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Opposition activist Ingabire has been denied a fair trial by expedient judges, improperly gathered evidence and a disregard for procedural justice.

Since her arrest in October 2010, the trial of Rwandan opposition figure Victoire Ingabire has been followed intently. Eighteen months into the proceedings, Ingabire is now awaiting a verdict on six counts relating to terrorism and genocide denial, and her case has come to symbolise the ongoing struggle over the legacy of the genocide and the future of judicial independence in Rwanda.

The partisan national press was declaring Ingabire a ‘divisionist’ even before the arrest, while international observers have been keen to expose the trial as a sham. But without direct access to documents presented to the court, this is not the place to assess Ingabire’s guilt or innocence. What we can assess here, however, are the judicial processes that govern the case and that will decide Ingabire’s fate. And examining these suggests that the prosecution has virtually guaranteed that regardless of whether an acquittal or a conviction is handed down, justice will have been denied to the defendant.

The case background

Ingabire, chair of the diaspora opposition group The United Democratic Forces (FDU-Inkingi), had been living in the Netherlands from 1993 until January 2010 when she returned to Rwanda to contest the national elections the following August.

Ingabire was first placed under house arrest in April, three months after giving a speech at the Kigali Genocide Memorial Centre in which she questioned why Hutu victims of the genocide were forgotten while also insisting on the need for national reconciliation and justice for the many Tutsi who were murdered. She was eventually released on conditional bail and repeatedly interrogated over the summer. Meanwhile, the FDU’s petition for official status as a political party was rejected, effectively excluding the group from the polls.

Ingabire’s re-arrest in October was on suspicion of “threatening national security and public order” and of “buying and distributing arms and ammunitions to the terrorist organisation” the Democratic Forces for the Liberation of Rwanda (FDLR), a rebel group operating out of Burundi and the Democratic Republic of the Congo. Also implicated in this “plot to destabilise the country” was Paul Rusesabagina, the manager of Mille Collines Hotel, whose heroic protection of refugees during the 1994 genocide were depicted in the film Hotel Rwanda.

In the end, the state decided to charge Ingabire alongside alleged co-conspirators Colonel Tharcisse Nditurende, Lieutenant Colonel Noel Habiyaremye, Lieutenant Jean Marie Vianney Karuta and Major Vital Uwumuremyi. As the hearings began in Kigali High Court, further charges were added relating to “genocide ideology” and “divisionism”.

“Fruit of the poisonous tree”

The first set of procedural troubles in the trial relate to the procurement and application of the prosecution’s evidence. Before Ingabire’s case began, her alleged co-conspirators appeared in court for a string of pre-trial confessions. All four pleaded guilty and asked for clemency.

Yet despite Prosecutor General Martin Ngoga’s claim that “there is not a single allegation they are making against her that is not supported with documentary evidence”, the facts of the case rely to an extraordinary extent on their respective stories.

Uwumuremyi’s testimony is of particular importance to the prosecution. He alone “explained” the “coded language” of the emails he allegedly exchanged with Ingabire, as well as the Western Union money transfers of $7,000 that (he claimed) she sent for the purchase of weapons. Thus, without the guilty plea of a confessed rebel politician, the phone records and money transfers do little to condemn Ingabire.

Moreover, at least two of the co-conspirators were produced for the trial through irregular means: namely, being arrested in Burundi, involuntarily repatriated, and incarcerated for seven months in extrajudicial detention. During this time, they were denied access to counsel and family, and subjected to frequent interrogations by Rwandan intelligence services. And the prosecution does not deny this story: queried about the matter, Prosecutor General Ngoga simply replied, “those are arguments meant to avoid [the] real substance of the case”.

In addition to the difficulties of producing evidence, the prosecution also seems to have ignored the rules governing its use. Most notably, papers collected at Ingabire’s home in the Netherlands were released to the Rwandan government by the Dutch Foreign Ministry after a protracted legal battle, and only with the guarantee that the 600-page portfolio would be used to prosecute the charge of terrorism.

Yet it is unclear to what extent this evidentiary dividing wall has been maintained; prosecutors, for example, claim that the Dutch documents prove involvement in the FDLR and therefore conspiracy against the government. Formal use of the files to prove these charges would be flatly illegal, but even informal consideration (for instance, influencing the court’s opinion of her character) is clearly prejudicial.

Making things difficult

The second dimension of procedural injustice follows the general means by which the state has allegedly impeded Ingabire’s defence. Such problems appeared from the start: in the days following her re-arrest, FDU officials claimed that Ingabire was forced to wear handcuffs while in detention for at least two days without respite, a charge denied vehemently by the police.

Outside the courtroom, biased coverage of Ingabire’s trial signals the breakdown of judicial independence, especially in the pages of government-aligned dailies that dominate the national press. In one case, President Paul Kagame explicitly asserted Ingabire’s guilt. More directly, officially-sanctioned reporting often borders on defamation. Throughout her trial, media outlets have compared her to Osama bin LadenHamas, and the Nazis – the presumption of innocence notwithstanding.

Furthermore, the state has reportedly applied extra-constitutional pressure on Ingabire and her defence. Not only was Ingabire allegedly denied access to her legal team and FDU colleagues, but when she was allowed to see them, it was (party officials claimed) under prosecution surveillance. Her Rwandan defence lawyer, Gatera Gashabana, also reported that the state had failed to provide Ingabire’s team with all of the prosecution’s evidence, hindering adequate preparation of her defence.

This April, the defence also claimed intimidation of a key witness. Testifying that state intelligence services had manufactured Uwumuremyi’s story, Colonel Michel Habimana was allegedly improperly interrogated by police under the direction of the Prosecutor General. Already serving life in prison, Habimana was subjected to a cell search and had important documents relating to the case seized. Whilst prosecutors maintained that this transpired within the bounds of the law, they gave no reason for the intrusion.

