The Rwigaras verdict and the unintended consequences

Diane Rwigara and her mother Adeline Rwigara together with their lawyers in the High Court on Thursday. / Nadege Imbabazi
Diane Rwigara and her mother Adeline Rwigara together with their lawyers in the High Court on Thursday. / Nadege Imbabazi

It will have been impossible for anybody in Rwanda to ignore the events at Kigali’s High Court on the 6th December, where Diane Rwigara and her mother Adeline were formally acquitted by a panel of Judges on charges of inciting insurrection, sectarian practices and forgery.

In addition to local interest, the judgment has attracted significant international discussion and debate, though sadly as is often the case with international commentary in Rwanda, much of the writing I have read has been either misguided or ignorant to both the content of the judgment and indeed how that judgement was reached.

Beyond this, and almost certainly unintentionally, there has also been a positive outcome related to the strength of Rwanda’s institutions and independence of the judiciary that should be highlighted.

Linked to the Rwigaras’ case, there has been pressure from a number of countries and international organisations such as Amnesty International since the initial arrest of Diane Rwigara, frequently citing that she had been arrested on purely politically motivated charges simply for having made a presidential bid against President Kagame.

What a number of those organisations and States frequently either ignored or minimised discussion of, however, was the actual tangible evidence that existed. 

It is important to note that in one of Amnesty International’s initial reports on 22nd May 2018 regarding the case that they noted:

“Diane Rwigara and her co-accused must be guaranteed a fair and impartial trial… All of the accused must be presumed innocent until proven guilty in a fair trial, and the prosecution has the burden to prove the commission of any crime beyond a reasonable doubt… They must demonstrate that this trial is not being used to punish individuals for political dissent. Criticizing the government is not a crime.”

Crucially, the call from Amnesty came with no discussion of the evidence leading to the arrests, leading to the somewhat ironic and logical perception that Amnesty’s own statement is guilty of precisely what they are themselves asserting – that it was framed from a political agenda and not based upon facts that stand up to close scrutiny. Amnesty provided no such facts.

In their statement following the High Court Judgment on 6th December, Amnesty’s brief statement yet again was unsatisfactory on applying close scrutiny, as they note:

“Diane and Adeline Rwigara should never have faced charges for expressing their views. While we welcome their discharge and acquittal, we are concerned that the right to freedom of expression remains under attack in Rwanda.”

Having previously made the statement that the accused must be guaranteed a fair and impartial trial, that there should be innocence until proven guilty, and that the standard of beyond reasonable doubt should be applied, the judgment in the case had proven those concerns to be unfounded.

There was no climb-down, no acknowledgment that their initial inferred lack of judicial process in Rwanda was demonstrably wrong, and indeed no focus on these areas which Amnesty had explicitly singled out previously.

Instead there was merely an acknowledgement of the result of the case carrying the condition of further undetailed, and non-specific criticism. To summarise, Amnesty’s position was to ignore the failings of their own veiled assertions, minimise focus on the tangible facts of the Court judgment and procedure, and to maximise focus on vague general criticism.

This is simply an unacceptable stance.

Instead, it should be seen as important to examine what the court did and did not say and do. The court did formally acquit the accused of all charges. The court did not say that there was no evidence related to the charges.

The court did say that there was evidence of forgery amongst the list of names supplied to support Rwigara’s candidacy. The court highlighted that the prosecution’s case was fatally damaged by not providing evidence that Rwigara had personally been responsible for the forgeries or that she had intended for the forgeries to be submitted.

The court did not say that there was no language used that could be interpreted as sectarian or hatred in context. The court ruled that the conversations were classed as private and not public, and so the appropriate charge would under the circumstances have been conspiracy to incite, and not incitement itself.

The court stated that as conspiracy was not charged or being prosecuted, it was not something they could rule on. The court said that the political criticism made was a protected form of free speech both constitutionally and under international law.

In summary then and on analysing the court procedure and judgment, the conclusions should correctly be that there was existing evidence to support arrest and charge in at least two of the areas the court was ruling on, with a potentially realistic prospect of conviction.

There was tangible evidence that was analysed by the court. The specific charges levied were identified as being flawed by the court as linking to the specific evidence. And so the judges on applying the applicable laws made the legally correct ruling of acquittal.

In the aftermath of the ruling, there was a clamouring of Rwanda’s critics to cite that the acquittal was a result of international pressure forcing President Kagame to release Diane and Adeline Rwigara.

All such assertions are simply factually incorrect. Quite the opposite, the unintended benefit of the High Court judgment and its international reach is that it has in effect given an unanswerable statement; that the Judiciary in Rwanda is clearly independent and free from political interference even in this most high profile politically linked case. This was a case decided by judges in an open courtroom and not politicians in a closed meeting.

Much of this was noted by Associate Professor Phil Clark from University of London’s School of Oriental and African Studies (SOAS) on CNN directly after the judgment when he was interviewed and surmised that:

“Already some international activists are trying to take credit for the Rwigara acquittal, claiming that it stems solely from foreign pressure. This view displays a white saviour complex -- believing positive on-the-ground developments can only come from foreigners. What this perspective misses is the skill of Rwandan lawyers and the independence and courage of Rwandan judges operating in a febrile political environment.”

None of this came as a particular surprise to me, however, as I have been fortunate to visit and speak with senior members of the Rwandan Judiciary in both 2015 and 2017.

In 2015 I visited Rwanda’s Supreme Court. My interest was specifically and explicitly in exploring the independence of the judiciary.

I asked and was given detailed answers relating to the judicial review process, the developments that were being made (and have since been enacted) relating to the right to petition the court, the powers of the judiciary when faced with new domestic laws that were incompatible with either the Rwandan constitution, human rights, or other international laws, and other areas of significance.

I will freely admit that I was not expecting the frank and detailed responses I received and left the court extremely impressed with several key reassurances regarding the powers and indeed clear independence of Rwanda’s judiciary.

The take-home messages then? Whatever anybody’s opinion on Diane Rwigara or indeed the specific accusations that had been made, whether or not any of us agree or disagree with Rwigara and her mother being acquitted are issues that no doubt may continue for a long time to come.

Opinions will continue to differ. However, the argument that would now be incredibly difficult to continue to maintain relates to the independence of the judiciary.

With the eyes of not only the country, but also the entire international community, on the 6th December 2018, Rwanda’s judiciary demonstrated that the judgments made by it were based upon nothing more than the strength of the cases and the evidence pertaining to them, with the politics of the matter being irrelevant to proceedings.

It upheld principles of rule of law and freedom of expression, and forced many critics to either embarrassingly cling to untenable positions or conveniently ignore the aspects of the case that did not suit their own now transparent agendas.

Sadly though, in spite of the reality presented here, many critics will of course continue to form and present opinions based upon a flawed rationale.

Dr Allan T. Moore, Programme Leader for Criminal Justice, University of the West of Scotland.