17 December 2012

Rwanda: Mugesera Trial Postponed Again, Questions High Court Competence to Try Him

Photo: T. Kisambira/ The New Times
Leo Mugesera (in pink) talking to his lawyers in court (file photo).

Genocide suspect Leon Mugesera has questioned Rwanda's High Court competence to try him.

In a trial which was postponed 27 days ago and re-initiated yesterday, Mugesera and his defense started by questioning the ability of Aguma Charles Kalimba, a translator and interpreter from the Ministry of Justice, who is supposed to translate discussions between the president of the trial Athanase Bakuzakundi and Mugesera's head lawyer, Kenyan Gershom Otachi Bw'Omwanwa.

"He has no competence in translation and interpretation," claimed Mugesera to the translator, who has said that he has a bachelor's degree of law and 10 years of experience in translating for courts of justice. For Mugesera, that's no competence as he should at least, have a diploma in translation and/or interpretation.

But prosecutor general Martin Ngoga said that Mugesera's quest is baseless since it was not the first time that a court decides to use someone, unqualified in issues of translation and interpretation but with a law degree.

"He understands the law, which is the baseline of all our discussions here. On our side (prosecution), we don't have any problem with his competence, but if he proves us wrong, then we'll have a body of evidence to get rid of him," Ngoga said.

Bakuzakundi declared that the trial shall proceed. "We assess that he has the ability to fulfill his duties and reserve to us the rights, to which if he proves us wrong, he will be suspended so as to get someone else knowledgeable."

According Otachi, the application submitted to the High Court beforehand challenges the very foundation of the case.

"This (Mugesera's) is a fairly new jurisdiction. It's the first trial (of its kind-transfer case) tried in Rwanda," stated Otachi who further refereed to the Organic law of November 2007, also called the 'transfer law', which the defense team analyzed.

"We are not challenging the jurisdictions of the court to try Mugesera in general, nor are we challenging the power of the court to try him on this case, but we're focusing on the temporal jurisdictions based on time limits."

Otachi also said articles 1, 3, 23, 25 of the 'transfer law' in relation to the status of the International Criminal Tribunal for Rwanda (ICTR) and the agreement signed between Canada and Rwanda emphasize that Mugesera should be tried under conditions mentioned in all the above documents.

"We don't dispute the fact that Mugesera as a Rwanda citizen should be tried by Rwandan courts as stated by the ICTR status, but that's not enough because also the alleged genocide crimes should have been committed by him physically in Rwanda, and committed between 1 January and 31 December 1994," Otchi said adding that the article 3 of the transfer law refers to article 7 of the ICTR status and no other article refers to transfer jurisdictions, therefore no possibilities to extent the time frame to after of before 1994.

"All the transferees shall be treated equally. Mugesera like the other prisoners from the ICTR shall be tried equally. Any different would be unfair and discriminative," stressed Otachi. If Mugesera is tried under those conditions, he wouldn't appear for crimes allegedly committed in 1992 (the year during which he pronounced his famous speech for which he is being pursued). "This court's jurisdictions are bounded by the ICTR status," said Otachi.

The prosecution rejected the claims on the High Court's competence to try Mugesera, mostly emphasizing that suspects from the ICTR are different from those from other countries.

"Genocide suspects from the ICTR have to be handled in particular manner," said Ngoga who referred to the article 3 of the 'transfer law' which stipulates that 'a person whose case have been transferred from the ICTR shall be liable only for case in ICTR's jurisdictions.' He commented that the mention ICTR in this law and the omission of 'the other countries' are not mistakes.

Ngoga added that Mugesera's lawyers have misinterpreted the law.

"If you want to say that Mugesera's alleged crimes fall outside the temporal jurisdictions of the ICTR you are wrong because the article 24 of the transfer law mentions 'Mutatis Mutandis' which means that you can change what needs to be changed including extending the time." He stressed that extending (out of ICTR's status) is a necessary change in points of law. "We absolutely believe that this court if competent to try Mugesera over his alleged participation in the 1994 against Tutsi genocide."

Mugesera rejected Ngoga's arguments and said that the law mentions ICTR and other countries. "The 'and' conjunction between shows that they are the two have the same value. There is no 'analogy' when dealing with criminal rights. It's not allowed to reduce the value things."

Bakuzakundi postponed the trial, and said that the judges will discuss the matter and pronounce itself next Monday, December 24, 2012.

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