Prior to his arrest on 15/4/2020 by the police and detained, he was in charge of emissions on ISHEMA TV on YouTube, addressing the most rarely mentioned issues facing the public. After having passed 11 months of illegal detention at Mageragere prison, on 12 March 2021, Mr. CYUMA HASSAN journalist of ISHEMA TV was finally found innocent and acquitted by the Intermediate Court of Gasabo. The concerned was officially arrested and prosecuted for forgery and rebellion against administrative authorities during lockdown after having reported information on the cases politically sensitive especially on the illegal destruction of houses of inhabitants of Kangondo and Bannyahe; the real cause of death of the famous gospel singer late Kizito MIHIGO and deploring the horrible acts of rape and sexual torture committed afterwards against girls and women residing in those areas. Seemingly unable to sue him for those political contestations and fail to abduct him, the government resolved to resort to judicial institutions for a possible juridical revenge.
1.Facts officially prosecuted
The journalist declared having escaped from a forced disappearance whereby a pick-up of mark VIGO met him walking and stopped occupants of the vehicle ordering him to get in and he reacted by fleeing.
regarding counts of the case file the public prosecution was prosecuting him for forgery and Rebellion against the authority. The prosecution accused him of having granted to two employees of his TV cards of journalists and having violated the lockdown by going to the headquarters of this TV.
2.Real reasons of persecution
Mr. CYUMA HASSAN journalist of ISHEMA TV. had publicized that he is ocular witness of the burial of the Rwandan artist late Kizito MIHIGO where he identified many wounds on his body, in his face; absence of eyes pushing his followers to realize that the singer has been victim of torture exercised against him by police officers who injured him by swords or knives and proceeded to his ennucleation excluding automatically the hypothesis of suicide by auto-strangulation.
Besides, the journalist had posted on his blog an emission on the issue of unlawful expropriation carried out by the city of Kigali against residents of Kangondo and Bannyahe in the sector of Kimironko where houses were demolished without any prior compensation.
Furthermore, the same journalist unclosed the facts of rape committed by militaries deployed in the nocturnal patrol in those areas where girls and women were sexually violated even without protection against unexpected pregnancy, HIV-AIDS and other sexually transmitted diseases.
3.Legal framework of offences alleged by the prosecution
1)Rebellion against the authority
As per Article 230 of the law n° 68/2018 governing offences and penalties in general, any person who, by any means rebels, by use of violence, assault or threats against authorities, civil servants or private employees, security agents in the course of enforcement of law, regulations, administrative or judicial decisions, commits an offence of rebellion against authority. Upon conviction, he/she is liable to imprisonment for a term of not less than six (6) months and not more than one (1) year. If the rebellious person is armed, the penalty that applies is imprisonment for a term of not less than two (2) years and not more than three (3) years; If rebellion is committed by several persons without weapons and without prior consultation among themselves, the penalty that applies is imprisonment for a term of not less than one (1) year but less than two (2) years. If rebellion is committed by several armed persons and without prior consultation among themselves, the penalty that applies is liable to imprisonment for a term of more than three (3) years and not more than five (5) years. The penalties referred to under Paragraph 2 and 3 of this Article do not apply to a person who withdraws acts of rebellion at the first warning of authority, if he/she had no commanding role in these acts
2)Forgery, falsification and use of forged documents
As provided for by the Article 276 of the same law, any person who, in any manner, forges or alters documents by forged signature or fingerprint, falsifying documents or signatures or impersonation, forging agreements, its provisions, obligations, or discharged obligations commits an offence. Any person who, with fraudulent intention, produces a false written document, causes to write false statements or produces a conflicting declaration, is considered to commit the offence of forgery. Upon conviction, he/she is liable to imprisonment for a term of not less than five (5) years but not more than seven (7) years and a fine of not less than three million Rwandan francs (FRW 3,000,000) and not more than five million Rwandan francs (FRW 5,000,000) or only one of these penalties. Any person who, knowingly makes use of a forgery document in any way, commits an offence. Upon conviction, he/she is liable to penalties provided for in Paragraph 3 of this Article. If forgery is committed by a public servant or any other person in charge of public service, the applicable penalty is an imprisonment term of not less than seven (7) years and not more than ten (10) years with a fine of not less than two million Rwandan francs (FRW 2,000,000) and not more than three million Rwandan francs (FRW 3,000,000) or only one of these penalties.
