Arusha, May 28, 2001 (FH) Convicted former tea factory boss Alfred Musema on Monday asked the Appeals Court of the International Criminal Tribunal for Rwanda (ICTR) to overturn the lower court's judgement against him, and to admit new witness statements he said proved a miscarriage of justice. On January 27th, 2000, the trial court found Musema guilty of genocide, rape and extermination as crimes against humanity, but threw out six other charges against him.

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He was sentenced to life imprisonment. Musema was director of the state-owned tea factory in Gisovu (Kibuye prefecture, western Rwanda) at the time of the genocide, which left up to one million ethnic Tutsis and moderate Hutus dead between April and July 1994. He was convicted of leading and participating in attacks on Tutsi refugees in the mountainous Bisesero region of Kibuye. The rape conviction was on the basis that Musema personally raped a woman named Nyiramusugi in May 1994, during the Rwandan genocide. However, Musema's British defence lawyer Steven Kay told the court that two witness statements disclosed by the prosecution in April and May this year cast doubt on the version of events as presented during trial. They relate to the rape and genocide counts. With regard to the rape of Nyiramusugi, Kay said the new statement by protected witness I-I "presents a completely different picture" from the one given by Witness N during the trial. "At trial it was alleged that Witness N was not telling the truth," he told the Appeals Court. "Kay said that the new statement described the rape as having been carried out by somebody other than Musema, and of having taken place in a different way than that described by Witness N. "If the Trial Chamber had had two differing accounts of the rape, in which identity was an issue, they would have been in doubt as to the truth of what happened," Kay argued. He reminded the Appeals Court that the rape charge had been introduced at a late stage of the trial, "virtually at the close of the prosecution case". He said that meant the prosecution bypassed certain procedures with regard to disclosure and investigation. "Errors of fact and law"Kay then proceeded to argue the substance of his appeal, in which he says the Trial Chamber judges committed errors of both fact and law. The defence arguments rested heavily on alibi. In the course of the trial, Musema's defence team showed the court various documents including letters, bills and orders to travel, as proof that their client was not in Kibuye prefecture at the time he was accused of committing the crimes. The judges found that the alibi arguments cast doubt on Musema's participation in some of the alleged attacks, but not all. Judges Lennart Aspegren of Sweden and Navanethem Pillay of South Africa issued separate opinions on their assessment of the alibi evidence. The other judge in the case was the late Judge Laity Kama of Senegal. Kay told the Appeals Court on Monday that the Trial Chamber had not applied the correct burden and standard of proof to evidence. He said it erred in particular in its "assumption, both express and implied that the Defence had to prove the Defendant's case" and had to "disprove the Prosecution case". He said his client had not been treated as innocent until proven guilty, and that the judges had also erred by applying "a higher standard of proof to evidence given by Defence witnesses to that applied to evidence given by Prosecution witnesses". The Appeal says that eight prosecution witness testimonies should be thrown out because their statements had not been served on the defence 60 days before the start of trial (as specified by ICTR Rules); that the Trial Chamber should not have allowed the late amendment of the indictment to include three new charges (including rape); and that "the Trial Chamber erred in convicting the Defendant of more than one offence based on the same set of facts". With regard to errors of fact, the Appeal says the court was wrong to have considered the evidence of eleven prosecution witnesses "credible and reliable"; wrong in "considering that the Alibi produced by the Defence did not cast a reasonable doubt on the Prosecution evidence"; and that the Trial Chamber failed to "make allowances for limitations in conduct of defence, e. g. restrictions in access to locations and witnesses". Should the appeal against the judgement be rejected, Kay is asking the court, in the alternative, for a review of Musema's life sentence. He cites the following mitigating circumstances: that Musema was not in a position of political power; "the pressure brought to bear on all Hutus to participate in the events of 1994"; that the Defendant "unlike others, has expressly accepted that a genocide occurred"; "the regret expressed by the defendant for the deaths of so many innocent people"; and the time Musema has already spent in custody. Kay argues that Musema's life sentence is also at odds with other sentences imposed by the ICTR and International Criminal Tribunal for former Yugoslavia (ICTY). Musema was arrested in Switzerland on February 11th, 1995. His case was first handled by the judicial authorities of the Swiss military, until the ICTR requested his transfer to Arusha. His trial started in January 1999, and ended on June 28th the same year. JC/MBR/FH (MU0528e)