Arusha, August 13, 2010(FH) - In the judgement of a case involving former Rwandan Deputy Governor, Dominique Ntawukulilyayo, Turkish Judge Aydin Akay gave a dissenting opinion, saying the prosecution failed to prove the genocide offence beyond reasonable doubt and he could not, therefore, enter conviction against the accused.

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On August 3, the majority of Trial Chamber I at the International Criminal Tribunal for Rwanda (ICTR) comprising Pakistan Judge Khalida Khan, presiding, and Kenyan Lee Muthoga convicted Ntawukulilyayo of genocide and sentenced him to 25 years imprisonment.

The two judges found that Ntawukulilyayo transported soldiers to Kabuye hill, Butare prefecture (South Rwanda), who later joined others in killing of Tutsi refugees on April 23, 1994.

In his dissenting opinion, however, Judge Akay said the prosecution could not establish that on April 23, 1994, Ntawukulilyayo gave orders to Tutsi refugees at Gisagara market to go to Kabuye hill nor did he take soldiers or other military or law enforcement personnel to the hill later that day to participate in attacks.

"Since I find that the prosecution has not proven its case based on the factual findings it is not necessary for me to deliberate further of the purposes of making legal findings. Accordingly, I do not join the majority in its legal findings and do not enter a conviction against Ntawukulilyayo for count 1 (genocide)," he stated.

The judge stated further that he was unable to agree with the findings of the majority that on April 23, 1994, Ntawukulilyayo arrived on Kabuye hill with soldiers, stayed briefly and left and that the soldiers who accompanied him joined others in an assault on Tutsi refugees who had gathered there.

He noted that while he was in agreement with the majority's presentation of evidence of events at Gisagara market and Kabuye hill as summarized in the judgement, he was unable to resolve inconsistencies among the prosecution witnesses' testimonies, which were relied upon by his co-judges.

"Moreover, I have found that internal inconsistencies within the witnesses' testimonies before the Chamber and their prior statements or evidence in other cases before the Tribunal raise doubts about their individual reliability. In my view, these variances taken together raise doubt with respect to their accounts," he ruled.

Born in 1942 in Mubuga Commune, Gikongoro prefecture, Southern Rwanda, Ntawukulilyayo was arrested in France in 2007. He was transferred to the ICTR for trial on June 5, 2008.


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