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VIII. Independence of the Judiciary

There have been changes for the better in the Rwandan judicial system, now more efficient and staffed with more highly trained jurists than ten years ago. But according to those working in the system, the process is not so far along as it seems, particularly with reference to the crucial questions of judicial independence and the protection of human rights.

Technical improvements in the administration of justice have not changed the dynamics of the political system, where the judiciary remains largely subordinate to the executive branch and even to elite unofficial actors who enjoy both economic and partisan political power. A former police officer asked to assess the effectiveness of recent reforms said, “You can’t understand. You see what’s on paper but you don’t know the truth… You foreigners are easily tricked.”¹¹⁸

Law and Reality

Most persons working in the Rwandan judicial system say publicly that it is   independent, but in private conversations, some of these same people nuance or contradict their public assessments.¹¹⁹

When asked in separate conversations to evaluate the independence of the judicial system several officials, two of them of cabinet rank, and judges agreed that the system is not yet independent, but rather is “becoming independent.”¹²⁰ One judge commented,

Independence is now provided for in the law and, with better educated personnel to interpret and execute the law, there is some hope that at a certain point we will achieve independence. In this context, things are not good, but they could be worse. At least now there is hope.¹²¹

Another former judge said less optimistically, “The principle is one of separation, but the executive wants to control everything.”¹²² Another former judge confirmed this, saying, “In principle this is a state of law, but in fact it is the word of the chief that rules.”¹²³

In a November 2007 report, a delegation of international jurists who had visited Rwanda noted allegations of continuing political pressure on the judiciary and concluded that legislative reforms had yet to be accompanied by “a corollary shift in judicial culture towards greater independence.”¹²⁴ In supporting this conclusion, they remarked on the paucity of prosecutions against RPA soldiers accused of war crimes and crimes against humanity.¹²⁵

Limits on Administrative Autonomy

Many persons active in the delivery of justice in Rwanda take pride in the new autonomy of the courts, seeing it as a potential shield behind which judicial independence can grow stronger. Yet, as an example from October 2007 demonstrated, such autonomy is still incomplete. At that time the cabinet moved three judges (two from the High Court, one from a court of higher instance) and one prosecutor from their posts to newly created positions as deputy attorneys general in what had been the ministry of justice (now the office of the Attorney General). According to one well-placed lawyer who had discussed the matter with judicial officials, the cabinet—an organ of the executive—made the appointments without the approval of the Supreme Council of the Judiciary, the body that is supposed to control the posting of judges.¹²⁶

The appointment of judges, required by law to be on the basis of merit, is also conditioned by political considerations. Several judges and lawyers told Human Rights Watch researchers that both ethnicity and affiliation with the RPF are considered in deciding judgeships.¹²⁷ “If one judge is Tutsi, the next must be Hutu,” said an experienced observer of the judicial scene. “Sometimes less than competent people are chosen because of that,” he added.¹²⁸ Another said that there had to be “équilibrage” or balancing of ethnic groups, although it was not mandated by law.¹²⁹  According to judges and other jurists, many judges hold political party membership, most often in the RPF, although the law on judicial conduct prohibits judges from belonging to political parties.¹³⁰

One judge, named since the reform took effect, said that loyalty to the RPF was important in winning appointment as a judge and provided a detailed account of his own experience as proof. He had been recruited for his post in several meetings with a representative of the RPF who had no link with the judicial system.¹³¹ According to a lawyer, interviewed by a Human Rights Watch researcher in another context, political affiliation is also important in the choice of Supreme Court judges who are elected by the Senate. He said that of the two candidates presented for the vote, one clearly was meant to be chosen while the second was there only for show. Among some in the legal profession, he said, the second candidate is known as the “bridesmaid.”¹³²

Misuse of Prosecutorial Power

In some cases, prosecutors’ decisions about whom to prosecute, on what charges, and based on what evidence appear to have been made for reasons other than simply enforcing the law. In a few cases, the pressure for prosecution is public, as in the two cases where President Pasteur Bizimungu and President Paul Kagame publicly pressed for the arrest of persons who were arrested soon after.¹³³  In most cases, however, persons outside the judicial system seek to apply pressure more discretely.

Whom to Prosecute

One former prosecutor at national level candidly admitted the role of political considerations in shaping decisions. Speaking of prosecutions for genocide he said, “There has always been flexibility for those people who were willing to work with the government. Those who stayed with us were not bothered.”¹³⁴   Prosecutions for “divisionism” and “genocide ideology” are particularly subject to political influence because of the broad and imprecise language of the laws prohibiting these practices, as is demonstrated in the effort to prosecute Brigitte Tuyishime.

