By The Rwandan Lawyer
The present study was generally motivated by a surprising event: a foreign witness was brought by the prosecution which accused Paul Rusesabagina of 9 crimes which are related to creating a terrorist group, conspiracy to commit murder, and other suspected crimes committed on Rwandan soil especially between 2018 and 2019, when he was the leader of the MRCD/FLN coalition.
Indeed, even if RUSESABAGINA Paul resolved to no longer participate in audiences dealing with his case which involves other 20 co-accused, the Special Chamber of High Court for International and Trans-border crimes decided to trial him as in a contradictory proceeding, and during the hearings which were scheduled afterwards there were called upon some witnesses among whom Michelle an American lecturer and some ex-FAR officers who were fighting in FDLR.
Those witnesses presented declarations which deserve to be criticized in terms of their reliability. The present study intends to assess the fiability of the statements made by those witnesses before the international chamber in charge of cross-border crimes of the Rwandan high court.
I.THE CONCEPT OF TESTIMONY
In law, testimony is a form of evidence that is obtained from a witness who makes a solemn statement or declaration of fact. Testimony may be oral or written, and it is usually made by oath or affirmation under penalty of perjury. To be admissible in court and for maximum reliability and validity, written testimony is usually witnessed by one or more persons who swear or affirm its authenticity also under penalty of perjury. Unless a witness is testifying as an expert witness, testimony in the form of opinions or inferences is generally limited to those opinions or inferences that are rationally based on the perceptions of the witness and are helpful to a clear understanding of the witness’ testimony.
Legitimate expert witnesses with a genuine understanding of legal process and the inherent dangers of false or misleading testimony refrain from making statements of fact. They also recognize that they are in fact not witnesses to an alleged crime or other event in any way, shape or form. Their expertise is in the examination of evidence or relevant facts in the case. They should make no firm judgement or claim or accusation about any aspect of the case outside their narrow range of expertise. They also should not allege any fact they can’t immediately and credibly prove scientifically.
For example, a hair sample from a crime scene entered as evidence by the prosecution should be described by an expert witness as “consistent with” a sample collected from the defendant, rather than being described as a “match”. A wide range of factors make it physically impossible to prove for certain that two hair or tissue samples came from a common source.
Having not actually witnessed the defendant at the scene, the expert witness cannot state for a fact that the sample is a match to the defendant, particularly when the samples were collected at different times and different places by different collectors using different collection methods. Ultimately, the testimony of expert witnesses is regarded as supportive of evidence rather than evidence in and of itself, and a good defense attorney will point out that the expert witness is not in fact a witness to anything, but rather an observer.
When a witness is asked a question, the opposing attorney can raise an objection, which is a legal move to disallow or prevent an improper question to others, preferably before the witness answers, and mentioning one of the standard reasons, including: argumentative; asked and answered; best evidence rule; calls for speculation; calls for a conclusion; compound question or narrative; hearsay; inflammatory; incompetent witness (e.g., child, mental or physical impairment, intoxicated);irrelevant, immaterial (the words “irrelevant” and “immaterial” have the same meaning under the Federal Rules of Evidence. Historically, irrelevant evidence referred to evidence that has no probative value, i.e., does not tend to prove any fact. Immaterial refers to evidence that is probative, but not as to any fact material to the case.; lack of foundation; leading question; privilege; vague; ultimate issue testimony.
There may also be an objection to the answer, including non-responsive. Up until the mid-20th century, in some countries, an attorney often had to follow an objection with an exception to preserve the issue for appeal. If an attorney failed to “take an exception” immediately after the court’s ruling on the objection, he waived his client’s right to appeal the issue. Exceptions have since been abolished, due to the widespread recognition that forcing lawyers to take them was a waste of time.
When a party uses the testimony of a witness to show proof, the opposing party often attempts to impeach the witness. This may be done using cross-examination, calling into question the witness’s competence, or by attacking the character or habit of the witness. So, for example, if a witness testifies that he remembers seeing a person at 2:00 pm on a Tuesday and his habit is to be at his desk job on Tuesday, then the opposing party would try to impeach his testimony related to that event.
