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IX. Challenges to Fair Trial Standards

As has been described, judicial authorities operate in a political context where the executive continues to dominate the judiciary and where there is an official antipathy to views diverging from those of the government and the dominant party, the Rwandan Patriotic Front (RPF). The campaign against “divisionism” and “genocide ideology” imposes the risk of serious consequences on persons who question official interpretations of the past and who would prefer other than the official vision for the future.

In this context, as the examples cited above demonstrate, basic fair trial standards are not fully assured. These include the presumption of innocence, the right of equal access to justice, the right to present witnesses in one’s own defense, the right to humane conditions of detention, the right to freedom from torture, and the right to protection from double jeopardy.

The Presumption of Innocence

In Rwanda the presumption of innocence is most at issue in cases of genocide or in cases involving expressions of ethnic hostility, such as those where “divisionism” or “genocide ideology” are charged. The widespread involvement of many—though certainly not all—Hutu in the genocide has led many public officials to speak as if all Hutu are guilty of this crime. When officials responsible for the administration of justice and the police make such statements they promote an atmosphere where it is difficult to assure judicial processes that are impartial and free of bias.

In an address to legal professionals at The Hague in 2006, the president of the High Court said that “the architects of the genocide literally made every one a direct or indirect participant.”²¹⁷ Under Rwandan law, “indirect participants,” that is, accomplices to the crime, are equally guilty and receive the same punishment as the principal perpetrators.²¹⁸

In a May 2007 statement about the killings of 20 detainees by police officers, the Commissioner General of the Rwandan National Police Andrew Rwigamba (formerly chief prosecutor in the military justice system) said that the “suspects involved in these cases were of extreme criminal character ready to die for their genocide ideology.” The detainees, all recently arrested, had not been tried for any crimes and none had been convicted of holding “genocide ideology.”²¹⁹

Officials, including judicial officials, discount acquittals with which they do not agree and continue to speak of the acquitted as if they were guilty. After ICTR judges found former Cyangugu governor Emmanuel Bagambiki not guilty, Prosecutor General Jean de Dieu Mucyo said, “There was clear evidence that the two [Bagambiki and codefendant André Ntagerura] were among the leaders of the genocide and that many people are dead because of their actions.”²²⁰

Court cases

 In one case in 2006 three judges of the High Court appear to have neglected the presumption of innocence in the case of Nyirimanzi, a defendant who appeared before them charged with complicity in genocide. In upholding a lower court finding of guilt, the judges shifted the burden of proof to the defendant and concluded that he had failed to prove that he had not been in the company of the victim, as was alleged by others. They also seemed to be endorsing the idea of guilt by association by remarking that the defendant had been seen in the company of his brothers, allegedly members of the Interahamwe militia.²²¹

Treatment of Detainees and Prisoners

Officials in charge of the Kigali city prison on at least one occasion on October 20, 2005 showed their tolerance of—if not open support for—the position that “All Hutu are Interahamwe.” They permitted a representative of Esther Vision Ministries, an evangelical Christian group, to use the public address system of the prison to harangue prisoners for two hours and then to distribute printed tracts carrying this message.²²²

In some prisons, pre-trial detainees are housed together with convicted criminals and they are subject to the same requirements regarding the wearing of prison uniforms and, in at least one prison, to the mandatory shaving of their heads.²²³ They ordinarily appear in court in their prison uniforms.

The failure to uphold the presumption of innocence for detainees also appears in the electoral law of 2003 that specifically denies voting rights to those in pretrial detention, some 80,000 people at the time of the last national elections.²²⁴ Under Rwandan criminal law, persons convicted of a crime may be deprived of the right to vote as part of their punishment, but the 2003 election law denied voting rights to persons who had not yet been tried. With legislative elections scheduled for September 2008 and presidential elections for 2010, detainees still remain deprived of the right to vote.

Impact of the campaign against “divisionism” and “genocide ideology”

The campaign against “divisionism” and “genocide ideology” further undermines the presumption of innocence as officials accuse and encourage others to accuse persons said to hold these prohibited ideas.  With no judicial process whatsoever, many of those so accused have suffered the loss of employment and educational opportunities as well as ostracism.

