人权理事会

第十 九 届会议

议程项目 3

增进和保护所有人权――公民权利、政治权利、 经济、社会和文化权利，包括发展权

少数群体问题独立专家盖伊·麦克杜格尔的报告

增编

访问卢旺达 *

内容 提要

卢旺达政府因其主动采取的诸多行动和积极做法，促进了社会愈合、发展和增长，必须予以褒扬。颇为重要的是，政府承认仍面临诸许多挑战，包括全创造持久稳定与和平条件方面的挑战。

政府为构建起每个身为卢旺达国民背后的统一和凝聚力，削减族裔成份的摧毁力所作的努力，是值得赞赏之举。鉴于该国基于族裔的暴力史，迄今所取得的进步程度令人印象深刻。 然而，卢旺达社会仍普遍存在着以族裔划分的观念。只要这种现象存在，就不应将坦诚地探讨这些问题列为禁忌。促进国家统一的进程与个人和各个族群享有言论自由和隶属某一族裔群体的身份自由认同权并不抵触。禁止煽动族裔仇恨或灭绝种族行为的法律和政策，也必须同时全面符合各项国际人权义务所保护的言论 自由。

卢旺达境内无以计数的族群自我认定为巴特瓦人。政府将他们划定为“历史上受排斥的人民” 。目前，这些人被主流社会排挤至边缘，生活在水深火热之中，在一贫如洗的境况下挣扎。他们作为一个居民群体，受教育和卫生保健的程度极低，居住在无法避风遮雨的窝棚里，而他们在国家公共生活中几乎就不存在。他们被逐出了其世代传承生活的森林，既不问他们是否同意，也不给予赔偿；面临广泛的歧视，特别是就业方面的歧视，且毫无维持生计的可靠手段。政府虽设立起了一些援助方案，然而，这些方案对全体巴特瓦人却毫无效用。

Annex

Report of the independent expert on minority issues on her mission to Rwanda (31 January–7 February 2011)

Contents

Paragraphs Page

I.Introduction1–34

II.Methodology4–64

III.Protection of the right to cultural and ethnic identity7–195

A.Government views on ethnicity and the root causes of the 1994 genocide7–115

B.International law and identity in Rwanda12–196

IV.Protection of distinct groups and prevention of genocide20–388

A.Domestic law21–248

B.Institutional initiatives 25–339

C.Gender-based crimes34–3810

V.Protection of the rights to non-discrimination and equality39–7312

A.Legal framework and institutions39–4812

B.The situation of Batwa communities in Rwanda 49–7314

VI.Protection of the right to effective political participation74–8018

VII.Conclusions and recommendations81–10419

A.Reconciliation mechanisms86–8820

B.Laws relating to genocide ideology and divisionism89–9021

C.Political participation91–9221

D.The situation of Batwa93–10421

I.Introduction

1.The independent expert conducted an official visit to Rwanda from 31 January to 7 February 2011. She consulted with senior representatives of the Ministries of Foreign Affairs and International Cooperation, Justice, Local Government, Community Development and Social Affairs, and Education. She met with the National Unity and Reconciliation Commission, the National Commission for the Fight against Genocide and the Commission in charge of Social Affairs, Human Rights and Social Issues in the Chamber of Deputies and the Senate. In addition she met with the Rector and faculty from the National University of Rwanda, the Ombudsman, the National Human Rights Commission, the Rwanda Demobilization and Reintegration Commission, and IBUKA, an umbrella organization for genocide survivor associations. The independent expert was honoured to visit the Gisozi Memorial Centre and pay her respects to the victims of genocide.

2.The independent expert thanks the Government of Rwanda for extending an invitation to her and for its cooperation with her mandate in the preparation and conduct of her visit. The independent expert also wishes to thank the numerous non-governmental organizations (NGOs), both national and international, academic institutions, and others that have provided information and assistance to her.

