QUEST FOR JUSTICE
Pretoria finally helps UN criminal tribunal track down Rwanda genocide suspect Fulgence Kayishema
South Africa let Fulgence Kayishema slip out of its fingers in 2019, but now it’s helping the UN discover where he might have gone.
Pretoria has finally agreed to establish an operational interdepartmental investigative team to help the United Nations’ criminal tribunal track down one of the last remaining fugitives it is still pursuing for culpability in the 1994 Rwanda genocide. The UN’s fugitive tracking team visited Pretoria and Cape Town in late May 2022 to take advantage of this development.
Serge Brammertz, the prosecutor at the International Residual Mechanism for Criminal Tribunals, has been struggling for almost four years to get South Africa to arrest or at least help him find the indicted Rwandan genocidal killer Fulgence Kayishema.
As a police inspector in Rwanda during the 1994 genocide, Kayishema played a leading role in the massacre on April 16 of more than 2,000 Tutsis who had taken refuge in the Nyange church in western Rwanda. Their Hutu assassins tossed hand grenades into the church and then when the Tutsis continued to resist, Kayishema and other local leaders ordered a bulldozer to demolish the building, crushing to death most of the rest. Survivors were hunted down and killed.
Brammertz repeatedly told the UN Security Council over the last few years that early in 2018 his office had concluded, based on records and sources, that Kayishema was present in Cape Town.
This had been confirmed by South African authorities via Interpol in August 2018.
“We immediately submitted an urgent request for assistance to South Africa seeking his prompt arrest.
“So we were surprised to be informed that because Kayishema had been granted refugee status in South Africa, he could not be handed over to the mechanism. This excuse was withdrawn months later, replaced with a new argument that South Africa lacked a legal basis to cooperate with the mechanism.”
Mechanism officials then pointed out to Pretoria that SA was obliged to arrest Kayishema as the arrest warrant had been issued under the mandatory Chapter 7 of the UN Charter.
“After 16 months of intense negotiations, in December 2019, South Africa finally submitted the UN arrest warrant for execution, which a local magistrate approved,” Brammertz said.
South African officials had then attempted to arrest Kayishema at his house in Cape Town and “not surprisingly, he was not there,” Brammertz told Daily Maverick.
Brammertz at that point informed the Security Council that his office had reliable information that Kayishema had still been present in South Africa as late as October and November 2019, “so merely weeks before South Africa reported in the Security Council that the arrest operation was unsuccessful”.
Brammertz told Daily Maverick his office did not give up the chase after the failed arrest. He told Pretoria: “This is not over…. Now we have to do our investigations to pick up his trail, and for that we need records. We need a lot of information about him, his alias, his phone information, financial information. We need his refugee file.”
This information would provide leads towards finding which country Kayishema had fled to. Or he could still be in South Africa or might occasionally visit there, as he still had family there.
And Brammertz added that by seeking one fugitive, the tribunal also often identified persons of interest who were in some way linked to the fugitive.
“And the longer we are looking at the South African aspects, the more we identify other persons of interest, Rwandans living in South Africa who may not be who they say they are and who may have links to those who committed genocide.”
But the investigation did not progress for more than a year. Miscommunications and delays meant Brammertz and his team received very little of the information they needed. Two visits by the mechanism’s tracking team in late 2020 failed to resolve key outstanding issues.
“To our great surprise, on the last day of the [second] mission, Home Affairs representatives informed us that Kayishema’s refugee file and fingerprints had been lost. This was difficult to understand,” Brammertz said in his 2020 report.
Still, the dogged Brammertz did not quit. In his report, he said his office had urged South Africa to: “Empower your operational services — particularly police and prosecutors — to work directly with us on a day-to-day basis. And truly give them your full political and diplomatic support, as well as the resources they require to help us.”
In September 2021, his office submitted an urgent request to Pretoria to establish an interdepartmental investigation team to do just that.
In November 2021, he visited Pretoria to take up the matter, meeting Home Affairs Minister Aaron Motsoaledi and officials of other departments. He was informed that International Relations and Cooperation Minister Naledi Pandor — who fully supported his request — had asked President Cyril Ramaphosa to discuss it in Cabinet.
This was the first time, it seemed, that the issue was getting the attention it needed at the highest levels of government.
When he spoke to Daily Maverick later in December, Brammertz said he could not believe that obtaining cooperation from South Africa, with its own history of human rights violations, had proved so challenging.
Instead, he had got the impression “that the national agenda is a higher priority than international justice-related issues. So we fully appreciate and understand that South Africa has many challenges at a national level which need to be addressed.
“So that’s why, despite all the criticism and the frustration and lack of responses we were getting, I still remain optimistic that once there is a political decision taken to say we have to bring this case to a good end, and we have to cooperate with the United Nations tribunal, I hope we can still together achieve the results we are today looking for.”
It was not until April this year, though, that Pretoria informed his office that his request had been approved and an operational team had been established. This was followed by a visit in late May, during which Brammertz’s team and the SA operational team shared information and agreed on the next steps.
With the political support now in place, the investigators will work together directly to move the investigation forward.
Pretoria’s agreement to create the interdepartmental team might now, at last, give Brammertz and his office some leads towards finding where Kayishema is hiding.
It ought to improve coordination, removing the problem which Brammertz told Daily Maverick his office had been experiencing, of being sent from one government department to another.
And so, in his request of September 2021, he said he had pleaded for Pretoria to “please make your lives and our lives easier by giving us the contact point in each of the ministries and then we do it ourselves. And that’s why we asked for the creation of a task force with designated contacts in the different ministries and departments so at the end of the day we have interlocutors who are willing and able to answer our multiple requests.”
Embarrassingly for South Africa, over the last few years, Zimbabwe has made more efforts to show cooperation with Brammertz’s office than has Pretoria.
Brammertz had earlier complained to the UN Security Council about a lack of cooperation by Zimbabwe in pursuing Protais Mpiranya, who had been head of the Presidential Guard in Rwanda and had played a key leadership role in the genocide.
Among Mpiranya’s alleged crimes, Brammertz said, were the assassinations of many politicians including prime minister Agathe Uwilingiyimana, and the murders of 10 Belgian UN peacekeepers on 7 April 1994, the first day of the genocide.
Brammertz said then that Mpiranya was the mechanism’s “Number One Fugitive”. But he noted that Mpiranya had visited Zimbabwe in November last year, just before visiting SA, to meet the vice-president and minister of home affairs as well as a task force which the Zimbabwe government had established to support the mechanism’s work.
“There is still a lot of room for improvement as well, with Zimbabwe. But at least we saw some progress and improvement, and my team was already on the ground in Harare since May 2021.”
And indeed having his team in Zimbabwe working directly with authorities there paid off, because in April this year his office discovered Mpiranya’s body in a cemetery in Harare. He had been buried there in 2006 under a stone slab bearing a different name. Brammertz’s team had identified the grave with the help of a critical lead found on a confiscated computer: the hand-drawn design for Mpiranya’s tombstone, according to The Guardian newspaper.
The team also announced in mid-May that it had accounted for another of its remaining fugitives, Pheneas Munyarugarama, who had died in the DRC. That meant Brammertz and his team had dealt with four fugitives in just the last two years, with only four more now remaining.
Brammertz said this left Kayishema as his mechanism’s most wanted fugitive. DM