IS KABUGA REALLY GUILTY OF CRIMES HE IS PROSECUTED FOR? A CRITICAL ANALYSIS

Félicien Kabuga

INTRODUCTION

On 16 May 2020, Kabuga was arrested near Paris by French authorities as the result of a joint investigation with the Mechanism Office of the Prosecutor. The concerned is prosecuted for genocide and crimes against humanity allegedly to have been the main funder of this horrible crime.Back in July 2019, Kabuga was one of the three main Rwandan fugitives alleged by international courts to have played a major role in the genocideA prosperous businessman with close ties to the Hutu regime prior to and during the genocide, he founded and bankrolled the Radio Télévision Libre des Mille Collines (RTLM) station which spread anti-Tutsi propaganda and broadcast calls to exterminate the ethnic group.

In 1999, the prosecutor turned to the accounting and staff management records of public and private companies. These helped reveal the funding mechanisms and networks that enabled the creation of the youth groups of the ruling party, the Interahamwe, and those of other parties. When war broke out, such groups morphed into youth militia serving the politicians that funded, housed (as did Kabuga in Kigali) or armed them.

Investigations made significant progress in 2001, with access to the bank accounts of individuals and organisations suspected of pillaging parastatal companies and the budgets of large government ministries.

In May 2001, the prosecutor’s office tried to extend its search to the highest levels of power. A working programme was sent to the Ministry of Justice, with a list of names and institutions. The requests included operations carried out after the war with the accounts and property of figures from the old regime, either dead, under prosecution or “recycled” by the new authorities.

But on the day the request was submitted, a wave of panic washed across the banking world, particularly in Belgium. Banks there voiced their total opposition to the highest levels of the Rwandan State. The investigations were refused on the basis that they might harm “national reconciliation” and the “country’s reconstruction” since they elicited concern from economic organizations now protected from scrutiny. Can we hope that this evidence has been preserved?

“Idem est non esse et non probari” latin legal maxim meaning not proving the evidence equals to not being means the same as if the evidence is nonexistent and not being proved. Basically, in all areas, evidence plays an essential role. Through it, widely expressed, the aim is to prove, to demonstrate something, with the goal of convincing about a truth. Thus, even a profane of the legal field will be able to be aware of the important role that evidence has in Law architecture. Common sense tells us that the lack of evidence must negatively impact the one that has the burden of proof and (due to one reason or another) cannot present the said evidence. 

The present analysis intends to assess the ins and outs of the case of KABUGA Felicien focusing on the appraisal of evidence establishing without doubt or speculation the 11 counts the concerned is charged with. 

1.Witness credibility

It is regrettable that a too horrible crime like genocide which took away thousands of population is proved by only testimony while we all know the weaknesses of testimony. Indeed, testimony, either eyewitness   or hearsay often suffer from imprecision due to time elapsed; bad faith of the witness delivering perjury; lies prompted by bribes or political pressure or influence all these factors entailing the concerning  issue of witness credibility. Rwanda been known to use false witnesses, or even introducing implausible evidence. indeed, the thousands of Rwandan citizens were convicted by Gacaca courts after having charged with genocide and crimes against humanity while they are innocent and examples thereon are numerous; worse some Tutsi also genocide survivors were jailed and are encountering decades of years of imprisonment for having refused to falsely testify against their neighbors Hutu. Reasons underlying this manufacture of  proofs are namely the extremism of some people highly ranked; revenge; illicit enrichment; political plot; corruption, all but a few.  

For instance, former RTLM presenter Valérie Bemeriki, sentenced to life for genocide crimes, has become the Rwandan authorities’ go-to witness in numerous cases, despite having testimony thrown out by ICTR judges in the past.

2.Issue of machetes 

Kabuga allegedly imported several hundred tonnes of machetes, the weapon at the centre of the murderous apparatus, and handled the transport of Interahamwe militiamen towards the sites of the massacresAs early as 1995, the International Criminal Tribunal for Rwanda prosecutor undertook to establish the guilt of Kabuga, Finance minister E. Ndindabahizi and Planning minister A. Ngirabatware (Kabuga’s son in law). But the court was soon thwarted by a lack of tangible evidence. Records kept by the ministries did not enable them to establish links with the genocide and the “machetes hypothesis” proved highly uncertain. indeed, the thesis of machetes business is not overtly convincing for the following reasons. First, a machete is a tool used by all households in their daily activities especially farmers to mean that quite all Rwandans possessed and even now machetes. The fact that some of such machetes were newly purchased does not imply KABUGA Felicien because the machetes were and are items regularly sold by many traders. Better still, nothing indicates that those machetes imported by many traders including the suspect were purchased for the specific purpose of killing people. Furthermore, investigators who inquired on the transaction implying fell on a guy who really purchased them and not individually KABUGA and this person is now a close agent of Kigali regime who in conclusion, the prosecution will hardly find the causal link between the machetes used during genocide and the business of KABUGA.

