitional justice has been and continues to be
largely one-sided as Gacaca will not be used to prosecute alleged revenge killings or war crimes by the
RPF in Rwanda between 1990 and 1995 or in the Democratic Republic of Congo between 1996
and 2000.

(d) Civil Society

The importance of civil society (for its positive impact on democracy and accountability as well as
culture and arts) and its participation in the affairs of the Commonwealth are emphasised in the Harare
Declaration. Civil society in Rwanda is very weak. Repercussions of the 1994 genocide continue to be
felt through restrictive and vague laws and broad concepts like “genocide ideology” which have been
used to silence opposition, dissent and criticism of the government. All of the members of Rwandan
civil society who were spoken to in the course of interviewing, researching and writing this report
feared retaliation from the authorities if they were directly quoted or cited. Similarly, many international
organizations and foreigners working in Rwanda were afraid that they would be denied visas and
restrictions would be placed on the functions and operations of their organisations. The restrictions on
the freedom of expression and association mentioned in this report have had a very negative impact
on civil society organizations.

At the end of June 2004, a report by a parliamentary commission on genocide ideology recommended
the dissolution of several international and local NGOs that “preached genocidal ideology and ethnic
hatred.” The organizations mentioned in the list included the only local human rights organization willing
to criticize the government publicly and document human rights abuses committed by government
authorities. Almost all the local organizations named in the report ceased to operate between July 2004
and January 2005. In 2006, all international NGOs and local civil society organizations with ties to France,
or which promoted the French language or culture, were either ejected from the country or forced to close
following the diplomatic row over the indictment of several RPF leaders by a court in France overseen by
the anti-terrorism judge Jean-Louis Bruguière. The effect of these events has undermined autonomous
civil society in Rwanda, as the surviving civil society organizations are very careful to avoid criticizing the
government, the RPF, the president, or their policies.

Many of what used to be independent non-government organizations are now essentially government
organized non-government organizations (or GONGOs). Those remaining independent organizations
often, like the media, practice self-censorship in order to be able to continue working and receiving foreign
funding. This climate is then aggravated by a judiciary and legal system in which there have in the past
been allegations of executive interference and where the presumption of innocence is not even necessarily
deemed applicable to all types of cases. Moreover, there is little access to justice on the basis of alleged
killings at the hands of the returning RPF forces, after the end of the 1994 genocide. Furthermore, debate
around these deaths risks prosecution for promoting divisionism, negating genocide or indeed, promoting
genocide ideology. It is no wonder in such a situation that members of Rwandan civil society may leave
the country or refer with some cynicism to what could be referred to as the government policy of
“one Rwanda”.

(e) International relations
As an association of both governments and people, the issue of inter-state relations has considerable
significance for the Commonwealth. The Harare Declaration expresses the Commonwealth’s interest in
international understanding, co-operation and world peace. Before the Commonwealth makes a decision
on Rwanda’s admission, it should scrutinise Rwanda’s record in this regard. It would seem that for a
variety of reasons the Rwanda government, which maintains a large army, has made military incursions
abroad, particularly into the Democratic Republic of Congo (DRC). Rwanda’s intervention has been a
major source of instability in the DRC, and has caused great suffering to communities living there,
particularly the eastern part.

The Rwanda government has also refused to co-operate with countries where prosecuting authorities
have issued warrants against its senior party or military officials for crimes against humanity. It has closed
embassies of “offending” states, and victimised NGOs from those countries operating in Rwanda—which
also casts doubts on its commitment to civil society.

V Considerations for a policy on admission

As a Commonwealth human rights organization, CHRI’s primary concern is with the situation of human
rights and democracy. This report show that across various areas Rwanda’s standards fall short of
those proclaimed by the Commonwealth. There is particular concern with the monopolistic role of the
state in propagating versions of history and inter-community relations, which stifles free speech and
free enquiry. The restrictions on the freedom of expression and of the media are serious impediments
to democratic rights and practices in general, and the accountability of the government in particular.
The legal framework and the fear within which social and human rights organizations operate has
greatly weakened civil society. In some critical aspects, the judicial system has had major flaws,
especially the continuing jurisdiction of the Gacaca courts over genocide cases. Such findings lead
logically to the conclusion that Rwanda does not currently meet the pre-conditions for membership
within the Commonwealth and should not be admitted. But there other policy issues relating to admission,
and we turn to their consideration.