4.Legal implications of facts denounced by the journalist
The journalist criticized the misconduct of the Kigali city which decided to chase residents of kangondo and Bannyahe without compensation; crimes of assassination committed against the late Kizito Mihigo and rapes perpetrated by soldiers on night patrol.
The Rwandan constitution and the land law require a prior compensation of land owners before being dispossessed. indeed, Article 34 of the constitution recognizes the right to private property stating that everyone has the right to private property, whether individually or collectively owned. Private property, whether owned individually or collectively, is inviolable. The right to property shall not be encroached upon except in public interest and in accordance with the provisions of the law.
Article 5 of the Land Law confirms the right to private ownership of land both for land originally acquired through customary practices or by official title. Article 34 of the law protects private ownership rights, stipulating that “the State recognizes the right to freely own land and shall protect the land owner from being dispossessed of the land whether totally or partially, except in case of expropriation due to public interest.
2) Rape and sexual torture
Militaries who were carrying out a nocturnal patrol interfered in the households of Kangondo and raped girls and married women without protection; facts which can be qualified as rape and sexual torture.
according to Article 134 of the law n°68/2018 determining offences and penalties in general, a person who causes another person to perform any of the following acts without consent by use of force, threats, trickery or by use of authority over that person or who does so on grounds of vulnerability of the victim, commits an offence: 1º insertion of a sexual organ of a person into a sexual organ, anus or mouth of another person; 2º insertion of any organ of a person or any other object into a sexual organ or anus of another person. Any person who is convicted of rape is liable to imprisonment for a term of not less than ten (10) years but not more than fifteen (15) years and a fine of not less than one million Rwandan francs (FRW 1,000,000) but not more than two million Rwandan francs (FRW 2,000,000).
Article 114 of the same law establishes that commits sexual torture any person who causes damage to genital organs of another person commits an offence. Upon conviction, he/she is liable to a term of life imprisonment.
3)Torture and murder
given testimonies from the journalists and some police officers who did not support this murder, the artist Kizito MIHIGO died due to deadly torture. As per Article 107 of the law quoted above, perpetrates a voluntary murder a person who intentionally kills another person commits murder. Upon conviction, he/ she is liable to life imprisonment. Article 112 of the same law defines torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him/her or a third person information or a confession, punishing him/her for an act he/she or a third person has committed or is suspected of having committed, or intimidating or coercing him/her or a third person, or for any reason based on discrimination of any kind. Any person who commits any of the offences referred to under Paragraph One of this Article commits an offence.
5.Motivation of the court decision
The court assessed charges presented by the public prosecution and proofs supporting them and concluded that they are not convincing.
1)Absence of proofs
The burden of proof is on the public prosecution or, in case of a claim for damages or private prosecution, on the victim of an offence or his or her rightful beneficiaries. The prosecution alleged that, because Niyonsenga and Ishema TV are not registered with the Rwanda Media Commission, he and Komezusenge were impersonating journalists, and Komezusenge’s identification card labeling him as a journalist constituted forgery, according to the three people familiar with the charges who spoke to CPJ. After investigation the court found out that the Ishema TV is enrolled at RDB which suffices to allow its journalists to work since officially registered by the competent authority formalities before Rwanda Media Commission remaining accessory requirements not hindering the exercise of activities authorized by RDB
2)Benefit of doubt
The benefit of doubt is given to the accused. If the proceedings conducted as completely as possible do not enable judges to find reliable evidence proving beyond reasonable doubt that the accused committed the offence, the judge’s order his or her acquittal. In this regard, the court disqualified the charge of rebellion against authorities during Covid -19 because among crucial activities which were allowed press mobilization could not be excluded and consequently the interpretation of the public prosecution did not remove the doubt and this favored the accused 6.Analysis
Three points negatively targeting Rwandan government were raised by the journalist CYUMA Hassan and not finding opportunity to incriminate them asked the public prosecution to manufacture crimes in order to muzzle him.