2.Issue of RTLM

According to the indictment, Kabuga, together with a number of other persons, is alleged to have operated the radio station RTLM in a manner to further ethnic hatred between the Hutu and persons identified as Tutsi and to disseminate an anti-Tutsi message with the goal to commit the aforementioned crimes. Kabuga is further alleged to have instructed, assisted and prompted members of the Interahamwe who participated in the killing and harming of persons identified as Tutsi in Kigali, Kibuye, and Gisenyi préfectures.

Kabuga is not the unique funder of this Radio and it is not him who contributed much money than other shareholders. By the way, some former shareholders are officials of the regime of Kigali especially : Christophe BAZIVAMO current Deputy Executive Secretary of EAC in charge of administration and finance, formerly minister of local government; Minister of Lands, Environment, Forestry, Water, and Mines in Rwanda; Minister of Internal Security; Executive Secretary of the National Electoral Commission and since 2002 vice-president of the governing party RPF. Boniface RUCAGU currently a member of the National Elders Forum and formerly Préfet of Ruhengeri; governor of Northern Province and Chairman of Itorero National Commission. There are many other shareholders who are part of the regime civil servants and who are not worried either.

Besides, there is an issue to know whether the statutes establishing that radio explicitly specify that it is intended to call upon Hutu to hate and kill their neighbors tutsi. 

These three arguments suffice to refute the allegation of having been a shareholders of the radio station RTLM given that the suspect is not a unique funder nor the great one of that sinisterly famous radio.

3.Issue of close relations with the HABYARIMANA regime 

KABUGA was a father in law of Jean Pierre HABYARIMANA, the eldest son of late president Juvenal HABYARIMANA.This relationship does not automatically make him a politician and involving him in all the political programs of the regime. to retain such a fact as evidentiary argument may result from a mere speculation which may denote lack of strong proofs against the accused and may infringe the rule of individual liability of the accused implying that his close family are not concerned in the perpetration of the crime.

4.Issue of reliability of testimony 

Numerous factors may affect the accuracy of eyewitness testimony, which may lead to people being convicted of crimes they did not commit.

Many people throughout Western North Carolina believe eyewitness testimony is one of the most solid types of evidence in criminal cases. However, that is not necessarily the case. In fact, the Innocence Project reports that eyewitness misidentifications were involved in 70 percent of the wrongful convictions that were overturned through DNA testing. This is, in large part, because there are numerous factors that may affect the accuracy of eyewitness testimony.

1)Memory reconstruction

It is a common misconception that the human memory works like a video recording, allowing people to replay events in their minds just as they occurred. However, Scientific American reports that memories are reconstructed, not replayed. Rather, fragments of what people saw are pieced together like a puzzle in their minds as they recall memories. Consequently, questioning and discussing an event may alter people’s memories, or their perceptions of what they saw.

2)Lineup issues

Witnesses are often asked to identify suspects through lineups, both physical and photographs. If the proper procedures are not followed, however, law enforcement officers may unintentionally indicate to witnesses who they should choose. For example, if the photographs used are different sizes or have different lighting, it may cause one person’s picture to stand out over the others. When the law enforcement agents conducting the lineup know who the suspect is, they may give inadvertent signals to the witness.

3)Visual characteristics

Often, witnesses base their identifications off a suspect’s defining features or characteristics. However, wearing a wig, hat, glasses or other disguise may change how a person looks. As a result, people may misidentify someone as a suspect, and he or she may be found guilty of a crime, such as assault or murder, that they did not commit. Additionally, racial differences between the witnesses and suspects may also affect identifications.

4)Anxiety and stress

Witnessing a crime can be a stressful experience. In some cases, the anxiety people experience as a result of such events may alter their perceptions of whom or what they saw. This may lead to inaccurate identifications or testimony. The use of a weapon during the commission of a crime often compacts this issue because witnesses may focus on the weapon rather than the suspect or other details.

5)Obtaining legal representation

Criminal allegations can have life changing implications for people in North Carolina(1), and elsewhere. Therefore, those who have been charged with a criminal offense may benefit from seeking legal counsel. An attorney may help them establish a strong criminal defense, as well as ensure their rights are upheld. This includes questioning the accuracy of witness identifications and statements.

CONCLUSION

The case under analysis is generally politically prompted seemingly applying the principle who is not with us is against us, a formula cherished by the Rwandan president. if this businessman had played the funding double edged as other traders did such RWIGARA Assinapol,Indian businessmen, SHAMUKIGA and RUBANGURA Vedaste and many others who contributed in the rebellion fundraising, he may now have got the chance to survive the two régimes. The crying proof is that of late KARAMIRA Frodouald, a prosperous Tutsi who rejected the request from RPA and paid it with his life after the victory of latter.

By The Rwandan Lawyer

______________________________________________________________________________

(1) Kevin BARNET,What factors affect the accuracy of eyewitness testimony? North Carolina Criminal Attorneys, https://www.barnettfalls.com/articles

LEAVE A REPLY