Sunday, 15 January 2012

Mugesera Case: Yet Another Twist in the Debate about the Rwandan Justice System

To anyone who has followed the recent history of Rwanda, and particularly those familiar with the case law of the International Criminal Tribunal for Rwanda, the name Leon Mugesera will be well-known. His role in fomenting the climate of anti-Tutsi hatred that led to the 1994 genocide is discussed in several of the judgments, notably the first major ruling of the Tribunal in the Akayesu case.
This is from paragraph 99 of the Akayesu judgment:

…there were other propaganda agents, the most notorious of whom was a certain Léon Mugesera, vice-president of the MRND in Gisenyi Préfecture and lecturer at the National University of Rwanda, who published two pamphlets accusing the Tutsi of planning a genocide of the Hutu. During an MRND meeting in November 1992, the same Léon Mugesera called for the extermination of the Tutsi and the assassination of  Hutu opposed to the President. He made reference to the idea that the Tutsi allegedly came from Ethiopia and, hence, that after they had been killed, they should be thrown into the Rwandan tributaries of the Nile, so that they should return to where they are supposed to have come from. He exhorted his listeners to avoid the error of earlier massacres during which some Tutsi, particularly children, were spared. (references omitted).

Mugesera fled Rwanda prior to the genocide. Through a network of friends and allies, he made his way to Canada and successfully obtained resident status. In 1994, the Canadian government began proceedings to remove him from the country.

There was a long series of decision by immigration courts, culminating in an appeal to the Supreme Court of Canada, that he lost.

In the meantime, he initiated some litigation of his own, amongst other things suing the editor of this blog for defamation, a case he soon chose to abandon once he realised the energy that the lawyers of my former University in Montreal were prepared to devote to fighting the frivolous complaint.
Since the 2005 judgment of the Supreme Court, he has exhausted the remaining procedures available under Canadian law. Finally, after nearly 17 years, the end of his stay in Canada seems to be near.

The arguments about the alleged innocence of his remarks and the purported honesty of his refugee claim have now been rejected decisively and he has no more arguments in that area. His final challenge involves an attack on the Rwanda justice system. Mugesera claims that if returned to Rwanda, as the Canadian government now plans, he will be exposed to serious human rights violations.

This has been a familiar debate in recent years, with a number of related cases before national courts in Europe as well as the so-called Rule 11bis transfer decisions by the International Criminal Tribunal for Rwanda.

It seems that the tide has largely turned. Recently, the European Court of Human Rights rejected a complaint by a Rwandan who argued that if he were to be sent back by Sweden this would constitute refoulement contrary to the European Convention on Human Rights. Also last year, a Trial Chamber of the International Criminal Tribunal for Rwanda declared that improvements in the Rwandan justice system mean it was now acceptable for cases to be transferred there.

A Canadian immigration tribunal reached the same decision in early December, and it was on that basis that the proceedings to remove Mugesera in early January were undertaken.

Last week, a final attempt by Mugesera before the Federal Court of Canada was dismissed.

Then, the United Nations Committee Against Torture intervened with a provisional measures request to the Canadian government asking that deportation be suspended until the Committee can consider the merits. And a judge of the Quebec Superior Court granted a one-week interim injunction against the government.
For some accounts on the case by Canadian-based academics, see Rob Currie's blog and the posting on it by Fannie Lafontaine.  
Canadian public opinion (not to mention Rwandan public opinion) is frustrated by these delays and cannot understand why the proceedings were so protracted. In particular, newspaper editorials have been encouraging the government not to follow the provisional measures request by the Committee Against Torture. See the Globe and Mail and the Montreal Gazette.
Canadian officials have defied such requests in the past, and it will be unfortunate if the legal authority of the Committee Against Torture is further tarnished by the whole business.
Mugesera sued me back in 1997 because I said then that he should be sent back to Rwanda to answer the charges against him. When the University lawyers studied the tapes of my interviews and comments, they noted that I had consistently stated that Mugesera was presumed innocent, but that he should be put on trial in Rwanda for the serious charges against him. I haven’t changed my position by one iota.

I think his days in Canada are clearly nearing an end, although in this case one has learned to be prepared for the unexpected. We are still waiting for the Appeals Chamber of the International Criminal Tribunal for Rwanda to rule definitively on the transfer cases. Eventually, and hopefully sooner rather than later, Rwanda will be given a real opportunity to demonstrate that it can deliver fair trials. If it succeeds, an important chapter in attempts to address the 1994 genocide will be closed.


A postscript. In another Rwanda-related development, last week a French commission of inquiry into the famous plane crash which marks the starting point of the genocide concluded that the rocket that fired the missile came from the government military base close to Kigali airport. The report largely discredits the findings of French judge Jean-Louis Bruguière, who had promoted the thesis that the plane was shot down by RPF forces under orders from Paul Kagame. With last week’s report, that theory has lost a huge amount of traction. The Bruguière report, which was often cited by genocide deniers, is now largely discredited, and by an authoritative report from France itself.

See Linda Melvern’s column on this in The Guardian.


Manuel V said...

