Felicien Kabuga

Félicien Kabuga, who is 90, was set to face trial after evading capture for 26 years, but his lawyers say he has dementia and is not fit to stand trial. The International Residual Mechanism for Criminal Tribunals agreed to a pause while his health was assessed. He is alleged to have financed ethnic Hutu militias. It is alleged that he used his large fortune acquired in the 1970s tea trade to purchase machetes used to arm Hutu death squads. The wealthy businessman is also accused of using his radio station to incite Hutus to kill their Tutsi rivals, fueling the genocide by spreading inflammatory hate speech but the prosecution lacks hard evidence to the point that he is would be political conspiracy  hatched by Kigali.. He has denied all the charges. Survivors of the genocide have previously expressed concerns that justice might not be served if Mr. Kabuga dies without facing trial at the ICC, which was already expected to take years. The following lines analyze the legal implications of this health issue on the case file of the tycoon Kabuga Felicien. 


The department left to finish the cases left by the international criminal courts on this Wednesday resumed the trial in the case of the prosecution against the financier Kabuga Felicien for the crimes of genocide. The current trial focuses on expert reports on Kabuga’s health and whether he can continue to prosecute his case. Based on that report, Kabuga’s defense requested that he be released.

While it was expected that the prosecution’s witness KAB 041 would continue to be heard, it did not happen. Instead, the hearing focused on debating the report of the medical examination done on Kabuga, and the impact of its contents on the course of the trial. In short, this independent medical expert’s report exhibited on Tuesday last month, states that Kabuga’s health problems have been increasing, so that he is no longer mentally capable of participating effectively in the proceedings of his case. Judge Iain Bonomy, who presided over the hearing, gave both sides plenty of time to make their case. Prosecutor Rupert Elderkin said that the three-page report did not provide detailed explanations, nor did it clearly state the basis for the trial court to firmly conclude that Kabuga would never again be competent to stand trial. The prosecutor says that his trial is something that can change from day to day depending on the state of his health. Thus, Mr. Elderkin found it possible that the doctors would have examined Kabuga while his ability was reduced due to the illness he suffered, but it did not say that he always or will always be. Judge Iain Bonomy, however, told the prosecutor that the work done by the medical expert was in accordance with what was requested by the body. And that they themselves confirmed that Kabuga’s health problem will be permanent. Prosecutor Elderkin requested that there would be another medical examination in case Kabuga started to panic, when that would also be determined by the prison doctor’s reports showing his condition. Prosecutor Elderkin also requests that in the meantime the trial can be postponed for a while until Kabuga is relieved. And another evaluation will be done to show whether this loss of mental capacity of Kabuga is temporary or will last for a long time.The prosecution also asked to see if there is no other possible way to continue the case, while the defendant is no longer able to participate. However, they also requested that if the court had concluded that the case could no longer continue due to Kabuga’s illness, they would send him to Rwanda by temporarily releasing him. Lawyer Emmanuel Altit, who defends Kabuga, was given the opportunity to comment on this report, as well as the prosecution’s request, and said that this report confirms what Kabuga’s defense has been telling the court for several months. The lawyer says that the report itself clearly shows that Kabuga is incompetent. So the court must accept the facts as they are. Me Altit says that the medical experts in their report show that Kabuga is no longer able to put his thoughts in line, he cannot remember what he was told, either quickly or clearly. This disease is also getting worse as the days go by.

According to this lawyer, the loss of brain function is not something that will go away, but it will increase. At that point he asked the court to order that the case be stopped and Kabuga be released. Lawyer Altit added that doing otherwise would be against the law, because the defendant’s rights would not be respected. Regarding the prosecution’s request to see if the case can continue to be tried regardless of the defendant’s capacity, Me Altit, in his words, said that “it would not be a case, it would be like a drama.” The judge asked Me Altit what country Kabuga would go to if he was released, this lawyer replied that he would go where he wanted, related to the countries where his family is located. Judge Iain Bonomy, who presided over the hearing, said that now the court will not immediately conclude about the fact that Kabuga is not competent to stand trial. She just adds that she’s going to learn about it. Regarding whether the remaining testimony of KAB 041 will be heard by the court, this judge said that a decision will be made on this Thursday.