The Right to Present Witnesses

Most prosecutions of genocide, like many other court proceedings in Rwanda, depend on testimony from witnesses, both for the prosecution and the defense. The willingness of witnesses to participate in judicial proceedings and to testify openly and truthfully depends in part upon the state’s ability and willingness to guarantee their safety. The protection of witnesses for the prosecution, some of whom have been murdered, has rightfully aroused substantial concern,²²⁵ but the security of defense witnesses has drawn less attention, in part because there have been no confirmed reports of killings of defense witnesses.

Agents of the state have on occasion interfered with the right to present a defense by detaining and intimidating witnesses or potential witnesses or by failing to protect them from non-state actors. Unless witnesses can rely upon officials not to harm them and to protect them from harm by others, they are unlikely to testify and accused persons will be unable to avail themselves of their right under Rwandan and international law to present witnesses in their own defense.

State Protection of Witnesses

According to the Rwandan law on evidence, Rwandan prosecutors and judges may take any measure necessary to protect witnesses needed for the prosecution.²²⁶ Only one of some 15 lawyers, prosecutors, and judges questioned by Human Rights Watch researchers about witness protection mentioned this provision and one judge, then president of a higher instance court, specifically said that the law on evidence provided no protection for witnesses. None of the jurists mentioned any instance of this law having been invoked to protect witnesses.²²⁷ 

Despite this general lack of recourse to legal safeguards for protecting witnesses, the government did establish a witness protection service that has offered assistance to more than 900 people since its creation in 2005. Even those engaged in delivering this assistance said they were unaware of the article in the law on evidence providing protection for witnesses. ²²⁸  

As presently constituted, the witness protection service is under the national prosecutor’s office, making it unlikely that witnesses for the defense who encounter problems would seek its assistance.  In one recent case where nine defense witnesses were harassed after testifying at the ICTR and sought assistance from the witness protection service,  they were threatened with harm rather than receiving help (see below). 

They Shut their Mouths

The difficulty of presenting a defense through witness testimony remains one of the chief obstacles to the delivery of justice, particularly in cases that have attracted considerable attention. Asked about the right to defense, a former prosecutor said:

People are scared to defend any accused. When certain people are accused, you can see the shock on others’ faces, but then they shut their mouths because they’re afraid. And many judges have a tendency to listen to accusations more than to arguments in defense―there is no equilibrium between the defense and the prosecution.²²⁹ 

Several lawyers expressed the same opinion to Human Rights Watch researchers, one going so far as to say that there had been no persons willing to speak as defense witnesses in the cases in which he had defended persons accused of genocide.²³⁰ In cases known to Human Rights Watch, it is more typical for a small number of witnesses to appear for the defense than none at all. It also appears that the greater the public attention to the case, the greater the difficulty in securing witnesses for the defense. A lawyer summed up the problem saying that Rwandans were well aware that “any statement can bring misfortune.”²³¹

Official Interference with Witnesses

Police officers, security agents, and other officials have sought on occasion to influence the testimony of witnesses through the promise of rewards or through intimidation, mistreatment, detention or threat of prosecution. In several cases, officials hoped to obtain testimony for the prosecution, as in the case of Pasteur Bizimungu and his co-defendants,²³² but in others they sought to prevent or alter testimony for the defense.

In one bitterly contested case, a gacaca official summoned several genocide survivors and asked them to explain why they had given testimony for the defense. Local police reinforced the impact of the intimidation by arresting three defense witnesses and holding them in jail for more than a week on unspecified charges. When one of these persons was released, he was warned that if he persisted in giving testimony, he could be charged with “genocide ideology.”²³³

On at least one occasion a judicial official threatened to arrest a defense witness in conventional court. In a trial for genocide in Nyamirambo, Kigali in 2002, one of two defense witnesses sought to establish the credibility of her testimony by saying that she had been present at a barrier with the defendant during the genocide. The prosecutor immediately threatened to prosecute her for that admission.²³⁴

In at least two cases before the ICTR, Rwandan authorities have failed to assist the ICTR in ensuring the right of the defense to present witnesses. Counsel for Col. Bagosora were unable to obtain the presence of Gen. Marcel Gatsinzi, even after Chamber I issued a subpoena compelling his appearance.²³⁵ In a second case, Rwandan authorities refused for months to permit Agnes Ntamabyaliro to travel to Arusha to testify in defense of Justin Mugenzi. The order of Trial Chamber II, issued April 13, 2006 and directing the Rwandan government to permit her travel to Arusha finally resulted in her appearance, but only on August 21, 2006.²³⁶

Among other cases reported to Human Rights Watch of persons who encountered problems after having testified for the defense at the ICTR, one witness disappeared, two fled Rwanda after having been threatened, at least three were arrested, and at least one was re-arrested.²³⁷ The arrests and re-arrest took place soon after the witnesses testified in Arusha, suggesting that the fact of having testified or the information provided during testimony was important in triggering the arrests.