2. WEAKNESSES OF TESTIMONY
Testimony is weakened by a series of defects such as time elapsed disturbing its accuracy; perjury; lies invented under external pressure, climate of the interview; all but a few.
3.2.1. Influence of the number of witnesses
In principle, the rule “Testis Unus, Testis Nullus” meaning that one witness is not a witness. It is a law principle expressing that a single witness is not enough to corroborate a story is not applicable in Rwandan law where the sovereign appreciation of the judge suffices to decide regardless of the number of witnesses or the scientific fablitiy of the material proof.
In the case RPAA 0110/10/CS NPPA vs. UWAMURENGEYE, before the Intermediate court of Rusizi, the accused was prosecuted for assault and battery leading the death without intention of murder whereby a series of witnesses were interviewed on the facts. Four among the six questioned confirmed that the victim who was the mother of UWAMURENGEYE was heavily hit by UWAMURENGEYE with a baton on the back, arms and legs. The two witnesses remaining affirmed having seen UWAMURENGEYE beating his mother with a baton in the head. The High Court of Rusizi confirmed the ruling of the Intermediate Court of Rusizi. The prosecution appealed against the decision of the High Court contending that the statements of the two witnesses lead it to qualify the crime as parricide. The Supreme Court basing on the corroboration of the medical expertise which established that the head of the victim had been damaged which probably caused her death decided that there would have been retained the qualification of parricide and the case was reexamined on the merits by the intermediate court of Rusizi under the new qualification.
3.2.2. Divergent assessments
The examination of a testimony carried out by a court is not always the same when the case file is brought to appeal court so that the lack of common criteria makes the testimony very fragile and provisional. This was the case in RPAA 0033/11/CS NPPA vs. Musabyimana Mary rendered by the Supreme Court on 14/09/2012, overruling the decision of the High Court whereby the accused had been sentenced to 25 years for having poisoned a child. In the Intermediate Court of Nyarugenge, four (4) witnesses had unanimously stated that she had confessed facts admitting to be a poisoner and had brought to the head office of the sector his poisonous products. The court had sentenced him to 25 years and on appeal the high court had confirmed the ruling of the lower court. Before the Supreme Court, there was considered the testimonies of three other witnesses who had denied the version of facts arguing that there was rumors that the concerned is a traditional healer that the products brought to the sector were examined by physicians and was found not dangerous for human health, that they were just traditional herbs curing epilepsy.
3.2.3. Risks of perjury
Some witnesses can be bribed by families of accused and it is hardly found out by the court or the prosecution so that people corrupted are convergent on the same version and the judge risks relying on their position. In RPA0274/08/CS NPPA vs. MBANZAMIHIGO Jean Pierre prosecuted for being Self-styled commander of a criminal gang punished by the article 207 of the Law nº68/2018 of 30/08/2018 determining offences and penalties in general. Among the witnesses interviewed, there were detected five people who had been bribed by the accused and their plot was discovered further to a disagreement when sharing the amount prepaid.
3.2.4. Contradictory statements
Due to the time elapsed between the submission of the testimony and the day of the trial, some witnesses are confused and deliver statements which contradict the former ones and in the system of cross-examination, the defendant wins the case. In the case PROTAIS ZIGIRANYIRAZO v. THE PROSECUTOR Case No. ICTR-01-73-A, the former was acquitted because the testimony deposited in the prosecution in 1996 was contradicted by the same witnesses.
Length of observation time
Very simply, length of observation time is the amount of time a witness had to see the event taking place. This amount of time will vary with circumstances, as there would be a difference in opportunity for observation between one witness standing stationary at the crime scene observing the event, and another driving past the unfolding events at 100 kilometers per hour. This can also be an issue contingent upon the awareness of the event taking place. Some witnesses become aware of the event more quickly and have a longer opportunity to observe. As with our example of the bank robbery, the teller being robbed had the longest observation time, the customer immediately behind the robber became aware that something was happening and had a shorter observation time, but the third customer did not become aware of anything until the robber bumped into him. This scenario demonstrates the value and detail of evidence an investigator might expect from witness with differing levels of observation time.
