Martin Ngoga
24 October 2008
analysis
Kigali — Pursuant to rule 11 bis of the International Criminal Tribunal for Rwanda's (ICTR) Rules of Procedure and Evidence, the ICTR Prosecutor has been seeking to transfer intermediate and low level cases to Rwanda's national jurisdiction.
He has so far filed five requests to the chambers in that regard.
Under the rules, the Prosecutor is only mandated to select cases for possible transfer to selected national jurisdictions but the final decision is made by the judges in a judicial process involving all parties. This whole arrangement is in a wider context a consequence and directive of the U.N Security Council Resolutions 1503 and 1534.
Rwanda offered to receive these cases in the event the ICTR decided to transfer them. We put in place necessary legislative and logistical processes in order to comply with the requirements and thereby satisfy what we, as well the ICTR Prosecutor, thought would make it possible for the chambers to decide in favour of transfers to Rwanda.
When the hearings of the first request (Prosecutor Vs Yusuf MUNYAKAZI) were fixed, we requested and appeared as Amicus Curiae (friend of the court). The purpose behind this demarche was to provide firsthand account of our readiness, to re-affirm our willingness as a responsible State to receive those cases.
We decided to participate in that process more in response to a call by the U.N Security Council and not to compete for cases with the ICTR whose jurisdiction we support and continue to support.
The Prosecutor has so far lost in all the requests, meaning, the ICTR trial chambers and the appeals chamber, are yet to be convinced that Rwanda is a competent and trustworthy national jurisdiction that can be tasked with that mandate.
The series of decisions rejecting the Prosecutor's requests have created a misleading perception of our national justice system. There have been, in these decisions, serious affirmations which on the face of it would mean that Rwanda's judicial system is in a mess.
For the reason that, we have been, and shall continue to pursue Genocide fugitives all over the world, the ICTR's Verdicts of our system are not without consequences.
The good news however, is that despite the consistency is denying the applications, there has not been consistency in their reasoning.
What it means is that there is not even one solid Jurisprudence against Rwanda's National system. I will try to point out a few areas of these inconsistencies.
While in the Prosecutor Vs Yusuf MUNYAKAZI, the trial chamber found inter-alia that:
" ndeed, the chamber is concerned that the trial of the Accused for Genocide and other serious violations of International Law in Rwanda by a single Judge in the first instance may violate his right to be tried before an independent tribunal"( emphasis is mine). It should be noted that this was in reference to Rwanda's just introduced system of single judge.
The chamber further found that:
"In particular, the chamber notes the Rwandan Government's interrupted cooperation with the Tribunal following a dismissal of an indictment and release of an appellant as well as its negative reaction to foreign judges for indicting former members of the Rwandan Patriotic Front" (RPF) [emphasis mine].
The appellant being referred to is Jean Bosco BARAYAGWIZA who in 1999 was to supposed to be released without any possibility of Prosecution in the future because there had been procedural breaches after his arrest in Cameroon.
Following this incident, Rwanda suspended its cooperation with the ICTR. A review of the decision by the appeals chamber overturned the earlier decision and BARAYAGWIZA remained in detention. He was eventually prosecuted by the same court, found guilty and convicted.
Nine years down the road, this incident is brought back in a manner that portrays Rwanda as a country that does not respect decisions of courts. Which scenario was then posing to cause miscarriage of Justice?
Is it the decision to set BARAYAGWIZA free without any possibility of being tried for crimes he committed, or the opposition of it which partly caused BARAYIGWIZA's trial and eventual conviction?
But even assuming it was a wrong reaction, this event happened nine years ago and reference to it is a total disregard of developments that have taken place since, including the judicial reforms.
The "negative" reaction to indictments by foreign judges (France's Bruguierre and Spain's Merrelles) by Rwanda's Executive is a sovereign right. Governments can disagree with decisions of foreign judiciaries.
More importantly about this point however is the trial chamber's decision to venture into an area whose substance had not been adequately addressed. The chamber erroneously elevated the processes in France and Spain.
In conclusion, the chamber ruled:
"In light of past actions of the Rwanda Government, the chamber is not convinced that Rwanda respects the independence of the Judiciary. The chamber is concerned that this situation may lead to direct or indirect pressure being exerted on judges to produce judgments in line with the wishes of the Rwandan Government"
It continues:
"The chamber is of the view that this danger would be substantially reduced if the trials were conducted by a panel of three or more judges. However at present, this is not the case in Rwanda".
This was certainly a serious verdict that was not substantiated. Judicial independence is a matter of principle and necessary legislative guarantees. Cases of departure from these principles can be addressed case by case in a thorough and substantially scrutinized manner.
Courts are presumed to know the consequences of passing serious assertions without exhaustive scrutiny of sources, as are capacities of judiciaries to resist pressure where it happens. This is essentially a matter of principles; it is not the case of physical engagements.
The number of judges can therefore not be a guarantee in itself. If wisdom was to be found in numbers (the International Court of Justice (ICJ) is composed of 17 judges) then the ICTR chambers are fourteen 14 judges less to meet this standard. Are they less independent?
Isn't the chamber's choice of three as the minimum required not only for convenience? Because it is not written anywhere that this is a requirement, for fair trial. Other areas on which the chamber based its decision were witness availability and protection.
It believes that if Trials take place in Rwanda, the defence would have difficulties getting witnesses. It also believes that witnesses would not be adequately protected.
On this point, we think the ICTR overly exaggerates its role in witness protection. It maintains no territory in which to protect witnesses. It heavily relies on State Institutions to protect its witnesses.
Even in cases of relocation (when it happens) we have had killings happening in Europe linked with the ICTR processes. That means, no one can speak with certainty that Rwanda is less secure for witnesses.
This assertion also ignores the fact that in the country's domestic processes, trials have been taking place in by far bigger numbers and defence witnesses have been available, in addition to legal guarantees and oversight / monitoring mechanisms in place to address cases as they arise.
Lastly, the chamber ruled that on conviction, the defendants would risk imprisonment in solitary confinement. Our argument is that, this is not the case with cases transferred from foreign Jurisdictions.
It only applies to domestic processes (even though it creates the impression of double standards). This is one in many contentious areas where we, as a nation, decided to be contextual and realistic in our decisions.
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