Prosecutor v. Faustin Kayumba Nyamwasa et al, High Military Court of Rwanda: An Analysis of Jurisdiction, Substance of Applicable Law and Policy Issues of the case

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JURIST Guest Analyst Professor Charles Kambanda, from the LLM Center at St. John's University says the Military High Court of Rwanda did not have jurisdiction over the defendants from President Kagame's former military and political inner circle because of their current status as refugees...<br><hr height="1"><br><table align="LEFT"cellpadding="0"cellspacing="0"><tbody><tr><td><imgsrc="http://jurist.org/forum/samplename.pg" align="LEFT"hspace="0"vspace="2"></td><td><imgsrc="http://jurist.law.pitt.edu/images/s.gif"height="1" width="5"></td></tr><tr><td colspan="2"><imgsrc="http://jurist.law.pitt.edu/images/s.gif" height="1" width="1"></td></tr></tbody></table><font size="3"><b>I</b></font>ntroduction:

1. The defendants are President Kagame's former military and political inner circle. The first defendant is Lt. General Faustin Kayumba Nyamwasa, former army chief of staff. In March 2010 he sought political asylum in South Africa. The Lt. General survived an assassination attempt near his home in Johannesburg, South Africa. Lt. General Kayumba's supporters, family and some individuals within the South African government linked the government of Rwanda to the attempt on the General's life. South Africa recalled its ambassador. Diplomatic relations between the two countries have since remained strained. Article 2 subsection 2 of the Convention Governing the Specific Aspects of Refugee Problems in Africa is categorical in that "the grant of asylum of refugee is a peaceful and humanitarian act and shall not be regarded as an unfriendly act by any member state. However, Rwanda seems to have held this asylum case against the South African government. Major Dr. Theogene Rudasingwa, former ambassador to the US and former Director of work in President Kagame's office, sought political asylum in US, in April 2005. Dr. Gerald Gahima is former prosecutor general of the Republic of Rwanda. He sought political asylum in the US, in July 2004. In November 2007, Col. Patrick Karegeya, the former intelligence Chief, sought asylum in SA.


2. The four were prosecuted for, and convicted of, disturbing the public order, threatening state security, making insulting and defamatory statements to the person of the president and sectarianism. Lt. Gen. Faustin Kayumba Nyamwasa and Major Dr. Rudasingwa were, in addition, each convicted of deserting the army. All were tried, convicted and sentenced in absentia. Col. Karegeya and Dr. Gerald Gahima were sentenced to 22 years in prison, while Lt. General Kayumba Nyamwasa and Major Rudasingwa were sentenced to 24 years in prison.


Facts of the Case:

3. While in their respective countries of refuge, the defendants wrote and publicized a joint publication, Rwanda Briefing. The document detailed the authors' concerns over Kagame's government and the reasons why the four fled Rwanda. They jointly or individually elaborated on their Rwanda Briefing through articles and interviews with the media. The defendants accused the President of, among other things, destabilizing the Congo, henceforth DRC, corruption and discrimination. The government of Rwanda alleged that through the defendants' publications, interviews and articles, the defendants committed crimes that are punishable under Rwandan law. Prosecution relied exclusively on the defendants' publicized documents. The government of Rwanda circulated arrest warrants seeking the defendants' extradition immediately after judgment.


Jurisdiction:

4. The Military High Court of Rwanda did not have personal jurisdiction over the defendants. At the time they gave the contentious interviews and/or wrote their publications, the defendants were refugees. Refugees are protected under the UN Convention Relating to the Status of Refugees, adopted in 1951. Article 12 of the convention, in part, provides:

Refugees shall be governed by the law of the country of his

domicile or, if he has no domicile, by the law of the country

of his residence.

The legal impact of refugee status is, among other things, termination of any personal contacts between the refugee and his native country. No personal contact exists between the defendants and Rwanda. Due process requires that any state's court's exercise of jurisdiction be founded on legal contact between the state and the defendants. In criminal cases, there must be personam jurisdiction. By virtue of the defendants' refugee status, Rwandan courts lost legal contact with the defendants. The Convention Relating to the Status of Refugees bars the defendants from appearing, in person or through an agent in any Rwandan court. The defendants' countries of refuge are prohibited, under the Convention Article 33 principle of non-refoulement, from sending the defendants to appear in a Rwandan court.


5. Rwanda, like any other sovereign, has a legal right and duty to enforce their domestic laws and to punish domestic crimes. However, where there is conflict of law between an international convention and domestic law, the convention prevails. Rwanda's Constitution Article 190 provides:

Upon their publication in the official gazette, international treaties

and agreements which have been conclusively adopted in accordance

with the provisions of law shall be more binding than organic laws and

ordinary laws except in the case of non-compliance by one of the parties.