The Case of Brigitte Tuyishime

The office of the Rwandan prosecutor general has issued an international arrest warrant for former member of parliament, Brigitte Tuyishime. In what is certainly an unusual omission, it lists no charges against her.¹³⁵ A Rwandan police officer speaking in his official capacity told a Human Rights Watch researcher that Tuyishime was being sought for “divisionism” because of words she said on November 4, 2005.¹³⁶ At the time on mission with six other parliamentarians, Tuyishime made a remark about a case of child rape. The alleged rapist, a survivor of genocide, had been arrested and then released, supposedly as a result of political influence. Tuyishime remarked that such people should be excluded from society.

Her remark, interpreted by her listeners to refer to child rapists, initially elicited no comment. The parliamentary group submitted a report on its mission without mentioning the supposed incident. But a month later Tuyishime was accused of having meant instead that Tutsi survivors of genocide should be excluded, or indeed, eliminated. After publicity about the incident, the parliamentary group submitted a new report condemning the supposed expression of “genocide ideology.”¹³⁷ One member of parliament did not hesitate to tell journalists that Tuyishime was guilty of “genocide ideology” although she had not yet even been charged with a crime.¹³⁸ 

Two members of the parliamentary mission initially disagreed with the accusations, but they were eventually intimidated into silence. One, Beatrice Uwitonze, was herself accused of covering up Tuyishime’s crimes and was threatened in the press by other members of parliament who said “something should be done about Beatrice Uwitonze.” After having originally said that she did not hear the remark, Uwitonze eventually “dissociated herself” from it.¹³⁹

Tuyishime, who had had prior disagreements with important RPF leaders, was obliged to resign from parliament and took asylum abroad, where she is now being pursued under the international warrant.

What Charges to Bring: the Recent Increase in Rape Charges

From the beginning of efforts to deliver justice for the genocide, Human Rights Watch has sought to spur prosecution of cases of sexual violence. After documenting the number and seriousness of these crimes, Human Rights Watch offered assistance to the office of the prosecutor general in adopting appropriate methods to facilitate such prosecutions.¹⁴⁰The offer was not accepted and the prosecutor’s staff at the time appeared unmoved by the need to pursue such cases.

More recently, however, the prosecutor’s office has shown remarkable interest in charges of sexual violence. In a December 2007 interview with Human Rights Watch researchers, Minister of Justice Tharcisse Karugarama said that some 90 percent of the accused awaiting trial for category one offenses would be charged with rape, an estimate repeated on several occasions by Executive Secretary of the National Service of Gacaca Jurisdictions Domitilla Mukantaganzwa.¹⁴¹

Given the improbability that this dramatic accumulation of rape cases represents a natural cluster in the prosecutorial process, there appear to be two possible explanations for the sudden plethora of rape accusations. The first is that the prosecutor’s office has deliberately delayed prosecution of rape cases until virtually all other cases have been judged. This is highly unlikely—and if it were to be true, would seem to indicate a conscious discrimination against rape victims, a discrimination that would be all the more tragic given that some were exposed to HIV/AIDS as a consequence of the crime and may have a shorter life expectancy than victims of other crimes. The second is that the accusations are motivated by some purpose other than simple law enforcement, such as to enhance the possibility of obtaining convictions. In a number of cases there are grounds for believing that rape charges (which do not fit the facts) may be being used to undertake prosecution where other charges cannot be successfully brought or are unlikely to secure conviction.

As a result of recent legislation amending gacaca jurisdictions, most accused rapists will stand trial in gacaca jurisdictions. To protect the confidentiality of the victim in such cases, the proceedings are to be held behind closed doors. This, of course, is a laudable objective.  In this situation, however, there are potentially negative consequences—in the absence of any trial observers, there will be no independent monitoring to document errors and to help deter unfair practices. Rape cases being prosecuted in conventional courts may also be held behind closed doors, but in those proceedings the accused has the right to counsel to help defend himself.

The case of Emmanuel Bagambiki, former prefect of Cyangugu prefecture is one in which rape may be being used as a fail-safe charge. Bagambiki was tried on charges of genocide at the ICTR where the prosecutor examined the possibility of bringing rape charges against him but determined that the evidence was insufficient. Bagambiki was acquitted by the ICTR, a decision that Rwandan judicial officials called “unforgiveable” and “ridiculous.”¹⁴²Soon after Rwandan prosecutors brought charges of rape against Bagambiki and obtained his conviction inabsentia on October 10, 2007.  Rwanda is seeking his extradition from Belgium where he now lives.¹⁴³

Rape charges have also been brought in the final stages of gacaca proceedings when it appeared that the defendants were about to be acquitted on other charges. In two trials in the last year, for example, one in southern Rwanda, one in western Rwanda, each defendant was charged with category two genocidal crimes. When it became clear that the jurisdictions were not going to convict them on those charges, the accusers brought charges of rape against each, an accusation that had not been previously mentioned.¹⁴⁴

