Kigali, 06 October 2011
Yesterday, the prosecutors exhausted all legal moves to obtain a life sentence for the opposition leader and are now engaged in a disrespectful war, accusing the defence counsel of delaying tactics fearing the evidential stage. The opposition leader, Madame Victoire Ingabire, now completing one year in maximum security told the court “I have no fear, I never committed any offence against my country, I need justice”.
Today, the defence has proven that at least three counts were levied for the first time in the indictment submitted to the High Court without the accused being interrogated on them per Se, or without a proper notification. This was in violation of the Constitution of the Republic of Rwanda, art. 18 (3) granting: “The right to be informed of the nature and cause of charges and the right to defence are absolute at all levels and degrees of proceedings before administrative, judicial and all other decision making organs”. Article 14 of the International Covenant on Civil and Political Rights is protecting people against those abuses and violations.
The hearings of today focused on the legal basis of the jurisdiction of the High Court on most of the evidence produced by the national prosecution authority. The Court should exclude these documents for reasons of legal principle and in the interests of a fair trial.
In this trial, the unethical animosity of the prosecutors and the silence of the court on their insults towards the opposition leader Ingabire and her defence counsel constitute disturbing violations of the presumption of innocence and tend to confirm that the accused was convicted before the trial. The public expects the prosecutors to remain committed to the highest ethical and professional standards and strive to achieve the most effective and appropriate criminal prosecutions. The court does not seem to care about their lack of manners. Their concern is not justice but a conviction. A conviction obtained on insufficient, flawed or doubtful evidence is regarded as a justice failure.
“This is not a debate in a bar, we are in a court of law and there is a code of conduct …”, Barrister Iain Edwards responded to in-court abuses by the prosecutor.
In open Court, earlier this week, the defence counsel complained about the overt hostility of the Court towards them and the lack of fairness, as expressed in a formal letter sent on 28 September 2011 to the presiding judge (with copies to the President of the Supreme Court, to the High Court president, the chief prosecutor and the national bar association):
“We are bound to say that any idea that we wish to delay the proceedings, as the Prosecution so regularly and mischievously suggests, is false and unfair. It is also illogical. The defence has no interest in this case dragging on unnecessarily. Our client’s profound desire is to be acquitted, released, and allowed to return home …For the Prosecution to continually insinuate that the Defence is employing dilatory tactics is as ridiculous. It is also regrettable that the Court habitually fails to sanction the Prosecution for its unfair and improper behaviour.”
“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. However, we do respectfully ask Your Honour to reconsider your refusal to allow the Defence their absolute right to respond to your criticisms and insults and grant us that right to reply …”
This show trial is a wakeup call to those who are funding and praising Paul Kagame’s justice. They need to remind that the role of a prosecutor and a Court is not to convict. “It cannot be over emphasised that the purpose [cf expectation] of a criminal prosecution is not to obtain a conviction: it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented; it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing: his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.” (per Rand J in Boucher v R (1954) 110 CCC 263 at p 270.)
This trial is a barometer for the establishment of the independence of justice and the separation of powers.
Interim Vice President.