KIGALI - A member of the board of directors of the former Bank of Commerce, Development and Industry (BCDI) has petitioned Supreme Court challenging the constitutionality of the summonses issued by a judge to the board.
Alfred Mutebwa is one of the nine members of the board of BCDI, now Ecobank who were summoned by magistrate Chantal Werabe, as accomplices in the trial of former CEO Alfred Kalisa.
“Article 121 of the criminal procedure that was invoked by the judge to issue the summonses should be overruled by article 160 of the constitution which empowers prosecution to conduct investigation on anyone accused because in this case the judge did not conduct investigations prior to issuing the summonses,” Serge Kayitare, who filed the petition on behalf of Mutebwa, argued.
Article 121 empowers a judge handling a case to summon anyone he or she deems relevant in a particular case, with or without the will of prosecution.
Before the proceeding, the nine-man quorum presided over by Supreme Court Vice-President Prof. Sam Rugege, had dismissed the request by Kalisa’s lawyers to be party to the case.
Kayitare further told court that the judge’s decision to call the board into the trial against the will of prosecution would also be prejudicial to article 19 of the constitution pertaining to presumption of innocence before proven guilty.
“In the verbatim when the judge issued the directive, it is clear that she had already come to conclusion that the board members were accomplices to Kalisa,” Kayitare said.
The prosecutor in the case, Alain Mukurarinda, initially said he was not willing to prosecute the board members. Court made the decision to summon the members in May.
In his closing argument, Kayitare begged the judges to carefully study and analyse the implications because of the impact it may have on the defendants.
Other board members include Egide Gatera, John Nkera, John Bosco Rusagara and Deo Bamurase. Others are Manasseh Simba and Callixte Kajangwe.
The decision to summon all board members followed applications by the defence to have them brought to court as suspects because they delegated Kalisa for the duties and they were briefed on all the bank’s day-to-day activities.
Detained late last year, Kalisa who was doubling as CEO and board chairman of the insolvent BCDI, for a decade is accused of six counts including breach of trust, favoritism and use and uttering falsified documents among others crimes.
Also in detention is Eugene Rutajoga, the bank’s former chief accountant who is remanded on a single count of using falsified documents.
Procedurally, a constitutional interpretation is filed at the Supreme Court and is heard by a quorum of not less than nine judges. There is no appellate court for this kind of application.