 In penal matters, the right of defence has particular importance. It is defined as the set of rights that guarantee the persons involved the possibility of ensuring the protection of their interests in an effective manner. These prerogatives apply at all stages of the procedure, during the police investigation, the investigation, the trial, and even after the judgment in the framework of the execution of the sentences. There i hereby highlighted its legal framework before the assessment of its application to the health status of the tycoon Kabuga Felicien found unable to be part of the judicial debate on his case.

Legal framework 

Article 14 of the international covenant on civil and political rights of 1966 established that all persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) To be tried without undue delay; (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court; (g) Not to be compelled to testify against himself or to confess guilt. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

Those provisions are retaken by the European convention of human rights of 1950 in its article 6; the universal declaration of human rights of 1948 in its articles 7,8,10,11; African charter on human and peoples ‘rights of 1981 

Analysis of possible alternatives further to the proved mental incapacity of Kabuga Félicien 

A series of alternatives are open to handle the fate of Kabuga Félicien but all in his favor if international rules guaranteeing the right to a fair trial are strictly respected by the court and we hope so given it is not a domestic court where politicians interfere in the decisions process.

What does a court do when a “mental competence” or “fitness to stand trial” defence is raised?

Where the issue of Mental Impairment or Unfitness to Stand Trial is raised, the Court can order or consider expert psychiatric or psychological reports. If in the views of the experts it is determined that the person is mentally competent or fit to stand trial, the legal proceedings will proceed in the ‘normal way’. Where the experts indicate that a person has a Mental Impairment or is Unfit to Stand Trial, the court will deliver its findings and proceed to a determination of the Objective Elements of the offence or offences. Sometimes, the Mental Impairment or Fitness to Stand Trial reports are contested (disputed). This is commonly the case where there is a difference of professional opinion between the relevant experts. Where this is the case, a court hearing may be held so that the experts who have assessed the person can explain their report findings before the judge in an open court.

Will the accused person still have to go through a trial?

When a person is found Mentally Incompetent or Unfit to Stand Trial they will not be subject to a Trial in the ordinary way.

Where a person has been found Not Guilty of the mental element (mens rea or ‘guilty mind’) of the offences, it is still important for the court to determine if they committed the physical acts (actus rea or ‘guilty act’) that they were charged with. This is known as the Objective Elements of an offence.

Establishing the Objective Elements of an alleged offence will involve a Trial, unless the defence admits that the accused person committed the act or acts they have been charged with (therefore removing with the need for a trial).

Where the Objective Elements are ‘proven’ beyond reasonable doubt the accused person will then be Declared Liable to Supervision.

If the prosecution is unable to establish or ‘prove’ the Objective Elements of the offences, the matter will be dismissed by the court. In such circumstances the accused person will be cleared of all charges.

If an accused person is found “Mentally Incompetent” or “Unfit to Stand Trial”, then what?

If it is established that an accused person is Mentally Incompetent or Unfit to Stand Trial the court will make a declaration in those terms (even if the Objective Elements are established (or proven) beyond all reasonable doubt).

This finding by the court can be very difficult for victims and families, particularly where a person is deceased, traumatized or physically injured as a result of the criminal offences.

However, in such circumstances, and providing that the Objective Elements of the offence are proven, a finding made by the court as to Mental Incompetence or Fitness to Stand Trial, does not ordinarily mean that the defendant won’t have restrictions on his or her movements.

Ordinarily, there will be a period of supervision and treatment.

Where an accused person is found to be Mentally Incompetent or Unfit to Stand Trial, and the Objective Elements of the offence(s) are proven, they will then be Declared Liable to Supervision by the court.

Doesn’t it mean the person has ‘Gotten Away’ with the offence?

