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Colonel Tom Byabagamba (left) and retired Brigadier General Frank Rusagara (right) arrive at the court to appeal their 2016 conviction on charges including tarnishing the government’s image and inciting insurrection, in Kigali, Rwanda, on December 27, 2019.  © 2019 Clement Uwiringiyimana/Reuters

(Nairobi) – The Rwandan Court of Appeal decision on December 27, 2019 upholding the conviction of two former military officials is a violation of freedom of speech. Although the court reduced their sentences to 15 years each, it does not mitigate convictions for criticizing the authorities and government policies or the use of unreliable evidence in their trial. Human Rights Watch is also deeply concerned about reports of ill treatment and inadequately treated health problems in detention.

On March 31, 2016, the Military High Court of Kanombe sentenced Colonel Tom Byabagamba and retired Brigadier General Frank Rusagara to 21 and 20 years in prison, respectively, on charges including inciting insurrection and tarnishing the government’s image. In the same trial, retired Sergeant François Kabayiza was sentenced to 5 years and a fine of 500,000 Rwandan francs (approximately US$650 at the time) for concealing evidence. He has since completed his sentence.

“Serious allegations of torture and witness tampering emerged during the flawed trial in 2016,” said Lewis Mudge, Central Africa director at Human Rights Watch. “The court of appeals had an opportunity to investigate these allegations and hold those responsible to account, but instead they doubled down on the decision to stamp out criticism of government policy and action.”

In November 2017, the United Nations Working Group on Arbitrary Detention concluded that the charges, on the basis of which Rusagara and Byabagamba were arrested, detained, and convicted, stem directly from the peaceful and legitimate exercise of their freedom of opinion and expression, as guaranteed under international law, and that therefore their detention was arbitrary. In February 2018, the Rwandan government rejected the allegations and claimed it was not aware of the working group’s communication on the matter.

Retired Brigadier General Rusagara, who was arrested on August 18, 2014, held several senior positions in the Rwandan Defense Forces, including secretary general of the Defense Ministry and military attaché in the Rwandan High Commission in the United Kingdom, before retiring in October 2013. His brother-in-law, Colonel Byabagamba, who was the former head of the presidential guard, was arrested on August 23, 2014. Retired Sergeant Kabayiza, Rusagara’s driver, was arrested the following day.

According to the prosecution, Byabagamba had alleged Rwandan state involvement in several murders, including of Patrick Karegeya, the former head of Rwanda’s external intelligence services, who was found strangled in South Africa on January 1, 2014. In September 2019, South Africa’s National Prosecution Authority issued arrest warrants for two Rwandans accused of murdering him. Media reports said that written testimony from South Africa’s special investigative unit said that Karegeya’s murder was “directly linked to the involvement of the Rwandan government.”

During the trial in 2016, the prosecution claimed that Rusagara had made favorable comments about the Rwanda National Congress (RNC), an opposition group in exile, had criticized President Paul Kagame, and had complained about the lack of freedom of expression and economic progress in Rwanda, allegedly calling Rwanda a “police state” and a “banana republic.”

The defendants were also convicted of other offenses. Byabagamba was convicted for allegedly concealing evidence and for allegedly not showing respect to the Rwandan flag during a ceremony in South Sudan, where he was serving as a commander in the UN peacekeeping mission. Rusagara was convicted of illegal possession of two guns.

At the time, Human Rights Watch expressed concern that the defendants may not have received a fair trial, in part because the evidence provided by several prosecution witnesses appeared to be unreliable.

In court, Kabayiza said that military personnel had tortured him in detention, resulting in ongoing health problems, and that he did not have access to adequate health care. The government told the UN Working Group on Arbitrary Detention that Kabayiza had no proof that he was tortured. A local media report of his release on August 24, 2019 said that he continues to have serious health problems.

On November 4, six British parliament members wrote a letter to President Paul Kagame expressing concern about the sentences and pressing for Rusagara and Byabagamba’s release on humanitarian grounds. The Rwandan Justice Minister Johnston Busingye responded that “It would be inappropriate for the Executive to comment on any pending case, seek to influence the outcome, or intervene as proposed in your letter.”

These convictions form part of a pattern of government repression, both inside and outside the country, of people critical of the Rwandan government or suspected of having links with opposition groups. In October 2019, a Financial Times investigation revealed that Israeli software developed by the NSO Group was used to spy on Rwandan political dissidents and critics living abroad. The spyware targeted individuals through WhatsApp calls and allowed hackers to access personal data on their phones, such as messages and location.

Rwanda is set to host the next Commonwealth Heads of Government Meeting, which will include discussions on governance and rule of law. The meeting is expected to bring together leaders of 53 Commonwealth countries in Kigali in June 2020.

“Enabling people to express opinions freely, and in particular to dissent without fear of reprisals, should be a minimum requirement for the host of upcoming global discussions on good governance,” Mudge said. “Before they agree to attend the meeting, Rwanda’s international partners should raise their concerns with the Rwandan government about the deliberate targeting of critics both inside and outside the country, and its chilling effect.”

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