“Genocide Ideology” and the Risks of Testifying for the Defense

Many persons who have valuable testimony to offer refuse to speak for the defense because they fear being perceived as making common cause with accused persons and thus opening themselves to accusations of harboring or propagating “genocide ideology.” As indicated above, the 2006 Senate commission report mentioned statements about Hutu being wrongly detained as one manifestation of genocide ideology.²³⁸  

In the case of Father Theunis only one person, a Human Rights Watch researcher, spoke in Theunis’ defense. At least three other persons in attendance possessed information helpful to the defense but dared not speak. As crowds were departing at the conclusion of the session, they furtively expressed regret about their silence to Human Rights Watch researchers.²³⁹ All had been colleagues of Theunis in the human rights movement.

General Frank Rusagara, known for his role as an ideological spokesman for the armed forces, also present that day, later published an article in the government-linked The New Times denouncing the witness who testified for Theunis as a “negationist,” guilty of “trivializing” the genocide and “being an apologist of the génocidaires’ forces.”²⁴⁰

Popular Pressure and Official Threats

Human Rights Watch researchers have recorded many instances where witnesses or potential witnesses for prosecution and for the defense have been harassed or threatened. Some of the saddest such cases involve survivors causing problems for other survivors who are willing to testify in defense of persons accused of genocide.

In one such case, nine defense witnesses who had testified in a genocide trial at the ICTR were expelled from Ibuka, the association of genocide survivors, as a result of their testimony. In documents filed as part of a motion by defense counsel, they said they had been harshly criticized at a local meeting of Ibuka in April 2008 and had then been expelled from the association, a decision that was transmitted in writing to the mayor of the district. They were told that they would receive no further benefits meant for survivors of the genocide, such as health care or school fees, and one person said she was threatened with expulsion from her home. Although the benefits are provided by a government fund rather than by Ibuka, a non-governmental association, expulsion from Ibuka might well complicate receiving the benefits. In any case, the threatened persons believed that their expulsion had cost them their benefits.

After their plight became known at the ICTR, tribunal staff referred the problem to the office of the Rwandan prosecutor, who sent a representative of the Rwandan witness protection service to talk with the witnesses.  According to the defense witnesses, the representative of the witness protection service threatened them with harm rather than providing them with assistance. According to a report filed by an ICTR staff member who investigated the case, the Rwandan deputy prosecutor general promised to meet the witnesses himself to assure them that their benefits would continue and undertook to see that the representative of the Rwandan witness protection service would be made aware that her conduct had been inappropriate.²⁴¹ 

In several cases noted by Human Rights Watch researchers, persons who chose to keep silent later apologized either to the accused or to his family. In one dramatic instance, a genocide survivor broke down in tears as he admitted how ashamed he was at having refused to testify for a man who had saved his own life and that of more than a dozen members of his family. In at least some of these cases, the accused or his relatives have excused the silence of those who might have helped mount a defense, saying they understood the fear that dictated the choice.²⁴²

The Right to Legal Counsel

The 2003 Constitution guarantees the right to legal counsel, as does a 2004 amendment to the code of criminal procedure.²⁴³ Many lawyers named the 2004 provision guaranteeing right to counsel at all stages of judicial proceedings as one of the most important changes brought by the legal reforms. ²⁴⁴ Gacaca jurisdictions, however, remain the one dramatic exception to the exercise of that right with accused persons having no access to counsel at any stage of the proceedings.