3.The independent expert travelled to Kigali and to different regions where she consulted with people in their communities, some of whom self-identify as Batwa and others formerly recognized as Hutu and Tutsi. She visited villages in the vicinity of Kigali, near Musanze in the Northern Province, and around Butare in the Southern Province. At the invitation of the National Unity and Reconciliation Commission, she visited a community in Gahini in the Eastern Province. At the invitation of the National Human Rights Commission, she visited another community in Muhanga in the Southern Province.

II.Methodology

4.The independent expert’s evaluation of minority issues in Rwanda is based on the 1992 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities and other relevant international standards, from which she has identified four broad areas of concern. These are: (a) the protection of a minority’s survival, through combating violence against them and preventing genocide; (b) the protection and promotion of the cultural identity of minority groups and the right of national, ethnic, religious or linguistic groups to enjoy their collective identity and to reject forced assimilation; (c) the guarantee of the rights to non-discrimination and equality, including ending structural or systemic discrimination and the promotion of affirmative action when required; and (d) the guarantee of the right to effective participation of members of minorities in public life, especially with regard to decisions that affect them. She applies a gender perspective in all areas of her work.

5.The independent expert does not rely solely on numerical factors in her assessment of which groups constitute a minority within societies. The independent expert focuses her work on national, ethnic, religious and linguistic groups whose generally non-dominant positions within their societies demand protection to allow them to exercise all their rights, including minority rights to the fullest. In some countries, a distinct group constituting a numerical majority may be oppressed by a smaller group which is using its political or economic dominance to deny certain rights to other groups.

6.In the following report, the independent expert details relevant information that she gained from her consultations in-country and additional research and information from credible sources. She has tried to record faithfully the views of the Government, to the extent permitted by restrictions on the length of this report.

III.Protection of the right to cultural and ethnic identity

A.Government views on ethnicity and the root causes of the 1994 genocide

7.According to the Government of Rwanda, during the pre-colonial era, Rwandans swore allegiance to the same monarch, had the same culture, the same language, “Kinyarwanda”, and lived together on the same territory. At that time, Rwandan identity was closely related to clans. Belonging to the same clan implied that the persons concerned were of the same origin. The Government claims that myths related to the origin of the Hutu, the Tutsi and the Batwa contradict the fact that all shared the same ancestral father, “Kanyarwanda”.

8.In the pre-colonial era, “Tutsiness” and “Hutuness” were social classifications or classes that were not static. For example, mechanisms existed for social promotion (Tutsification) for Hutus and for the Batwa, including through the acquisition of a herd of cows. Equally, “Tutsification” could result from a decision by the King, marriage with a Tutsi or adoption by a Tutsi. The reverse phenomenon, “Hutufication”, considered a kind of social demotion, could occur if, for example, a Tutsi person was deprived by some means of their cattle herds. Therefore “Tutsiness” and “Hutuness” did not have a genetic dimension.

9.The Government maintains that distinct ethnic groups exist only when they each belong to a different community of language, culture, history or territory. It claims, however, such differences have never existed in Rwanda. Therefore it concludes that only one ethnic group exists in Rwanda – the Banyarwanda.

10.The colonial period was characterized by a strategy of divide and rule. Ethnic identity was highly manipulated and institutionalized in administrative organs during the colonial era. The population became indoctrinated with colonialists’ theories of ethnicity. Even in post-colonial Rwanda, divisionism and discriminatory practices were further entrenched. Identification cards had ethnic classifications. Access to Government services, such as education and service employment, was based on an ethnic-quota system. Ethnic divisions were made a part of daily lessons in schools. Corrupt leaders exploited the system for political gains. The ultimate result was the 1994 genocide.

11.Current-day Government officials consistently repeat this ethno-historical analysis. It underpins the national legislative and policy framework implemented by the current Government for the promotion of a single Rwandese national identity, unity and reconciliation. Under this framework, ethnic minorities are not recognized as existing in Rwanda, the use of terminology that refers to different ethnic groups is strongly discouraged and all references to Bahutu, Batutsi or Batwa are banned from official documents.

