The Rwanda Bar Association (RBA) recently issued a review of the monitoring report produced by the American Bar Association (ABA) on Paul Rusesabagina's trial, to provide an impartial view.
The author of the review is Justice Dr. Emmanuel Ugirashebuja, former President of the East African Court of Justice. The review provided a high level analysis and whoever enjoys reading fine legal writings will enjoy it, not only because it robustly shows how sloppy the monitoring team is. It is also edifying to see a calm intellectual expose the shallowness and sarcasm of international experts on African matters.
Last month, the American Bar Association Center for Human Rights, as part of the Clooney Foundation for Justice’s TrialWatch initiative issued a report on their monitoring of Rusesabagina’s trial (hereafter the Clooney Foundation report). The report co-authored by TrialWatch expert Geoffrey Robertson QC and the ABA Center for Human Rights carries a lot of unqualified criticism about the conduct of the trial to the extent that it borders on contempt of court.
It concludes that: "… it is clear that Mr. Rusesabagina’s fair trial rights – in particular his right to confidential communication, his right to the presumption of innocence, and his right to prepare his defense – have been violated, potentially to the irreparable prejudice of the defense, calling into question the fairness of any potential convicting verdict (emphasis mine).
Additionally, the report criticises the action of the Court in providing five minutes to journalists to take photographs, the court’s failure to appoint an amicus counsel for Rusesabagina (after his complete withdrawal from the proceedings), and the judges’ line of questioning.
Inspired by the earlier mentioned review, let me briefly respond to these criticisms before I return to reasons as to why I think Robertson, in the Clooney Foundation report, is bordering on contempt of court, a criminal offence in Rwanda.
The claim of the violation of Rusesabagina’s right to confidential communication is about the prison’s inspection of his documents and searching through the communications with his legal team. This criticism is redundant. It is the Court that made such a determination, and to use it against it is frivolous to say the least. As noted in the Clooney Foundation report, the Court determined "that there are documents from [Rusesabagina’s] trial, as well as other documents, that have been seized, and their return to [him …] is taking a long time …" and the Court ordered that "documents which form part of the case file which Rusesabagina Paul exchanges with his lawyers should not be seized." The protection of communications between a suspect and his lawyer is crucial to the preparation of defense strategies since it gives confidence to the suspect to be open in sharing with his lawyer. Therefore, after the Court’s determination that there was an inspection of confidential communications, Rusesabagina (if he had not been ill-advised to withdraw from the proceedings) could have shown the Court that the documents seized from him reached the prosecution and, therefore, directly or potentially compromised his defence. The Court would have examined the issue and decided, for example, to remove such information from prosecution evidence. On the other hand, if it was a matter that began and ended as a prison management matter, the court would, for example, compensate for the time. The question of surveillance, monitoring and inspection of prisoners and their possessions is a double edged sword. Whereas international standards and rules for the treatment of prisoners require the minimum use of intrusive searches, and protect confidential communications, the prison management has a mandate of protecting the wellbeing of prisoners and to ensure that there is no abuse of such privileges. You may disagree with the existence of "an escape plan" and it could be true that the prison management acted on a wrong tip, but that is the reality of intelligence. Sometimes it is wrong. Nonetheless, given the consequences of not acting, the prison management ought to investigate all tips.
The claim that there was a violation of his presumption of innocence is based on statements the President made against him. It is indeed true that public officials should avoid making statements that are prejudicial against defendants, but this does not stop them from making statements that are of public knowledge. Rusesabagina openly pledged full support to the FLN, a terrorist militia group that attacked Rwanda, and publicly urged people to support it. He is especially heard in a video aimed at recruiting young people to join the group. This information is verifiable. Therefore, it would be foolhardy to assume that the President of the Republic should be quiet, and not assure the people he leads, as their elected President, in particular the victims of FLN attacks which Rusesabagina has publicly claimed responsibility for, that he will have to pay for those crimes. To imagine that, is akin to legal authoritarianism, is to arrogantly presume that legal values are more important than the President’s political (Constitutional) mandate, of assuring citizens that the country is safe and secure, that whoever attacks it will fail and will be brought to justice. In any event these are events external to the trial. I have read and heard hundreds of things said by high level persons and institutions both here and abroad. Judicial independence includes courts not being swayed by events outside the trial.
The authors of the Clooney Foundation report deduce the violation of his right to prepare his defense from at least three arguments. First is the fact that the Court refused to grant him six months' adjournment of the trial that he requested to prepare his defense. There is one major flaw in this reasoning, and it is to assume that respecting fair trial rights is equivalent to granting an accused whatever he or she requests. It is the judges’ duty and it is in their powers to examine and determine the merit of every request, and if a party is not satisfied with that determination, the process provides for the right of appeal. This is how court systems operate, and it is also important to note that adequate time to prepare for defense has to be balanced with providing an expeditious trial, to avoid what is often known as manœuvres dilatoires, in French.
The second argument is that the Court did not appoint an amicus counsel who would have represented Rusesabagina's interest including probing the credibility of prosecution witnesses. This is duplicitous. Despite the fact that this is a rare practice and not founded in law, I shudder to imagine the kind of criticisms that would have followed had the Court appointed a lawyer to supposedly speak on Rusesabagina’s behalf. I am sure everyone still remembers the deafening noise made against the initially appointed pro bono lawyers, who, in fact, Rusesabagina had interviewed and chosen himself.