Admitting Rwanda has broad-reaching implications for the Commonwealth. New members from nontraditional
Commonwealth membership backgrounds bring with them many positive attributes and learning
that can influence and expand the depth and experience of the inter-governmental organization. Rwanda’s
membership will no doubt increase the diversity within the Commonwealth. It will also increase the number
of member states.

The fact that Rwanda is anxious to join the Commonwealth may be seen as adding to the prestige of the
Commonwealth (although the Commonwealth and particularly the UK should resist gloating over the
anti-French attitudes of the Rwanda government). The much published efficiency and lower levels of
corruption in the Rwanda government may set a good example for the Commonwealth countries lacking
in these qualities. Its experiment in non-ethnic approaches to the ideology and organization of the may be
of particular interest to the numerous countries of the Commonwealth. We understand that sections of
the business community in some Commonwealth countries believe that Rwandan membership would
improve their prospects of investment in, and strengthen economic relations with, Rwanda. The shift to
aspects of the common law might also make transactions easier for it.

But the expansion of membership will change the character of the Commonwealth. Expanding membership
can potentially bring with it states with poor human rights records, suppressed civil society, flawed
governance structures and failures of democracy, which will undoubtedly have the effect of dampening
Commonwealth principles rather than strengthening them. The accommodation of new members at the
level of inter-state relations may not pose major problems, though further increase in members will affect
the informal style of the working of the official Commonwealth, with the implicit and now explicit commitment
to valuable underlying principles. Integration at the level of civil society may be harder (a matter of special
interest to CHRI). A Commonwealth with uneven integration across member states of its various civil
society organizations will certainly reduce its significance as the Commonwealth of peoples. From that
perspective, the distinction between the Commonwealth and other inter-state organizations will diminish—
and so will the rationale for the Commonwealth.

There is also the question of the motives of an applicant. As well as we could fathom, the reasons that
Rwanda wishes to join the Commonwealth have to do with its desire to further distance itself from France,
link itself to the English speaking world, and strengthen its relations with its immediate neighbours (Kenya,
Tanzania, and Uganda) with whom it shares several cultural traditions and now growing economic ties. It
also sees the Commonwealth as offering opportunities for higher education (particularly with
Commonwealth scholarships) and new commercial, trading, and economic advantages and relations.

Rwanda has also expressed an interest in learning more about the common law and its constructive
integration with the francophone civil law. Some of our respondents told us that the Rwandan Government
hopes to achieve a measure of legitimacy through Commonwealth membership, particularly by pointing
that its meets the Commonwealth’s high standards of human rights and democracy. Rwanda’s global
contacts would be facilitated by interaction with several, far-flung parts of the Commonwealth. It could be
argued that many of these advantages could be secured without the membership of the Commonwealth;
and help from members of the Commonwealth could be forthcoming even without full membership.

As a Commonwealth human rights organization, our primary concern is with the situation of human rights
and democracy—which as we have already suggested, is one of two criteria on which there is doubt. Our
subsequent discussion of this has highlighted various areas where Rwanda’s standards fall short of
those proclaimed by the Commonwealth. There is particular concern with the monopolistic role of the
state in propagating versions of history and inter-community relations, which stifles free speech and free
enquiry. The restrictions on the freedom of expression and of the media are serious impediments to
democratic rights and practices in general, and the accountability of the government in particular. The
legal framework and the fear within which social and human rights organizations operate has greatly
weakened civil society. In some critical aspects, the judicial system has had major flaws, especially the
role of the Gacaca courts.

We realize of course that Rwanda has gone through a most horrendous experience of political instability,
violence and genocide. Many of the shortcomings that we have noted can be explained as the result of
this experience—and by the anxiety of the state to avoid a repeat of the terrible killings. We have noted
the efforts of the government to establish a system of governance that emphasizes conciliation and
power sharing, a due process based the legal and judicial system, and the framework of institutions for
the protection of rights, including a human rights commission. The practice does not always live up to
these ideals (as we have also tried to demonstrate). This is in part due to the inherent difficulties of
establishing a new constitutional and political order after forms of extreme violence and societal polarization,
and in part due to state policies.

