By The Rwandan Lawyer
On 9 september 2021, the chamber of the Rwandan high court in charge of international and transboundary crimes incriminated the hotel Rwanda hero Paul Rusesabagina and co-accused and sentenced them to a series of penalties from 25 years of jail to other minor sanctions and to millions of amounts for damages arising from the crimes allegedly committed. Surprisingly, while the entire world denounced this trial which did not comply with principles of fair trial, the public prosecution dares to institute appeal requesting heavier penalties. The present article strives to analyze the ins and outs of this appeal.
KIGALI – Rwandan prosecutors said Wednesday they have filed an appeal against a court ruling that sentenced “Hotel Rwanda” hero Paul Rusesabagina to 25 years in prison on terrorism charges. The National Public Prosecution Authority is appealing the judgements against Rusesabagina, a staunch critic of President Paul Kagame, and 20 co-defendants, spokesman Faustin Nkusi told AFP.Rusesabagina, 67, and his fellow accused were convicted and sentenced on September 20 after a trial that rights groups and his supporters had branded a sham. It was not clear whether prosecutors were appealing the sentence itself or the wider ruling. But the prosecutor general Aimable Havugiyaremye had told reporters at the time that the prosecution was “not happy with the verdict because all the accused got lesser sentences than what the prosecutors had prescribed”. Prosecutors had sought a sentence of life in prison for Rusesabagina, the former Kigali hotel manager who was accused of backing a rebel group blamed for a spate of attacks in Rwanda in 2018 and 2019.Rusesabagina has been credited with saving over 1,200 lives during the country’s 1994 genocide, and his actions inspired the Hollywood film “Hotel Rwanda”.He later used his fame to denounce rebel leader turned president Kagame as a dictator, and left Rwanda in 1996, living in Belgium and then the United States.He has been behind bars since his arrest in August 2020, when a plane he believed was bound for Burundi landed instead in Kigali.His family say Rusesabagina was kidnapped and have rejected the nine charges against him as payback by a vengeful government for his outspoken views against Kagame.Neither he nor his lawyers were in court for September’s verdict, which saw his co-defendants receive sentences ranging between three and 20 years.The United States and Belgium both voiced concern that Rusesabagina had been denied a fair trial.”Twenty-five years is already a life sentence,” his daughter Carine Kanimba told AFP after the prosecution announcement.
“In appealing and asking for more the prosecution is just revealing how political this trial is and always was.” The Court of Appeal will decide at a later date when to hear the prosecution’s case, a court official told AFP.Kagame’s government accused Rusesabagina of belonging to the National Liberation Front (FLN), a rebel group blamed for gun, grenade and arson attacks in 2018 and 2019 that killed nine people. He denied any involvement in the attacks, but was a founder of the Rwandan Movement for Democratic Change (MRCD), an opposition group of which the FLN is seen as the armed wing. Kagame had dismissed criticism of the case, saying that Rusesabagina had been in the dock not because of his fame but over the lives lost “because of his actions”. Kagame has ruled at the head of a Tutsi-dominated government since his forces ended the mass killings that claimed the lives of more than 800,000 people, mainly Tutsis. But he has often come under fire for rights abuses and a crackdown on freedom of speech, critics and the opposition.Last week police announced the arrest of several people including opposition party members and the owner of a popular YouTube channel for “spreading rumours” intended to undermine the government.”The Rwandan government’s latest crackdown underscores that it is unwilling to tolerate debate and criticism,” Lewis Mudge, Central Africa director at Human Rights Watch, said in a statement, calling on Rwanda’s international partners to press for the release of those detained.”These blatantly arbitrary and politically motivated arrests are intended to further discourage people from speaking out against government policy or abuse.”
A contradiction which betrays the unity and indivision of the Rwandan prosecution
During the trial especially in its last petitions, the public prosecution requested the court to grant mitigating circumstances to Sankara and Herman for having confessed their facts and facilitated the court in the proceedings and consequently required soft penalties in their favor. With the appeal against the previous judgment which contests the penalties decided by the court, the Rwandan public prosecution is contradicting itself while legally it is supposed to appear unique and indivisible so that the position taken by its member reflects the position of the whole institution. In this regard, there would be wondered why the same institution which has required penalties which were effectively decided retracts itself and changes its position deeming them less severe.
Prohibition of reformatio in pejus
Reformatio in peius (from Latin reformatio, ‘change’ – actually, ‘improvement’, and peius, ‘worse’) is a Latin phrase used in law meaning that a decision from a court of appeal is amended to a worse one. Hence in relation to appeals, the term “prohibition of reformatio in peius” basically means that a person should not be placed in a worse position as a result of filing an appeal. Thus, in general, EPO Boards of Appeal are prevented in opposition appeal proceedings from going beyond the request of a sole appellant to put it in a worse position that it was before it appealed. Under this rule universally recognized, courts to which remedies are submitted cannot worsen penalties decided by the first instance courts; in other words, the appellate court cannot aggravate the situation in which the inferior court had placed the convict. This involves that unless the qualification of facts is modified, the Rwandan court of appeal is not legally allowed to raise up penalties inflicted to the accused by the chamber of the high court in charge of international and cross-border crimes; on the contrary, it may opt for either maintaining them or decrease them.
Issue of damages
The civil claimants in this case are people who lost their relatives or property due to straggles of FLN. The latter are entitled to appeal against the ruling if they esteem that they were granted less than what they expected from the court. The issue which also makes the appeal illogical is that they did not contest the amounts allocated but they are just focusing on the penalties discretionarily determined by the judge while this belongs to the public prosecution. Indeed, offences are committed against the society in general and not against individuals, the reason why it is the public prosecution which represent the society that appreciates the penalties deserving such crimes and not the victims who are concerned only by damages arising from the offences. In that case, rules governing tort liability are applied when is established the link between the material and moral prejudice and crime perpetrated against them. Paradoxically, in this case, there is reported that victims were not pleased by the criminal sanctions inflicted against the accused and it is them who prompted the prosecution to introduce appeal. By accepting to appeal seemingly unwillingly, the Rwandan public prosecution loses its independence vis-à-vis the victims and its opportunity of prosecution which are legally recognized to the public prosecution.
The appeal instituted by the Rwandan public prosecution seems targeting only Rusesabagina Paul and not other co-accused given that the same prosecution had requested indulgence in favor of Sankara and other convicts who had admitted their role in the crimes. This proves again that the Rwandan judicial institutions are not independent because visibly the regime is pushing this institution to appeal while its previous position forecasted that it would agree with the verdict. Understandably, the court of appeal will decide what the regime wants still regardless of the international standards of human rights from which the accused are entitled to benefit.