The Production of Evidence

Anxious to obtain or to assist foreign colleagues in obtaining convictions, some Rwandan prosecutors have presented testimony in court which they knew or should have known was obtained through duress or torture.¹⁴⁵ In other cases, they have distorted or assisted witnesses in distorting the plain meaning of written evidence, or have kept exculpatory evidence from counsel for the accused.¹⁴⁶

Since 2006 the Rwandan government has undertaken strenuous efforts to identify persons suspected of genocide and to obtain their prosecution in the countries of current residence or their extradition to Rwanda for trial. Some 250 suspects have been located and Rwandan prosecutors have sought to facilitate prosecutions or extraditions in a number of countries, including Denmark, the United Kingdom, New Zealand, Canada, the United States, the Netherlands, Belgium, and Finland.

In several cases, prosecutors from other national systems have found that the evidence upon which the Rwandan authorities issued arrest warrants was insufficient or erroneous. In Denmark, Sylvain Ahorugeze, arrested on the basis of a Rwandan warrant in September 2006 was freed in August 2007 after Danish investigators were unable to substantiate the charges brought against him.¹⁴⁷ Danish investigators who had gone door to door doing their own inquiry in Kigali judged testimonies in the Rwandan judicial file unconvincing. In April 2008, Ahorugeze was awarded nearly 1 million Danish kronen in damages for false arrest.¹⁴⁸ In a case in New Zealand, the accused person was able to present written documentation of his presence outside of Rwanda that appeared to contradict testimonies presented by Rwandan prosecutors about crimes he allegedly committed inside the country.¹⁴⁹

Concerned to bring accused persons back rapidly to Rwanda, prosecutors have not hurried to bring to trial the one person thus far returned to Rwandan custody. In 2005 Rwandan judicial authorities obtained the return of Enos Kagaba whom they wished to try on charges of genocide. Sent back by the United States on the grounds of having violated immigration regulations, Kagaba was assured of a prompt trial, according to Prosecutor General Martin Ngoga. As of early 2008, he had not yet been tried.¹⁵⁰

Interference in Judicial Cases

A former minister of justice, judges and former judges, former prosecutors, and lawyers all recounted cases of interference with the judicial system that they had experienced or knew of in some detail. A former official well-acquainted with such practices said that judges in important cases were rarely bought off, but were subject to pressure from the executive as well as from powerful persons outside the government. He said that judges “would know what to do.” Or, if there was any doubt about the decision, they would receive a call to tell them “this is what is expected.”¹⁵¹

In several cases documented by Human Rights Watch, important persons from the executive branch seem to have pressured judges or prosecutors. In other cases, less important officials or persons who were not officials but had political or economic power may have been the ones to intervene. Their motivations may have been political, economic, or personal—such as settling scores for some past wrong, imagined or real—or a combination of these reasons. Some of the persons targeted by these abusive actions themselves had considerable stature: political, religious, economic or military. Others were less visible.

In the last year the President of the Rwandan High Court Johnston Busingye has told at least two persons that judges in his court had been subjected to attempts by the executive to influence their decisions.  He said that he had himself called those trying to pressure the judges in order to discourage their attempted interference.¹⁵²

In cases where judicial personnel have been subject to pressure, they have disregarded procedure, ignored allegations that evidence was coerced through abuse, willfully misread or distorted evidence, and substituted substantially different charges when the original charge fails. Some prosecutors and judges who have been subject to influence have taken decisions that fail to reflect the law and the facts of the case.  

Political Cases

Officials have used the judicial system to punish and limit the activities of persons seen as opposed to the government and to the RPF, whether by detaining them for long periods without charge or by prosecuting them, often for “divisionism” and “genocide ideology.” This pattern was well-established by the time of the 2004 judicial reforms and has continued since, despite them.

Léonard Kavutse, a leader of the opposition MDR party¹⁵³, spent eighteen months in pre-trial detention charged with discrimination, incitement to sectarianism, and threatening state security. The charges were based largely on a campaign-strategy letter, written and mailed to presidential opposition candidate Faustin Twagiramungu in the weeks preceding the August 2003 presidential elections.