The scenario and level of analysis might be slightly different if a refugee is accused of international crimes, as defined by the Statute of the International Criminal Court, and the country of refuge fails to prosecute. In this case, the defendants were not prosecuted under the principle of universal jurisdiction. It was an outright error, in fact and law, for the Military High Court Judge of Rwanda to reason that Rwanda's domestic law supersedes the International Convention Relating to the Status of Refugees. A refugee is entitled to all legal rights not reserved to citizens of his country of refuge. At the time the defendants publicized their mouthpiece and interviews, they were exercising the constitutional rights they are entitled to in their countries of refuge. The kind of speech for which the defendants were convicted by the Military High Court of Rwanda is protected speech in the defendants' countries of refuge. Rwanda has a legal duty to respect the legal rights other countries accord to their people.


Substance of the Law:

6. Prosecution and conviction for 'disturbing public order, threatening state security, making insults to the person of the president' was based on Article 166 of Rwanda's Penal Code which provides that:

Anyone who through speeches made at meetings or public places, or by written or printed material, images or emblems of any kind displayed, distributed, sold, offered for sale or for public view, either by knowingly spreading false reports, in order to incite or try to incite people against the established powers, in order to incite or try to incite citizens against each other, to alarm people and thus in order to bring unrest in the territory of the Republic, will be punished with imprisonment from two to ten years and a fine of 2000 to100,000 francs or one of these penalties, without prejudice to more severe penalties under other provisions of this Code.


Article 160 of the same Penal Code also provides that:

It is punishable, in times of war, with imprisonment from ten to
twenty years, in peacetime, with imprisonment from five to ten years,
someone who: 1. By hostile acts not approved by the government, exposes the Republic to hostilities from a foreign power, 2. By acts not approved by the government, exposes Rwandans to reprisals, [emphasis added] 3. Meets with intelligence agents of a foreign power so as to harm the military or diplomatic situation of the Republic or its essential economic interests. It is punishable, in times of war, with imprisonment from eight days to two years and a fine of one thousand to five thousand francs, and min peacetime, to imprisonment from eight days to two months and a fine of 500 to 2,000 francs; 1. The offer or the proposal to commit an offense under this article; 2. The acceptance of this offer or proposal.


Prosecution and conviction for sectarianism was based on Rwanda's law that punishes discrimination and sectarianism. The law number 47/2001 provides:

Every oral expression, writing, and every action based on ethnicity,
origin, nationality, skin color, physical features, sex, language,
religion, or opinions intended to deprive one or more persons of their
rights under the laws in force in Rwanda and in the International
Conventions to which Rwanda is party. As for partisanship, it is defined as "any oral expression, writing or any act of division, which can generate conflict within the population, or cause disputes based on discrimination as provided in
this Article.


7. Prosecution argued that in their Rwanda Briefing, the defendants accused the President of institutionalizing Tutsi minority oppression over the Hutu majority. All the defendants are said to be Tutsi. The authors of Rwanda Briefing called on Rwandans to fight what the defendants called inequality. The defendants underlined that, in their opinion, President Kagame is a dictator. In their documents, the defendants are emphatic that fighting a dictator is a difficult venture all Rwandans ought to undertake. The Military High Court of Rwanda found these and similar assertions in the defendants' publication, Rwanda Briefing, to constitute 'disturbing public order, threatening state security, making insults to the person of the president and sectarianism'.


8. The law on disturbing public order, threatening state security, making insults and sectarianism in Rwanda has one major characteristic: making speech and expression crimes. The laws create a unique set of political crimes. The rationale of these apparently medieval laws in contemporary Rwandan society appears to be a methodical synergy to foster undue restraint on people's freedom of speech and right to opinion. These laws contravene Article 33 of the 2003 Constitution of Rwanda, which guarantees freedom of thought, opinion, conscience, religion, worship and the public manifestation of the same freedoms. Furthermore, they are inconsistent with Article 19 of the International Convention on Civil and Political Rights (ICCPR) and Article 9, subsection 2, of the African Charter.


9. We contend that freedom of speech and the right to opinion in both the Constitution of Rwanda and the ICCPR are not absolute. Article 34 of Rwandan Constitution subjects the enjoyment of the right of freedom of press and information to, "respect of public order and good morals, the right of every citizen to honour, good reputation and the privacy and family life and the protection of the youth and minors." Article 9, subsection 2, of the African Charter on Human and Peoples' Rights stipulates that, "every individual shall have the right to express and disseminate his opinion within the Law."


