By The Rwandan Lawyer
Informed that he was under red notice before the Interpol due to the arrest warrant lodged by the Rwandan public prosecution authority for a series of crimes he had allegedly committed on the soil of US while still in office, Ambassador Eugène Richard Gasana submitted an application for the deletion of the information concerning him registered in INTERPOL’s file before the Commission for the Control of INTERPOL’s Files. After in-depth examination of the request, the commission deemed it receivable and deserving to be judged on the merits and the outcomes are undoubtedly positive: he wins the cause thus defeating Rwanda. The present article intends to analyses the ins and outs of this transnational contention whereby legal, judicial and political parameters are implied and its reflections on the image of the Rwandan justice as far as the compliance with the right to fair trial is concerned.
-Overview of the background of the applicant
Eugène Richard Gasana is a Rwandan national, who was born on 2 July 1962, in Bujumbura, Burundi. Currently, he is a citizen of the Republic of Rwanda, a permanent resident alien of the United States, and a resident of the State of New York. Regarding the status of the Applicant, the Commission takes note of the fact that he has been for several decades part of the top leadership of the Rwanda Patriotic Front (FPR) and a member of the close entourage surrounding Mr.Paul Kagame even before he became President of Rwanda in 1994. He has held high profile portfolios in the Rwandan Government and strategic diplomatic positions, until he became Rwanda’s Permanent Representative to the United Nations and Minister of State in charge of international cooperation – at the time of the alleged offences. 39. The general context of the case, although disputed by the parties, reveals that the Applicant was dismissed from his governmental position and relieved from his diplomatic functions in 2016, after his loyalty to President Kagame was put in question by Rwandan authorities. A few months later, while still living in the United States, he became the subject of a criminal complaint accusing him of sexual harassment and rape allegedly committed in 2014 on a former Rwandan intern of the Permanent Representation to the United Nations. the Applicant presented an application in December 2016 under Section 13 of the United States Immigration and Nationality Act, applicable to individuals “who performed diplomatic or semi-diplomatic duties and to their immediate families, and who establish that there are compelling reasons why the applicant or the member of the applicant’s immediate family is unable to return to the country represented by the government which accredited the applicant”. He was finally granted U.S. Permanent Residence on the basis of this provision in April 2019, and relinquished his Rwandan nationality, although this renunciation has not been formally registered and recognized under Rwandan law. Eugène Richard Gasana is accused of having committed a series of gender based crimes namely rape, attempted rape, sexual harassment, offences all provided for by Organic Law N° 01/2012/OL of 02/05/2012 instituting the Penal Code then into force in Rwanda.
-NCB of Rwanda
The Rwandan prosecution was initiated following a complaint by the alleged victim to the Prosecutor General of Rwanda dated 14 January 2020. An arrest warrant was issued on 27 July 2020 and a Red Notice issued at the request of the NCB of Rwanda on 14 August 2020. Thereon, the NCB of Rwanda has provided sufficient elements describing the charges attributed to the Applicant in the statement of facts included in the Indictment, relating to the circumstances of episodes of sexual harassment, sexual advances, rape and attempted rape against two alleged victims in 2013 and 2014. A few months later, while still living in the United States, he became the subject of a criminal complaint accusing him of sexual harassment and rape allegedly committed in 2014 on a former Rwandan intern of the Permanent Representation to the United Nations. The Commission notes that that this case was then investigated by the NYCDA between 2016 and 2018, and that no charges were brought based on the available evidence. The NCB added that Rwandan authorities would have been estopped from investigating and prosecuting the same case had they been made aware of any trial against the Applicant in the United States on the same set of facts, on the basis of the double jeopardy principle. However, the case being handled by NPPA involves two claimants and not just the one mentioned by the Applicant, as can be seen in the Indictment. Criminal complaints were brought to the Rwanda Investigations Bureau, which conducted investigations and transmitted the case file to the NPPA. Rwandan authorities were able to exercise jurisdiction over the matter because of the nationality of the victims among other factors. Indeed, Article 12 of the Law Nº 68/2018 of 30/08/2018 provides that “Any Rwandan or foreign citizen who commits a felony or a misdemeanor against the interests of Rwanda or against a Rwandan citizen outside the territory of Rwanda may be prosecuted and tried in accordance with the Rwandan law as if the offence had been committed in Rwanda”. The NCB reiterated that the NPPA investigates and prosecutes independently, based on the facts of a particular case and without any political interference. Furthermore, the NPPA