The state has no obligation to assist indigent persons in obtaining counsel nor does any law provide remedies for accused persons unable to obtain counsel.²⁴⁵ According to one informed estimate, only 10 percent of Rwandans can afford to pay for legal assistance.²⁴⁶ In principle, the bar association provides assistance to indigent persons who request help, but the fund to reimburse lawyers for expenses incurred in such efforts is more often than not empty with the result that lawyers are unwilling to undertake the work. According to one former officer of the bar association, the Rwandan government has promised to provide funds to help assure the defense of indigent persons but has not done so.²⁴⁷ An international non-governmental organization, Avocats sans Frontières (Lawyers without borders) offers assistance to some, but it too can respond to only a small number of the many needy persons requiring counsel.²⁴⁸ 

The Rwandan bar association counts 84 lawyers and 149 stagiaires, or apprentice lawyers,²⁴⁹ but many of them focus largely, if not exclusively, on civil cases. In addition, virtually all of the lawyers are based in Kigali, meaning that persons living elsewhere find it hard to engage a lawyer, far less to have frequent access to him.²⁵⁰ This poses a particular hardship for detainees who must wait for their lawyers to come to them. Judges and prosecutors working outside Kigali said that most of the defendants appearing in court—one judge estimated 80 percent of the defendants—had no legal assistance.²⁵¹ All see scarcity of lawyers as a “huge problem” and “catastrophic,” particularly for poor persons charged with serious crimes that carry heavy penalties.²⁵² Recognizing the extent to which ignorance of procedure constitutes a grave disadvantage for many defendants, one prosecutor said that he believed defendants without legal representation ordinarily received longer sentences than comparable defendants who had lawyers assisting them.²⁵³

The shortage of lawyers particularly affects minors, that is persons under the age of 18 years, who by law must have legal assistance for court appearances. This requirement, introduced as part of the legal reforms, should work to the advantage of underage defendants. But because minors, most of them poor, must wait their turn to receive free assistance, many spend long periods waiting in jail.²⁵⁴

Defendants appearing in court without counsel often request postponements. But even if they are granted a delay in which to find counsel, as many are, their chance of finding a lawyer is so small that many in the end prefer to continue without representation.²⁵⁵

Taking the Difficult Cases

Persons seeking legal assistance in several “sensitive” or highly visible cases have found that some lawyers prefer not to represent them for fear of possible political or economic consequences.²⁵⁶

One lawyer who defended a client in a case of political importance in 2004 and 2005 said that he had been followed and that his mail had been read by security agents during the time of the trial.²⁵⁷ He also saw the number of his clients decline, a result, he believes, of pressure brought upon them by political leaders to take their business elsewhere. In two other cases where lawyers defended well-known persons accused of genocide, one lawyer was subject to interrogation by political leaders about his motives for representing such a client and another was threatened with prosecution for genocide. Both decided to take no more such cases in the future.²⁵⁸  

In the Bizimungu trial, as mentioned above, his counsel was jailed for one night for contempt of court. In a genocide trial in September 2007, another lawyer apparently angered the judge when he asked her to instruct the witness to stop referring to him as a génocidaire, or perpetrator of genocide. Without bothering with a trial, the judge immediately found him guilty of “indiscipline,” sentenced him to one year in prison, and ordered him taken from the courtroom directly to jail. He appealed the decision and it was annulled the following day by the High Court.²⁵⁹    

Professional Solidarity

In 2007 Rwandan lawyers stepped forward on at least two occasions to defend the integrity of their profession and the rights of their colleagues against attack by the state.

In the first instance they successfully resisted an effort by the state to give judges authority to order lawyers to divulge the contents of conversations with clients. They mobilized assistance from colleagues abroad in this effort. ²⁶⁰

While concern was still high about the proposed amendment, President Kagame met with leaders of the judicial sector. The head of the bar association used the opportunity to raise continued illegal and arbitrary detentions by police and other state agents. Other lawyers welcomed this initiative, but—according to the press and to another lawyer present at the session—many officials reacted angrily to his statement.²⁶¹ 

According to one well-placed jurist, a judge with strong ties to the RPF suggested to his colleagues that it might be appropriate to curb the growing assertiveness of the bar. This suggestion was said to have influenced the judge who sentenced a lawyer to a year in jail, as described above. Once the news of the lawyer’s arrest became known, other lawyers rallied to his defense. Several supported his successful appeal to the High Court while others engaged in a joint action that the press described as a “strike,” a term eschewed by the lawyers themselves.²⁶² 

