9 November 2017

Rwanda: Judicial Sovereignty - Victoire Ingabire and the African Court

Photo: New Times
Victoire Ingabire.
interview

Rwandan prisoner of conscience Victoire Ingabire has appealed at the African Court. But the court faces challenges. Despite criticising the International Criminal Court, African nations have shown only lukewarm support for their own court as an alternative. Only 30 of the 54 member states of the AU recognize the African Court. And of these just eight support the hearing of cases brought by citizens.

Friends and supporters of Rwandan political prisoner Victoire Ingabire are still waiting for the African Court on Human and Peoples' Rights to rule on her appeal. In 2010, Victoire attempted to run for president against military dictator Paul Kagame and went to prison instead. She was convicted of conspiring with terrorists, urging Rwandans to rise up against the government and contradicting the official, legally enforced history of the Rwandan Genocide.

I spoke to Victoire by e-mail, phone, and Internet telephony and put her voice on the Pacifica Radio Network’s KPFA-Berkeley and WBAI-NYC for most of 2010, until she was finally imprisoned on October 14. The San Francisco Bay View newspaper published our conversations as well as essays by experts on Rwanda and the African Great Lakes Region.

I can still hear Victoire telling me how adamantly she opposes violence and believes in "dialogue, debate and democracy." English is her fourth language, after Kinyarwanda, French and Dutch, and she would emphatically enunciate "dialogue" with an endearing accent (dee-ah-log). Though we have yet to meet in person, I know Victoire well, and allegations that she was conspiring with terrorists are preposterous. Genocide survivor Claude Gatebuke rightly says that "Victoire doesn't believe in invading the neighbors," meaning most of all the Democratic Republic of the Congo but also Burundi. Kagame's forces have even skirmished with neighboring dictator Yoweri Museveni's troops on their shared border, and UN investigators reported that their militias fought one another over the gold and diamonds in Congo's Ituri District from 1993 to 2003 during the Second Congo War.

Superficial calm, palpable volatility

Many Rwandans describe their country as a tinderbox, an earthquake fault, or a smoldering volcano because of its brutal oligarchy, unresolved ethnic polarization and repressed memories of violence and loss. Victoire wants Hutus and Tutsis to have an honest conversation about what they suffered during the 1994 massacres, and she wants both Hutus and Tutsis to be able to remember their dead. So long as the law forbids naming Hutu victims, Hutus cannot publicly mourn or remember their dead.

Throughout the 2010 election year, Victoire and other dissidents told me that Rwanda was superficially calm but palpably tense and volatile, with heavily armed police and checkpoints in its streets and pervasive fear. She said she was urging Rwandans not to respond to the provocation.

By the time of the August 9 polls, Rwandan journalists had been shot in the street or escaped into Uganda, a former Rwandan defense minister had survived an assassination attempt in South Africa, and a University of Dar es Salaam law professor had been murdered outside his home in Tanzania. The professor had been representing a Rwandan Hutu in the Appeals Court of the International Criminal Tribunal on Rwanda (ICTR).

Then, on August 27, the UN Mapping Report on Human Rights Violations in the Democratic Republic of the Congo, 1993-2003, was leaked and published in Le Monde. It included evidence that Kagame’s forces had invaded Congo and massacred hundreds of thousands of Hutu refugees who had fled across the border as he and his army seized power in Rwanda. Investigators wrote that the report might prove the crime of genocide if the perpetrators were charged.

Furious at the leak, Kagame played his Trump card: UN troops. Although Rwanda’s population is only 12 million, it contributes the fifth largest number of UN peacekeeping forces, with 6,351 soldiers, police and military experts posted all over the African continent and even in Haiti. Kagame threatened to withdraw them if the report were officially published, and UN Secretary General Ban-Ki-Moon rushed from New York to Rwanda to calm him down. In the end, the report was officially released on October 1, but none of the international criminal courts showed any inclination to charge Kagame or other Rwandan officers for the crimes.

On October 9, five days before Victoire finally went to prison, she suggested expanding the ICTR's mandate to include Rwandan crimes in Congo, but only to the small audience I'd been able to create for her in the US and on the Internet. She had spoken to the BBC and the CBC several times, but not after the leak of the Mapping Report, and not as Kagame's military police surrounded her residence, then finally arrested and imprisoned her.

This year, on October 14, Victoire began the 8th year of her 15-year prison sentence. She hasn’t been able to talk to the press, but she did write a book, Between 4 Walls of the 1930 Prison: Memoir of a Rwandan Prisoner of Conscience.

While we continue to await the African Court’s ruling on her appeal, I spoke to Chief Charles A. Taku about her case and about the African Court. Chief Taku is the author of “African Court and International Criminal Courts: Discriminatory International Justice and the Quest for a New World Judicial Order,” an essay in the Baraka Books anthology, Justice Belied: the Unbalanced Scales of International Criminal Justice.

Ann Garrison: Chief Taku, you're a renowned international legal scholar and lawyer. You're also an ardent Pan Africanist, and you choose to identify as "Chief Taku," which is no doubt part of your African identity in Cameroon. Could you share something about that?

