Rwanda: Medics Suggest a 'Trial of the Facts' in Kabuga's Hearing

The Forensic Psychiatrist, Henry Gerard Kennedy, one of three independent medical experts that conducted the recent medical report on Felicien Kabuga's health said that the hearing of evidence would possibly proceed without him because of his ability to express interest and to convey his will and preferences is likely to be fleeting and can only reduce over time.

Kennedy made the suggestion on March 15 during the hearing on Kabuga's fitness to stand trial after the reports showed that he could not "participate meaningfully in his trial".

The had report concluded that Kabuga was in 'clinical criteria for dementia'. The presiding judge asked the expert what had changed his opinion as he had previously concluded that these criteria were not met.

Responding to it, Kennedy testified that he had found evidence of impairment in different cognitive abilities, such as memory, perception, reasoning, and communicating, which allowed him to now have a complete picture of the defendant's case and draw this conclusion.

Furthermore, the judge inquired Kennedy if there was a possibility Kabuga was giving the impression that he was suffering from a greater degree of mental incapacity and if he is confident that the accused is not faking his condition to any extent.

Kennedy stated that taking into account the totality of the information available, other clinicians working regularly with the accused concluded that the deterioration of Kabuga's condition was real.

Kennedy was also asked if a "trial of the facts", he responded that he does not believe such proceedings would cause emotional trauma to the accused.

A trial of facts is a judicial procedure. If based on medical evidence, a court determines that a person is unfit to stand trial, then criminal proceedings cannot proceed. Prosecutors, however, have the option to have the matter heard as a "trial of the facts". This process takes the place of a criminal trial.

Among the questions the judge asked Kennedy was asked was whether Kabuga would be able to testify since last year's report shows that he was unable to do so, he explained that "there was no evidence that the defendant's capacity had returned to normal and that the loss had been sustained,"

In addition, he emphasized that his loss continues to prevent the accused from being able to testify. While there is a small possibility that his capacity may return, Kennedy deemed a substantial improvement "very unlikely at his age".

Furthermore, Kennedy pointed out that now, the condition of the accused has deteriorated rather than improved and he is not capable of instructing his Counsel.

"Kabuga is less able to understand the consequences of the proceedings to the point where there is now a material change in his capacity to understand them," he said adding that this conclusion was consensual among the three experts.

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