10. It is settled legal tenet that the law restricting fundamental rights and freedoms must be accessible, unambiguous, and drawn narrowly and with precision. The Rwandan laws under which the defendants were convicted, 'disturbing public order, threatening state security, making insults to the person of the president and sectarianism' are ambiguous, overbroad and lack precision. Article 160 of the Penal Code literally targets every form of expression and opinion. Any speech can be interpreted as "alarming people and bringing unrest in the territory of the Republic." Rwanda's Law number 47/2001 defines sectarianism as, "any oral expression, writing or any act of division, which can generate conflict within the population, or cause disputes based on discrimination as provided in this Article." This definition sanctions any speech or opinion that may not be popular or favorable to politicians.


11. Any restriction on people's right of expression and opinion must be subjected to the twin principles of necessity and proportionality. The principle of necessity requires that restrictions on the people's right of expression and opinion serve permissible purposes and are necessary to protect those purposes. First, these laws confuse genuine incidents of harmful speech and legitimate freedom of thought and expression. Second, the laws do not strike a balance between prohibiting harmful speech and supporting freedom of opinion and expression. Consequently, the laws paralyze any meaningful debate on social and political issues that have any bearing on political or economic realities of the people of Rwanda. These laws prohibit discourse on any controversial aspect of Rwandan society. Ultimately, the purpose of these apparently out-of-fashion laws is to ban meaningful debate. This is not a permissible purpose.


12. Laws, like law number 47/2001 and articles 160 and 166 of the Penal Code of Rwanda, that restrict people's freedom of expression because the subject matter is controversial are inconsistent with the demands of protecting people's freedom of speech as required by Article 33 of Rwanda's constitution. The US Supreme Court, in the 1960 case Shelton v Tucker is categorical:

Even though the Government's purpose be legitimate and substantial,

that purpose cannot be pursued by means that broadly stifle fundamental

personal liberties when the end can be more narrowly achieved.

Ideally, Rwanda's laws should seek to prevent the country's unremitting violence, genocide, war crimes, crimes against humanity and hatred. The root cause of these social evils is failure of Rwandans to co-exist with "others" they consider "bad" people. It is failure to embrace pluralism, diversity and other democratic values. The narrowest way of preventing such social perils is institutionalizing co-existence of people with diverse views. In the 1971 case, Organization for a Better Austin v Keefe, the US Supreme court observed that:

Criticism of public measures or comment on government action

[definitions] however strongly worded is within reasonable limits and

is consistent with the fundamental right of freedom of speech and

expression. This right is not confined to informed and responsible criticism

but includes the freedom to speak foolishly and without moderation. So long

as the means are peaceful, the communication need not meet standards

of common acceptability.


13. All these laws fail to recognize that freedom of opinion and expression cannot be limited to information and ideas that are favorably received or regarded as complementary, but also to those that offend and shock or disturb the state or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society, as espoused in 1976 in Handyside v United Kingdom, European Court of Human Rights .


Policy issues

Criminal defamation in Rwanda

14. Rwanda's decision to maintain criminal defamation on their laws is a practical challenge to ideals and aspirations of good governance and democratic values. In this case, the defendants were found guilty of 'defaming' the President of the Republic of Rwanda. It is an issue of general acceptance in democratic societies that people are free to inquire into their political leaders' public, and even private, transactions. The rationale is that political leaders are custodians and agents of the body politique. A principal has a right to know everything his agent does even when the agent would feel uncomfortable to, or does not want to, report to the principal. In democracy, the people are the principal. The president is an agent. A principal ought to have unlimited access in the process of inquiring into what the agent does on his behalf. It is immaterial that the result of the principal's inquiry is a mistake, provided the motive was to do his legitimate task. Criminalizing defamation is premised on intimidating people, or principal from inquiring into what their political leaders, or agents do, or omit to do, with the powers and authority entrusted to them by the citizenry. The defendants' conviction for criminal defamation is a red flag within this paradigm.


15. In any democratic society, whenever defamation involves a matter of public concern, the burden of proof is on the public official to prove that the statement was made with knowledge that it was false. The Bill of Rights gives people absolute unconditional privilege to criticize official conduct despite the harm which may flow from excess and abuses. In New York Times Co. v Sullivan, the Supreme Court of the United States held that:

It is prohibited for a public official to recover damages for defamation or

falsehoods that relate to his official conduct [business] unless he proves that

the statement was made with actual malice. It was erroneous to prosecute

the defendants for their legitimate inquiry into the country's administrative

style and system.


