Category: Justice

{The International Criminal Tribunal for Rwanda (ICTR), which is scheduled to close at the end of the year, will make its appeal judgments on Monday in three trials involving five former Rwandan personalities, including the two highest officials of the former ruling party, APA learned Friday from a judicial source }

Two other cases involving seven are still pending before the Appeals Chamber.

The most awaited judgment will be delivered Monday in the trial of former chairman of the National Republican Movement for Democracy and Development (MRND), Matthieu Ngirumpatse, and former vice-president of the party, Edouard Karemera.

Both men were sentenced to life imprisonment in December 2011 after being convicted of crimes of genocide, crimes against humanity and war crimes.

According to the judgment of first instance, they did not prevent and condemned the atrocities committed in 1994 by young people in their party, the famous MRND Interahamwe.

At the appeal hearing in February, lawyers for the two men asked the acquittal.

M.Ngirumpatse “did not have the power to exclude or punish anyone (…) A political party is different from a government or military structure,” stated the French lawyer Frederic Weyl, seeking acquittal.

For his part, the Attorney George Mugwanya reaffirmed that both appellants had “a common agenda, namely to kill Tutsis.” “They abused their position of authority within the MRND,” accused the Ugandan magistrate, arguing that they were acting “within the scope of a joint criminal enterprise.”

Opened in November 2003, the trial had undergone many delays due in particular to the health problems of Ngirumpatse.

Originally, the two leaders of the MRND were judged with the former party secretary general Joseph Nzirorera and former Education Minister Andre Rwamakuba, who was a member of an opposition party to President Habyarimana.

But Rwamakuba had finally had continued in a separate trial that led to his acquittal in 2006.

Nzirorera died of illness on June 1, 2010, when he was about to complete his defense.

Another former member of the MRND, the former Minister of Youth, Callixte Nzabonimana, will learn his fate on Monday.

Tried alone, Nzabonimana was also sentenced to life imprisonment May 31, 2012, after being found guilty of genocide and crimes against humanity.

The room has retained its stake in the company of other members of the government, a famous meeting on 18 April 1994 at Murambi in his native prefecture Gitarama (central).

In the judgment of first instance, this meeting has sealed “an agreement” between Nzabonimana and other ministers “to encourage the killing of Tutsis.”

The third case concerns Captain Ildephonse Nizeyimana considered close Juvenal Habyariman and also sentenced to life imprisonment in the first instance.

At the time of the genocide against Tutsis in 1994, Captain Nizeyimana was responsible in charge of information and operations at ESO in Butare, in southern Rwanda.

June 19, 2012, he was sentenced to life in prison after being convicted of genocide, crimes against humanity and war crimes for many killings mainly in April 1994 in Butare and its surroundings.

The judge concluded that his criminal responsibility in particular for having authorized or ordered several killings in Butare (south), including that of Rosalie Gicanda, widow of the last king of Rwanda, Charles-Léon-Pierre Mutara III Rudahigwa.

Queen Rosalie Gicanda was a relative of the current president Paul Kagame. The officer has always protested his innocence.

{A Rwandan appeals court on Tuesday acquitted a former senator whom a lower court had sentenced to life in jail for participating in the 1994 genocide.}

The High Court in Kigali found that the first-instance judge erred in convicting ex-parliamentarian Anastase Nzirasanaho on contradictory evidence.

Nzirasanaho, a trained agricultural engineer, had been found guilty of distributing arms that were used to kill Tutsis in his native Mataba district, in the former Ruhengeri prefecture of northern Rwanda.

During the appeals hearings, six defence witnesses told the court that the arms in question were distributed by a soldier and not by Nzirasanaho.

Nzirasanaho appeared before a “gacaca” village court in 2008, when he was still in the Senate. The gacaca court classed him as a suspected “planner” of the genocide. His case was therefore referred to a normal court, since the gacaca courts did not have jurisdiction to try this category of suspect.

The gacaca courts, inspired by traditional village meetings where elders settled differences sitting on the grass (gacaca in the Rwandan language), officially finished their work in 2012 after trying more than a million people in ten years.

