Professor of Law at the University of Dar es Salaam, Jwani Mwaikusa, is among respected legal practitioners in Tanzania.  He is currently the lead defence counsel for genocide-accused Yussuf Munyakazi (74), the eldest detainee at the International Criminal Tribunal for Rwanda (ICTR) in Arusha, Tanzania. In this interview Prof Mwaikusa shares his views about the work of the U.N Court and related issues.

5 min 7Approximate reading time

Q. You have been representing genocide-accused Yussuf Munyakazi at the International Criminal Tribunal for Rwanda (ICTR) for about three years now. What was your first impression when you took up your assignment with the UN-Tribunal?

A.  Before I was engaged to represent my client I had seen and met with a few lawyers and other personnel at the ICTR, and I had known a bit of what they were doing.  And I had taught and practised law in Tanzania for many years.  So I did not feel like I was coming to an institution that I knew nothing about.   

Q. Were you easily accepted by your client as his lead attorney?

A. I am certain that I was assigned to him with his consent.  I was not just imposed on him.  One reason for accepting me as his lawyer, according to himself, was that we could talk to each other in Kiswahili.  He speaks only Kinyarwanda and Kiswahili, and he did not want to talk to his lawyer through an interpreter.  After I started working his confidence in me grew considerably, especially after the successful resistance to the motion to transfer his case to Rwanda.

Q. You fought tooth-and-nail to ensure that Munyakazi was not transferred to stand trial in Rwanda on grounds that the defendant would not get a fair trial. Do you still maintain that stand now that Rwanda has already abolished the death penalty and the government claims that drastic reforms have been made and is ready to take cases?

A. The death penalty had actually been abolished in Rwanda even at the time when we were resisting the transfer of Munyakazi's case there.  So it was not the presence of the death penalty that we used as the ground for resisting the proposed transfer.  We had other grounds and I believe there were good reasons against transferring the case to Rwanda then.   

The question of transfer, though, may still be addressed generally or in relation to other cases.  And in that regard I must say that I do not have any doubts about the claims of the Government of Rwanda that drastic reforms have been made to enable taking up cases of genocide in the courts of Rwanda.  But those reforms need to be complemented with changes in the attitudes of the people of Rwanda.  Some of the problems that we in the defence teams at the ICTR have been facing relate to the issue of getting witnesses who are resident in Rwanda to come and testify for the defence.   

Many are scared to come and testify for the defence because they believe that once they do, they will meet with hostile reactions from their friends, neighbours and relatives upon return to Rwanda.  It means that there are people in Rwanda deeply prejudiced against persons charged with genocide and regard them as guilty even before they are tried and convicted.

I have absolutely no reason to say that this attitude is the attitude of the Government.  But, certainly, it is the attitude of some people in Rwanda.  So, while the Government may have reformed as an institution, there are people in Rwanda, with the possibility and even a probability of some of them being in the Government, who are yet to reform.

Q. ICTR expects to close down its mandate by the end of this year, 2010. Do you think it is appropriate for an international court to be given deadlines ?

A. Certainly, it is quite legitimate for the ICTR to set deadlines.  The ICTR is an ad-hoc tribunal specifically set up to deal with offenders in the genocide that occurred in Rwanda and in some of her neighbours in 1994.  It is not a regular court for offences being committed on a daily basis.  Therefore it must have a deadline after which it must itself exit from the scene.   


The only problem, as it seems to me, is that there seems to have been either an omission or a lack of serious concern to set some clear deadlines from the very beginning when the Tribunal first started functioning, and work to meet them.  When the Tribunal first started, the speed with which the cases were conducted was far more relaxed, until it was sort of reminded of its time coming to an end, and of the need to set up some strategy for its exit.   

Presently, beginning from one or two years ago, the speed with which some cases are being conducted is almost breath-taking just because everybody has to be reminded of the deadline for each case.  We just hope that justice shall not be jeopardized as a consequence.   

Q. Do you believe that ICTR has contributed to the reconciliation process in Rwanda?

A. I think the ICTR can only make contribution to the extent mandated by its statute, and by its rules of evidence and procedure.  Its success or failure to contribute to the reconciliation process should be assessed in that context.

If the ICTR is criticized for poor or inadequate contribution, well, one cannot expect it to improve during the short time remaining before it exits.  But even then, one can still positively take that as part of its legacy; humankind is always blessed with the ability to learn from failures and mistakes.  Similarly, I believe there will be many lessons to learn from the experiences of the ICTR.

Q. Its known that almost all the accused prosecuted by ICTR so far, with the exception of a Belgian/Italian Georges Ruggiu, are ethnic-Hutus. What are your views?

A. I am certainly unhappy with that.  Under its mandate the ICTR should prosecute everybody alleged to have committed offences by the Tribunal.  There have been wide and consistent claims, some of them very strong claims, that there are persons other than ethnic-Hutus who committed such offences as well but steps to prosecute them before the ICTR have not been taken, or attempts to take such steps, if any at all, have failed.

It must be admitted that the omission or failure to prosecute those other suspects does not advance the process of reconciliation; in fact it undermines that process.   

Q. How better do you think ICTR could have dispensed justice for the victims?

A. I think it might be a bit unfair to put that question to me.  I have been engaged to work at the ICTR only these past three years while the Tribunal has been there for over 12 years, and it has only this year to go.  Moreover, as defence counsel my primary concern was to secure justice for my client, the accused person.

I hesitate to confirm that the ICTR has failed to do enough, and hence could do better, to dispense justice for the victims of genocide.  As it is, though, criminal law, whether municipal or international, always tends to subsume the interests of the victims of crime in the interests of the public as a whole.

It is always in the interests of the public that the perpetrators of crime are charged and tried by an impartial tribunal and, if found guilty, punished according to law.  I think it is sad and unfortunate that both the law and the practice has shown little interest in addressing the issue of appropriately dispensing justice to the victims of crime by way of providing compensation or other redress.  The overriding concern has been that of punishing the offenders.


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