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ISS TODAY OP-ED

Long arm of international law finally reaches Kayishema in SA

Long arm of international law finally reaches Kayishema in SA
Rwandan genocide suspect Fulgence Kayishema making his third appearance at Cape Town Magistrate's Court on 9 June 2023 in Cape Town. The suspect was reportedly on the run for more than two decades, after he was charged by the United Nations’ International Criminal Tribunal for Rwanda in 2001 for crimes against humanity. (Photo: Gallo Images/Die Burger/Jaco Marais)

Alleged genocidaire Fulgence Kayishema looks set to face justice in a Rwandan court. But ensuring a fair trial involves some practical considerations.

After 29 years on the run, alleged Rwandan genocidaire Fulgence Kayishema was arrested in South Africa on 24 May. The United Nations’ (UN) International Residual Mechanism for Criminal Tribunals (IRMCT) had long pursued him in South Africa. 

Authorities there annoyed IRMCT prosecutor Serge Brammertz by ignoring his urgent appeal in 2018 to arrest Kayishema in Cape Town. They prevaricated for so long about his refugee rights and other issues that when police got to his house in 2019, he was gone. Finally, under pressure from Brammertz, a South African interdepartmental task force worked with the IRMCT to track him down.  

Like many other genocidaires, Kayishema was probably on the run from July 1994 when the Rwandan Patriotic Front entered Kigali to end the genocide. The International Criminal Tribunal for Rwanda (ICTR) charged him with genocide and crimes against humanity in 2001. 

The tribunal alleged that as a mid-level police officer, he planned and participated in the killing of more than 2,000 people at Nyange Catholic Church. After failed attempts to burn the structure while Tutsis huddled inside, Kayishema helped organise a bulldozer to collapse the building, killing everyone inside.

Read more in Daily Maverick: Detained Rwandan genocide suspect slapped with more than 50 charges under SA law ahead of bail hearing 

Since his arrest, South African prosecutors have charged him with 54 lesser offences, including fraud and contravening immigration and refugee legislation. The state alleges that he entered the country in 2000, and in 2004 applied for refugee status under a false identity. It’s unclear whether Kayishema will be tried first for these crimes. His attorney Juan Smuts said he was uncertain if the trial would be in the Netherlands or Tanzania – both IRMCT centres – or Rwanda.

International criminal law expert Ottilia Anna Maunganidze, Head of Special Projects at the Institute for Security Studies (ISS), believes that Kayishema should first be transferred to Arusha in Tanzania, and then to Kigali. This is in line with the ICTR decision that Rwanda could prosecute him. The IRMCT, which took over the ICTRs outstanding cases when it closed, confirmed that decision in 2014. Maunganidze said that, as per the ICTRs statute, the transfer wouldn’t be an extradition, legally speaking. 

After Kayishema’s arrest, Brammertz told Rwanda’s New Times that he expected the accused to be transferred from Cape Town to Arusha in a few weeks, and then on to Rwanda.

Fulgence Kayishema, one of the last fugitives sought for his role in the 1994 Rwanda genocide, appeared before a Cape Town court, two days after being arrested, following 22 years on the run. The former Rwandan police inspector was arrested at a grape farm in Paarl, according to UN investigators. (Photo: Xabiso Mkhabela)

Rwanda calling

Why Rwanda? Two years ago, Brammertz told ISS Today that when the ICTR closed in 2015, it earmarked three alleged genocide masterminds to be prosecuted internationally if arrested: Félicien Kabuga, Augustin Bizimana and Protais Mpiranya. The ICTR decided that lower-ranking fugitives – including Kayishema – would be tried in Rwanda.  

But will Kayishema get a fair trial there? In 2008, Human Rights Watch (HRW) filed an amicus brief to the ICTR saying he should be tried by the ICTR itself, not Rwanda. According to HRW, Rwandan courts were too politicised to deliver an independent verdict, and defence witnesses wouldn’t be adequately protected. 

In particular, they could fall foul of Rwanda’s notorious prohibition against “genocide ideology” or denial of the genocide. HRW says the 2003 law punishing genocide prohibits “any negation of genocide, any gross minimalisation of the genocide, any attempt to justify or approve of genocide, and any destruction of evidence of the genocide”.

The prohibition on genocide denial was so vague, argued HRW, that Rwandan authorities had been able to use it as a broad, blunt instrument to suppress political opposition. Many other concerns were also raised, including that the presumption of innocence was widely ignored in Rwanda and that awaiting trial prisoners, and those sentenced to life, were often held in solitary confinement. 

Since Kayishema’s arrest, HRW appears to have slightly moderated its strong opposition to a Rwandan trial. While pointing out serious flaws in Rwanda’s judiciary, HRW Central Africa Director Lewis Mudge didn’t insist that the prosecution couldn’t happen in Rwanda. He concluded: “The IRMCT has a responsibility to ensure that Kayishema receives a fair trial so that the fundamental rights he allegedly violated are upheld.” Brammertz has said he will work with Rwanda on the case, and the IRMCT can monitor proceedings. 

Practical trial considerations 

Maunganidze believes that while HRW’s concerns about witnesses facing repercussions for alleged genocide denial are real, Rwanda has recently demonstrated that it can give a fair trial to some suspected of genocide denial. She says it is also difficult to second-guess the IRMCT’s decision, which followed an assessment of Rwanda’s readiness to prosecute genocide. 

Some genocide survivors also want Kayishema to be tried in Rwanda, says Naphtali Ahishakiye, Executive Secretary of Ibuka, which represents survivors. He told Africanews.com: “We want him to be tried here in Kigali so that the victims and survivors can follow the trial. We’re afraid that these people could die without facing justice, so we really need to do this quickly.”

Another potential delay on Kayishema’s long road to justice is that South Africa could first prosecute him on immigration and refugee charges. One legal expert suggests the authorities could even insist he serves his prison term here, if convicted before sending him to Rwanda. South Africa’s justice minister might agree with HRW that Kayishema wouldn’t face a fair trial in Rwanda, and refuse to hand him over.

Maunganidze believes this is unlikely. Instead, South Africa – out of respect for the UN, and because Kayishema’s charges in Rwanda are so much more serious – will probably transfer him reasonably promptly to Arusha, en route to Rwanda. 

There is also a pragmatic consideration. This week Brammertz told the UN Security Council that in Rwanda “there are more than 1,000 fugitives to be prosecuted” by national courts. Whatever the concerns about the quality of justice in the country, the quantity of justice appears to be taking precedence. 

Peter Fabricius is a Consultant for the Institute for Security Studies (ISS) Pretoria.

First published by ISS Today.

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