3. TESTIMONY DELIVERY IN RUSESABAGINA CASE
1)Dr Michelle MARTIN
In her quality of volunteer inHotel Rwanda Rusesabagina Foundation (HRRF), she was well placed to know what happening there especially issues relating to the political platform of RUSESABAGINA. In this regards, she unveiled that she succeeded to access emails where passed political programs and military strategies of MRCD headed by RUSESABAGINA thanks to Providence RUBINGISA met through a friend and colleague who worked with a refugee resettlement program. Dr Michelle MARTIN gave details of how Rusesabagina used his ‘humanitarian’ connections to obtain funds from unsuspecting donors and used the same funds to finance his political activities. Impressed by Rubingisa’s story and charity activities, they started working together, exchanging correspondences via text messages and emails which she still has copies of. Initially, she was given access to his email account to respond to specific emails, thereby having unlimited access.
She later got accustomed to phone calls and Skype calls on which he discussed political issues. The calls lasted for hours. She was upset when she figured out what was going on. When she inquired about the calls, Rubingisa told her that he was part of a Rwandan political opposition group called PDR-Ihumure. Rubingisa informed her that ‘the famous Paul Rusesabagina of Hotel Rwanda was the president of the so-called political party. He also mentioned that they supported the creation of another party in Rwanda, PS-Imberakuri, led by Bernard Ntaganda. He mentioned to her that once Ntaganda was elected President, Rusesabagina would return to Rwanda and assume the role of President, under this arrangement. Rubingisa claimed the plan had already been hatched to oust President Paul Kagame and his ‘Tutsi’ government. Dr. Martin revealed a lot of details about Rusesabagina’s subversive and terrorist activities in the region, aimed at destabilizing Rwanda. She possesses hundreds of detailed emails and text messages pinning him. After she became suspicious, Prof. Martin started scrutinizing the conversations and noticed a common pattern of genocide denial and also commentaries and articles of FDLR. Having read extensively about the Genocide against the Tutsi, she understood that it was different from the true narrative.
She said she figured out that the group was consistently and overwhelmingly supportive of the FDLR and realized that they were hatching a plan to take their country back (to the genocide) by any means possible. Prof. Martin shared the exchanges of Rubingisa/Rusesabagina with court.
Martin said that following what she saw, she realized that Rubingisa and PDR Ihumure members were intentionally misleading the U.S public on the genocide, yet purporting to be genocide survivors, while at the same time duping Americans about charity activities they were doing in Rwanda.Through Rubingisa, Prof. Martin was also able to know how the HRRF came about in 2006 and how both Rusesabagina and Rubingisa used their charities to dupe unsuspecting Americans out of their money while peddling false narratives about the Genocide against the Tutsi.On volunteering with Rusesabagina’s foundation, Prof. Martin said that after she was introduced by Rubingisa to Rusesabagina in the fall of 2009, she was excited and based on the movie Hotel Rwanda, she thought Rusebagina was a true hero who saved people in Rwanda. On different occasions, Rusesabagina and his foundation worked to malign and blackmail the Government of Rwanda, particularly ahead of the 2010 Presidential polls, peddling different unfounded narratives that compared Rwanda to a Soviet satellite State during the Cold War. Prof. Martin said that among other allegations they peddled in the document she saw was that the Rwandan military controls the perceptions of all visitors, there was widespread corruption in Rwanda & also claimed that the gov’t advanced a one-sided genocide narrative.
2) Lt Col. HABIYAREMYE Noel
Lt Col. HABIYAREMYENoel was a battalion commandant in FDLR rebellion till he returned back in Rwanda. In the case of RUSESABAGINA Paul, HABIYAREMYE Noel reported to the court that the accused used to transfer some amounts to him and Col.NDITURENDE Tharcisse who was operating in Northern Kivu for satellite communications and travel documents which facilitated them to meet late General Adolphe NSHIMIRIMANA then Burundian intelligence commandant who approved their project and promised to support their attacks against Rwanda in terms of logistics and back-base of their soldiers.
