"The Appeals Chamber orders proprio motu that, pursuant to Rules 98 and 107 of the Rules, Marcel Gatsinzi will be heard by the Appeals Chamber (....) on a date specified by an order to be issued in due course," it said in its decision published on the ICTR website.
Gatsinzi's testimony, the Chamber noted, would assist in its adjudication of submissions by Bagosora in relation to Trial Chamber's alleged violation of his fair trial rights by failing to enforce a subpoena for the minister's live testimony regarding his superior responsibility between April 6 and 9, 1994.
"Given that the Trial Chamber indeed issued a subpoena for Gatsinzi's appearance and that (he) never testified, the Appeals Chamber considers the circumstances in this case to be appropriate to summon Gatsinzi in order to determine whether or to what extent such failure to testify violated Bagosora's right to a fair trial or caused him the prejudice he purports," it further ruled.
Bagosora, former Director of Cabinet in the Defence Ministry, who was considered the mastermind of the Rwandan 1994 genocide, is appealing against the life sentence imposed on him on December 18, 2008 for genocide, crimes against humanity and war crimes. Hearing of the appeal is scheduled for March 30.
He claims in the appeal 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 and he, therefore, sought the testimony of Gatsinzi for search of truth on the matter.
Bagosora had wanted Gen. Gatsinzi summoned at the appellate stage under Rule 115, claiming that as acting Chief of Staff of the armed forces appointed on April 6, 1994, Gatsinzi was well placed to testify on the functioning of the army and on the chain of command from April 6 to 9, 1994.
In its decision, however, the Appeals Chamber said Rule 115 does not permit a party to merely request a particular person to be summoned as a witness to give evidence at the appellate stage. It noted that a party seeking the admission of additional evidence on appeal must provide with evidence sought to be admitted.
Bagosora, the Chamber noted, could not provide with any statement from the minister or any documentation that may be admissible as additional evidence and the contents of which would prompt it to call the witness to testify in person.
"In the absence of any material from Gatsinzi that Bagosora can legitimately seek to admit as additional evidence, the Appeals Chamber considers that (his) request for an order to call (the minister) as a witness pursuant to Rule 115 of the Rules cannot be granted," it ruled.
Bagosora was convicted of crimes related to the killings of Prime Minister Agathe Uwilingiyimana and 10 Belgian peacekeepers in charge of her security, as well as those committed at several roadblocks in the Kigali area and in his hometown of Gisenyi (North-West of Rwanda) between April 6 and 9, 1994.
He was charged jointly with three other military officers, Brigadier-General Gratien Kabiligi, Major Aloys Ntabakuze, and Lt. Col Anatole Nsengiyumva of genocide, among others. Bagosora, Ntabakuze and Nsengiyumva were convicted and sentenced to life imprisonment each, while Kabiligi was acquitted.
FK/ER/GF
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