Primo, the 2007 Expropriation Law defines the permissible acts of public interest giving rise to the State’s right of expropriation: roads and railway lines; water canals and reservoirs; water sewage and treatment plants; water dams; rainwater canals built alongside roads; waste treatment sites; electric lines; gas and oil pipelines and tanks; communication lines; airports and airfields; motor car parks, train stations and ports; biodiversity, cultural and historical reserved areas; facilities meant for security and national sovereignty; hospitals, health centers, dispensaries and other public health related buildings; schools and other related buildings; government administrative buildings and public institutions; public entertainment playgrounds and buildings; markets; cemeteries; genocide memorial sites; activities to implement land use plans and master plans; valuable minerals and other natural resources in the public domain; basic infrastructure and any other activities aimed at public interest which are not indicated on this list that are approved by an Order of the Minister in charge of expropriation, at his or her own initiative or upon request by other concerned persons. In addition to acts of public interest, the Expropriation Law also determines the specific procedures for expropriation, including the processes of property valuation and paying of compensation, and identifies the organs competent to approve and carry out expropriation. The law also indicates the rights of expropriated persons and expropriating entities. Other related legal instruments, such as Ministerial Orders relating to reference land prices, expansion of roads, and land leases also influence the expropriation process.
The Expropriation Law in Rwanda aligns with international law and best practices, which essentially hold that:
1) “fair” or “just” compensation must be paid to both nationals and non-nationals who are expropriated; and
2) States must establish and follow clear and transparent procedures that apply equally to all expropriated individuals. Those procedures should regulate the process of the valuation of land, and also create dispute resolution mechanisms to address complaints over valuation and compensation. In line with these international standards, the 2007 Expropriation Law clarifies the rights of individuals in the process of expropriation, including the valuation and compensation processes. Any individual who is expropriated under the law is entitled to receive “just compensation” for the property lost. The law dictates that the amount of compensation should be established based on “market prices” of the property. Funding for the compensation and for other related costs must be available before taking any steps in the expropriation process and every project must provide in its budget funds to ensure fair compensation of property, including a full inventory of assets of each person to be expropriated.
Concerning those militaries of RDF who raped women, they were punished by this disparaged the image of the Rwandan army who are unduly appreciated by UN and AU although they massacred about 5 millions of Congolese and Hutu refugees and raped thousands of Congolese women and girls.
As far as the death of Kizito Mihigo is concerned, officials maintained the version of suicide while people who saw his corpse revealed the opposite position given wounds and indicators of torture identified on him and the journalist worsened the disclaimer by publicizing it. The public powers resorted then to the unlawful of the former to stop diffusion of this information which may revolt the population which were fans of this star gospel singer.
It is not the first time that in Rwanda people are falsely prosecuted to punish or repress their political misconduct and unfortunately courts dare to sentence them to years of imprisonment under pressure of political institutions. The fact that the concerned journalist was found innocent may lead him to introduce against the public prosecution a claim for temerary and vexatious action requesting for damages for prejudice incurred. In fine, it is a very time to congratulate the judge who did not proceed as the prosecution and tried the case independently putting aside the «down side of the cards».
By The Rwandan Lawyer
1 THE CONSTITUTION OF THE REPUBLIC OF RWANDA OF 2003 REVISED IN 2015, Official Gazette n° Special of 24/12/2015
2 Law nº68/2018 of 30/08/2018 determining offences and penalties in general, official gazette no. special of 27/09/2018
3 art. 107 of the Law nº 027/2019 of 19/09/2019 relating to the criminal PROCEDURE Official Gazette n° Special of 08/11/2019
4 Art.111 of the same law