Ruling by the Press Ombud
3 April 2017
This ruling is based on the written submissions of Mr Graeme McMaster of McMaster Attorneys, on behalf of Mr Tribert Ayabatwa, and those of Marianne Thamm, assistant editor of the Daily Maverick.
Ayabatwa is complaining about a story in Daily Maverick (DM) of 10 February 2017, headlined SARS WARS: Suspension of the last remaining key official jeopardises ‘Tobacco War’ cases.
Complaint
Ayabatwa complains that the following statements in the article were false, unfair and damaging to his dignity and reputation:
· He had been accused in public reports of funding the genocide in Rwanda;
· The United Nations (UN) froze his bank accounts;
· He had been convicted in South Africa for customs and tax evasion; and
· He was prevented from trading in tobacco in South Africa.
He also complains that the DM did not seek his comment prior to publication.
The text
The article, written by Marianne Thamm, was about a SARS investigation into the tobacco industry in this country. During the course of her story, she made the statements about Ayabatwa as cited above. She described him as a Rwandan industrialist and the owner of Pan African Tobacco Group, the largest tobacco company in Africa
The complaint in more detail
Funding genocide
Ayabatwa says he was never accused by any credible source of funding genocide in Rwanda. In fact, he states, he was a member of the Rwandan Patriotic Front (RPF), which is widely recognized as having ended that genocide, adding that a report by Human Rights Watch confirms this fact.
He explains that Thamm and / or her sources might have confused the above with the allegation that he had funded armed forces in eastern areas of the Democratic Republic of the Congo, but the UN has since confirmed that this accusation was baseless. He says correspondence from the UN confirms this fact.
|
Thamm replies that existing public reports do indeed accuse him of such. In fact, she says, it would seem as if he stood accused of funding wars in more than one part of Africa. “By reporting on the fact that he has been accused of funding the genocide in Rwanda, we make no judgement against him and merely reported on what our research demonstrated,” she argues. In this regard, she quotes from sources (she provided a list of website addresses to this effect) upon whom she relied for this statement (which I repeat in full):
Thamm concludes that in light of the above, it was justified to say that Ayabatwa had been accused of funding the genocide in Rwanda. |
Ayabatwa says none of the sources (all of which were secondary) referred to the genocide in Rwanda.
He also submits the statement that he was an important backer of the RPF during the civil war is not the same as stating that he had funded genocide – in fact, the RPF ended the genocide in Rwanda, as recognized by Human Rights Watch.
He adds that the rest of Thamm’s response provides no support for her argument.
My considerations
I have read the report by Human Rights Watch, and have considered its implications for this complaint:
It is true, as Ayabatwa says – this report did indeed state that the RPF ended the genocide in 1994. But, with respect, that does not prove his argument.
This is why: The same report makes it abundantly clear (too many examples to quote) that the RPF itself has killed thousands of people, sometimes systematically, by throwing them in toilets and rivers, etc. This is the point: The fact that the RPF has ended the genocide (according to this report) does not mean that it has not taken part in it.
I am not in a position to state it as fact that the RPF has participated in the genocide, but I can say it is reasonable for a journalist to come to such a conclusion.
The next question concerns the evidence that Ayabatwa funded the genocide. The answer to this is simple: Neither I nor Thamm need any such evidence because she never stated it as fact – she merely reported that he had been accused of funding the genocide.
It may be true that not all Thamm’s examples prove her point. Yet, consider the following quotes: “[Ayabatwa] stated he has no regrets supporting the invasion of the RPF in the early 1990’s…” and, “Tribert Rujugiro Ayabatwa was the major single local funder of the guerrilla war that brought Kagame to power”.
Of course these quotes do not provide proof of his guilt or Ayabatwa’s alleged part in the genocide – but they did give Thamm enough justification to at least say that he had been accused of funding the genocide.
I agree that the word “backer” does not prove he actively funded the genocide – but I also note that he does not dispute the statement that he was “an important backer” of the RPF. If anything, this gives even more credence to the accusation in question.
Freezing his bank accounts
Ayabatwa says correspondence from the UN confirms that it has never frozen his bank accounts. It is true, he adds, that at some point the Rwandan government seized some of his assets – but that was because he was in exile and not because of any suspicion of funding genocide.
McMaster says Ayabatwa has written to the DM, asking for a retraction and an apology regarding the above-mentioned statements, but the publication offered to retract only the statement that the UN had frozen his bank accounts, and to apologise for it.
|
Thamm admits this was a mistake ? saying this error was inadvertent ? for which she apologises. She adds that it seems, based on public reports, that it was in fact the Rwandan government that froze his bank accounts and seized some of his assets held in that country. “In this regard, we are prepared to offer an apology to [Ayabatwa] and state the correct facts in our publication,” she says. |
Ayabatwa replies that this admission and offer to apologise does not go far enough.