At his trial before the High Court in early 2005, Kavutse pled guilty to the divisionism charge but repudiated a previous confession of guilt to the other charges, saying it had been coerced by beating him. Despite the evidence of abuse committed by state authorities, the court did not ask for investigation into the alleged beating, nor offer any remedy for the excessive time spent in pre-trial detention. It found him guilty of the broadly defined crime of sectarianism. He was sentenced to two years in prison, with one year as suspended sentence, and to probation for another two years.¹⁵⁴

Another MDR political leader, Jean-Pierre Gakwandi, was arrested in January 2002, and charged with inciting ethnic division, even though the law on divisionism, passed in December 2001, had not yet officially taken effect. After more than three years in pretrial detention, in 2005 he was found guilty and sentenced to four years in prison.¹⁵⁵

The Case of Pasteur Bizimungu and his Co-Defendants

One of the highest profile political trials in Rwanda, that of former president Pasteur Bizimungu, former minister Charles Ntakirutinka, and six others, is another that demonstrates the use of the judicial system for political ends. The accused were arrested in 2002 as Bizimungu was trying to mount a challenge to President Kagame and the RPF in national elections. They were tried and convicted in April 2004 as judicial reforms were being put in place and their appeals were decided by the Supreme Court in early 2006 when reforms were supposedly fully operational. Despite many procedural irregularities in the earlier proceedings, the Supreme Court confirmed the convictions of Bizimungu and Ntakirutinka, but over-turned the convictions of the other six.

Pasteur Bizimungu, installed as president when the new government took power in 1994, was forced to leave the presidency in 2000, clearing the way for Vice-President Kagame to become president. In mid-2001 Bizimungu, former minister Charles Ntakirutinka, and several others formed a new party, the Party for Democratic Renewal-Ubuyanja (PDR-Ubuyanja). Legal under a 1991 law on the establishment of political parties, the foundation of PDR-Ubuyanja was nonetheless disallowed by authorities who declared that Rwanda was operating under a transitional agreement that excluded new formations.

Bizimungu and the others dropped the initiative but he and Ntakirutinka continued to suffer harassment. In August 2001, the two were detained and questioned by authorities. Shortly after, both were attacked by street gangs. Bizimungu published a book in November 2001, but it was confiscated before being distributed. In December 2001, an early member of PDR-Ubuyanja, Gratien Munyarubuga, was murdered at mid-day in Kigali, a crime for which no one was ever prosecuted.¹⁵⁶ In December 2001 and January 2002, several persons said to be members of Ubuyanja were arrested, including two persons whose small NGO published a newsletter with the word ubuyanga (meaning renewal or renaissance) in its masthead. These two, and perhaps others, spent several weeks in jail before being released without trial.¹⁵⁷

On April 7, 2002 Kagame made a highly publicized speech warning Bizimungu and other dissidents that no one—including foreign diplomats—would be able to protect them if authorities lost patience with them.¹⁵⁸ Two weeks later Bizimungu and Ntakirutinka were arrested and charged with endangering state security, fostering ethnic divisions, and engaging in illegal political activities. Twenty-four others were arrested in the following weeks, all charged with supporting Ubuyanja. Six of them were brought to trial with Bizimungu and Ntakirutinka.¹⁵⁹

When arrested, these men were initially charged with having formed a political party, but prosecutors apparently decided that there was no legal basis for such a charge. By the time Bizimungu and Ntakirutinka appeared in court, they were charged with creating a criminal association, spreading rumors to incite rebellion, and plotting to overthrow the government. Bizimungu was accused also of embezzling government funds, tax fraud, and possessing a firearm. Bizimungu appealed the court’s decision to accept the redefined charges against him, but lost the appeal.¹⁶⁰

The six other persons were prosecuted for forming a criminal association, which was said to have harassed genocide survivors by throwing stones on their roofs, and to have planned to blow up a power plant. Two of the six identified themselves in court as survivors of genocide, presumably with no interest in harassing other survivors. ¹⁶¹

When the trial began in April 2004, the rapidity of the proceedings contrasted with the delays in bringing the case to court. Bizimungu and Ntakirutinka had been in detention for two years, the others for nearly as long. The prosecution rested its case after six days, having relied largely on the testimony of a single witness, Theogene Bugingo, who had himself been involved in founding Ubuyanja. This witness contradicted himself repeatedly and showed confusion about dates and events central to the prosecution case.¹⁶² Other prosecution witnesses also presented contradictory and unconvincing testimony. There were doubts about the authenticity of one prosecution document and another, the record of an interrogation by the police, was said to have disappeared.¹⁶³

One prosecution witness testified that his statements presented to the court had been obtained under intimidation. Another witness interrupted the proceedings to say that he had been detained for two years in order to obtain his testimony against Bizimungu. Released at the end of the trial and warned to speak to no one about his experiences, this witness fled the country.The court took no notice of the alleged use of unlawful detention and abuse to coerce testimony. ¹⁶⁴

The court several times refused to allow the defendants and their counsel the opportunity to fully examine witnesses against them. The defense presented seven witnesses but was refused the right to call others to support its position.¹⁶⁵

