By The Rwandan Lawyer
Kabuga Felicien, now detained in The Hague after his arrest nearly a year ago in France, allegedly imported shipments of machetes in the months leading up to the 1994 genocide against the Tutsis. This fact is verifiable and is not disputed by the accused as this may be part of merchandises regularly imported in his quality of wholesaler trader. In any case, this is the thesis that has long prevailed since Kabuga’s indictment by the former International Criminal Tribunal for Rwanda (ICTR) in 1997, and which will probably remain entrenched in public belief according to which the rich trader imported those domestic assets to facilitate killers to execute their dirty work.
But what were these machetes used for? To cut grass in the fields or to kill Tutsis? Did the rich businessman import them as part of a plan to destroy the Tutsi ethnic group? It has, however, been gradually qualified over the years by successive prosecutors in this case. And now the accusation has been abandoned in the indictment newly amended by Belgian magistrate Serge Brammertz, prosecutor of the UN Mechanism that carries out the residual functions of the ICTR
The issue to examine hereby is to establish the rationale of the removal of such a charge and the relevance of those remaining in the indictment.
1. Second amended indictment
The Prosecutor of the United Nations International Residual Mechanism for Criminal Tribunals (“Mechanism”), pursuant to the authority under Articles 1 and 16 of the Mechanism Statute and Article 17 of the Statute of the International Criminal Tribunal for Rwanda (“ICTR Statute”) charges: Félicien KABUGA with Count 1: Genocide pursuant to Articles 2(3)(a) and 6(1) of the ICTR Statute; Count 2: Direct and public incitement to commit genocide pursuant to Articles 2(3)(c) and 6(1) of the ICTR Statute; Count 3: Conspiracy to commit genocide pursuant to Articles 2(3)(b) and 6(1) of the ICTR Statute; Count 4: Persecution on political grounds pursuant to Articles 3(h) and 6(1) of the ICTR Statute; Count 5: Extermination pursuant to Articles 3(b) and 6(1) of the ICTR Statute; and Count 6: Murder pursuant to Articles 3(a) and 6(1) of the ICTR Statute.
2. Legal Framework
A prosecutor is entitled to anytime withdraw the casefile from the court when he deems lacking convincing evidence. This option is generally open to prosecution even in Rwandan law of criminal procedure especially in its article 92 paragraph 2 dealing with modalities to seize a court by public prosecution according to which the public prosecution may withdraw the case if it considers unnecessary to prosecute the accused.
An objective interpretation of the above provision may lead a legal analyst to assert that it is also possible to review the case file and remove charges which seem groundless and retain those in which the prosecutor feel comfortable especially before the audience.
Likewise, during the audience the prosecutor can apply the rule “la plume est serve mais la parole est libre” a principle practiced in civil law system according to which the prosecution may orally change his/her position and discharge the accused if he/she realizes that the position of the defence is stronger than his in terms of evidence.
3.1.A “quick and efficient” strategy?
The new indictment, while narrow in scope, does not dwell on presenting the accused like previous indictments, but is full of details of Kabuga’s alleged crimes, suggesting that a large number of witnesses will be called to the stand. Abandoning earlier assertions that Kabuga exercised power, authority, and influence over all the military, the Interahamwe, other militias, armed civilians, and administrative authorities, prosecutor Brammertz is more specific than his predecessors about “the responsibility of the accused in RTLM and his multi-faceted support for the Interahamwe youth,” Guichaoua points out. “Given the profile and age of the accused, this strategy is intended to be quick and efficient,” he says. “It establishes the charges on the basis of crimes documented by direct witnesses, crimes whose gravity and scope justify an exemplary sentence. Twenty-five years after the events and given the multiplicity of the crimes identified, no defence lawyer will be able to find contrary evidence for the alleged facts on the ground amongst a population closely supervised by the authorities.”
Speed has so far been relative. The opening of the trial is not expected before the last quarter of 2021, while in the meantime the health of the accused is deteriorating, according to his lawyer.
3.2. Are the remaining counts more founded that that removed?
KABUGA Felicien even if he was richer than the other shareholders is not the one who offered much money; the list of funders shows him in the second position after the late president HABYARIMANA Juvenal. Besides, being a shareholder is just purposely commercial and not political especially as other numerous shareholders found on the same list are not worried by genocide charges. Some of them are now serving the Kigali regime; the outstanding ones are RUCAGU Boniface the former prefet of RUHENGERI, governor of Northern Province, Chairman of Itorero National Commission and currently commissioner in Rwanda Elders Advisory Council; Christopher BAZIVAMO, former executive secretary of national electoral commission, former minister of local government; currently deputy chairman of RPF and deputy secretary general of EAC in charge of administration and finance.
2°Mobilization of interahamwe
There is issue of proofs about this accusation. KABUGA Felicien did not pass any declaration through the radio to call upon this young partisans of MRND for killings which were committed countrywide. Too, witnesses who may testify such a mobilization must be among those who were prepared by the Rwandan ministry of justice and an effective cross-examination would flush them out as it occurred in the cases of MUGENZI Justin, MUGIRANEZA Prospere, ZIGIRANYIRAZO Protais, KAMUHANDA Jean de Dieu where respective witnesses contradicted what they had submitted earlier for the three accused or admitted having lied for the last one who all were acquitted and released.
The issue of evidencing charges against the Rwandan businessman is still questionable. According to our view, the incrimination of this trader by Kigali regime is surely motivated by the fact that he was father-in-law of a son of Juvenal HABYARIMANA; which apparently politicizes him and involves his position in the civil war which was opposing the RPF and the then government of Rwanda.