Arusha, 13 June 2008 (FH) - The first two decisions to deny, on 28 May and 6 June respectively, by the International Criminal Tribunal for Rwanda (ICTR), to transfer Yussuf Munyakazi and Gaspard Kanyarukiga to Rwanda do not retake all the arguments raised during the public hearing of 24 May on the subject.

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The first decision has already resulted in an appeal and the second should also be appealed. For two of the three other motions, the same Chambers have not yet rendered their decisions.

As in Chamber III, Chamber I reviewed the legal framework assign to the transfers, the absence of capital punishment sentences, measures designed to guarantee a fair trial as well as the organization of the control of the procedures by an external institution, but it refused the transfer for the reason that it was not certain that former Rwandan businessman Kanyarukiga will benefit from a fair trial.

In the same manner, it predicts that the defendant will encounter difficulties obtaining witnesses residing in Rwanda because they are afraid, and making witnesses appear who would reside abroad because organized protection will not be sufficient according to it. Lastly, it fears that the defendant, if he is convicted, would have to serve his sentence in solitary confinement.

But it did not express any reservations on the fact that the procedure will be carried out by a single judge. On 28 May, Chamber III had said that the independence of the courts could not be thus guaranteed. Chamber I observed, for its part, that the international legal instruments do not mention a minimum number of judges to guarantee the independence of courts.

According to Chamber III, the provision retained in the law of 16 March 2007, known as the law on "transfers", which specifies that persons transferred from the ICTR as well as defendants extradited by foreign countries will be tried before the High Court by a single judge, is contrary to international standards for fair trials.

These standards, and the Chamber refers for support to the European Convention on Human Rights, the International Pact relating to Civil and Political Rights, as well as the African Commission on Human and Peoples' Rights, impose that trials be carried out in an fair manner by an independent and impartial court.

The independence of a court, in regards to the executive power, the legislative power and the trial parties, explains the European Court of Human Rights in the Findlay ruling against the United Kingdom of 1997 is measured, inter alia, with the guarantees taken to preserve it from external pressures.

Those envisaged by the Rwandan law on the transfers are not enough according to Chamber III.

"The Chamber considers that it is too much to expect of one individual [judge] to be able to resist the pressure of a State whose past practice has shown interference with judicial decisions".

To illustrate these interferences, it reminded the interruption of the collaboration of the Rwandan government with the ICTR at the time when the latter had pronounced the acquittal of Emmanuel Bagambiki in 2006 and deplored its attitude in reaction to the arrest warrants issued in 2007 against members of the RPF by Judges Bruguière (France) and Fernando Andreu (Spain).

These two facts show, according to the international judges, the absence of distinction by the Rwandan government between politics and the judiciary, allowing for the fear that Rwanda does not respect the independence of the courts.

The prosecutor points out that Rwanda is not the only country to have a single judge on the bench in criminal matters. Furthermore, Martin Ngoga, the Prosecutor General of Rwanda, explains that the law on transfers was adopted after a comparative study of the legislations voted in regards to cases that could face capital punishment in Kenya, Tanzania, Uganda, South Africa, Botswana and Zambia. All of them envisage a single judge.

The First Instance Chamber III in the former Rwandan trader Munyakazi case, deplored, finally, that the appeal procedure before the Supreme Court does not permit to mitigate this risk of influence on the first judge. This court, composed of three judges, is qualified only to remediate errors of facts that could result in a denial of justice and only allows the reference back to first instance in very limited circumstances.

The point on which the two Chambers meet relates to the protection of witnesses. The international judges note and do not dispute the existing regulation on this point, but deplore that reality is not faithful.

While Ngoga and Gatera Gashabana, from the Bar of Kigali, are quoted in the 28 May decision, for their explanations on the new inter-institutional mechanisms aiming at facilitating the testimony of witnesses (Article 14 of the law on transfers), the International association of Defence Counsel denounces that "most Rwandan witnesses believe that the Rwandan authorities breach the protective measures".

The association also talks about the risk, for them, of "being rejected by their community, mistreated, arrested, detained, beaten and even tortured".

Chamber III, considering the number of murders of witnesses (eight in 2007 according to the report by Human Rights Watch, an NGO present in the two case as an amicus curiae) and the disadvantage of the defence due to the fact that the majority of its witnesses live abroad, does not find the right of the defence to be able to call its witnesses under the same conditions as the prosecution is guaranteed.

This reasoning does not allow for a positive forecast for the fate of the witnesses of the Tribunal which Rwanda should ensure the protection at the end of the mandate of the ICTR.

But Rwanda should not despair to receive one day a defendant transferred from the international tribunal, encourage the first instance judges in their conclusion. If it continues to develop its legal system, thus, "the Tribunal will hopefully be able to transfer future cases to Rwandan courts". Already the Appeals Chamber was seized this week of a first recourse, a second is envisaged this week.

In waiting for that moment, the United Kingdom authorized last week the extradition to Rwanda of four men wanted by Rwanda. Judge Anthony Evans, who authorized it, considered that the guarantees, in particular those for a fair trial, were in place and that the fact that "the law was not yet tested" did not constitute "an argument not to extradite".


© Hirondelle News Agency