At one point during the trial the presiding judge charged defense counsel Jean-Bosco Kazungu with contempt of court when he tried to insist on questioning a witness. Kazungu was immediately taken to jail. Efforts by the bar association to get Kazungu released immediately failed and he spent the night in jail. He was freed the next morning by the Appeals Court of Kigali which reversed the decision of the trial court.¹⁶⁶

In its judgment, the trial court acknowledged the contradictions in the testimony of the primary witness Bugingo, but nonetheless found all the accused guilty of having created a criminal association. It convicted Bizimungu and Ntakirutinka of spreading rumors in order to incite rebellion and also convicted Bizimungu of embezzlement. It acquitted Bizimungu and Ntakirutinka of the other charges. The court sentenced the six co-defendants to five years in prison, Ntakirutinka to ten years and Bizimungu to 15 years.¹⁶⁷ The trial drew substantial attention, with most sessions attended by international observers.¹⁶⁸ The flawed verdicts handed down by the court show that the high visibility of a case did not guarantee due process to the accused.

In a 2006 decision, the Supreme Court confirmed the convictions of Bizimungu and Ntakirutinka, including on the charge of establishing a criminal association, but overturned the convictions of the six others on that same charge. The verdict could not be explained by purely legal considerations since all eight had been convicted of the criminal association charge largely on the basis of the same faulty witness. ¹⁶⁹ 

The president of the trial chamber that convicted Bizimungu later fled Rwanda and told journalists that there had been no substantial proof of Bizimungu’s guilt and that he had been convicted as a result of political pressure.¹⁷⁰  Bizimungu was freed by presidential pardon in 2007 but, as of this writing, Ntakirutinka remains in Kigali central prison.

The Case of Col. Stanislas Biseruka 

The case of former military officer Col. Stanislas Biseruka illustrates political interference, an excessive period of pre-trial detention, and the problems of obtaining counsel in cases seen to have political importance. Biseruka’s legal troubles began in mid-2001, just when Bizimungu and Ntakirutinka, with whom he was said to have political links, began to experience serious problems.¹⁷¹

Biseruka was first accused in a dispute over family financial matters, although other family members had accepted a proposed solution and felt no need to press charges against him. He was nonetheless tried on charges of embezzlement, found guilty, stripped of his military rank, and imprisoned in military prison for three years. On the day his term ended and with his family waiting to escort him home, he was apprehended at the prison gate and taken to a civilian prison. He was detained from May 2004 to October 2005 without formal charges and, according to one knowledgeable jurist, without even a warrant for his arrest.¹⁷² At this time the reformed code of criminal procedure limited detention to a maximum of six months.

When Biseruka’s request for release came before a local court, a high-ranking judicial official tried to persuade the judge to keep Biseruka in jail.¹⁷³ At the hearing, a number of obviously armed state agents appeared in court, an unusual circumstance, and the judge had to order them to leave their weapons at the door. Given the many procedural irregularities in the case, the judge released Biseruka. On appeal from the prosecutor, this decision was overturned by the appeals court and Biseruka was jailed again. Tried soon after, he was convicted of having shown contempt for public authorities in remarks that he purportedly uttered while in the military prison and was sentenced to two and a half years in jail.¹⁷⁴ The prosecutor also charged him with “divisionism” but could not muster witnesses to support that allegation. The prosecutor appealed the decision, seeking a heavier punishment. The Higher Instance Court of Gasabo in August 2006 confirmed both the verdict and the penalty.¹⁷⁵ Biseruka was freed in November 2007 after having completed his sentence.¹⁷⁶

According to family members, Biseruka experienced problems finding lawyers willing to defend him. Only after two futile attempts did he find one ready to mount a vigorous defense. ¹⁷⁷

The Case of Domina Nyirakabano 

The case of Domina Nyirakabano, vicemayor of Ndiza district, shows how the lack of precise definition in the “divisionism” law facilitates prosecution of persons for political purposes. It also shows the manipulation of evidence by the prosecutor and the trial judge’s lack of interest in examining exculpatory proof. Nyirakabano, known as a local leader of some stature, refused to bow to pressure to join the RPF in 2004. She also had had several conflicts with her superior. ¹⁷⁸ 

At the end of December 2004 she was arrested on charges of threatening state security and inciting civil disobedience. When the Nyanza High Court found inadequate proof to hold her on these serious charges, she was released but charged immediately after with “divisionism” for remarks she was said to have made at a local meeting. The prosecutor asserted that she had criticized the disparity between the relatively generous government assistance available to children who were survivors of genocide and the little available to other needy children. He said in court that these “divisionist” comments had been recorded in the minutes of an NGO meeting but this supposed written evidence was not examined by the judge nor was it made available to the accused.¹⁷⁹

