Kigali, 10 October 2011
Today, after the defence counsel closing arguments on non-retroactivity of the criminal law, the territorial jurisdiction of the High Court on some counts and violations of the Constitution of the Republic of Rwanda, art. 18 (3) granting the right to be informed of the nature and cause of charges; the presiding judge is set to rule on Thursday 13 October 2011.The defence counsel filed a motion to strike out over 75% of the criminal dossier and to expunge 3 counts from the indictment because the opposition leader Victoire Ingabire was neither notified nor interrogated on them by investigating proceedings. These submissions angered the presiding judge who publicly insulted the defence in open court and refused them the right to comment. “Although Your Honour’s criticisms and comments may well appear to a reasonable, objective and informed observer as amounting to overt hostility and animosity towards the Defence, we do not at this stage ask Your Honour to recuse yourself, etc…”, wrote Barrister Iain Edwards and Batonnier Gatera Gashabana on 28 September 2011.
The Prosecutors insisted that most of the objections were invalid saying the defence opted for the objections as tactics to delay the trial. However they confessed that they had included the outdated evidence to show Ingabire’s involvement in the politics of genocide negation and divisionism and urged the Court to consider the criminal facts and not to allow the lawyers to exploit loopholes and minor prosecution errors. They argued that another suspect, Mr. Deo Mushayidi, was sentenced for life for similar charges in the case RP 0040/10/HC/KIG ruled on 17 September 2010 Opposing the political leader to the National public Prosecution Authority.
All the key prosecutor’s witnesses, co-accused in this case, followed the debates without making any comments giving some kind of curious impression that freedom did not matter to them and that they have no reason to contradict, challenge or cause any discomfort to the prosecution.
In the closing arguments, the defence counsel insisted on the following:
(i) Non-Retroactivity of Criminal Law
1. Article 18(2) of the Constitution of the Republic of Rwanda of 4 June 2003 (as amended) provides that:
No one shall be subjected to prosecution, arrest, detention or punishment on account of any act or omission which did not constitute a crime under the law in force at the time it was committed.
2. This provision reflects the terms of article 15(1) of the International Covenant on Civil and Political Rights, which provides that:
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. […]
3. It also reflects the terms of article 7(2) of the African Charter on Human and Peoples’ Rights, which provides that:
No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. […]
(ii) Territorial Jurisdiction of the High Court
1. Organic Law N° 51/2008 of 9 September 2008 Determining the Organisation, Functioning and Jurisdiction of Courts, published in the Official Gazette on 10 September 2008, amended Organic Law N° 07/2004 of 25 April 2004 Determining the Organisation, Functioning and Jurisdiction of Courts.
2. Article 90 of Organic Law N° 07/2004, as originally enacted, provided that:
The High Court of the Republic shall have jurisdiction to try any person including non-nationals found within the territory of the Republic of Rwanda, alleged to have committed, outside the national boundaries, any crimes falling within the category of international or cross-boarder [sic] […]
3. Article 90 of Organic Law N° 51/2008, as amended, provides that:
The High Court shall have jurisdiction to try any person including non-nationals, non government associations or organisations whether national or foreign, alleged to have committed, within or outside the territory of Rwanda, any crimes falling within the category of international or cross-border crimes especially, terrorism, hostage taking, drug trafficking, arms trafficking, money laundering, theft of motor vehicles for sale abroad, human trafficking especially of young children, slavery and other crimes of similar nature.
The High Court shall also have jurisdiction to try any person including non-nationals, non government associations or organisations whether national or foreign, alleged to have committed, within or outside the territory of Rwanda, any crimes falling within the category of international or cross-border crimes […]
4. Article 182 of Organic Law N° 51/2008, as amended, provides that:
Organic Law n° 07/2004 of 25/04/2004 determining the organisation, functioning and jurisdiction of Courts as modified and complemented to date as well as any other prior legal provisions contrary to this Organic Law are hereby repealed.
(iii) Raising the Exception of Lack of Jurisdiction
1. Article 84 of Law N° 18/2004 of 20 June 2004 Relating to the Civil, Commercial, Labour and Administrative Procedure provides that “the party raising an objection of lack of jurisdiction must justify it and identify the court to which he or she wants the case to be transferred. The decision shall be taken immediately”.
2. Article 1 of Law N° 18/2004 provides that “this law governs the procedure applied by courts in civil, commercial, labour and administrative cases. It also applies to all other cases in the absence of other specific governing procedures”.
Therefore, Law N° 18/2004, being the common law of procedure, provides for the correct procedure to be applied in the present case where lack of jurisdiction is raised.
(iv) Violations of the right to be informed on the nature of charges
The defence showed that the inclusion of the counts relating to terrorism, complicity in terrorist acts and spreading rumours aiming to topple the government violated the constitution and the international covenant on civil and political rights.
(v) Raising the jurisdiction of the High Court on the case against opposition leader Deo Mushayidi sentenced to life last year, the Defence has reminded that 4 charges relating to genocide negation, divisionism, terrorism and creation of an armed militia were rejected by the High Court.
The High Court ruling is expected on Thursday morning.
Interim Vice President.
Kigali, 10 October 2011