Our conclusion is that the state of governance and human rights in Rwanda does not satisfy Commonwealth
standards. Rwanda does not therefore qualify for admission to the Commonwealth. It has been argued
that neither do several existing members. Unfortunately, that is certainly true. But there is an important
difference between these states and Rwanda. They became members by virtue of past history of British
colonialism and the convention of more or less automatic membership of the Commonwealth. Until the
Harare Declaration, there were no formalized standards of Commonwealth values. Governments of member
states which deviate seriously from these standards are now subject to disciplinary measures, including
suspension or even exclusion (although the last option has not been exercised so far, on the assumption
that exclusion would be unfair to the people of the state, who may themselves be victims of violations).
Suspension is lifted only when the deviant practices have been abandoned.

Under the framework of these rules and procedures, it does not make sense to admit a state which
already does not satisfy Commonwealth standards. One, admitting such a state would tarnish the reputation
of the Commonwealth and give the impression that leaders of its governments do not really care for
democracy and human rights, and that its periodic, solemn declarations are merely hot air. Second, the
admission of a state below standards will lower the “average”, as it were, of the Commonwealth commitment
to democracy and human rights when it come to its decisions on sanctions against defaulting existing
members, increasing the number of states who have shown little regard for human rights. Third, if the
Commonwealth admits a state below standards, it would have to welcome the new member, if it is to stick
to its self-proclaimed values, by criticizing its democratic and human rights record and considering sanctions.

Fourth, the admission of new members with a poor record will drive a wedge between the governments
and peoples of the government, and reduce the Commonwealth merely to a trade union of governments.
Having said that, we return to the extreme violence among, and the suffering of the Rwanda people,
acknowledge the considerable progress under the present regime, and its public commitment to democracy,
fairness, and human rights. And its traditional ties with some Commonwealth members in its region,
which are likely to become closer. So the CHRI proposes that the GHOGM should welcome Rwanda’s
application. But, in the fashion of the EU when considering applications for membership, the Commonwealth
should reiterate its values, identify ways in which Rwanda falls short of them, and ask it to remedy the
deficiencies (even offering to assist). Once it is satisfied that appropriate laws and practices have been
instituted, Rwanda should be welcomed to the Commonwealth. Rwanda can make important contribution
to the Commonwealth, just as the Commonwealth can enrich Rwanda’s public and private sectors. The
admission of Cameroon was made subject to its satisfying the Commonwealth values and standards as
was the re-admission of Fiji after the first coup.

VI Recommendations

CHRI makes two recommendations—one is general relating to the process for admission of new members, and the other specific to Rwanda.
I (a) This report has commented on the lack of a mechanism to establish that the people of an applicant
state seek or support membership and that the state satisfies the test of Commonwealth values. CHRI
considers that now is the time to deal with this lacuna, before further applications are received. We
therefore urge the next CHOGM to address these two issues before it proceeds to the consideration of
the Rwanda application. We propose that an independent commission of eminent Commonwealth elder
statespersons, representatives of leading pan-Commonwealth NGOs, and experts on the applicant country
should be set up to review the application and report to the Heads of Government. It would subject the
applicant to rigorous scrutiny of its human rights and democracy record and engage with its civil society,
trade unions, political parties, universities and so on to obtain a sense of public opinion. The commission
should have resources to prepare background materials to inform the people of the applicant state the
history and significance of the Commonwealth and the rights and obligations of membership. If necessary,
it should commission studies on the country’s legal, economic and social systems (to educate the
Commonwealth on the potential new member and enable its communities to assess the eligibility of the
applicant)—in a rudimentary form, this was done in respect of Fiji’s re-admission after it adopted a new
democratic constitution after the coup. Unless this is done, there is the danger that the Commonwealth
could slide into debased standards, and lose its attraction to the people of the Commonwealth—and the
reputation of the organisation.

I (b) with the prospect of new applications, now is the time for renewed debate on the nature and future of
the Commonwealth. The world has changed very significantly in recent decades. there has been a big
growth of new regional and international organisations. What is the relevance of these developments for
the Commonwealth? What will the Commonwealth gain from aspirations to become a universal organisation? What will be the effect of the admission of states without a history or understanding of the Commonwealth? These and other questions should be addressed in the first instance by a commission established jointly by Commonwealth governments and civil society. its report should be disseminated widely and debates by the public.