The third argument is that the judges’ line of questioning was "apparently designed to extract information inculpating Mr. Rusesabagina." First, the report's authors should acknowledge that this is their personal opinion. We are all entitled to opinions. If they claim it's a professional opinion, still it's Robertson's professional opinion. Other legal professionals probably saw calm, brilliant and organized witnesses who fully explained their motivations to testify in the case so no one doubts or speculates. Second, to presume good intentions on the side of the authors, I will blame this professionally erroneous argument on their limited knowledge on the differences in the roles of a common law judge versus a civil law judge. As Geoffrey C. Hazard argues, whereas the role of a common law judge "is to decide between competing presentations of evidence and law that are tendered by the advocates," a civil law judge "is responsible for deciding a case according to the truth of the matter." There is nowhere such a difference is more visible than in the questioning of witnesses. A civil law judge is "responsible mainly for eliciting the evidence leading to the truth." The judges would not have probed the credibility of witnesses if, in their view, the witnesses had established their own credibility beyond doubt. Still they asked them serious questions whose interpretation can't be Robertson's monopoly.
Another criticism is that when "the defendants were led into the courtroom, the first thing the judges did was to adjourn for five minutes to enable photographs to be taken, raising concerns that the trial was more public spectacle than a judicial undertaking." This is the perfect example of "when you do you’re damned, when you don’t you’re damned." It is an understatement to say that it is strange, and probably it is the first and last time a court is being criticized for providing access to the media. Unless there are special reasons for a hearing to be in camera, it is always good practice that a trial be conducted in public to ensure transparency of proceedings, and to protect the interests of parties in the case and those of the public at large. The role of journalists is paramount especially in this period of the Covid-19 pandemic measures, where not everyone is permitted to attend proceedings. Again, had the court restricted the access to the proceedings, the criticisms would have been multiple. But at least now, whatever happened in the courtroom is available for all of us to see. What bothers me is what the authors were driving at. Did the photo session prejudice the hearing in some way, or they think it was not necessary? Either way, who are they to tell what the Court should have done, on such an issue, really?
Let me return to the central argument – that this report is intended to serve one purpose, contempt of court. Article 262 of Rwanda's 2018 law determining offences and penalties in general stipulates that "[a]ny person who discredits an act or a decision of judicial organs, in a manner likely to cause contempt or lack of independence of the judicial organ, by use of statements, writings, images or any act, commits an offence."
Robertson ought to know this common law rule, and as Bhag Singh notes "[i]t is regarded as a strict liability offence that may interfere with the course of justice, regardless of the intention of the contemner." Contempt of Court is an offence against the justice system as a whole. It includes, among other things, criticisms of courts or judges which may undermine public confidence in the judicial system. I would like to argue that this is exactly what Robertson, through the American Bar Association and the Clooney Foundation, is trying to do. The first reason is the timing of the release of the report. It can be argued that the timing is intended to interfere with the judges’ deliberations since the proceedings are nearing closure, and this is evident in a threat that is made on releasing "the final report on the case – which raises additional concerns about the fairness of the proceedings." Basically, Robertson is warning our judges that if you don’t follow the recommendations we have provided, a much more damning report will follow. Otherwise, if this report is not final, what is its purpose, if it is not to intimidate judges?
The authors are not even afraid of providing what they believe needs to be done, fully aware that the process of deciding on the outcome is underway.
Their supposedly well-meaning suggestion is that:
The court could sever Rusesabagina’s trial from that of the co-defendants, and provide the adjournment that is necessary for him to prepare his defense. It could permit international counsel, representing him or invited as amici, to more fully make their case that the circumstances of Rusesabagina’s transfer to Rwanda amount to an abuse of process, and rule upon it properly so that an adverse decision could be made the subject of appeal. It could recall the Bishop and the two vital witnesses and have their testimony subjected to cross examination.
In other words, if you judges do not reach this conclusion, another much more critical report is coming to discredit you. Of course I am not persuaded to believe that Rwandan judges are going to be intimidated, because judicial independence is exactly that, being able to decide according to law and facts despite the existence of arrogance or pressure.
I think the authors are mistaken. Rwanda's justice has built its thick skin through even tougher cases, it probably won't succumb to pressure from an NGO's report. This is a case with 21 defendants. Rusesabagina is just one of them, not different from them. There are similar ongoing trials. Those who commit crimes, including terror attacks, have always been brought to justice. I don't think this can be any different because an NGO in the US thinks so.
Nonetheless, this is an attempt by the report's author, and the two organisations behind the report, to undermine confidence in Rwanda's justice system. And this is the text book meaning of contempt of court. For one to be held responsible for the contempt of court it does not require that the offender should have reached his or her intended outcome.
The final part of the Clooney Foundation report is dedicated to criticising the role of Belgium in the investigation process. Is Robertson unhappy that Belgium cooperated in the Rusesabagina terror investigation or that Belgium cooperated with Rwanda? Curiously, he conveniently forgot that the FBI also helped.
Then there is the continued call for international lawyers to represent Rusesabagina. This is a recurring argument ever since the beginning of this case. I only hope people are able to see its callous nature. Who is an "International lawyer"? In the mind of Robertson, and those who think like him, by international lawyer, it means someone who looks like him and comes from his same place of privilege, to use those attributes to help Rusesabagina out of trouble. The point about a lawyer from a country that accords the same rights of practice to Rwandan lawyers – reciprocity in legal practice, having rights to practice in Rwanda, is not as important as the colour and privilege point in this case.
The two black defence lawyers Rusesabagina has, just don't exist in Robertson's world. I might be wrong, but let Robertson please define an "international lawyer" for us.
Again, these are my thoughts after reading the two reports (Clooney Foundation report and the review report), and I invite you to read them.
Dr Alphonse Muleefu is a Senior Lecturer, School of Law and Ag. Principal College of Arts and Social Sciences, University of Rwanda.