Brought to trial in April 2005, Nyirakabano was found guilty and sentenced to 18 months in jail. According to her lawyer, who was able to consult the supposed documentary evidence only months after the trial, the minutes of the meeting mentioned neither her name nor the remarks she was said to have made. At the time of her conviction in April 2005, Nyirakabano appealed the decision, but her appeal was heard only two years later. In April 2007 she won acquittal. By then, she had finished serving her sentence and had been freed.¹⁸⁰

Genocide cases

Powerful persons attempt to intervene in genocide cases, as in others, for various reasons. Although ethnic hostilities may underlie some interventions, political, personal, and even economic objectives drive other efforts to sway judgments. In exceptional cases, it even appears that contradictory political influences can come into play, one leading to prosecution of a person and another leading to his acquittal.  In one highly debated case, the Catholic Bishop Augustin Misago was arrested almost immediately after he was castigated by then President Pasteur Bizimungu in a highly publicized speech in 1999. But after more than a year in prison and a long trial, the Bishop was acquitted, reportedly because of the intervention of another high official. Asked about case, the person alleged to have intervened indirectly substantiated this explanation of the verdict.  He said that the Bishop had been arrested while he was out of Rwanda, implying that had he been in the country he would have attempted to prevent the arrest. Concerning the acquittal, he said, “The potential harm of a guilty verdict weighed on everyone’s mind. The Catholic Church was still very powerful in Rwanda.”¹⁸¹Some Rwandans, perhaps because they believed the acquittal was politically influenced, continue to refer to the Bishop as if he were guilty. The 2004 parliamentary report on genocide ideology says that the Bishop sent Tutsi to their death at an infamous massacre site near the bishopric.¹⁸²

The Case of Father Guy Theunis

Although approved and implemented by officials of the justice ministry, the impetus to accuse Father Guy Theunis, a Belgian priest, human rights activist, and journalist, seems to have come from persons hostile to the Catholic Church, including some who were seeking to regain control of the periodical Dialogue with which Theunis had once been affiliated. The journal, based in Rwanda before 1994 and now published in Belgium, often features articles critical of the current Rwandan government. The case shows how a small number of powerful persons can apparently play upon prevailing emotions—in this case hostility to the church—to achieve their objectives. It also shows how the prosecutor’s office in the conventional system interfaces with the gacaca jurisdictions.

The prosecutor’s office hastily cobbled together a case against Theunis, when he unexpectedly transited through Rwanda from Congo en route to Europe in September 2005.¹⁸³ In remarkable contrast to the tens of thousands awaiting trial in Rwandan prisons, Theunis was brought before a gacaca jurisdiction five days after his arrest.

A priest with two decades experience in Rwanda, Theunis helped launch one of the first human rights organizations in Rwanda in 1990 and documented abuses against Tutsi and Hutu alike. Evacuated during the genocide, Theunis worked to keep others informed of abuses being committed in the country. Later posted elsewhere in Africa, he returned to Rwanda briefly in 2004. No accusations were made against him then. Nor did Rwandan authorities ever raise any charges against Theunis with Belgian judicial authorities, with whom they frequently consulted about genocide prosecutions.

By the time Theunis made his unplanned stop in Rwanda, a Kigali-based group including some important RPF leaders was attempting to take control of the name and bank account of the journal Dialogue. Having learned of Theunis’ presence in Kigali, a leader of the group sought Theunis out to ask his help in that effort. He declined, saying he had no further connections with the journal. The next day Theunis was arrested on a warrant from the prosecutor’s office as he was preparing to board a plane for Europe.¹⁸⁴ The person who had sought his assistance on Tuesday accused him of genocide in front of the gacaca the following Sunday.

At this gacaca hearing, the usual tight restrictions on the attendance of foreign nationals and on audio and visual recordings were all relaxed, apparently to attract greater attention to the proceedings. An estimated 1,700 persons, some alerted by repeated announcements on the radio, attended.¹⁸⁵

A score of witnesses, several of them prominent in the RPF, denounced Theunis for having supported the genocide. They relied on a tendentious and unfair reading of some his writings, ignoring, for example, the distinction between his words and those he was quoting (and had indicated by quotation marks). His efforts to alert others to the genocide were misrepresented as efforts to discourage international involvement. Some of the witnesses read from prepared statements, unusual in gacaca sessions where participants usually speak spontaneously.¹⁸⁶ One high ranking military officer in the audience remarked to a Human Rights Watch researcher that he was “gratified” to see the church humiliated by the proceedings.¹⁸⁷