Chief Charles A. Taku: Thanks so much for this question. I value my African identity more than any other attribute. That is why I am an ardent Pan Africanist. As a chief, I am a repository of African values and civilization which I must project, protect and promote. Africa is the mother of the human race, and the human race can't heal unless its mother does.

AG: You wrote three eloquent essays for the Baraka Books anthology "Justice Belied." All three speak to the West's disregard for the Nuremberg Principles, the UN Charter, the Geneva Conventions, and the Universal Declaration of Human Rights when it comes to Africa, and to the racism of the International Criminal Court (ICC), which has prosecuted Africans exclusively. I highly recommend all those essays and the rest of that anthology to anyone reading this. However, I want to focus specifically on the African Court of Human and Peoples' Rights and Victoire's appeal, which is now before the court. Could you summarize the history of the African Court?

CT: The African Court is a continental court that was established pursuant to Article 1 of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of the African Court adopted in Ouagadougou, Burkina Faso, in June 1998. The Protocol came into force on January 25, 2004. The court complements and reinforces the African Commission on Human and Peoples’ Rights.

In June 2014, African leaders adopted the Malabo Protocol giving the court criminal jurisdiction. Pan Africanists regard this as an important step towards freeing Africa from the shackles of judicial imperialism and neocolonialism established by the ICC.

AG: Who funds the African Court?

CT: The court is funded by AU member states and state parties to the court. The Court also receives funding from a variety of sources that include private donors, the European Union, and other international donors.

AG: Are you concerned that private donors, the European Union, and other international donors could corrupt the court to advance their own agendas?

CT: I am concerned about acceptance of any contributions that may in any way taint the independence and integrity of the court. Africa has the capacity to fund the operation of African institutions, but because it has not yet won economic sovereignty over its immense natural resources, it remains poor.

The criminal ghost of our colonial past hangs over the continent like the sword of Damocles. The European Union, the dictatorships empowered by the West, the Western NGOs, and the foreign resource extraction industries now maintain imperialism in Africa. The human rights abusers that the court is supposed to bring to justice are funded by the same institutions that are funding the court.

For the most part Africans do not manufacture the weapons used to perpetrate conflict and crimes in Africa. South Africa is the only African nation with a weapons industry. Nevertheless, the proliferation of small arms in Africa in violation of treaties has been well documented. I worry that accepting contributions from outside institutions and donors may derail the court and the rest of the continent's focus on these crimes. Neither the ICC, the African Court nor any other court has ever targeted these merchants of death for investigation and prosecution.

The court needs financial and judicial independence to establish its authority. So far, I have no evidence that it has compromised its integrity in any particular ruling, but it should intensify the war against the impunity and brutality of African police states and their non-African sponsors.

AG: Now could you speak about Victoire's appeal before the court?

CT: I was one of the lawyers initially approached to defend Victoire Ingabire. Due to some logistical impediments, it was decided on May 12, 2010, that my American colleague Peter Erlinder should instead proceed to Rwanda to defend her. We agreed that I would provide background assistance and investigations because it was not possible to appear in court in Kigali and perform the necessary investigations at the same time.

On May 28, 2010, Victoire sent me an e-mail saying that Peter had been arrested and charged with propagating genocide ideology and that the Ibuka genocide survivors' group had organized a public demonstration against him that morning. My colleague Beth Lyons and I then dedicated most of our time to mobilizing lawyers worldwide on Peter's behalf until he was released.

Victoire was already under house arrest when Peter went to jail. At the very inception of her case, she was deprived of the fair trial rights guaranteed by Article 7 of the African Charter on Human and Peoples' Rights which among other things states:

"Article 7 (1): Every individual shall have the right to have his case heard. This comprises:

- The right to defence, including the right to be defended by counsel of his or her choice."

With her lawyer in jail, Victoire was subjected to all sorts of judicial tyranny and harassment. British lawyer Ian Edwards and Rwandan lawyer Gatera Gashabana took her case after Peter was released and allowed to leave Rwanda, but she was charged and convicted in trials widely understood to be unfair. The appeal she filed at the African Court expresses her determination to see the rule of law prevail over impunity, and she should be supported by everyone else who believes in the rule of law.

AG: The court's website says: "As at [sic] July 2017, only eight (8) of the thirty (30) States Parties to the Protocol had made the declaration recognizing the competence of the Court to receive cases from NGOs and individuals. The eight (8) States are: Benin, Burkina Faso, Côte d'Ivoire, Ghana, Mali, Malawi, Tanzania and Rep. of Tunisia. The 30 States which have ratified the Protocol are: Algeria, Benin, Burkina Faso, Burundi, Cameroon, Chad, Côte d'Ivoire, Comoros, Congo, Gabon, Gambia, Ghana, Kenya, Libya, Lesotho, Mali, Malawi, Mozambique, Mauritania, Mauritius, Nigeria, Niger, Rwanda, Sahrawi Arab Democratic Republic, South Africa, Senegal, Tanzania, Togo, Tunisia, and Uganda."

Since the eight states are also among the 30, could you explain this distinction?

