Re: The Illegal Arrest and Detention of Professor Peter Erlinder
To: His Excellency General Major Paul Kagame; The Right Honorable Bernard Makuza; The Honorable Mr. Tharcisse Karugarama
From: Gail Davidson, Executive Director, LRWC; John Cotter, Barrister and Solicitor; Brian Cheng, LRWC member
Date: 2010-06-05
LRWC calls on the Rwandan government to immediately:
a) Release Peter Erlinder from custody;
b) Withdraw criminal charges against Professor Erlinder; and,
c) Ensure that Professor Erlinder is protected from any further interference with his legal representation of his client.
Professor Erlinder, an American attorney and a professor of law at the William Mitchell School of Law in St. Paul, Minnesota, was arrested for engaging in legitimate criminal defence work for Ms. Victoire Ingabire Umuhoza, a challenger to incumbent President Paul Kagame in the upcoming election in August 2010.
Professor Erlinder was in Rwanda to defend Ms. Ingabire on charges under the 2008 Law Relating to the Punishment of the Crime of Genocide Ideology (Genocide Ideology Law) based on allegations that she questioned, while visiting a memorial site for murdered Tutsis, if there was a memorial to murdered Hutus.
Professor Erlinder has now also been charged under the Genocide Ideology Law. Although Ms. Ingabire has now been released, Professor Erlinder remains in custody.
By allowing the arrest and threatened prosecution of Professor Erlinder, Rwanda is violating a number of internationally protected rights, namely:
1. The right of persons accused of a crime to be represented by a lawyer empowered to effectively protect rights and achieve justice ;
2. The right of lawyers to perform their professional functions without intimidation, harassment, or improper interference ;
3. The prohibition against identifying lawyers with their clients’ causes.
The duties of Rwanda and other states to ensure that lawyers can perform their professional duties—particularly when representing unpopular clients and causes—free from political pressure, prosecution and other interference are set out in the Basic Principles on the Role of Lawyers. Article 16 provides,
Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.
Article 18 ensures that, “Lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.”
Without lawyers who are free from fear of adverse consequences for representing people before the courts, the courts cannot count on hearing full argument on the facts and law of particular cases.
LRWC is additionally concerned that the Genocide Ideology Law, which purports to criminalize “createing [sic] confusion aiming at negating the genocide which occurred, [and] stiring [sic] up ill feelings . . . . ”, appears to be illegitimate because it criminalizes protected free speech and is overly broad and vague. The law appears to criminalize the free expression protected by the International Covenant on Civil and Political Rights, the Universal Declaration of Human Rights, and the African Charter on Human and People’s Rights.
Under internationally-accepted principles governing criminal law, a law that is overly broad is void for vagueness. Recognizing this principle, the U.S. Supreme Court struck down a vagrancy statute because it “fail[ed] to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.” The Court further voiced concern for laws that gave “unfettered discretion” in the hands of the state:
Where . . . there are no standards governing the exercise of the discretion granted by the ordinance, the scheme permits and encourages and arbitrary and discriminatory enforcement of the law. It furnishes a convenient tool for harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.
The Supreme Court of Canada has also recognized that criminal sanctions that “permits a ‘standardless sweep’ that allows law enforcement officials to pursue their personal predilections” are void. The test for vagueness encompasses a requirement of fair notice, an intelligible standard for the judiciary, and a prohibition on uncontrolled discretion.
The Genocide Ideology Law does not appear to give adequate notice, precise definition, or a clear standard as to what constitutes an offence, leaving it to those in charge of the prosecution to fit innocent acts to the words of the law. Furthermore, the statute makes a criminal act out of merely making a comment or asking a question. The law appears to create a tool to suppress legitimate free expression.
We call on the government of Rwanda to: immediately release Professor Peter Erlinder, withdrawal all charges against him and provide him with protection that will enable him to provide full and vigorous legal representation to his client.