On one side, as far as the testimonies from those ex-FAR militaries are concerned, it is not the first time that this ex-FAR is called upon to testify against Rwandan political opponents especially Mrs. INGABIRE Muhoza Victoire whereby he charged her with having met the armed rebellion FDLR in DRC forests; giving them instructions and financial support to attack Rwanda. His declarations were corroborated with his comrades in arms Col. NDITURENDE Tharcisse and Major UWUMUREMYI Vital. Apparently, those witness are reliable given that they report what they personally experienced but really they are already bribed or influenced so that their statements are dictated by the prosecution and they are paid in different manners: their personal liberty and survival as their colleagues who came back from FDLR were either killed or jailed; some funds to finance their projects; deadly threats; blackmails, all but a few.
On the other side, there is overtly known that Dr Michelle MARTIN had been a consultant of the Rwandan presidency to mean that she is defending the position of her employer and this fact suffices to realize that her testimony was not freely delivered but was intentionally prepared by the prosecuting party merely basing on her pretended previous relationships with the Hotel Rwanda Rusesabagina Foundation but nothing proves that what she reported is really true in this justice of the victor against the vanquished whereby the Rwandan judge Justice MUHIMA Antoine heading the audiences has many times showed to the independent public his partiality predicting a trial already ruled probably driven by pressure from higher authorities and his judicial hierarchy.
It is human nature to report what we see and remember. Not surprisingly, criminal investigations and prosecutions have long relied upon the accounts of eyewitnesses. In adjudication, judges and juries have similarly long embraced self-assured reports of what was seen. This bubble of complacency has been burst in recent years, however, by two pointed facts: on one hand post-conviction DNA analyses reveal that eyewitnesses sometimes identify the wrong people, and on the other hand, the sciences of vision and memory indicate that wrongful conviction based on eyewitness testimony is likely a priori, given conditions of uncertainty, bias, and overconfidence. The NAS report on eyewitness identification has led to practical reforms, but the larger message of the report is the promise of a long-overdue partnership between science and law. This is a case in which modern science is now having a profound influence over a critical matter of public policy, legal practice, and judicial standards, and in doing so brings our society to a place of greater justice.
To sum up the analysis, eyewitness testimony is a critical tool in the legal system for reconstructing what actually happened. Too many bad guys would go free if eyewitness memory were completely discarded as a tool. But the legal system needs a more sophisticated appreciation for the vagaries of memory, how to avoid contamination of eyewitness memory and the conditions under which eyewitness testimony is more and less trustworthy. Specifically, a really independent judge should rather doubt about those testimonies from Dr Michelle MARTIN and that ex FDLR officer if the foregoing considerations are taken into account but as article 65 of the law nº 15/2004 of 12/6/2004 relating to evidence and its production allows him to sovereignly assess the relevance, pertinence and admissibility or rejection of testimonial evidence, he will surely prefer the position of his bosses.
1 See Loftus, Elizabeth F. (1996). Eyewitness Testimony. Revised edition. Cambridge, MA: Harvard University Press. (Original edition: 1979)
2 See Black’s Law Dictionary, 7th Ed.)
3 Lackey, Jennifer (1999). “Testimonial Knowledge and Transmission”. The Philosophical Quarterly. 49 (197): 471–490
4 Thompson C P, Herrmann D, Read J D, Bruce D, Payne D G, Toglia, M P (1998). Eyewitness Memory: Theoretical and Applied Perspective. Mahwah, NJ: Erlbaum.
6 Edmund Kagire, U.S Professor Pins Rusesabagina On Political Activities Aimed At Overthrowing Rwandan Government, https://www.ktpress.rw/2021/03
7 Gary Wells, Vagaries of memory mean eyewitness testimony isn’t perfect, https://theconversation.com/
8 NATIONAL ACADEMY OF SCIENCES, Identifying the Culprit: Assessing Eyewitness Identification, e National Academies Press at http://www.nap.edu/catalog.php?r