“Fitting” the law

Most troubling, however, is the third category of procedural faults which contravene both Rwandan and international law. Such problems first arose in May 2011, when Ingabire asked for and was granted a postponement.

As a British lawyer (alongside Gashabana) was leading her defence team, Ingabire was granted one additional month to translate the 2,500 documents delivered by the prosecution from Kinyarwanda into English. The presiding judge refused the request of four months for further study, claiming it would unfairly delay the trial of the her co-accused. But Ingabire and her alleged conspirators face charges deserving of separate trials.

Firstly, the defendants were apprehended entirely independently of one another. Secondly, while the men are FDLR commanders accused of physical violence, Ingabire is a politician charged with only economically and rhetorically supporting their military campaigns. Thus, while falling under the broad aegis of ‘terrorism’, their alleged crimes are fundamentally different.

The government implicitly recognised this when it divided the six charges against Ingabire into two blocs, trying her for three of the charges (divisionism, genocide ideology, and inciting revolt) as an individual – but then extra-legally swapping evidence between the two sets of crimes. Collaborators’ testimony on monetary transactions, for example, has been smuggled into an entirely separate case on Ingabire’s alleged ‘divisionism’. And the possibility of having separate trials has been denied despite substantial objections against linking the cases.

In other instances, the prosecution has openly manipulated the law. During pre-trial formalities in September, Ingabire’s defence lodged two motions. The first was against the territorial jurisdiction of the High Court for acts allegedly committed while Ingabire was resident in the Netherlands – this contention was dismissed the following week.

Justice Rutazana decided that the relevant statute should be interpreted to grant the High Court jurisdiction over any crime, irrespective of where it was committed, as long as the offence in question constitutes an international crime such as terrorism or genocide denial. Though the law is radically out of sync with international standards for ‘universal jurisdiction’, Rutazana appears here to have followed the letter of the statute.

Troubles emerged, however, in the dismissal of the defence’s second motion – the contention that Ingabire’s prosecution under the 2008 ‘genocide ideology’ law amounted to retrospective application. All evidence provided dated from before 2007.  For instance, a book published in 2000 (to which Ingabire was connected) motivated the prosecution’s charges of divisionism and incitement to revolt, while statements she made in July and October of the same year formed the basis on which the genocide ideology charge was levied.

Ingabire asked for all such documentation relating to events before the law’s enactment be removed from her file, which the judge denied. The legal basis of Rutazana’s decision was flimsy: the case had simply gone too far to grant the request, he explained. At the time of this dismissal, the trial had not yet officially begun.

Finally, this April, the court rejected Ingabire’s petition for a partial suspension of the trial pending the ongoing revision of the ‘genocide ideology’ law. Justifying this move, the Supreme Court cited her failure to attach a copy of the statute. The case that could potentially imprison a leading opposition figure for life thus proceeded on the grounds that she had neglected to paperclip to the file a copy of a law to which, in any case, the justices have easy access.

Method matters

Ingabire may well be guilty of some, if not all, the charges levied against her. It is possible that she directed FDU monies to the FDLR for the purpose of inciting violence against the state. It is also possible that she supports ‘divisionism’ and ‘genocide ideology’ as defined by Rwandan statute. Although her guilt appears unlikely to this author, it is a challenge that can at least be countenanced in Rwanda’s courts.

This legal battle, however, is constrained by a bevy of laws guaranteeing Ingabire a fair hearing. Article 19 of the Constitution provides, inter alia, that “every person accused of a crime shall be presumed innocent until his or her guilt has been conclusively proved in accordance with the law in a public and fair hearing”.

Additionally, Rwanda affirms its commitment to enforcing numerous international agreements such as the African (Banjul) Charter of Human and Peoples’ Rights of 27 June 1981, which contains extensive provisions for due process.

It is clear from the foregoing analysis that none of these appear to have exerted any influence over the prosecution of this case. Evidence has been gathered and deployed improperly. Strong-arm tactics have repeatedly hindered Ingabire’s defence, while a government-controlled media has gleefully convicted her in the court of public opinion.

Most worryingly, however is that the presiding judges have adopted legal interpretations according to expedience in a number of instances. Substantial challenges to the prosecution of Ingabire’s case have been allowed to lapse, and the numerous safeguards for procedural justice have been violated in principle if not in statute.

Awaiting a verdict

Ingabire’s verdict is slated for June 29. As she is now boycotting the trial entirely, she seems likely to receive life in prison.  Looking beyond this case, however, such violations of due process may lead the international community to row back on cooperation with the Rwandan judiciary. This is of growing concern for Western policymakers.

Prior to Ingabire’s trial, there had been numerous indications of growing trust in Rwanda’s legal system. In January, Canada deported Leon Mugesera, allegedly one of the genocide’s masterminds, for trial. The same month, the United States turned over Jean-Marie Vianney Mudahinyuka, reportedly a former interahamwe leader. Furthermore, April saw the first-ever transfer from the International Criminal Tribunal for Rwanda (ICTR) to the national courts, in the case of genocide suspect Jean Bosco Uwinkindi. As long as the West continues to willingly transfer such suspects to Rwanda, it will be complicit in gross miscarriages of justice.

Rwandans are correct to assert the right of trying genocide suspects at home, and it is incontestable that justice depends on those responsible – particularly such unsavoury characters as Mugesera – being held to account. But even those most guilty of atrocities should receive fair trials. Procedural justice must be pursued with equal vigour as the outcomes of justice are currently.

Rwanda must ask herself whether commitments to individual human rights are worth sacrificing in support of Rwandan sovereignty and communal justice.

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