{L-R Presidents Yoweri Museveni of Uganda, Uhuru Kenyatta of Kenya and Paul Kagame of Rwanda.The three countries have held a series of meetings and passed decisions that excluded Tanzania and Burundi. This has been perceived in some quarters as an attempt by the so-called Coalition of the Willing to isolate the other two EAC member states.}

{{A case filed against the so-called Coalition of the Willing took a new twist at the East African Court of Justice (EACJ) yesterday when three plaintiffs asked the court to withdraw their request for an order stopping meetings of the coalition.}}

Mr Ally Hatib Msangi, Mr David Makatha and Mr John Bwenda, all Tanzanians, told a panel of five judges through their advocate, Mr Jimmy Obeid, that they intended to withdraw their application to pave the way for the main case to be heard and determined.

In their main case, the plaintiffs ask the court to restrain the “coalition” partners, namely Kenya, Uganda and Rwanda, from meeting and implementing decisions reached during their previous meetings held in Entebbe, Mombasa and Kigali pending the court ruling.

They argue that the meetings had isolated Tanzania and Burundi, which were also partner states of the East African Community (EAC).

Yesterday, they admitted that their application for the injunction has been overtaken by the inclusion of Tanzania and Burundi in the fourth and fifth meetings of the coalition held on February 24, 2014 and May 2, 2014.

Clause 51 (b) of the 2013 EACJ Rules of Procedure gives them the opportunity to withdraw the application from the court, a move which was also unanimously supported by the defence councils.

Save for the main case, Rwanda had since never responded to the application before the court.

Led by Principal Justice Jean-Bosco Butasi, the panel of EACJ judges also comprises Deputy Principal Justice Isaac Lenaola, Justice Faustin Ntelilyayo, Justice Monica Megenyi, and Justice Fakih Jundu, who had replaces Justice (rtd) John Mkwawa.

The panel of judges granted the plaintiffs’ request, saying the hearing of the main case should begin on September 24.

Dr Antony Kafumbe is representing the EAC Secretary-General, who is the first respondent in the main case, whereas advocates Muthoni Kimani and Peter Ngumi are representing the second respondent, the Kenya Attorney General.

Advocates Elisha Bafirawala, Richard Adrole and Maureen Ijang’ are representing the third respondent, Uganda Attorney General while his Rwandan counterpart, who is the fourth respondent, is represented by advocate Malaala Aimable.

NMG

{{This week, the East African Court of Justice in Arusha, Tanzania will proceed with sessions of the Appellate Division following the three rulings delivered last week in the application matters in which one was allowed and two others dismissed.}}

On August 15, the court’s First Instance Division delivered rulings on Burundi Journalists Association; on creation of Burundi’s National Commission for Lands; and on travel ban imposed on Rufyikiri.

{{In the First Ruling of the Court; }} The First Instance Division allowed Civil Society groups and Non- Governmental Organizations operating with and without the borders of the Republic of Burundi to participate in the case filed by Burundi Journalists Association as amicus curiae (Friends of the Court) pursuant to Rule 36 of the East African Court of Justice Rules of procedure.

Rule 36 provides that “an application for leave to intervene under Article40 of the Treaty and an application for leave to appear as amicus curiae shall be by notice of motion”.

The main case challenges inter-alia Law which governs the Press Sector in Burundi which was amended and in their case that numerous provisions of that law are contrary to the freedoms of expression and of the press within the meaning of Article 6 (d) and 7 (2) of the Treaty for the Establishment of the East African Community.

Therefore the a amicus curiae claim was that, they all have a genuine commitment to promoting respect for and observance of the freedoms of expression and of the press and in that regard they have acquired valuable expertise in that area of law.

They seek to be enjoined as amicus curiae to assist the Court on two issues;
Identifying and explaining the types of regulation of the media that constitute an infringement on press freedom, offering reasons why the freedoms of speech and of the press are essential components of both the fundamental principles of the EAC contained in Articles mentioned above.