CT: This is very problematic. Ambiguity in the language of the Protocol allowed the 30 states to claim that they had not accepted the court's jurisdiction over cases brought by citizens and NGOs, only cases brought by the African Commission and the other states who had ratified the protocol. So eight states made formal declarations that they had accepted the court's jurisdiction in cases brought by citizens and NGOs.

I am one of two lawyers who brought a case before the African Court challenging the ambiguity in the Protocol. I was the counsel for the Applicant in the Case of Atemnkeng v. the African Union alleging that Article 34 (6) of the Protocol to the African Court on Human and Peoples' Rights is contrary to the African Union Constitutive Act and the African Charter on Human and Peoples' Rights and as such an obstruction to justice and the rule of law. It promotes impunity for heads of state and high-ranking officials who are human rights abusers, and excludes the cases of citizens and NGOs. It should be declared null and void. But in a split decision, 6 to 3, the court denied the application on March 15, 2013.

AG: So, with the surviving ambiguity, the African Commission and the state parties who've ratified the Protocol can bring cases to the court, but citizens and NGOs can't unless they're from one of the eight states who've made these formal declarations. Right?

CT: Yes.

AG: According to the website, Rwanda has not made one of these declarations, though it is among the 30 African states who've ratified the Protocol. What does this mean for Victoire's appeal?

CT: Rwanda made a formal declaration, but withdrew it when Victoire's case was brought before the court. However, the court decided that the case had already been pending, and that Rwanda could not withdraw retrospectively to deprive the court of jurisdiction.

AG: Victoire is represented by Caroline Buisman and Gatera Gashabana. Are you yourself playing any role in her appeal, as lawyer, witness, or in any other capacity?

CT: No. She is represented by very competent lawyers whom I know and respect.

AG: I've been told that the Rwandan judiciary refused to answer her filing. Is that true, and if so, is there any chance that the court will deliver a default judgment overturning her conviction?

CT: Absolutely. The Court may proceed to consider the petition and deliver a judgment on its merit.

AG: I've also been told that the African Court requested a complete copy of Victoire's case file from the Rwandan judiciary, but they responded that it would be too time-consuming and costly to print and deliver. Is that true, and if so, how do you think it might affect the court's decision?

CT: I read the same thing in the press. A response by Rwanda expressing the difficulty in providing Victoire's case file to the court is a response that the court will examine on its merit. The reasons provided are logistic and cannot in themselves be construed as a refusal to cooperate, and the difficulty expressed can be surmounted. The court might, for example, provide the resources and personnel to go to Kigali to copy the files.

AG: Do you think the current composition of the court assures Victoire a fair hearing?

CT: The African court has a history of delivering sound judgments. I am confident that the court will consider the case on its merit and deliver a judgment that will reinforce public confidence in the rule of law.

AG: If the African Court does overturn Victoire's conviction, does it have any way to enforce its ruling?

CT: The decisions of the court are legally enforceable. A Rwandan judge was once the president of the court and together with his peers on the court delivered judgments that were respected and enforced.

Rwanda relies on international good will for the execution of several international warrants it has issued against Rwandan citizens living in several countries. A failure to respect the judgment of the African Court will reinforce the common argument that persons returning to Rwanda for trial will violate their internationally protected human rights because they will never have access to fair and impartial justice, including the right to have their convictions reviewed by the African Court.

AG: If the court overturns Victoire's conviction, what will happen next?

CT: If the conviction is overturned, Rwanda will be required to immediately release her from jail. Further detention will be illegal. It will be in the interest of Rwanda to fulfill its treaty obligations by respecting the judgment of the continental court of last resort.

AG: Well, that would be something to celebrate.

CT: Yes indeed.

AG: In your essays in "Justice Belied," it's clear that you believe in the possibilities of the African Court despite the fact that only eight African states have accepted its jurisdiction in cases brought by citizens, and only 30 of 54 have ratified the Protocol. Can you explain that?

CT: The recolonization of Africa through international law is obvious even to the jaundiced eye. The ICC's exclusive focus on Africa during its fifteen years of existence cannot be reasonably justified. The most egregious crimes against Black Africans, including the slave trade, the colonial partition of Africa, and the senseless slaughter, were all accorded judicial approval in international law.

During the Berlin Conference in 1884, Europe drew maps and divided Africa between the colonizing powers, most of all between England and France. Four years later, in 1898, the perpetrators of that criminal enterprise held the first World Peace Conference. They held the second in 1907, then created the League of Nations in 1921 and the United Nations in 1945, but the multilateral treaties signed did not protect Black Africans. We were still European properties.

Therefore, for me, any African effort to assert its sovereignty in international law deserves support.

AG: Is there anything else you'd like to say?

CT: Thanks so much for affording me the opportunity to provide these modest responses to your questions. Hopefully we shall continue this discussion whenever the time permits.

CHIEF CHARLES A. TAKU is a legal scholar, international criminal defense attorney, and Pan Africanist from Cameroon. He is currently working in The Hague.

**ANN GARRISON is an independent journalist based in the San Francisco Bay Area. In 2014, she received the Victoire Ingabire Umuhoza Democracy and Peace Prize for her reporting on conflict in the African Great Lakes region. She can be reached at ann@kpfa.org.

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