B.International law and identity in Rwanda

12.While the independent expert recognizes the unique history of Rwanda, the policies of the Government must be assessed as against the State’s obligations under international human rights law. Article 27 of the International Covenant on Civil and Political Rights establishes that “in those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language”. The question of the existence of minorities is addressed by the Human Rights Committee in its general comment No. 23 (1994) on the rights of minorities, which elaborates that “the existence of an ethnic, religious or linguistic minority in a given State party does not depend upon a decision by that State party but requires to be established by objective criteria”.

13.Considering identification with particular racial or ethnic groups, the Committee on the Elimination of Racial Discrimination has stated in its general recommendation No. 8 (1990) on identification with a particular racial or ethnic group (art. 1, paras. 1 and 4) that “such identification shall, if no justification exists to the contrary, be based upon self-identification by the individual concerned”. Furthermore, the African Commission on Human and Peoples’ Rights, at its thirty-fourth Session, in November 2003, recalled “the emphasis given in international law to self-identification as the primary criterion for the determination of who constitutes a minority or indigenous person”. International Labour Organization (ILO) Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries also recognizes the principle of self-identification. Article 1, paragraph 2, states that “self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply”.

14.The right of individuals to freely identify themselves as belonging to an ethnic, religious or linguistic group is therefore well-established in international law. It is also notable that the existence of a common language or culture does not necessarily negate the possibility of ethnic difference, but may rather be evidence of assimilation of different population groups over generations. Domestic law relevant to ethnicity, identity, minority status, equality and non-discrimination should recognize such rights and ensure that no individual or group suffers from any disadvantage or discriminatory treatment on the basis of their freely chosen identity as belonging to (or not belonging to) an ethnic, religious, linguistic or any other group.

15.The country’s National Unity and Reconciliation Commission undertook a survey and produced a report in October 2010 entitled Rwanda Reconciliation Barometer. The survey revealed that some 60 per cent of people consider themselves Rwandans not identified along ethnic lines and indicates that ethnicity is increasingly less relevant in post-genocide Rwanda. Some 97 per cent of respondents exhibited a strong preference for a national Rwandan identity and national values. It is nevertheless acknowledged in the report that “many research participants indicated that they believed that references to ethnicity or ethnic groups are prohibited in Rwanda”.

16.The Institute of Research and Dialogue for Peace, a Kigali-based social research institution, also conducted research on social cohesion in 2010 to evaluate the impact of ethnicity on social life, using a quantitative and qualitative approach. While noting that “strictly speaking, ethnic groups do not exist in Rwanda”, it continues: “however, the social reality of the ethnic group is there and influences life in society, the political decisions and the quality of social life…the ethnic logic can also become a mechanism of reasoning which consists in thinking and acting as a member of an ethnic group”. Consequently, “it would be nonsense to declare that there are no ethnic groups in Rwanda … every Rwandan is able to tell you his/her ethnic group but on the other side, everybody hesitates to discuss the ethnic issues except within the ethnic group where he/she belongs. The ethnic consciousness has become a reality over the years”.

17.The Institute emphasized that inter-ethnic relationships have improved. However, while 53 per cent of people assessed the relations between Rwandans as “good” or “very good”, some 46.9 per cent of the population remains cautious about social harmony and considers that major challenges to social cohesion remain. According to the Institute, the underlying mistrust among ethnic groups remains and building a strong national identity requires long-lasting solutions regarding secondary identities, particularly ethnic identity. According to the Institute’s report, the “challenges to social cohesion include extremist speeches by some politicians, the murders of some genocide survivors during gacaca trials, the lack of opportunities to organize a constructive debate around ethnic issues, and persisting ethnic bias in the management of public affairs”.

