In a decision rendered on Wednesday, the three-bench judges ruled that they were not convinced that the accused would get a fair trial in Kigali.
"The Chamber is not satisfied that the accused, if transferred to Rwanda at the present time, will receive a fair trial," stated the unanimous decision by Judges Weinberg de Roca of Argentina (presiding), Lee Muthoga (Kenya) and Robert Fremr (Czech).
Kigali last year abolished the capital punishment, but he judges ruled that Rwanda's penalty structure such as life imprisonment in isolation, does not meet internationally recognized standards.
In the light of the past actions of the Rwandan government, the Chamber was not convinced that Kigali respects the independence of the judiciary. "The Chamber is concerned that this situation may lead to direct or indirect pressure being exerted on judges to produce judgements in line with the wishes of Rwandan government'', they noted.
"However, the Chamber would like to emphasise that it has taken notice of the positive steps taken by Rwanda to facilitate referral, read the decision, adding that if Rwanda continues along this path, the tribunal will hopefully be able to refer future cases to Rwandan courts.
"We are studying the decision. I will decide eventually whether to appeal or not," ICTR Prosecutor, Hassan Jallow, told Hirondelle Agency.
The Rwandan Prosecutor General, Martin Ngoga said on phone from Kigali:"We are deeply disappointed by that decision and we are consulting with the Prosecutor what next steps to be taken".
Professor Jwani Mwaikusa, lead counsel for the accused said that he was opposed to the prosecutor's motion right from the outset. "I was opposed out rightly to the application ...my concern has always been that it is delaying the start of my client's trial."
Observers consider that the landmark decision will impact other four similar applications of transfer of cases to Rwanda, which are yet to be heard.
The accused targeted for transfers are: former Commander of Ngoma Camp Lieutenant Ildephonse Hategekimana, businessman Gaspard Kanyarukiga, former Mayor Jean Baptist Gatete and former Inspector of Judicial Police, Fulgence Kaysihema. The latter is still at large.
The historic transfer motion was heard on 24 April. The debate was interjected by the so called "Friends of the Court(Amicus Curie)-the Human Rights Watch, Bar of Kigali, Government of Rwanda and the International Criminal Defence Attorneys Association (ICDAA).
The ICTR Prosecutor stressed that Rwandan legal framework grants fair trial, adding that this was demonstrated by the latest decision of the French Chamberry Court of Appeal on 2 April which approved extradition of former Rwandan businessman Claver Kamanya to Kigali.
The prosecution's motion requesting Munyakazi's transfer was filed on 7 September 2007, within the framework of the ICTR's exit strategy, which wants to transfer some cases to national jurisdictions in order to finish by the end of the year all first instance trials as directed by the Security Council.
Professor Jana Mwaikusa, however, had strongly opposed the Prosecutor's move, saying Rwandan judicial lacked competence and was partial. "It is absurd to transfer a case to a system which should be answering the same charges," he said, apparently referring to the alleged atrocities committed by the Rwanda Patriotic Front (RPF) during the 1994 genocide and the indictments issued by French and, more recently, by Spanish judges against RPF soldiers. RPF, which is credited for stopping the genocide, is currently in power under President Paul Kagame.
The Human Rights Watch representative, Aisling Reidy, had told the Court that they have evidence of intimidation and harassment of legal officers and witnesses in Rwanda, adding that the defence had difficulties in securing witnesses.
Headquartered in Arusha, northern Tanzania, ICTR has, to date, delivered 30 convictions and five acquittals.
Seven accused, held in Arusha, are currently awaiting their trials. Two others are detained in Europe awaiting their transfers to the ICTR, whereas 13 suspects are still on the run, including Felicien Kabuga, the alleged financier of killings, which according to UN estimates claimed lives of about 800,000 people, mostly ethnic Tutsis and moderate Hutus.
SC/GF
© Hirondelle News Agency