By The Rwandan Lawyer
The Rwandan businessman, Félicien Kabuga is currently before the International Residual Mechanism for Criminal Tribunals despite his fragile state of health and ipso facto a series of his legal guarantees violated on the basis of the various international human rights instruments and enshrining the principles of the good administration of justice. Along the lines that follow, it is important to note the politico-legal violations detected in the processing of the file in its current state and the legal perspectives on this file to which the eyes of the Rwandan public are riveted.
Félicien Kabuga is currently in front of “The Mechanism” (International Criminal Tribunal for Rwanda) in The Hague. His family and himself are waiting impatiently for a transparent justice. Since Félicien Kabuga has been detained over a year ago now, his health condition has been deteriorating. At almost 90 years old, he is completely dazed, confused and extremely sick. He does not know where he is or what is going on around him. He has been denied his basics human rights, including the right to a fair lawyer. His lawyer has failed to establish a relationship or communication with M. Kabuga and his family, instead he is working on his own, for interests that we ignore. The family has been kept in the dark and are desperately worried for their father. The family is also worried that the trial won’t be fair due to his unstable health and inability to mentally be present in his own trial. There is also the serious threat of a decision to deport Felicien Kabuga to Arusha in Tanzania. Very recently, the prosecutor stated that Félicien Kabuga was fit to be in front of the court which might enforce his deportation to the court of Arusha in Tanzania. The decision was made with reference to medical reports unknown by the family. Furthermore, a few days later he was hospitalised twice. He is our father and grandfather; we demand justice and that his very basic human rights and needs are respected and met. Félicien Kabuga’s family is seriously worried about a lack of transparency in trial and justice. In addition to this, the family’s financial assets have been seized illegally since 1999. This desired impoverishment specific to the Kabuga family violates human rights and we call on human rights defenders to condemn such acts.
The Kabuga Felicien case and its current treatment raises questions about compliance with the principles guaranteeing the right to a fair process, which should be stated as follows.
-Legal guarantees violated
According to the provisions of Article 14 paragraph 3 of the International Covenant on Civil and Political Rights of 1966, any person accused of a criminal offense has the right, in full equality, at least to the following guarantees: a) To be informed, in as soon as possible, in a language which she understands and in detail, of the nature and grounds of the charge against her; (b) To have the time and facilities necessary for the preparation of his defense and to communicate with counsel of his choice; (c) To be tried without undue delay; d) To be present at the trial and to defend himself or to have the assistance of a lawyer of his choice; if it does not have a defender, to be informed of its right to have one, and, whenever the interests of justice so require, to be automatically assigned a defender, free of charge, if she does not have the means to pay him. This legal provision is infringed by the IRMCT in two aspects. On the one hand, the court dares to bring before an old man who is ill and deprived of his mental abilities alleged to ensure that he is present at his trial and then able to defend himself; but this prerogative risks not being validly honored in the case of Kabuga because he does not have his mental and psychological faculties to take legal action. On the other hand, the IRMCT imposes a lawyer to him when he does not feel comfortable with him and denies him his right to seek himself other lawyers even at his own expense.
-The black hand of Kigali in the required transfer to Arusha
The accused objected from the start of the trial to his possible transfer to Arusha basing on health conditions especially during this Covid-19 pandemic which threatens the planet and estimated that the European environment would be more favorable to him especially than there where he could access more advanced hospitals and be close to his family. Objectively, there is nothing wrong with Kabuga being tried in Europe by the IRMCT and nothing justifies the persistence of the prosecution, which keeps on demanding his transfer to Tanzania. In this regard, one would wonder if there might not be some inclinations from Kigali behind these baseless allegations made by the prosecution; the Rwandan authorities wanting to cynically embarrass the accused because whether in Europe or in Tanzania nothing will change the fate that awaits him, namely the conviction or the acquittal. In addition, one should think about the unsanitary prison conditions in Africa in case he is tried in Arusha and sentenced to imprisonment.
-Blocking of accounts and the presumption of innocence
By deciding to block Kabuga’s accounts, the court seems to already condemn the accused while he still enjoys the presumption of innocence as long as his final judgment has not yet been rendered and all legal remedies have been exhausted. At most, the criminal responsibility being personal, one would wonder why the suspect’s family suffers financially. These principles are established by the various international instruments such as the International Covenant on Civil and Political Rights of 1966 in its article 14; and the Universal Declaration of Human Rights of 1948 in its article 11, all adopted under the auspices of the United Nations and therefore it is crucial to inquire about what other type of court would apply them if now already the UN court that is the IRMCT tramples them shamelessly.
-What should the Residual Mechanism do?
To ensure impartial and fair justice, the IRMCT should allow the accused time to recover his health so that he can defend himself in a normal mental state. In addition, his maintenance on the European soil does not bother anyone and then the prosecution should stop bothering him about it. In addition, it is high time that the accounts of the accused are released for the benefit of his family because such a blockage suggests a partiality of the court which seems to condemn him prematurely. Finally, the court should terminate Altit’s contract because his relationship with his client is no longer good.
The Kabuga Félicien case continues to ridicule the IRMCT for its failure to respect the principles of a fair trial to the point of wondering the reasons for all this and who is pulling the strings. Relations between Rwanda and the international courts have always been conflictual because the former wanted to politicize the trials while the latter were servants of the law. Without having to look elsewhere, it turns out that behind all these procedural obstacles that the old businessman endures in front of the court, there is hidden a black hand from Kigali.