In May 2018, ARTICLE 19 analysed Rwanda’s 2016 Law Governing Information and Communication Technologies (the Law) for its compliance with international freedom of expression standards.
ARTICLE 19 finds that while the Law purports to provide a regulatory framework, in reality it fails to comply with international human rights standards. The most onerous provisions include the following issues:
- Content-based criminal penalties including criminal defamation, requirements for services to facilitate government surveillance, and sweeping powers to interrupt or suspend any private communications that are “detrimental to the national sovereignty”. The Law also harshly restricts content online on illegitimate grounds such as being “indecent” or causing “annoyance” or “anxiety”;
- The Law subjects too many services to licensing requirements: it includes the requirement of government licenses in order to provide any electronic communications service;
- The Law imposes overbroad license granting and revocation standards on intermediaries, including broad powers to revoke those licenses for a range of reasons including being “engaged in” or “supporting activities amounting to treason”;
- It forces intermediaries to “equip” their services with “technical instruments” to aid in government monitoring of users;
- The Law grants sweeping search and surveillance powers to regulators without judicial or independent oversight and provides broad authority to shut down communications and Internet use;
- The Regulatory Authority, created under the Law, is not an independent entity: it is subjected to government control and is not established by an open and democratic process. The lack of independence of the Regulatory Authority raises great concern because the Authority is granted such significant powers under the Law, including the ability to grant and deny licenses, virtually at will, to almost any service provider in a broad array of sectors including electronic communications; and
- The Law also introduces steep fines of up to 50 million Rwandan francs to enforce technical and regulatory violations. These fines, combined with the breadth of the underlying law, could have a chilling effect on smaller independent media outlets and intermediaries.
We particularly note that ARTICLE 19 is concerned about the impact these provisions will have on freedom of expression in Rwanda. We therefore urge the Rwandan Government to review the Law and bring it into full compliance with international human rights standards.
Summary of recommendations
- Article 22, 60, 126 and 206 should be stricken in their entirety;
- The Law should be amended to explicitly require standards for the members of the Regulatory Authority, namely that they be appointed through an open and democratic process. The members should hold relevant expertise, be independent from political parties and commercial interests, and represent society and civil society as a whole;
- Article 40 should be amended to limit the licensing scheme for electronic communications to cases where public regulation is justified, such as for regulation of the frequency spectrum or regulation of public works;
- Articles 44, 51, and 53 (granting and revoking electronic communications licenses) as well as Article 48 (revoking radio licenses) and Articles 227 and 233 (granting and revoking broadcast licenses) should be amended to stipulate the licensing process in law rather than making it subject to the Regulatory Authority. This should include clear eligibility requirements, clear licensing and renewal policies, and objective assessment criteria;
- Article 51 should be amended, at a minimum, to remove item 7 allowing revocation of a license if the licensee is “engaged in” or “supporting activities amounting to treason”;
- Article 53 should be amended to require the Regulatory Authority to provide reasons for suspending a license. It should also be amended to remove items 1 and 3 which allow license suspensions on vague grounds of “national security” and adversely affecting competition;
- The Regulatory Authority should be required to give written reasons for refusing to grant or renew a license, and these decisions should be subject to independent judicial review;
- Restrictions to the import, manufacture, and commerce of communication equipment promulgated under Article 72 should be limited to maintaining technical standards to ensure efficient network operations;
- Articles 33 and 180 as written grant wide warrantless search, entry, and seizure powers to the Regulatory Authority and any individuals it designates. The provisions should be stricken in their entirety. Searches and seizures must be subject to independent judicial review and require cause;
- Article 123 should be stricken. It imposes active obligations on providers to provide potentially limitless government access to user data, and threatens to undermine encryption services which are integral to the realization of freedom of expression and privacy online;
- Computer crimes should be stricken from the Law and dealt with using separate legislation. At a minimum, criminal offenses should have clear intentionality requirements and require “dishonest intent” and “serious” harm to result; and
- Article 197 should include a public interest defence.