is unaware of the Applicant’s immigration status in the USA, and while it may be true that the Applicant renounced his Rwandan citizenship in the US, Rwandan law has specific procedural requirements for Rwandan citizenship to be legally renounced. Indeed, Article 18 of Organic Law No 30/2008 of 25/07/2008 and Article 31, Presidential Order No 21/01 of 27/05/2009 were providing that renunciation of nationality shall be done in writing and addressed to the Director General of Immigration and Emigration of Rwanda, and if successful, shall be published in the official gazette of the Republic of Rwanda. This process has not been undertaken by the Applicant and therefore, he is still considered a Rwandan national by Rwandan authorities. Even with no extradition treaty between Rwanda and the United States, U.S. authorities have already deported several suspects to Rwanda in the past. The NCB further explained that the NPPA has no information as to the process and conclusions on the NYCDA’s investigation into the Applicant. In any case, the NPPA investigates and prosecutes
The Applicant claimed that he is the former Rwandan Permanent Representative to the United Nations, and has served in high-level diplomatic and ministerial positions in President Paul Kagame’s government for two decades. He argued however that in 2016, he expressed his disagreement with President Kagame’s decision to run for a third presidential term, and was immediately considered an opponent and relieved from his diplomatic functions. He contended that he then applied for protection under Section 13 of the U.S. Immigration and Nationality Act and was granted U.S. Permanent Residence, while he renounced his Rwandan nationality. He claimed that several of his relatives in Rwanda were subjected to bogus charges and passport confiscations, or pressured to publicly disassociate from him. He claimed that following his dispute with President Kagame, a bogus case of sex harassment and rape was filed as retaliation by a former intern of the Rwandan Permanent Representation to the United Nations (Ms Benita Uruhisho) whose family is linked to the Rwandan government, with the assistance of U.S. law firms paid by the Rwandan authorities. He argued that the alleged victim has been recruited by Trust Law Chambers, President Kagame’s personal law firm, while her fiancé (who was best man at the president’s daughter’s wedding) has been recently promoted to lead Rwanda’s Social Security Fund. He contends that the New York Country District Attorney’s Office of Sex Crimes Unit (NYCDA) investigated thoroughly the accusations, relating to facts allegedly committed in 2014, and concluded in 2018 that there was a lack of basic evidence and no basis for prosecution. He claimed that the Red Notice concerning him is of a predominantly political character, in violation of Article 3 of INTERPOL’s Constitution, and used to impede his ability to be active on Rwanda’s political scene. He contended that he received direct threats from Rwandan officials, indicating that President Kagame was determined to “destroy him” for his perceived lack of loyalty and implying that the issuance of the Red Notice was a tool to force him to return to Rwanda, especially after he had met privately with President Kaguta Museveni, of Uganda. He contended that the Red Notice was issued for ulterior motives and not in order to locate him and obtain his arrest in view of extradition, in violation of Article 82 of INTERPOL’s Rules on the Processing of Data. He claimed that the Rwandan government is well aware that he lives in New York (where the rape case was brought) and has no need to “locate” him. Moreover, he argued that Rwandan authorities are fully aware that under U.S. law he cannot be extradited to Rwanda for the alleged rape case since it did not occur in Rwanda, since there is no extradition treaty between Rwanda and the United States, since the NYCDA already investigated and declined to prosecute for the same facts, and since he has been granted protection under Section 13 U.S. Immigration Act. Therefore, he concluded that the Red Notice has been requested merely as a persecution tool, to hassle him abroad, with no real prospect of actual judicial cooperation. He further claimed that the Red Notice contravenes with Article 2 of INTERPOL’s Constitution as it violates several of his fundamental rights enshrined in the Universal Declaration of Human Rights, notably his right to travel internationally, his right to seek asylum in another country, his right to access employment and financial institutions, and his right to a private and family life.
Findings motivating the commission decision
-Red Notices are published by INTERPOL’s General Secretariat at the request of NCBs in order to seek the location of a wanted person and his/her arrest in view of extradition. The Commission takes into consideration the NCB of Rwanda’s contention that it has no information about the Applicant’s location. However it also notes that his residence in the United States following his dismissal from his diplomatic position in New York is a matter of public record relayed by the press, since one of the alleged victims has brought a criminal complaint and is currently pursuing ongoing civil proceedings before the New York County Courts against the Applicant, whose address in New York is disclosed in court documents. In addition, the Commission notes that the NCB of Rwanda itself indicated .