The gacaca judges named Theunis as a category one genocide suspect and sent him back to Kigali prison. Returned to the jurisdiction of the prosecutor, Theunis was allowed the assistance of a lawyer when he was interrogated, but his right to be promptly and fully informed of the charges against him was not respected. It was only during his fourth interrogation and at the insistence of his lawyer that he was told of eight charges against him, including complicity in genocide as well as revisionism and minimizing the genocide, charges based on statements that he had allegedly made after 1994.¹⁸⁸ When he was presented to the High Court for a hearing on his proposed transfer to the Belgian judicial system, he was told there were ten charges, but he was not told the content of the two additional ones.¹⁸⁹

Theunis spent two and a half months in jail before he was transferred to Belgium. Once there, he was released while Belgian police investigate the case. More than two years later, the case remains open although official sources acquainted with the investigation said the file was “empty of any real proof.”¹⁹⁰

The Case of Capt. Théophile Twagiramungu

The aberrant nature of the final decision in the case of Capt. Théophile Twagiramungu, rendered in February 2008, as well as the level of court that delivered it—the Supreme Court—attracted considerable comment from Rwandan jurists. Although motivations for the apparent interference in this case are not certain, two independent sources suggested that Twagiramungu was seen by other military officers as potentially troublesome because of his independence of thought.¹⁹¹

An officer in the former Rwandan army, Twagiramungu was briefly re-integrated in the RPA military force before being arrested in October 1994 on charges of genocide. Not brought to trial until June 2001, he was acquitted by the War Council after the military prosecutor presented only scant and contradictory evidence against him. He resumed his military career.¹⁹²  

On January 7, 2003, Twagiramungu was sent to the Directorate of Military Intelligence for the night and was jailed on January 8. Two days later the Military Court (appeals level in the military system) heard an appeal to his June 2001 acquittal filed by the persons claiming damages in the case. Although the prosecutor had not appealed the decision, the Military Court on January 10, 2003 overturned his acquittal, found him guilty of genocide, and sentenced him to death. He was sent back to prison. In the course of these proceedings he had not had an opportunity to prepare an adequate defense.¹⁹³

Twagiramungu appealed his conviction to the Supreme Court, arguing the precedent of a prior case in which the Supreme Court had held that a party claiming damages had no standing to appeal the verdict in a penal case if the prosecutor did not do so.¹⁹⁴ The Supreme Court overturned the conviction on February 24, 2006 but held that the civil damages claim could still be heard.¹⁹⁵ Shortly after Twagiramungu fled Rwanda and successfully claimed asylum abroad.¹⁹⁶

The case continued, however, and on February 12, 2008, the Supreme Court held in favor of the civil claimants and ordered Twagiramungu to pay them 2,680,000 Rwandan francs (US $ 4,940) in damages.¹⁹⁷ In a decision riddled with contradictions and logical errors, the court acknowledged that Twagiramungu could not be held criminally responsible because the prosecutor had failed to appeal his acquittal, but assigned damages nonetheless. According to three Rwandan jurists, two of them with considerable experience as judges, such a finding cannot be substantiated under Rwandan law. They said that no one could be held liable for damages in a criminal trial in which he was acquitted. For a party who claimed injury to receive any damages in such a case, he or she would have to institute a separate civil proceeding.¹⁹⁸ In addition, as a foreign jurist commented, the court assigned a detailed schedule of damages to be paid without giving any justification of how the determination was made.¹⁹⁹

Other Cases 

Courts have also been subject to interference in cases involving important economic interests as well as other kinds of conflicts between powerful persons as shown in the examples below.

Alfred Kalisa, former president of the Bank of Commerce, Development and Industry (BCDI) was arrested in January 2007 on charges of fraud and violating banking laws. Powerful RPF members have significant holdings in the BCDI, one of the most important banks in Rwanda and Kalisa himself was said to have played a major role in financing the RPF in its early days. When Kalisa was arraigned, the judge saw no reason to detain him pending trial. According to press reports, he had returned voluntarily from South Africa when he learned of problems at the bank. She released him, but Kalisa was rearrested the same evening on order of the prosecutor general, supposedly because he posed a risk of flight. A High Court panel then reversed the decision granting bail, confirming that Kalisa must stay in jail.²⁰⁰

Kalisa maintained that members of the bank board must be charged too since all his actions had been under their supervision. A judge agreed and joined the others to the case, but all were permitted to remain free. The decision joining them to the case was appealed. Under normal judicial procedure, the original case would have continued while the appeal was being considered. But in August the High Court president suspended proceedings until the appeal was settled. In April 2008, the case resumed after having been stalled since the previous August with the former bank president having been jailed some fifteen months since his arrest. After his first attempt to obtain release, he tried twice more to be freed pending trial, both times without success.²⁰¹  On June 10, 2008, Kalisa was found guilty of abuse of confidence and of violating a banking regulation. He was sentenced to 2 years, 3 months of imprisonment and a fine of 1 million Rwandan francs.²⁰²

In a case in the military justice system, Col. Patrick Karegeya, once head of external security and longtime associate of President Kagame, was prosecuted in a case where the charges seem to have little to do with the real reasons for his arrest and punishment. By 2005 Col. Karegeya had been moved from his position as head of external security to the far less prestigious post of army spokesman, reportedly because he had lost the confidence of his superiors. That year Karegeya was detained without charge for more than five months, at least part of the time in an unofficial place of detention. Military officers explained that the case had been handled as an administrative matter and the nature of the supposed offense was never made public.