Deserting the Military

16. Lt. General Faustin Kayumba Nyamwasa and Major Theogen Rudasingwa were each convicted of deserting the army. At the time he fled Rwanda, Lt. General Faustin Kayumba Nyamwasa was Rwanda's Ambassador to India. Major Theogene Rudasingwa was Director of Work in the president's office. The two defendants were therefore civil servants at the time they fled the country. Being a soldier in Rwanda is a full-time job. Civil service is also a full-time job. In any democracy, one cannot be a soldier and public servant at the same time. The issue is whether the defendants were discharged from the army by virtue of being appointed into civil service positions. The answer is in the affirmative. In General David Tinyefuza v Attorney General, the Constitutional Court of Uganda reasoned that:

The Army is a continuing full -time job and a member of the Army is liable

to be employed on active service any time. Similarly [...] a public servant

is engaged on full time basis. It follows that an army officer cannot be a

public servant at the same time. And so when [...] the President

appointed the petitioner to a public service job [...] he thereby took him out

of the army. There is no doubt that the President's power to appoint Army

Officers include[s] power to remove them from the army ... the petitioner

ceased being a member of the army [...] when he was appointed.

When the President appointed Lt. General Kayumba Nyamwasa and Major Theogen Rudasingwa into civil service, the two were effectively, by implication of law, discharged from the army. The Military High Court of Rwanda wrongly assumed that the defendants deserted the army. At the time they fled Rwanda they had been duly discharged by virtue of their appointments into civil service.


Fair hearing, fair play and justice

17. Absence of fair hearing, fair play and injustice is presumed in any case where an incompetent court assumes power over the case or person. A court that indicts a person over whom it has no jurisdiction is arbitrary and acts in vain. To the extent the Military High Court of Rwanda lacked personam jurisdiction in this criminal case, there was no fair hearing, and no fair play. The court was inherently unjust.


Effect of the arrest warrants issued against the defendants

18. No democratic jurisdiction would give effect to an arrest warrant that emanates from a flawed court case. The preliminary discussion, whenever extradition is in issue, is whether the court in which the defendants were prosecuted and convicted had jurisdiction. This case fails on the preliminary test. The Military High Court did not have jurisdiction. The Rwandan government declared that the defendants are now on Red Notice. The issue is whether INTERPOL can intervene in this case. Article 2 of the INTERPOL Constitution and General Regulations, provides for the role of INTERPOL as:

To ensure and promote the widest possible mutual assistance between all

criminal police authorities within the limits of the laws existing in the

different countries and in the spirit of the Universal Declaration of

Human Rights.

INTERPOL is not allowed to intervene in any venture that would encourage breach of the minimum human rights standards in the Universal Declaration of Human rights. The case in question is a typical example where the state is using its excessive powers to curtail people's basic human rights. This is inconsistent with the spirit and letter of the Universal Declaration of Human Rights. INTERPOL is barred from intervening in such cases. If INTERPOL intervened, the institution would be getting involved in a political enterprise, which would be contrary to the spirit of Article 3 of INTERPOL Constitution. However, the government can use extrajudicial and/or illegal means to subject the defendants to Rwanda's jurisdiction. All the possible legal extrajudicial means are inapplicable in this case. Kidnapping the defendants is a possible illegal means to subject the defendants to Rwanda's jurisdiction. However, this method is unacceptable among democratic countries, Rwanda included.


Conclusion

18. The Military High Court of Rwanda did not have jurisdiction over the defendants because of the protection the defendants have under the international convention on the protection of refugees. At the time the defendants wrote the documents in issue, they were exercising their constitutional rights in the countries of refuge. The Rwandan court failed to appreciate that the facts of the case presented a genuine conflict of laws. Rwanda has a right to enforce its domestic law. However, where enforcing such a law would be inconsistent with an international convention to which Rwanda is a state party, the convention supersedes domestic law. It was an outright error, in fact and law, for the Rwandan court to believe that domestic law prevails in such case. Most of the laws that were applied contravene Rwanda's constitution and are inconsistent with the relevant international legal instruments to which Rwanda is still a state party. The 'crimes' for which the defendants were prosecuted are 'speech crimes'. None of the defendants appear to have deserted the army. Each of the defendants that were convicted of deserting the army were duly discharged from the army, by implication of law, when the President appointed them into the civil service. The case is manifestly a political battle concealed in the sanctuary of justice - the court. The defendants may not be extradited because of the jurisdiction hurdles the court failed to address. INTERPOL is, as a matter of their constitution and regulations, barred from executing the arrest warrants that were issued against the defendants. The Military High Court of Rwanda probably acted in vain.


<em>Professor Charles Kambanda is also a public policy analyst and international human rights lawyer

</em>


<em>Suggested citation: </em>NAME, <em>TITLW</em>, JURIST - Annotations,

March 2, 2011, http://jurist.org/annotation/2011/March/article_url.php.


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This page contains a single entry by Adrienne Lester published on February 16, 2011 5:07 PM.

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