AFRICANEWS

Rwanda

Crisis stalks release of genocide suspect

Human rights

The order by the appeals chamber for the UN Tribunal for Rwanda to release Jean Bosco Barayagwiza, on genocide and related offences on purely procedural basis has thrown the court into a potentially devastating crisis.

Not only has the government of Rwanda withdrawn all forms of cooperation with the court, bringing into question how future investigations and transportation of witnesses will take place but the court is also now faced with three similar motions demanding the release of other accused persons arrested in similar circumstances.

Three other suspects are seeking similar reprieve. They include Edouard Karemera, the minister of interior and vice president of the then ruling party, MRND who was arrested in Togo, Juvenal Kajelijeli, the then director general of the ministry of foreign affairs and president of MRND arrested in Mali and Mathieu Ngirumpatse the mayor of Mukingo arrested in Benin. There is also another motion that was tabled in September this year by Laurent Semanza, the former mayor of Bicumbi commune in central Rwanda and whose trial was set to begin in early November.

All of these are seeking similar measures to be taken in their cases, and it is not feasible that the appeals chamber would grant a release to one accused person and deny the latter suspects similar treatment. According to Barayagwiza's defence council; Kenyan lawyer Justry Nyaberi " the trial chamber will be bound by that decision, it is going to affect the tribunal and that ruling will apply to the other cases."The decision, however sets such an incredible precedent that motions yet to be heard on three other cases of illegal detention seem almost granted to succeed.

In ordering the release of Barayagwiza the appeals chamber noted that "procedures had not been properly followed during his detention in Cameroon and after his transfer to the UN detention facility in Arusha, Tanzania." Barayagwiza had been detained in Cameroon for 19 months without being informed of the charges against him, while preventive detention is not supposed to exceed 90 days.

Moreover the counsel for Barayagwiza as filed a further motion seeking that his client be given the freedom to be released to a country of choice. If such a motion is granted, it would mean that he can choose a country that is under no obligation to honour any requests for extradition, in essence, that he could actually avoid any future attempts for prosecution. A further precedent on this would in simple terms mean that all other accused arrested in similar situations and filing similar motions could get away without facing the genocide charges.

In view of this, the angry reaction of the Rwandan government and the decision to withdraw from any future co-operation with the court is understandable. In a press statement announcing the government decision the minister of Foreign Affairs and Regional Co-operation Dr Augustin Iyamuremye said that "The Rwandan government would like to declare their indignation and profound protest against this measure which is not in keeping with the gravity of the genocide and crimes against humanity committed in Rwanda in 1994."

The minister further noted that the liberation of Barayagwiza would serve as a pretext all other perpetrators of the genocide to live in impunity all over the world. "Given this condition the government of Rwanda does not see how it can continue its co-operation with the ICTR" Iyamuremye said. The government made it clear that the suspension would be within the limits of international law which oblige Rwanda to co-operate with the tribunal or face sanctions. However, although co-operation could be enforced some issues such as witness identification and protection will become extremely difficult if the hostility prevails as these rely heavily on the good will of the government.

The withdrawal of government support to the court has put many things in question. On going investigations on other cases that are still pending rely heavily on government support in terms of security and when organising for witness statements. Moreover two trials running over the next few months; namely against Ignace Bagilishema and Semanza may experience problems in getting in witnesses.

In Semanza's case in particular there are possibilities that a similar situation as the Barayagwiza case may arise even sooner than the other cases as his counsel had placed a motion to the court seeking the release of his client arguing that he was unlawfully detained after his 1996 arrest in Cameroon.

The defence lawyer for Semanza, told the court his client was detained for more than 30 days in Cameroon at the request of ICTR prosecutors without being charged with an offence, in violation of the rules of the United Nations tribunal. This argument was similar to the one the counsel for Barayagwiza. Semanza's counsel, has like Nyaberi emphasized that prosecutors failed to file charges in time even after Rwanda's extradition request was denied.

This apparent failure on the part of the tribunal comes at a sensitive time and just days within the time period when the official representative of the Rwandan government was expected to take up office in Arusha. The decision to send an official representative had been made on the basis of the agreement that the court had done much to streamline its operations and to reflect the mandate with which it had been made namely to bring justice to the Rwanda people.

With the release, however, all the past achievements of the court have come into serious question. The fact that a genocide suspect can be released on the basis of infringement of his rights is not an argument that sits very well with the people and the government of Rwanda owing to the level of human rights violations the accused was supposed to be answering for.

Speaking on this on the national media, Rwanda state prosecutor Gerald Gihima complained that "any hardships which Barayagwiza may have suffered in Cameroonian jails is negligible compared with what his victims suffered."

He added that in normal occasions a detainee in Barayagwiza's position could be compensated with damages but still made to stand trial. "There is not reason why the UN cannot pay money to someone in the appellants position. Justice for the victims can be brought only through the establishment of truth, and that can only be done through a trial. There is no justification for this decision."

"This has the potential to undo all the good work they are doing." Said Gihima. He added that the decision was "a very good indication that some of the people in charge of rendering justice.. are not aware of the extent of the crimes committed and perhaps some of them do not even care."

The release came just after the first ever ICTR judicial visit to Rwanda which had been expected to increase understanding between Rwanda and the UN court. The trip was meant to visit some of the sites where some of the alleged massacres were carried. This was especially in relation to the case of Bagilishema. This is, however not likely to happen any time soon.

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