II This report has made it clear that Rwanda does not satisfy the test of Commonwealth values. There are
considerable doubts about the commitment of the current regime to human rights and democracy. It has
not hesitated to use violence at home or abroad when it has suited it. Consequently its admission would
send the signal, loud and clear, that the commitment of the governments of the Commonwealth countries
to its values is shallow. We therefore suggest that the next CHPGM make no decision on the applicant
other than to set up a procedure to examine the eligibility of Rwanda for membership and the consequences
for the Commonwealth of the expansion in its members. In consultation with Commonwealth civil society
it should set up the commission proposed in the previous paragraph to initiate this discussion. It should
report within a year of its appointment. Its report and recommendation should be the basis of negotiations
with Rwanda. Rwanda should be informed accordingly.
15
VII Annexure - List of Organisations Consulted
MINISTRY OF INTERNAL SECURITY
MINISTER OF JUSTICE, MINISTRY OF JUSTICE
HUMAN RIGHTS COMMISSION
COMMISSION ON UNITY AND RECONCILIATION
COMMISSION ON THE PREVENTION OF GENOCIDE
RWANDA JOURNALISTS ASSOCIATION
RWANDA BAR ASSOCIATION
RWANDAN CIVIL SOCIETY FORUM
LEGAL AID FORUM
AJPRODHO
CAURA
CESTRAR
HAGURUKA
HUMAN RIGHTS FIRST
THE LEGAL CLINIC (nUr)
THE KIGALI BAR ASSOCIATION
NORWEGIAN’S PEOPLE’S AID
LIPRODHUR
LDGL
IRDP
HUMAN RIGHTS WATCH
THE DANISH INSTITUTE FOR HUMAN RIGHTS
BRITISH BROADCASTING CORPORATION
VOICE OF AMERICA
ADVOCATS SANS FRONTIERES
UMUSASO
PENAL REFORM INTERNATIONAL
RCN
DFID
ECOMMONWEALTH POLICY STUDIES UNIT
COMMONWEALTH FOUNDATION
EMBASSY OF UNITED KINGDOM
UNDP
16
Endnotes
1 The Mission was led by Professor Yash Ghai, member of the Advisory Council of CHRI, and former Special Representative of the UN Secretary-General on Human Rights in
Cambodia, and Lucy Mathieson, Human Rights Advocacy Programme Coordinator of CHRI.
2 While Fiji was scrutinised in 2009, for failure of the interim government to hold parliamentary elections, Sri Lanka was not, despite allegations of war crimes against its civilians
in its military attacks against the LTTE.
3 Submission from the Commonwealth Human Rights Initiative to the Working Committee on Commonwealth Membership (November 2006).
4 See Gérard Prunier’s The Rwanda Crisis: History of a Genocide (1995) and Alison Des Forges, Leave No One to tell the Story (1999), which link this colonial history to the
present predicament of Rwanda.
5 Professor Rene Lemarchand, a leading scholar of Rwanda and Burundi, writes, “Widely praised at first for stopping the genocide, the virtuous image projected by the FPR is
now being seriously dented: there is a growing body of evidence pointing to its involvement in war crimes and crimes against humanity in eastern Congo, for its alleged
participation in the military operation that brought down Habyarimana’s plane, and more generally for its responsibility in the 1994 genocide” (Rwanda: The State of Research,
2007: page 12). Several countries have issued warrants against senior members of the RPF for crimes against humanity.
6 Alison Des Forges, well known for her scholarship on Rwanda, wrote that with the capture of Kigali by Paul Kagame’s FPR, on July 4, 1994, the killings of Tutsi finally came
to a halt - but not the killings of Hutu. Just as in the course of the civil war, a large numbers of Hutu civilians were deliberately massacred by FPR troops - a fact substantiated
in the so-called Gersony report, after the UN official who investigated the killings - after the defeat of the génocidaires an even greater number of Hutu lost their lives within and
outside Rwanda at the hands of the FPR (in Leave No One to tell the Story (1999: 726-34)).
7 Law no. 33bis/2003 of 06/09/2003 punishing the crime of genocide, crimes against humanity, and war crimes, article 4, found at http://droit.francophonie.org/doc/orig/rw/loi/fr/
2003/2003dfrwlgfr1/2003dfrwlgfr1.pdf [Human Rights Watch “Law and Reality” (July 24, 2008) at http://www.hrw.org/en/node/62097/section/8 (last accessed on 16 June 2009)].
8 Law no. 33bis/2003 of 06/09/2003, article 4 and law no. 47/2001, article 1, paragraph 2 and article 3, paragraph 2, articles 5 and 15 [Human Rights Watch “Law and Reality”
(July 24, 2008) at http://www.hrw.org/en/node/62097/section/8 (last accessed on 16 June 2009)].
9 During the commemoration of the victims of genocide in 2009, for the first time since 1994, reference was made to ethnic differentiation, where posters in Kigali, advertising and