With respect to the assertion that the matter is of a political character, the Commission applies the predominance test, i.e., it evaluates all relevant information and pertinent elements, as provided for by the rules, to determine whether the offense is of a predominantly political character. The rule reflected in Article 34(3) of the RPD requires analysis of all relevant factors, as to which the following appear to the Commission to be key in the present case: the nature of the offense, namely the charges and underlying facts; the status of the person concerned; the general context of the case; the positions expressed on the case by another NCB; and the implications for the neutrality of the Organization.
– the offenses as described in the Red Notice and the judicial documents provided (“Rape, Attempted Rape, Sexual Harassment”) appear to be of ordinary-law character, as defined in the legal provisions reproduced in the Arrest Warrant and Indictment. Even if the publication of a Red Notice requires the provision of facts that link the wanted individual to the charges against him, and a clear description of the criminal activities of which he is accused, the function of the commission is not to evaluate the reliability or the quality of evidence in a manner that should be undertaken at trial or during extradition hearings, the Commission’s role is nonetheless to review whether the NCB provided sufficient information illustrating the Applicant’s effective participation in the alleged crime concerned. Absence of extradition treaty between the United States and Rwanda, the occurrence of the alleged criminal facts in the territory of the United States and their prior investigation by United States authorities, and the grant of a permanent residence to the Applicant under Section 13 of the Immigration and Nationality Act in the circumstances mentioned above, are all factors limiting the prospects of actual extradition. In light of its earlier findings regarding the strong political context of the case, the Commission finds that the publication of the Red Notice against the Applicant may not be compliant with its stated purpose under Article 82 of INETRPOL’s Rules on the Processing of Data. Maintaining the data challenged could have adverse implications for the neutrality of the Organization, in that there is a significant potential, because of these factors, that the Organization may be perceived as facilitating politically motivated activities. Accordingly the Commission finds that there is a predominant political dimension to this case and that the retention of the data would not be compliant with Article 3 of INTERPOL’s Constitution.
-Decision of the Commission
Decides that the data concerning the Applicant are not compliant with INTERPOL’s rules applicable to the processing of personal data, and that they shall be deleted from INTERPOL’s files.
The decision issued by the commission of Interpol deserves an appropriate assessment on legal, judicial, political levels.
-Rwanda always confusing political opponents and criminal offenders
When a Rwandan citizen voices out his political views which distorts with the regime views, he is automatically put on a red card especially when he/she is suspected to have an impact on the society considered his/her position vis-a-vis the rwandan public. It was the case with the renowned gospel singer late Kizito Mihigo who had gained the hearts of Rwandans and his disguised suicide helped the regime get rid of him and thus with his absence once and for all with his disappearance and oblivion on the part of his followers and fans, the regime would maintain its political lie preserved from any detractors. The same case occurred to Karasira Aimable; Idamange Yvonne now detained and whose case files are pending before Rwandan courts. In a nutshell, any political opponent who dared to make political declarations blaming the dictatorship of Kigali are enlisted as criminals to whom all the grievances are directed: shooting; poisoning; disappearance; torture; planned vehicle accident; sentencing to the most severe penalty if brought to justice. this legal attempt which miserably met a bitter failure is therefore not surprising on the part of Rwanda because against its opponents all blows are allowed and he expected that the judges would not pay attention and the unfortunate political refugee would find himself in their deadly claws.