Flight of Lawyers

According to Human Rights Watch information, as well as to press accounts, several lawyers have felt so threatened after having defended clients in “sensitive” cases that they have left Rwanda to seek asylum abroad. In one case documented by Human Rights Watch, the lawyer had represented a client accused of “genocide ideology” in 2006.²⁶³ According to US State Department reports, three lawyers have fled Rwanda in the last two years.²⁶⁴ At the time of this writing, another lawyer has just decided to leave Rwanda because of threats that resulted from his having defended persons accused of genocide. ²⁶⁵

The Right to Humane conditions of Detention and Freedom from Torture

Detainees in the hands of Rwandan police and security agents are not assured of humane treatment. Extra-judicial executions by police, miserable prison conditions, and the practice of torture have threatened and continue to threaten the lives and well-being of persons in custody.

Extrajudicial Execution and Excessive Use of Force

Police officers shot and killed at least 20 detainees, most of whom had just been arrested, in the six months from November 2006 through May 2007. Official investigations concluded that the officers had shot in self-defense, conclusions belied by information gathered independently by Human Rights Watch researchers. In December 2005, military police shot and killed at least five prisoners at Mulindi prison. As in the case of the detainees shot in 2007, an official characterized some of these victims as persons with “notorious criminal records.”²⁶⁶

In November 2007 police officials dismissed 127 police officers. According to one press account some were charged with murder, but the announcement made no link between the dismissals and the killings described above. ²⁶⁷ In April 2008, a prosecutor sought to begin the trial of three police officers accused of having shot and killed a civilian in their custody in Rwamagana, eastern Rwanda.²⁶⁸ The three officers did not appear at the trial and the proceedings were postponed to an undetermined date.²⁶⁹

Prison Conditions

Conditions are always harsh in Rwandan prisons and at times when overcrowding has been most severe, conditions have been inhumane. Conditions in irregular places of detention are often worse than those in the prisons.²⁷⁰

When gacaca jurisdictions began holding pilot trials in 2005, the prison population was about 67,000 and was expected to decline as detainees were tried and some were liberated.²⁷¹ Contrary to official expectations, the prison population rose steadily after trials began on a nationwide basis in 2006. One reason for the increase was that the jurisdictions, which were expected to accept most confessions and order reduced terms of punishment, rejected large numbers of confessions and sentenced the defendants to long prison terms. The number of inmates peaked at about 98,000 in July 2007 but then began to decline as a new policy adopted by the ministry of justice permitted the release of persons sentenced to both jail terms and unpaid public labor. Instead of earlier arrangements requiring convicts to serve their prison terms before being eligible for the public labor part of their sentence, some were now permitted to go home to do the labor first. By the end of the year 58,560 persons were in prison.²⁷²

In many prisons inmates, whether detainees or convicted prisoners, suffer from inadequate sanitary facilities and shortages of food. Until recently more fortunate prisoners received additional food delivered by family or friends but prison authorities recently proposed banning such additional food supplies. They said that the containers used to transport the food were unhygienic and could harm the health of prisoners. In local lockups and irregular places of detention, detainees receive no food other than that brought by family, friends, or charitable organizations. ²⁷³   The ban on food deliveries apparently is meant to apply only to prisons and not to lockups.²⁷⁴

Torture and Cruel Treatment

In several cases in 2005, 2006, and 2007 police and other security agents severely beat detainees, including children, in police lockups and irregular places of detention.²⁷⁵ In addition, in three cases detainees reported being handcuffed twenty-four hours a day while held in places of detention or prisons in 2005 and 2007, one detainee for three days, several detainees for three weeks, and another detainee for five weeks.²⁷⁶

In a number of cases, including the above-mentioned cases of Bizimungu and his co-defendants and the case of Kavutse, witnesses complained in Rwandan court of having been tortured, either to force them to confess to alleged crimes or to force them to testify against other people.²⁷⁷ The most recent such case recorded by Human Rights Watch researchers dates to 2007.²⁷⁸

One case of torture involving Rwandan civilian police, military officers and other security agents was documented extensively in a US District Court hearing charges against three Rwandans accused of having murdered US citizens in Uganda. In a 160 page decision, the judge set out a detailed account of the testimony, including that of medical experts, which caused her to conclude that the Rwandans had been tortured by Rwandan state agents.²⁷⁹ She refused to admit the confessions as proof of guilt and the U.S. prosecutor dropped the case. The Rwandan minister of justice, the prosecutor general, and the head of the military justice system were all made aware of this decision by May 2007, but to our knowledge at the time of this writing, no Rwandan judicial authority has investigated these abuses. Two of these three judicial authorities actually made light of the case, both saying that the scars of the victims proved nothing since all Rwandans had scars.²⁸⁰

Given the scarcity of information, it is impossible to assess the extent of torture by state agents, but it does appear clear that whatever torture does take place is not likely to be prosecuted and punished by judicial authorities.