commemorating memorial activities, refer to the genocide against the Tutsi. Since then there has been discussion of a constitutional amendment to this effect.
10 Gérard Prunier, “Rwanda – Pain of a Nation” BBC: Focus on Africa, April-June 2009.
11 In accordance with EU election observation methodology, the EU EOM to Rwanda assessed the conduct of the legislative elections in line with international standards for
elections, in particular the International Covenant on Civil and Political Rights (ICCPR), which Rwanda ratified in 1966 and the African Charter on Human and Peoples’ Rights
(1981). Also applicable is the AU Declaration on the Principles Governing Democratic Elections in Africa (2002).
12 See for example, Filip Reyntjens, “Post-1994 Politics in Rwanda: Problematising ‘Liberation’ and ‘Democratisation’,” Third World Quarterly 27, no. 6 (2006).
13 “Rwanda—Events of 2006” (New York: Human Rights Watch [HRW], 2007) at http://hrw.org/englishwr2k7/docs/2007/01/11/rwanda14782.htm (last accessed on 7 February
2007).
14 “Rwanda Country Report,” in Attacks on the Press in 2005 (New York: Committee to Protect Journalists [CPJ], 2006).
15 “Radio France Internationale Censored” (CPJ, 2006) at http://www.cpj.org/cases06/africa_cases_06/rwanda27nov06ca.html (last accessed on 19 December 2006).
16 After it broadcast a “trailer” for an airing of Imvo n’imvano that was to include a debate on forgiveness. This included comments by a former presidential candidate, Faustin
Twagiramungu, opposing the government’s attempt to have the country’s entire Hutu population apologize for the genocide, since not all had participated. It also included a man
of mixed Hutu-Tutsi ethnicity questioning why the government had refused to allow relatives of those killed by the RPF forces to grieve for their loved ones. According to
estimates UN High Commissioner for Refugees experts, the group’s soldiers killed between 25,000 and 45,000 people between April and August 1994.
17 Ibid.
18 “Rwandan Journalist Freed after 11 Months in Jail” (CPJ, 2006) at http://www.cpj.org/news/2006/africa/rwanda31july06na.html (last accessed on 19 December 2006).
19 Ibid.
20 “High Court Upholds One-Year Suspended Sentence and Heavy Fine for Editor Who Published Political Analysis” (RSF, 2006), at http://www.rsf.org/article.php3?id_article=12964
(last accessed on 19 December 2006).
21 “Umuvugizi Editor Latest Target in Harassment of Independent Press” (RSF, 2006) at http://www.rsf.org/article.php3?id_article=18505 (last accessed on 19 December 2006).
22 “In Rwanda, Newspaper Director Jailed for Publishing Critical Letter” (CPJ, 16 January 2007) at http://www.cpj.org/news/2007/africa/rwanda16jan07na.html (last accessed on
21 February 2007).
23 This is our translation from the French rather than the official English version “if it is not inconsistent with the law”.
24 (Brown (aka Bajinja) & Ors v. The Government of Rwanda Secretary & ana [2009] EWHC 770 (Admin).
25 Rwanda’s incursions into neighbouring countries are analysed in great detail in forthcoming book by Professor Filip Reyntiens published by Cambridge University Press.
26 In February 2008 a Spanish judge issued arrest warrants for 40 Rwandan Defence Force officers for war crimes and crimes against humanity committed against Spanish,
Rwandan, and Congolese citizens in the 1990s. The prosecution is based on both domestic law and universal jurisdiction, a doctrine which permits national courts to prosecute
the most heinous crimes committed abroad. Rwandan authorities mobilized African governments against such judicial action, labelling it neo-colonialist. In 2006, Rwanda broke
relations with France after a judge issued warrants against nine RDF officers. In August 2008 Rwanda published a report charging French involvement in the genocide and
announced possible prosecutions of French citizens. In November Germany arrested Rose Kabuye, one of the nine, on a French warrant. Rwanda immediately expelled the
German ambassador and organized protest demonstrations in Rwanda and abroad (Human Rights Watch 2009).
CHRI Programmes
CHRI’s work is based on the belief that for human rights, genuine democracy and development to become a
reality in people’s lives, there must be high standards and functional mechanisms for accountability and
participation within the Commonwealth and its member countries. Accordingly, in addition to a broad human
rights advocacy programme, CHRI advocates access to information and access to justice. It does this through
research, publications, workshops, information dissemination and advocacy.