When a person is found to be “Mentally Incompetent” or “Unfit to Stand Trial”, the court will deliver findings reflecting either of these decisions. This language is commonly difficult for victims and families who may view the finding as the defendant ‘getting away with the crime committed’. The finding however does not mean that the person has not committed the acts that make up the crime. It simply means that the person could not be found guilty of the ‘mens rea’ or ‘guilty mind’ element of the offence. (In the case of Mental Incompetence). 269NA of the Criminal Law Consolidation Act, 1935, recognizes the importance of protecting the community and places safety of the community as a paramount consideration. The paramount consideration of the court in determining whether to release a defendant under this Division, or the conditions of a license, must be to protect the safety of the community (whether as individuals or in general). The paramount consideration of the safety of the community outweighs the principle that restrictions on the defendant’s freedom and personal autonomy should be kept to a minimum.

When a person is “Declared Liable to Supervision”, what does this mean?

Where a person is found to be Mentally Incompetent or Unfit to Stand Trial, and the Objective Elements of the offence or offences are also established, they will then be declared Liable to Supervision.

At this stage the court will consider a number of specific reports. These will include: a report from the Minister of Health (or delegate),one or more reports from Psychiatrists or Other Appropriate Experts, and a Victim and Next of Kin Counseling Report.

Based on the reports the court has an option to do one of the following: release the defendant unconditionally; commit the defendant to detention (in a forensic mental health facility, or other appropriate secure facility); release the defendant on license

The decision about appropriate supervision will be guided by a number of expert and other reports ordered by the court.

Decisions as to the appropriate supervision will be dependent on a number of factors including: the nature of the defendant’s mental illness or impairment; whether the defendant is, or would, likely endanger other persons; whether there are adequate resources available for the treatment and support of the defendant in the community; whether the defendant is likely to comply with conditions of such a release; and any other matter the court thinks is relevant.

Effects of violations of rights of defence

Violation of one of the rules that make up the principle of defense rights is sanctioned by the nullity of the procedure. Indeed, defense rights are not discussed! The rights of defense are sacred and violating them is sanctioned; this is reflected in the judgment of the Criminal Chamber of the Court of Cassation dated February 25, 2014! The Appeals Chamber has held that “the principle of equality of arms between the prosecutor and accused in a criminal trial goes to the heart of the fair trial guarantee”.[1] However, this does not necessarily mean that an accused is “entitled to precisely the same amount of time or the same number of witnesses as the Prosecution”, since the latter bears the burden of proving every element of the crimes charged beyond reasonable doubt.[2] As a result, “a principle of basic proportionality” governs the time and the number of witnesses allocated between the Prosecution and an accused.


Before summing up, it proves convenient to be enlighten by the following caselaw: The Appeals Chamber accepts the view that the concept of a fair trial includes equal opportunity to present one’s case and the fundamental right that criminal proceedings should be adversarial in nature, with both prosecution and accused having the opportunity to have knowledge of and comment on the observations filed or evidence adduced by either party. Considering the latter right under the principle of equality of arms, the Appeals Chamber of ICTY held that Article 21(4)(e) of the Statute of ICTY: serves to ensure that the accused is placed in a position of procedural equality in respect of obtaining the attendance and examination of witnesses with that of the Prosecution. In other words, the same set of rules must apply to the right of the two parties to obtain the attendance and examination of witnesses. From the foregoing, keeping Kabuga in the judicial proceedings while mentally incompetent should compromise a series of his rights especially the right to defend himself and equality of arms given his incapacity to follow allegations from the prosecution and charging witnesses; worse, he cannot cross-examine these latters due to this mental incompetence. Despite the inhumane position held by the prosecution who dared proposing that the court should try him in that state, the great probability is that the judge will release him to join his family contrary to the wickedness of the prosecutor who required that he be handed over to Rwanda to undergo the same fate as the former prefect Bagambiki Emmanuel acquitted by the ICTR, ruling against which Rwandan authorities oppose allegedly additional charges so that if he was repatriated he should undergo a new trial in defiance of the principle of the primacy of ICTR judgments over domestic decisions.