Protection from Double Jeopardy

Protection from double jeopardy is meant to provide accused persons with the assurance that an affair once judged is finished. This assurance is generally seen as important not just for the rights of the individual but also for confidence in the judicial system and for overall social stability.

The multi-faceted nature of the charge of genocide and the number of acts that a single accused person may have committed at different times and places can make it difficult to separate legitimate prosecutions from others that violate the accused’s right to protection from double jeopardy. According to Minister of Justice Karugarama, however, dozens of accused persons have suffered violation of this right since 2005.²⁸¹  

Legal Loophole

Under law, appeals to verdicts delivered in gacaca jurisdictions and in conventional courts take place within the same judicial domain where the first trial was held. The 2004 gacaca law, however, provides an unexplained exception to that general rule. It assumes that gacaca jurisdictions may try persons again for the same crimes for which they had been tried—and either acquitted or convicted—in conventional courts. Without providing any elaboration or guidance, the law simply states that any discrepancy in judgments between the two courts in the same case would be resolved by the gacaca appeal court.²⁸² This provision led one Supreme Court judge to comment caustically that the gacaca jurisdictions had become the new Supreme Court.²⁸³

Judges and others became aware of the risks of violations of the protection against double jeopardy as early as 2005 when gacaca courts began to investigate and prosecute persons already judged for the same crimes. Supreme Court judges asked the minister of justice to deal with the problem in 2006, either by legislative reform or some other means.²⁸⁴ A provision of the law to amend the gacaca jurisdictions, passed by the legislature and awaiting presidential signature, would resolve the problem.

Cases of Violation of the Protection from Double Jeopardy

A man spent five years in prison and then was acquitted of charges of genocide. Several years later, he was called before gacaca on the same charges, lodged by the same people who had originally accused him with no new evidence introduced. The gacaca judges declared they were not competent to hear the case but told the accusers that they could appeal the case to the gacaca appeals jurisdiction.²⁸⁵ 

In a similar case a man arrested in 1997 spent four years in prison before being brought to trial and acquitted of genocide charges. In 2007 he was called before gacaca accused, he believed, by the same persons who had originally charged him and for the same crimes, but the judges in this court found him guilty and sentenced him to 19 years in prison.²⁸⁶

In a third case, a man was arrested by a soldier in 1997 on the basis of a single accusation. No investigation was done of the charges. He spent seven years in prison and then was acquitted by a conventional court on the grounds that he had been mistaken for another person of the same name. In August 2006, he was called to gacaca, supposedly to appear as a witness but was immediately tried, found guilty of the charges for which he had been originally accused, and sentenced to 30 years in prison. He spent four more months in prison until his appeal was heard and he was again acquitted. He spent two weeks in prison before he was released.²⁸⁷

A case challenging the 2004 law is now pending before the Supreme Court. Joseph Mulindangabo, acquitted in conventional court on genocide charges, was then called to gacaca on the same charges. He appealed to the High Court in Nyanza to prevent the gacaca proceedings. The High Court ruled that it lacked jurisdiction in the case, which is now before the Supreme Court.²⁸⁸

Monitoring Trials

When conventional courts were hearing cases of genocide on a regular basis before the judicial reforms, trial observers representing the Rwandan Human Rights League (LIPRODHOR) monitored the proceedings and reported on them in widely-distributed publications. LIPRODHOR was the civil society organization most harshly criticized by government officials in the course of the 2004 campaign against genocide ideology. At that time 12 of its leaders, including some of the most experienced trial observers, fled the country. LIPRODHOR has since resumed some of its activities but no longer provides systematic trial observations in conventional courts.

Fair and effective trial monitoring can be a useful means to helping improve the performance of the courts. As the judicial system seeks to move towards fairer and more effective delivery of justice, LIPRODHOR or another credible human rights organization should be encouraged to establish a regular program of trial monitoring throughout the country.