Human Rights Advocacy:
CHRI makes regular submissions to official Commonwealth bodies and member governments. From time to
time CHRI conducts fact finding missions and since 1995, has sent missions to Nigeria, Zambia, Fiji Islands
and Sierra Leone. CHRI also coordinates the Commonwealth Human Rights Network, which brings together
diverse groups to build their collective power to advocate for human rights. CHRI’s Media Unit also ensures
that human rights issues are in the public consciousness.
Access to Information:
CHRI catalyses civil society and governments to take action, acts as a hub of technical expertise in support of
strong legislation, and assists partners with implementation of good practice. CHRI works collaboratively with
local groups and officials, building government and civil society capacity as well as advocating with policymakers.
CHRI is active in South Asia, most recently supporting the successful campaign for a national law in
India; provides legal drafting support and inputs in Africa; and in the Pacific, works with regional and national
organisations to catalyse interest in access legislation.
Access to Justice:
Police Reforms: In too many countries the police are seen as oppressive instruments of state rather than as
protectors of citizens’ rights, leading to widespread rights violations and denial of justice. CHRI promotes
systemic reform so that police act as upholders of the rule of law rather than as instruments of the current
regime. In India, CHRI’s programme aims at mobilising public support for police reform. In East Africa and
Ghana, CHRI is examining police accountability issues and political interference.
Prison Reforms: CHRI’s work is focused on increasing transparency of a traditionally closed system and exposing
malpractice. A major area is focused on highlighting failures of the legal system that result in terrible overcrowding
and unconscionably long pre-trial detention and prison overstays, and engaging in interventions to ease this.
Another area of concentration is aimed at reviving the prison oversight systems that have completely failed. We
believe that attention to these areas will bring improvements to the administration of prisons as well as have a
knock on effect on the administration of justice overall.
COMMONWEALTH HUMAN RIGHTS INITIATIVE
B-117, IInd Floor, Sarvodaya Enclave, New Delhi - 110 017
Tel.: +91-(0)11 2686 4671, 2685 0523
Fax: +91-(0)11 2686 4688
info@humanrightsinitiative.org; www.humanrightsinitiative.org
Rwanda’s application for the membership of the Commonwealth raises the question, more generally, of how qualifications for membership are prescribed and determined. More specifically, whether Rwanda meets the prescribed criteria, in particular the standards of democracy and human rights as enshrined within the Harare Declaration. Opening up
membership, has broad-reaching implications for the Commonwealth as a whole. New members from non-traditional Commonwealth membership backgrounds bring with them many positive attributes and learning that can influence and expand the depth and experience of the inter-governmental organization. However, expanding membership can potentially also bring with it States’ with poor human rights records, suppressed civil society, flawed governance structures and failures of
democracy, which will undoubtedly have the effect of dampening Commonwealth principles rather than strengthening them. Within such a context, there is a need for great care and analysis to be undertaken in assessing applications for membership. A careful balancing needs to occur so as to be able to follow a transparent and participative
application procedure, which resonates deeply from within the Commonwealth’s own values, specifically the Harare Declaration. It is in this vein that the Commonwealth Human Rights Initiative (CHRI) proceeded to undertake a fact-finding into the human rights situation in Rwanda. Aware that the Commonwealth Secretariat undertook a similar
process during 2008, the findings of which were articulated in a confidential report, CHRI saw the value within the rubric of a rights-based approach, to facilitate a Commonwealth civil society report on Rwanda,which would be situated in a grass-roots analysis of the human rights context within the country and encapsulate analysis of the constitutional
framework within Rwanda. In this respect, the investigation and this report is based almost wholly on a human rights assessment as framed around the principles contained within the Harare Declaration.