18.Several NGOs have expressed concern regarding the Government’s position on ethnicity and noted that refusal to acknowledge ethnic difference and monitor relative equality effectively allows discrimination in any sphere of society to continue unimpeded. One international NGO states that: “The current government’s policy that everyone is Rwandan and no minority ethnic groups exist in the country does not address the deep-rooted tensions that continue to exist in Rwandan society. Moreover, it allows a situation to develop in which a group can enjoy a de facto position of privilege, while others are forbidden to challenge it”.

19.In its May 2009 concluding observations on Rwanda, the Human Rights Committee stated: “the Committee is concerned about the non-recognition of the existence of minorities and indigenous peoples in Rwanda” (CCPR/C/RWA/CO/3, para. 22). Equally, the Committee on the Elimination of Racial Discrimination expressed concern in its March 2011 concluding observations on Rwanda that the Government’s priority of national unity was likely to ignore the specificities of certain groups, including the Batwa (CERD/C/RWA/CO/13-17, para. 9). The Committee urged the Government to take into account the specificities of each of the groups that make up its population.

IV.Protection of distinct groups and prevention of genocide

20.Understandably, one of the highest priorities of the Government has been to guarantee security and prevent a recurrence of genocide or ethnic-based violence.

A.Domestic law

21.Article 9 of the 2003 Constitution commits the Government to “fighting the ideology of genocide and all its manifestations, eradication of ethnic, regional and other divisions and promotion of national unity”. Law No. 18/2008 of 23 July 2008 relating to the Punishment of the Crime of Genocide Ideology was promulgated in October 2008. Under the law, the crime of genocide ideology is defined as:

“Behaviour manifested by facts aimed at dehumanizing a person or a group of persons with the same characteristics in the following manner:

1.threatening, intimidating, degrading through defamatory speeches, documents or actions which aim at propounding wickedness or inciting hatred;

2.marginalising, laughing at one’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;

3illing, planning to kill or attempting to kill someone for purposes of furthering genocide ideology.”

The sentence for genocide ideology is imprisonment for 10–25 years and a fine of up to 1 million Rwandan francs.

22.According to article 1 of Law No. 47/2001 on Prevention, Suppression and Punishment of the crime of Discrimination and Sectarianism, sectarianism is defined under the law as “the use of any speech, written statement or action that divides people, that is likely to spark conflicts among people, or that causes an uprising which might degenerate into strife among people based on discrimination”.

23.The laws of Rwanda on genocide ideology, sectarianism and divisionism have been severely criticized by NGOs, including on the grounds that it is unclear what acts constitute crimes under the laws and that they violate the right to freedom of expression. Amnesty International has described the laws as “broad and ill-defined” and stated that “the vague wording of the laws is deliberately exploited to violate human rights”. Other human rights groups maintain that the laws could be used to prosecute those who make benign references to ethnic identity or who seek to advocate for ethnic rights. Credible allegations have been made that charges of “divisionism” and “genocide ideology” have been used to silence dissent and obstruct the activities of legitimate political opposition (see chapter VI on political participation below). Government-sponsored surveys have revealed that it is commonly understood by Rwandans that references to ethnicity or ethnic groups are prohibited by law. In April 2010, the Government announced a review of the law on genocide ideology to respond to these criticisms and pertinent recommendations by the country’s development partners.

24.TheCommitteeon the Elimination of RacialDiscriminationrecommended that “theState party contemplate revisingLawNo. 18/2008 …with a view to making the definition of ‘the ideology of genocide’ in article 2 more specific,and to include intention as one of the constituent elements of this crime listed in article 3, and thus to provide all the guarantees of predictability and legal security required of a criminal law and prevent any arbitrary interpretation or application of this law” (CERD/C/RWA/CO/13-17, para. 14).

B.Institutional initiatives

25.The independent expert met with the National Commission for the Fight Against Genocide created under the 2003 Constitution but active only since 2008. The mandate of the Commission requires it to, inter alia, design and implement strategies for fighting genocide and its ideology; coordinate remembrance activities and preserve memorial sites; and provide assistance to genocide survivors. Its mandate allows the Commission to undertake educational activit