The ICTR's Appeals Chamber has actually handed down its decision in Uwinkindi (permitting the transfer to Rwanda to go ahead) although you wouldn't be able to tell from the ICTR's website - it's coming up to a month of it being handed down and it's still not up on its website.

Here is a link that discusses the decision:

Manuel V said...

The ICTR's Appeals Chamber has actually handed down its decision in Uwinkindi (permitting the transfer to Rwanda to go ahead) although you wouldn't be able to tell from the ICTR's website - it's coming up to a month of it being handed down and it's still not up on its website.

Here is a link that discusses the decision:

Allison said...

Canada is deciding on how best to comply with its international hard law and soft law obligations in relation to the deportation of Léon Mugesera. The risk of torture and death for Mugesera is an underlying secondary issue to be addressed after the first. What Mr Mugesera is accused of is irrelevant to Canada’s obligations under international law, and to the risks he faces of being tortured.

Rwanda is a police state. If Kagame, like other dictators, doesn't count you as a supporter then Rwanda is just the same dangerous totalitarian regime it was in post-July 1994. Rwandans today are controlled by threats, intimidation, arbitrary arrests and imprisonment etc… 18 months ago the world watched as Rwandan journalists and *all* political opponents to Kagame were either killed or imprisoned in the lead-up to the elections he so handily won. So much for freedom and democracy…

All the black letter law – and the recent extraditions to Rwanda - will not a just society make.

As illustrated by Human Rights Watch and two other human rights groups who appeared as amici curiae in Uwinkindi, Rwanda suppresses dissidence and accused persons, victims and witnesses continue to suffer devastating reprisals.

The Uwinkindi decision served one purpose: appeasing Rwanda, the United States and the UK. This is politics, not law. No justice was rendered to Uwinkindi who will not receive a fair trial, or his 49 witnesses who signed affidavits confirming they would not testify if the trial was held in Rwanda. When you read the decision, you can literally picture the Chamber holding its breath, closing its eyes, and blocking its ears (with fingers crossed) - as it grants the Prosecutor’s request to transfer Mr Uwinkindi to Rwanda. This is not law, it's an experiment and the US, the UK and Rwanda successfully turned the ICTR into their laboratory.

A. Turner

Manuel Ventura said...

Are you referring to the Uwinkindi Appeals Chamber decision? If so, do you have a link to it?

Professor Charles C. Jalloh said...

Thanks Bill for your usual great insights.

BTW, I had also posted an op ed on this on JURIST before I saw your piece:

The Mugesera story in Canada is indeed a fascinating one. And, for Canada, one that will not go away until a permanent solution is found in this case. It will therefore be very interesting to see what the Quebec Superior Court judge says on Friday, January 20, 2011 in this latest, as you put it aptly, "twist" in the Mugesera saga.

To my mind, we have at least two interesting issues that arise. First is the question whether, as you pointed out, Canada will continue to maintain consistency with its previous position that it does not consider itself bound to comply with the Committee Against Torture's indication of provisional or interim measures pending assessment of the merits of a claimant's (in this case Mugesera's) allegations. This, as you know, has been the same position that Canada has taken with respect to refouler cases that have been initiated against the country at the Human Rights Committee in Geneva as well.

Luckily, based on the statements made by the minister of immigration's spokesperson, as reported by Canadian media, the government will likely continue that position and to so argue before the Superior Court in order to defeat this temporary injunction. This will then allow swift enforcement of the deportation order. There seems to be many reasons for this, not least the fact that the government can credibly rely on the findings of the ICTR and the ECHR to insist on the reasonableness of the risk assessment which concluded that the removal should be carried out since a fair trial is possible in Rwanda now. That is the same risk assessment that was more or less endorsed in the January 11, 2012 decision by Justice Michel Shore of the Federal Court of Canada.

In any case, it seems highly unlikely that anyone in this Conservative federal government in Ottawa will advocate a policy change towards the CAT given how embarrassing this case has been for the country. This is all the more so considering the latest developments in the Uwinkindi case (see ICTR press release here:

Secondly, as Mugesera has had more than a fair share of his day in (Canadian) courts, since entering the country nearly two decades ago, the underlying question behind all of this is what the government will have to do if the executive decision to return him to Rwanda does not, for some strange reason, get the kind of deference that it deserves to receive from the judges at the end of this week.

Whatever happens, I do not think it is viable to argue that we can return to status quo, with Mugesera remaining free in Canada (as he was before the latest round of events). Rather, if the judges decide that he can continue to stay in the country (whether pending a CAT ruling or otherwise), it would be reasonable to expect that the pressure will increase on the federal department of justice war crimes section to proceed with a universal jurisdiction prosecution of Mugesera in Canadian courts. That will be seen as an expensive proposition by many people, and will likely be unpopular among the public, many of whom seem to be sick and tired of the case (as a reading of the comments to the Globe and Mail articles on the case seems to demonstrate).

While many of us in this field will not see Mugesera's prosecution in Canada for inciting genocide as a terrible option, especially considering the success with the trial of another Rwandese - Munyaneza - in Montreal last year, it will be a sad outcome for the people of Rwanda who, more than anyone, deserve to "see" justice done first hand in this important case.