In its motion posted in the ICTR website and made available to Hirondelle News Agency Tuesday, the prosecution applies for certification to appeal against the impugned decision by Trial Chamber III, claiming it involves an issue, which would significantly affect fair and expeditious conduct of proceedings or outcome of the trial.
"The Trial Chamber's holding that General Gatsinzi's affidavit will not be admitted significantly affects the fair and expeditious conduct of the proceedings and the outcome of trial and warrants the immediate resolution by the Appeals Chamber to materially advance the proceedings," the prosecution said.
According to the Rules of the Tribunal, a party wishing to file an interlocutory appeal is required to seek leave before the very Chamber which issued the impugned ruling.
In the motion, therefore, the prosecution seeks leave to appeal on among holding that admitting the evidence in the affidavit would be highly prejudicial for the accused without oral interrogation and that the prosecutor has not submitted a satisfactory reason for the witness's inability to testify in person.
It also challenges the holding that the evidence in the affidavit was not cumulative in nature by reason that none of other witnesses enumerated in the prosecution's list of witnesses are equivalent in ranks with Gen. Gatsinzi or could submit information which would be cumulative to the statement.
"The Trial Chamber was led into error when it applied the test of whether the evidence was cumulative in nature to the personal characteristics of the witness rather than to the characteristics of the evidence," the prosecution submitted.
It added further that the material substance of Gatsinzi's affidavit "goes to only four simple points of evidence" regarding Nizeyimana's rank, post and his subordinates in the Rwandan Armed Forces and their Rules of discipline.
Before delivery of the contested decision, the prosecution had told the Chamber that the affidavit by General Gatsinzi, currently Minister for Natural Disaster, was supported by testimonies that would be presented orally during the trial.
Last month, genocide-convict and former Director of Cabinet in the Defence Ministry, Colonel Théoneste Bagosora, asked the Appeals Chamber of the Tribunal to order and compel General Gatsinzi to testify in his appeal challenging life imprisonment sentence he is facing for genocide.
Bagosora, who was considered the mastermind of the 1994 genocide, sought the testimony of Gen. Gatsinzi, claiming that his conviction was based on speculative grounds that being the highest authority in Defence Ministry he exercised effective control over the army and gendarmerie between April 6 and 9, 1994.
Capt. Nizeyimana, who was second in command in charge of intelligence and military operations of Noncommissioned Officers School (ESO) in the southern town of Butare is charged with six charges including genocide and extermination, murder and rape as a crimes against humanity, among others. He has pleaded not guilty.
© Hirondelle News Agency