Arusha, October 7, 2001 (FH) - The International Criminal Tribunal for Rwanda (ICTR) has rejected a request from former Rwandan politician and genocide suspect Joseph Nzirorera to have new lawyers assigned, and ordered an investigation into allegations of fee-splitting. One of the three court judges in the case disagreed with the majority decision, concluding that the lawyer in question had contravened ethical practice.

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In a decision dated October 3rd, the ICTR's Trial Chamber Two ordered the Registry to "examine fee-splitting matters, including allegations in this case, and take all necessary measures to inform all accused and all Counsel before this Tribunal that fee-splitting is unacceptable and merits sanctions under the Rules". The decision came in response to an "extremely urgent" motion from Nzirorera, former secretary-general of Rwanda's ex-ruling party MRND, to have his Tribunal-assigned lawyers replaced. The accused said he no longer had any confidence in his counsel, Andrew McCartan of Scotland and Martin Bauwens of Belgium. Nzirorera said, for example, that there was "profound and irreconcilable disagreement between (himself) and his Counsel concerning defence strategy". The accused said his lawyers lacked "competence, loyalty, honesty, diligence and a spirit of collaboration". He told the court that both counsel were "more concerned with the interests of unknown third parties and with selfish financial interests than with the defence of their client". Nzirorera further alleged that, during a meeting last May, the lawyers had denied him a presumption of innocence and compared him to Nazi criminals. The defence responded that they had acted with all honesty and professionalism. They vigorously denied any links to third parties or having denied presumption of innocence to their client. Counsel McCartan said the real reason why Nzirorera had filed his motion was that the defence had refused to split fees with him. However it emerges that McCartan had agreed to split fees in November 2000 under pressure from Nzirorera. He said he agreed pending further inquiries about ICTR practice and having asked the advice of his Bar. Six months later he decided to inform the head of the ICTR Registry's section in charge of lawyers and detainees, Alessandro Caldarone of Italy. McCartan's September 19th letter says: "I agreed to the accused's demand for payment because I wanted to give myself time to investigate his statement that this was the 'normal procedure' for lead Counsel. I also wanted to confirm that the Rules prohibited such fee splitting conduct. " Nzirorera denies he ever concluded a fee-splitting agreement with Counsel. In their majority decision, judges William Hussein Sekule of Tanzania and Arlette Ramaroson of Madagascar found that "the request for fee-splitting could have been made by the Accused and that Counsel's refusal to accede to that request may have been the reason behind the motion for withdrawal (of Counsel)". They therefore rejected Nzirorera's motion to have his lawyers replaced. Dissenting opinionIn a dissenting opinion, Judge Winston Churchill Matanzima Maqutu of Lesotho said he could not agree with his colleagues that McCartan should continue as Nzirorera's counsel, because his ethics were found to be wanting, because he had waited six months before writing to the Registry on the alleged blackmail by his client, and because he had not let Nzirorera know about these letters. "Counsel's behaviour and the way he conducted himself supports and proves the accused's assertion that the necessary trust between Counsel and client has been shattered beyond repair or tolerance," says Judge Maqutu. "Counsel (by not informing client that he reported their fee-splitting arrangement to the Chef de Section) has violated one of the main tenets of professional ethics and behaviour as between Counsel and client. Even if he had not, he has been placed in an untenable moral and professional situation. He ought not to continue. He was in honour bound to ask for leave to withdraw as Counsel in this matter. "A report by the UN's Office of Internal Oversight Services (OIOS) released early this year found evidence of possible fee-splitting arrangements between defence lawyers and indigent accused at both the ICTR and International Criminal Tribunal for former Yugoslavia (ICTY). It recommended further investigation of the matter. AT/JC/PHD/FH (NZ1007E)