-Manufacture of offences
Obviously the offences for which ambassador Gasana Eugene Richard are cooked to disturb him miserably met a bitter failure and the evidence for the prosecution is manufactured from scratch by the investigators and the prosecution and would be convincing before the Rwandan justice which, as we know, is not independent, especially when it comes to trying a political opponent where the verdict is already known even of the public because it has experience of it from the cases of Mushayidi, Munyakazi, Niyitegeka, Ingabire, Ntaganda, and so on. In this specific case, the victims of those alleged three crimes of rape, attempted rape and sexual harassment are familiar to the presidential circle: Uruhisho Benita is the spouse of the current CEO of the Rwandan social security board a young colleague and close friend to Cyomoro Kagame Yvan who better still proposed his appointment to this position to allow the presidential clan to access and abuse founds of this rich institution. this propensity to invent crimes in order to be able to repress political opponents now perceived as execrable enemies worthy of death is common in the Rwandan regime as abounds in the same sense the petitioner for whom the power of Kigali tends to persecute former allies who have fled his junta, wherever they are worldwide, especially when they are seen as potential political risks for his regime, and listed several cases of former government officials in exile who have been subjected to Red Notices or assassination attempt
-Bias application of criminal law in space or application “ratione loci”
The application of the law in space refers to the principle of territoriality of the Rwandan criminal law. This principle comes in when it is necessary to define the competence of Rwandan courts especially when there is conflict of laws resulting either from the place where the offence was committed or to the nationality of persons involved in the act or omission (the accused and the victim). The rules on the application of criminal law in space are defined in article 9 to 20 of RPC. The main principle set by art. 9 is that: “Any offence committed on the Rwandan territory by either a Rwandan or a foreigner shall be punished by the Rwandan Law, except in cases of diplomatic immunity guaranteed by international conventions ratified by Rwanda or international customs”. This principle is the expression of the sovereign power that possesses any country to keep law and other on its territory and punish those who contravene to it. This principle however raises two main questions: the first question is linked to the determination of what should be considered Rwandan territory while the second one is to determine the circumstances under which a crime committed abroad may be prosecuted and punished in Rwanda.
-The Rwandan territory and areas assimilated Rwandan territory
The Rwandan legislation answers to the question of determining what should be understood by Rwandan territory. Under this provision: “The Rwandan territory refers to the land, rivers, lakes and air space within the boundaries of the Republic of Rwanda and Rwandan Embassies in other countries”.
This principle was rending Rwandan position rightful in the sense that the involved diplomatic is Rwandan citizen, the Rwandan nationality prevailing on other citizenships he may have been granted, that the diplomatic immunity would not apply given that he is not a foreigner and that it is his country authorities prosecuting him but the fact that alleged crimes were committed when he was still in function just two years before his relief proves sufficiently that nothing prevented the prosecution of Rwanda to file a criminal case against him; facts which may have then occasioned his dismissal but the reality is that during that period he was in good terms with the regime. This thesis entails that the crimes were just imagined a posteriori and disguised victims were compelled to seize American justice in criminal matters and in civil matters claiming for damages reportedly arising from the crimes committed and understandably were instructed on this plan in a bid to eventual get from Interpol an extradition which may lead to unimaginable scenarios against their prey: abduction; death; deadly torture and if they decide to use courts sentencing him to life imprisonment. Better still, in favor of the applicant, the commission found out this this judicial scheme carefully plotted by the judicial authorities of Rwanda pressured by the regime.
-Circumstances under which a crime committed abroad may be prosecuted and punished in Rwanda
Mutatis mutandis, the penal code of 2012 as well as the law nº68/2018 determining offences and penalties in general provide for cases whereby Rwandan trial courts can extend their jurisdiction on crimes that are committed on foreign territory taking into consideration the place where the crime was committed, effects of constitutive elements or its effects. Therefore, additionally to the principle of territoriality which determines the jurisdiction of court in reference to the place where the offence was committed, some other principles are taken into account in the determination of the criminal jurisdiction. The nationality principle recognizes that a sovereign can adopt criminal laws which govern the conduct of the sovereign’s nationals while outside of the sovereign’s borders. It enables the punishment of the offender by a tribunal of his home State for offences committed by him abroad. This principle is applied in art. 13 of the penal code which states that “a Rwandan who commits a felony or a misdemeanor, outside Rwandan territory, may be prosecuted and tried by Rwandan courts in accordance with the Rwandan Law as if the offence had been committed on the Rwandan territory if such an offence is punishable by Rwandan Law. From the reading of this provision, one may think that the only requirement for the Rwandan citizen it that the crime committed should be punished only in Rwanda and not necessarily in the foreign country where it was committed. In my view the condition of double punishment is required because it would be unfair to punish somebody for having behaved in a way which is not prohibited by the law of the country of residence. For the application of this provision the Rwandan citizenship here is only considered for those who had a Rwandan nationality at the time of the commission of the offence.
Obviously, both Rwanda and US penal legislations incriminate the crimes imputed to Ambassador Gasana Eugene Richard and the proceedings are running before US courts. However, there should be wondered whether Rwandan authorities were groping between the two alternatives by seizing the courts of the place where the crimes took place and while requesting the Interpol for the possible extradition of the suspect. Do they intend to kill two birds with one stone? but what they aim most is in our opinion to physically seize the person of the former ambassador and apply their justice to him, the verdict of which is already known in the context of the settlement of accounts or quite simply a revenge against his enemy because the more independent American institutions risk to exonerate him and then their goal would have failed.
