Arusha, June 22, 2001 (FH) - Hardly has the so-called Butare Trial of six genocide suspects begun before the International Criminal Tribunal for Rwanda (ICTR) than the parties are launching serious accusations against each other which concern, among other things, witness protection and the integrity of the defence. The Prosecutor has asked the court for an inquiry into allegations that defence investigators have been misrepresenting themselves and intimidating witnesses in Rwanda.

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The defence say such allegations are unfounded, based on hearsay and are a serious attack on the credibility and rights of all the defence teams. In an "urgent" motion filed on June 15th, the Prosecutor calls for "an investigation of contempt of the Tribunal", based on allegations that "on or about 1 to 6 June 2001, four Defence team members approached four prosecution witnesses, at least two of whom are Butare cases prosecutionwitnesses, and attempted to persuade them, and in particular with a view to 'making them change their minds not to testify for the Prosecution'". The allegations are based on an affidavit from John Fomuso, who describes himself as Team leader of the OTP (Office of the Prosecutor) Witness Management Team in Kigali, and an "Interoffice Memorandum" to Fomoso from his Associate Investigator, whose name has been blacked out for reasons of confidentiality. The motion says that the Defence team leader appeared to be a man called Boubou, who "represented himself as a national of Mauritania". "Boubou, as did others including one white man, falsely represented himself as an 'investigator of the ICTR'," says the motion. "This same man, member of the Defence team, also is alleged to be the son-in-law of Kanyabashi. The motion points out that "Boubou Diabira, a national of Mauritania, is an investigator of Joseph Kanyabashi". Kanyabashi, former mayor of Ngoma, is one of the defendants in the Butare Trial, along with former Minister of Women's Development Pauline Nyiramasuhuko, her son and alleged former militia leader Arsène Ntahobali, former mayor of Muganza Elie Ndayambaje and two former prefects of Butare, Sylvain Nsabimana and Alphonse Nteziryayo. All are charged with committing genocide and crimes against humanity in Butare in 1994. All have pleaded not guilty. "An interpreter with the Defence team was identified by a prosecution witness as Rwandan national and a former member of the Interahamwe (Hutu militia), by the name of Joseph Biroto Nzabirinda," the motion says. "The Defence team falsely misrepresented that this interpreter was a Congolesenational. This interpreter was allegedly a neighbour of Kanyabashi's wife. Boubou falsely misrepresented to one prosecution witness this interpreter was 'from the ICTR'. "A list of Butare Trial defence team members annexed to the motion shows that a Rwandan by the name of "Joseph Nzabilinda" is an investigator for the accused Nsabimana. The Prosecutor's motion says that the alleged conduct of the "Defence team" amounts to "witness intimidation, tampering and contempt of the Tribunal". And it calls on the Chamber to order an "immediate investigation of this matter", the surrender of travel documents of persons underinvestigation, and sanctions (including dismissal) on persons found guilty of contempt of the Tribunal or other misconduct. The Prosecutor asks the court to order that the Kanyabashi defence team make sworn affidavits on the allegations, and also on whether "any member of the Defence team is or is not in any way related, including by marriage, to Kanyabashi". If that is the case, the Prosecutor wants "an Order for an affidavit of advisement of client of potential conflict of interest". The motion also asks that witness protection orders be strengthened to ensure that the accused or any member of their defence "shall make a written request, on reasonable notice to the Prosecutor, to the Trial Chamber to contact any potential prosecution witness or any relative of such person. The Trial Chamber, with consent of such person, may grant an interview of such person by the Defence, and the Registry shall make contact and undertake arranging such an interview". Defence outcryIn written submissions filed on June 20th, defence counsels for the accused strongly reject the Prosecutor's allegations, in one case (Nsabimana) going as far as to call for sanctions on the Prosecutor. They say the allegations are not based on reliable evidence, that the Prosecutor's request does not stand up in law, and that the motion is designed to undermine the defence. Kanyabashi's counsels (Michel Marchand and Michel Boyer of Canada) say that their investigator Boubou Diabira was not in Butare between June 1st and 6th. This is backed up by an affidavit from the ICTR Chief of Security and Safety in Kigali, who says that Boubou was in Rwanda but did not go to Butare until June 14th. As for the "white man", Kanyabashi's defence say that Lawrence Morgan, a lawyer and "only white relation by marriage of Joseph Kanyabashi" had previously been his investigator, but that Morgan's contract ended on March 5th this year. They say that he was not in Butare between June 1st and 6th, 2001. Attached is an affidavit from Morgan to this effect, and one from his wife saying that he has not been to Rwanda since March 5th. Nsabimana's counsels (Josette Kadji and Charles Tchakoute Patie of Cameroon) confirm that "the Joseph Biroto Nzabirinda named (by the Prosecutor) is an investigator for the defence of the accused Nsabimana" but that he never went to Butare or to Rwanda between June 1st and 6th. It further says that "the gravity of the allegations against this investigator and the sanctions they entail compromise the Defense of Nsabimana and damage the credibility of the Defence team". They say that the Prosecutor's motion is "a manoeuvre to destabilize the defence" and "an impediment to the good administration of justice", and that the Prosecutor should be sanctioned under Rule 46 of the Tribunal Statute, relating to "misconduct of counsel". Counsel for the other accused in the case have felt it necessary to respond, they say, because they feel their own safety, credibility and rights are threatened. Nyiramasuhuko's lawyers, Nicole Bergevin and Guy Poupart of Canada, object to the list of defence team members annexed to the Prosecutor's motion, saying that it could expose all members of the teams to security risks. "Furthermore," say Nyiramasuhuko's defence, "the fact that the motion and attached documents refer to four defence team members, while the annexes name only three, allows doubt to hover over all the other members of the defence teams". "For this reason", they continue, "we wish to inform the Chamber that the Counsels and the Assistant of Madame Pauline Nyiramasuhuko were present in Butare from June 1st to 5th, 2001, in the context of a mission authorized by the Registry and of which the Office of the Prosecutor in Kigali had been informed. "Almost all the defence teams urge the court to reject the Prosecutor's request for an investigation, saying that it has no legal basis. However, Nyiramasuhuko's counsel call on the Chamber to conduct one, "so as to dispel definitively the climate of suspicion that seems to be hanging over defence teams at the ICTR". The Chamber is expected to hear the Prosecutor's motion on Monday. The case is before Trial Chamber Two of the ICTR, composed of Judges William Hussein Sekule of Tanzania (presiding), Arlette Ramaroson of Madagascar and Winston Churchill Matanzima Maqutu of Lesotho. JC/MBR/FH (BT0622e)