OPINION: What’s at stake in the trial of Félicien Kabuga

Tuesday September 8 2020

A handout photo released on May 16, 2020 by the

A handout photo released on May 16, 2020 by the Mecanisme pour les Tribunaux penaux internationaux (IRMCT - International Residual Mechanism for Criminal Tribunals)/United Nations shows Felicien Kabuga, one of the last key fugitives wanted over the 1994 Rwandan genocide, who was arrested in a Paris suburb on May 16, 2020. PHOTO | AFP 

By ANDRE GUICHAOUA

On May 16, Kabuga was arrested outside of Paris, where he had been living for over 10 years under a false identity. One of the presumed last leaders of the Rwanda genocide still at large, he has been wanted for over 20 years.
The indictments against him include the most serious charges of genocide. These were committed during Kabuga’s time as head of Radiotélévision Libre des Mille collines from 1993, and as president of the National Defence Fund since it was established in April 1994.
This arrest marks the beginning of a long legal process in which the prosecution faces numerous challenges. The first of these is unravelling the mystery of 26 years spent in hiding.
The second challenge is whether the evidence sought has been preserved. A previous request to follow the money trail to establish guilt among ousted Rwanda officials was halted over fears of implicating current officials. What will happen when prosecution investigators seek such evidence in the future, not only in Rwanda, but also in Belgium, Switzerland, France, and elsewhere?
Finally is the issue of witness credibility. With the disappearance over time of many witnesses and the likely destruction of crucial records, witness credibility is one of the key issues of the Kabuga trial, along with the solidity of the evidence submitted to the judges.
Depending on who you ask, the trial could be held in Arusha, Tanzania, at The Hague in the Netherlands or in Kigali, Rwanda. However, these challenges – along with the fierce contention between Rwanda’s leadership and the Mechanism for International Criminal Tribunals (MICT) – which succeeded International Criminal Tribunal for Rwanda (ICTR) – will soon play out for the world to see.

Allegations and evidence
Kabuga’s recent arrest brought up the same accusations as those laid out in 1999, when his indictment was first published. He is described as the “richest man in the country”, one who imported machetes to arm genocidal killers. He is said to have had close family ties to the presidential couple. More significantly, he is said to have been responsible for funding and organising militia and vigilante groups.
As early as 1995, the International Criminal Tribunal for Rwanda prosecutor undertook to establish the guilt of Kabuga, Finance minister E. Ndindabahizi and Planning minister A. Ngirabatware (Kabuga’s father in law). But the court was soon thwarted by a lack of tangible evidence. Records kept by the ministries did not enable them to establish links with the genocide and the “machetes hypothesis” proved highly uncertain.
In 1999, the prosecutor turned to the accounting and staff management records of public and private companies. These helped reveal the funding mechanisms and networks that enabled the creation of the youth groups of the ruling party, the Interahamwe, and those of other parties. When war broke out, such groups morphed into youth militia serving the politicians that funded, housed (as did Kabuga in Kigali) or armed them.
Investigations made significant progress in 2001, with access to the bank accounts of individuals and organisations suspected of pillaging parastatal companies and the budgets of large government ministries.
In May 2001, the prosecutor’s office tried to extend its search to the highest levels of power. A working programme was sent to the Ministry of Justice, with a list of names and institutions. The requests included operations carried out after the war with the accounts and property of figures from the old regime, either dead, under prosecution or “recycled” by the new authorities.
But on the day the request was submitted, a wave of panic washed across the banking world, particularly in Belgium. Banks there voiced their total opposition to the highest levels of the Rwandan State. The investigations were refused on the basis that they might harm “national reconciliation” and the “country’s reconstruction” since they elicited concern from economic organisations now protected from scrutiny.
Can we hope that this evidence has been preserved?