-Issue of double jeopardy
The Double Jeopardy Clause prohibits anyone from being prosecuted twice for substantially the same crime. The relevant part of the Fifth Amendment states, “No person shall be subject for the same offense to be twice put in jeopardy of life or limb …. In this line, the case file is already submitted to American courts as the alleged victims of those crimes have seized the US criminal prosecution services for the criminal action and have even introduced civil action for damages arising the crimes. The issue that is not yet addressed is that in case the extradition of the suspect is successful; the latter should be subjugated to Rwandan courts entailing a conflict of jurisdiction. Under international law, this conflict is addressed by applying the principle of active personality whereby A country has jurisdiction over a wrong of which its national is the perpetrator. Otherwise, Rwandan courts should therefore prevail on American courts even if the alleged offences were committed on the US soil.
-Impact of the commission decision
The Commission decided that the data concerning the Applicant are not compliant with INTERPOL’s rules applicable to the processing of personal data, and that they shall be deleted from INTERPOL’s files, according to the DECISION CONCERNING EUGENE GASANA issued by the Commission for the Control of INTERPOL’s Files.
Even if the commission did not deal with the case on the merits to imply in other words the determination of the winning party and the losing party on the relevance of proofs, the verdict defeating the request of Kigali which qualified the crimes apparently of common law as political given especially the fact that their prosecution was triggered just after the dismissal of the suspect from his diplomatic functions due to his disagreement with the Rwandan head of state while the crimes were reportedly committed he was still performing his functions in 2013 and 2014. In our humble view, the verdict which dismisses Rwanda and agrees with the applicant Gasana Eugene Richard may predict the decision of the American justice because overtly the Commission detected that the alleged crimes were not really committed and were just cooked by the Kigali regime in order to eventually obtain the transfer of the wanted suspect and take revenge on him for his membership in the opposition by jailing him for life. Therefore, it goes without saying that even before American courts the alleged victims will lose the case because the moral element of the offenses «mens rea» remains merely political.
-The tarnished image of Rwandan justice
The Rwandan judiciary exercises its judicial independence when it deals with case files implying simple citizens and where any political official is not involved. It is the case of crimes prosecuted against the simple delinquents who do not interest officials in power or whose criminal mind does not disturb the national security or the regime policies. Indeed, there is known that Rwandan regime has longtime manipulated the judges charged with case files involving his political opponents; the undoubted evidence is that none of the politicians prosecuted in Rwanda was acquitted; instead, they were severely punished regardless of the pertinence and relevance of their defenses. Cases of Mushayidi Deo; Me Ntaganda Bernard; Miss Rwigara Diane; Mrs. Ingabire Umuhoza Victoire; Dr Niyitegeka Theoneste; Dr Munyakazi Leopold; military officers like Brigadier Rusagara; Col.Tom Byabagamba; Lt.Col. Rugigana Ngabo are sufficiently reflecting this state interference in the judiciary and the list is not exhaustive. The judgment was already rendered especially since the Rwandan judicial institutions are involved in the abduction of the wanted individuals. An eloquent illustration of this interference of the Rwandan executive in the judicial activities is the recent forced rendition of Paul Rusesabagina whereby the Rwanda Investigations Bureau and the Ministry of Justice admitted before the judge their role in financing the operation of luring this hero of hotel Rwanda and abducting him till Rwandan safe houses.
Two questions on this case are not responded. On one side, by introducing the request for red notice in 2016 while alleged criminal facts imputed to the former ambassador were reportedly perpetrated in 2014 while still in office without justifying why those crimes had remaining unpunished, the Rwandan prosecutorial services ridiculed themselves and therefore there is reason to suspect their lack of professionalism or poor legal training on the part of the staff our judicial system. On this last point nothing surprising given the conditions in which the staff is recruited in Rwanda just by pure nepotism, favoritism and corruption of all kinds whereby intellectual abilities of the candidates often reflected by written tests are put deliberately put aside in favor of interviews where is applied subjectivity examiners strive to grant the maximum of marks to their favorites when the question asked is in itself stupid. On the other side, one can inquire if the authors of this politically conceived initiative at least thought of these harmful effects in the event that the members of the commission manage to unmask them on the judicial and even diplomatic level.
In any case, by this single case, the world has just realized the kind of justice rendered to Rwanda and the countries should no longer transfer litigants there because they will not expect any justice there