Court in its ruling said that looking at the case filed and noting the issues in contest, it would be in the wider interests of justice that we admit the Applicants as amicus curiae and their role shall be limited to the filing of only one set of submissions within the timeframe to be determined by this Court.

Further that, the amicus is a friend of the Court and the Court can only take what it considers relevant and non-partisan from the amicus and the ultimate control over what the amicus can do is the Court itself.

The Civil society groups and NGOs allowed to participate in the matter include; Forum pour Reinforcement de la Societe’ civile (FORSC), the international Press Conference Institute, Maison de la Presse du Burundi, Forum pour la conscience et le Development (FOCODE), PEN Kenya, Pan African Lawyers Union (PALU), PEN international, Reporters sans fronteres and the World Association of Newspapers and News Publishers.

{{According to the Second Ruling;}}

The Court also dismissed an Application filed by Burundi citizens and a political party by the name (UPRONA Party), and Mr. Gabriel Sinirinzi, and Mr. Onesime Kabayabaya (Applicants) against the Attorney General of the Republic of Burundi and the Secretary General of the East African Community (Respondents).

The Applicants were challenging the inter-alia the creation of the National Commission for Lands and other assets in the Republic of Burundi vide Act 1/31 which came into effect on 31st December 2013.

The complaint is that the said Act in effect granted the Commission powers akin to those of the judiciary which is a violation and a breach of Article 6 (d) and 7 (2) of the EAC Treaty and therefore ask Court an interim Ex-Parte order (temporary) to stay the enforcement of the Act in Burundi.

The Court in its ruling said that, the land is an emotive issue in the East African region and Courts generally bear that fact in mind when settling disputes tied to land, but as regards the Application before the Court, the Judges did not see merit in it and they dismissed it as prayed by the Respondents.

The Court added that, it finds tremendous difficulty in granting the order at this stage because the Commission is still a statutory institution under the laws if Burundi, despite displeasure expressed by the Applicants.

Again the Court declined to nullify the Commission at this stage because it might affect the final decision of the matter by following a perpetuated chaotic procedural and legal situation.

The Court added that the Commission is functioning and has been for some years, it is best therefore that the situation as obtaining today should to obtain and the Court will render itself fully and finally both the Act and its processes and including the work of the Commission once the main case has been heard and determined on its merits and is the best cause of action in the wider interests of justice.

{{In the Third Court Ruling;}} The First Instance Division also dismissed another Application filed by the East African Law Society ( (EALS) Applicant) against the Attorney General Republic of Burundi and the Secretary General East African Community (Respondents).

The Applicants were seeking among others a declaration from Court that the decision and order of the Court of Appeal of Burundi of 28th January 2014; and travel ban imposed to Mr. Isidore Rufyikiri by the Prosecutor of the Anti- Corruption Court of Burundi infringes upon and are in contravention of Articles 6 (d) and 7 (1) and (2) of the Treaty and therefore asked Court to grant order to stay the decision of the Court of Appeal pending hearing and determination of the main case.

The Court in its Ruling said that, the Applicant has to wait for the main Reference since it is there that arguments regarding freedom of movement, right of practice, right of association that were prematurely presented in this Application will be properly addressed.

That for the Court to delve into these issues at this stage would be kin to pre-judging the merits or demerits of the main case and the politely declined the invitation to do so.

The Court further said that the prayers in this Application are identical to those in the main case and that it is also clear that the orders sought are final in nature and cannot be issued at this interlocutory (middle) stage and hence it was dismissed. Mr. Rufyikiri was the President of the Burundi Bar Association.

Parties present in Court were Mr. Donald Deya representing the Applicants in the 1st and 3rd Applications, Dr. Anthony Kafumbe and Hon. Wilbert Kaahwa representing the Secretary General in the 2nd and 3rd Applications respectively and Mr. Hamphrey Mtuy representing EALS (Applicant) in the 2nd Application.

The Court will proceed with sessions of the Appellate Division next week.