Witness credibility
Another issue is witness credibility. Rwanda been known to use false witnesses, or even introducing implausible evidence.
For instance, former RTLM presenter Valérie Bemeriki, sentenced to life for genocide crimes, has become the Rwandan authorities’ go-to witness in numerous cases, despite having testimony thrown out by ICTR judges in the past.
Because of these reservations, the disappearance over time of many witnesses and the likely destruction of crucial records, witness credibility is one of the key issues of the Kabuga trial, along with the solidity of the evidence submitted to the judges.
In 1999, in order to bolster investigations, Belgian magistrate Damien Vandermeersch recommended “increased prosecutor supervision” and the introduction of adversarial principles, which would grant the defence access to the case from the investigative stage. Such a move would be in the interest of all parties, ensuring that this final trial would bring to light the truth on key outstanding questions surrounding the people who instigated or supported the genocide, and how it unfolded – questions for which Mechanism is certainly answerable.
But does this goal conflict with Rwandan expectations, given the work it entails and the slow pace of an international tribunal?

Rwanda’s agenda
Since relations between the ICTR and Kigali have been plagued by a series of crises, and because the credibility of international justice is often called into question in Africa, the MICT is facing a significant challenge.
For those wanting to know what happened in Rwanda, it would be unimaginable to forgo investigations of large swathes of the decision-making, organisation and operation of the war and genocide.
For Rwanda, the goal is to obtain formal recognition of its claim which places ‘planning of the genocide against the Tutsis several years in advance.’ The ICTR was never able to establish this. The theory of ‘genocidal conspiracy’ put forward by the ICTR’s initial prosecutors, was quickly abandoned due to lack of sufficient evidence.
This failure was confirmed by judges in the trial of Colonel Bagosora, and again when Protais Zigiranyirazo was acquitted following his appeal. Because the main suspect Agathe Kanziga – the widow of President Juvenal Habyarimana – was never prosecuted by the ICTR, Kabuga became the prosecutor’s number one target in 2001.
Whatever the outcome, the Kabuga trial will enable Kigali to again campaign for Kanziga, who still resides in France, to be tried in Rwanda. This would be a key trial, representing a final, outstanding political and judicial victory for Rwandan authorities.
With these final trials, the Rwandan government’s main goal remains the same: consolidate their rewritten version of the tragedy, which is now the official history of the war and genocide and, as such, is protected by laws against denialism and revisionism.
Nevertheless, attempts to try Kanziga in Rwanda would run up against a familiar obstacle. It is true that Kanziga was never prosecuted by the ICTR. But how could prosecutors go after the widow of Juvénal Habyarimana, when they refused to investigate the attack and granted RPF total impunity by halting investigations into its crimes?
It is one thing to orchestrate the moral vilification of the presidential family, but quite another to call for a proper trial. Such a trial would open up adversarial hearings on the 6 April attack, international complicity and the war crimes and crimes against humanity that came with the Rwanda Patriotic Front’s victory.

The question of Arusha
At a time when relations between the ICTR and Kigali have been marked by a succession of crises and the credibility of international justice on the continent is often called into question, it cannot be ruled out that the Kigali authorities will ask MICT to hand the case over to them after the French court definitively confirmed the transfer of the accused to the Mechanism.
On 28 May, Judge Sekule of the MICT recommended waiting until pandemic restrictions were lifted before making travel arrangements to Arusha, but added that ‘an appropriate alternative could be sought.’
A transfer to Arusha does indeed raise certain questions, such as the accused physical state, availability of Covid treatment, staff recruitment and resumption of proceedings.
Rwanda could then be considered as an “appropriate alternative”, given that a high court has been established there for this purpose. The country has been recognised for its rigorous control of the Covid 19, and the EU has reinstated direct flights to Kigali.
Arusha, The Hague, Kigali? It remains to be seen, and yet the question if answered, will not end competition between the MICT and Rwanda. However, another surprising possibility would be a guilty plea. It could only be accepted by the judges after a comprehensive and detailed hearing of the accused, in which Kabuga would be forced to tell the truth on the basis of proven facts.
Should this option be accepted by prosecutor Serge Brammertz, it could lead to highly simplified proceedings.