When released, Karegeya was told to return home and await further orders. Several months later, in May 2006, he received a letter ordering him to report for duty on May 15. While dressing that morning, he was arrested for not having reported promptly for duty. In July 2006, he was convicted of desertion and insubordination, stripped of his rank, and sentenced to 20 months in prison largely on the basis of testimony of a single witness, his commanding officer, who said he had informed Karegeya to report for duty prior to sending the letter in May. The evidence seemed inadequate to support the grave charges against him.²⁰³ After Karegeya completed his sentence, he was released from prison and soon after fled the country.

Consequences of Trying to Remain Independent

Some prosecutors and judges try to resist pressure, whether from politically powerful persons or from wealthy businessmen. “Turn off your phone,” was the practical counsel from one judge to colleagues less experienced in such circumstances.²⁰⁴

Those who do “turn off the phones” pay a price for their attempt to protect the independence and integrity of the judicial process. Judges or prosecutors connected with the cases of the Bizimungu and Biseruka, for example, no longer hold positions in the Rwandan judicial system and at least three of them fled Rwanda and received asylum abroad.²⁰⁵

In one case, the judge Evode Uwizeyimana was interviewed by a Voice of America journalist after Alfred Kalisa had been rearrested following his brief liberation in the bank case. Uwizeyimana spoke up in defense of judicial authority and criticized the police for having taken Kalisa back into custody. Asked later by various officials to account for his statement, Uwizeyimana—who already had a reputation for expressing his opinions frankly—felt sufficiently threatened to resign his post.²⁰⁶ Although he was no longer a judge, the Superior Judicial Council summoned him for a hearing on an alleged case of corruption. They found him guilty and dismissed him from the judiciary, a punishment that was redundant considering his previous resignation but which made it impossible for him to practice law or other professions. He subsequently sought asylum abroad.²⁰⁷

Lack of Respect for Judicial Orders

The rule of law requires that judges be able to require state agents to obey lawful orders of the court. According to the 2003 Constitution and the code of penal procedure, judges have the authority to require such obedience, but in fact they are not always able to do so.²⁰⁸

In a landmark case in May 2005, for example, Tharcisse Karugarama, then president of the High Court, ordered police to produce a detainee who was illegally held, a first use of the habeas corpus power established by one of the 2004 judicial reforms. The police released the detainee but failed to obey the order to produce him in court. Because the new penal code that is to provide sanctions for state agents who fail to obey judges’ orders had not then—and has not yet—been adopted, Judge Karugarama had no way to punish police officers for not complying with his order. ²⁰⁹

Human Rights Watch researchers also documented several cases where persons acquitted by courts of law were not released from prison, or were released only to be re-arrested shortly thereafter, in violation of a court order.²¹⁰ One person interviewed by Human Rights Watch researchers was arrested and detained three times on a single arrest warrant, and held in prison for an additional twenty months after he was declared innocent. Others remain in prison despite having been acquitted at trial, including some for as long as five years. ²¹¹ In May 2005, a defendant ordered to be released by the court was immediately handcuffed as he left the courtroom and was returned to prison. “The audience was shocked,” said the court clerk who witnessed the incident. “But,” he continued “it would seem the police still have more power than the judges.” ²¹²  

Nearly all judges, lawyers and court clerks interviewed by Human Rights Watch recognized the continued problem of unlawful arrests and detentions, and the reluctance of many authorities to respect court orders despite implementation of the judicial reforms.²¹³ In late 2005 Martin Ngoga, then Deputy Prosecutor General told a meeting of prosecutors that failure to follow appropriate procedures, such as in cases of detentions, represented a real problem.²¹⁴ The National Human Rights Commission criticized illegal detentions in both its 2005 and 2006 reports.²¹⁵

Judges themselves sometimes treat police or prosecutors too leniently when they violate legal procedures. In one criminal case brought to court in February and March 2005, the judge recognized that the 18 months the defendant had spent in pretrial detention far exceeded the maximum permitted by law. He nonetheless excused the violation without penalty or remedy, as “the prosecutor explained that it was due to many reasons, including the fact that he [the detainee] was arrested close to the weekend, the fact that there were holidays, and the judicial reforms.”²¹⁶