My considerations
The Coordinator of the Group of Experts on the DRC (in the UN), dated 20 June 2012, did indeed state that Ayabatwa has “never been subject to any UN travel ban or assets freeze”.
I also note that Ayabatwa does not deny that the Rwandan government froze his bank accounts. The damage that this error has unnecessarily caused him is therefore not as serious as it otherwise would have been.
Convicted for customs, tax evasion
Ayabatwa denies that he was ever convicted for the evasion of customs or tax in South Africa.
|
Thamm says DM relied on multiple existing publications, some also subject to the Press Ombud and Press Code and dating back several years, to report on this fact. There has been no evidence that he has ever objected or corrected these statements. In this regard, she quotes from sources she relied upon for this statement:
In light of the above, Thamm concludes, it was justified to say that Ayabatwa had been convicted of tax and customs evasion. |
Ayabatwa says Thamm relies on secondary sources – who are all incorrect. “The publication is not entitled to rely on other incorrect secondary sources for the publication of false and defamatory statements. A journalist who repeats a false and defamatory statement commits an actionable defamation, especially where she does not make any effort to confirm to correctness of the adverse statement,” he argues.
My considerations
Thamm has provided me with a screengrab from the following website: https://books.google.co.za/books?id=DlfoGviNKSAC&pg=PA190&lpg=PA190&dq=ayabatwa+guilty&source=bl&ots=XuxrhSspng&sig=CtgRPqFpbmvkFiXbIP8vQnKU3xY&hl=en&sa=X&ved=0ahUKEwiS0bC0iv7SAhUrD8AKHU47CYYQ6AEINjAJ#v=onepage&q=ayabatwa%20guilty&f=false. This quoted the Group of Experts, who stated that Ayabatwa had pleaded guilty to the charge of tax evasion in South Africa.
This, I submit, justifies the publication of the allegation in question.
Prevented from trading tobacco
Ayabatwa denies that he was prevented from trading tobacco in South Africa.
|
Thamm says Ayabatwa was prevented from trading in tobacco in South Africa, stating that three independent confidential sources confirmed that he was concerned about restrictions imposed on him regarding trading in tobacco in South Africa as a result of the criminal conviction. He was advised to this effect and believed that he wasn't allowed to trade in tobacco products until at least July 2014. “One such source confirmed that this was, correctly or incorrectly, the official view held by officials within SARS and the National Prosecuting Authority,” she adds. |
Ayabatwa says the information by the sources quoted by Thamm is incorrect
My considerations
I have asked Thamm about the basis of her information, and this was her reply: “I have relied on confidential documents supplied to me which demonstrates his own concern regarding the suspensive conditions of the sentence where he sought legal advice. He was concerned that in terms of the suspension he wasn't allowed to trade in tobacco until 2014. Rightly or wrongly. He thought so, SARS officials thought so and the confidential documents show this.”
I have no reason to find against the DM on this issue.
No right of reply
Ayabatwa complains that the DM did not give him a right of reply prior to publication.
|
Thamm does not respond to this part of the complaint. |
Ayabatwa says DM does not deny that it did not give him an opportunity to respond prior to publication, neither did it explain its failure to do so.
My considerations
When someone is the subject of critical reporting, Section 1.8 of the SA Code of Ethics and Conduct stipulates that the media should ask such a person for comment prior to publication.
In this case, though, I take into account that Thamm:
· did not report any new information about him – she merely recounted what was already in the public domain; and
· referred to Ayabatwa only in passing.
Given these considerations, I do not think that Thamm was duty-bound to ask Ayabatwa for comment.
In conclusion
Ayabatwa concludes the statements in question created the impression that he:
· was a criminal and has a history of criminal behaviour;
· has no integrity;
· was complicit in funding genocide; and
· engaged in unscrupulous business practices.
He says that this reportage had tarnished his dignity and reputation.
|
In conclusion, Thamm denies that DM had “recklessly tainted and defamed” Ayabatwa. “We deny that any error on our part was intentional or designed to intentionally tarnish Mr Ayabatwa's reputation.” |
My considerations
Given all of the above considerations, I cannot agree with Ayabatwa that the references to him have unnecessarily tarnished his dignity and reputation.
Finding
The statement that the UN froze Ayabatwa’s bank accounts was inaccurate and in breach of Section 1.1 of the SA Code of Ethics and Conduct which reads, “The media shall take care to report news … accurately…”
The rest of the complaint is dismissed.
Seriousness of breaches
Under the headline Hierarchy of sanctions, Section 8 of the Complaints Procedures distinguishes between minor breaches (Tier 1), serious breaches (Tier 2) and serious misconduct (Tier 3).
The breach of the Code of Ethics and Conduct as indicated above is a Tier 1 offence.
Sanction
Daily Maverick is directed to correct the statement that the UN froze Ayabatwa’s bank accounts, clarifying that this was done by the Rwandan government.
The text should:
DM is free to report on those parts of the complaint that have been dismissed.
Appeal
The Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.
Johan Retief
Press Ombud