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The Mysterious Arrest Of Paul Rusesabagina

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The arrest of Paul Rusesabagina, the Hotel Rwanda film ‘icon’, has attracted the attention of international media. In all the stories, the popular and often recycled narrative is that Paul Rusesabagina, a baptised hero, and humanitarian activist, was abducted from Dubai and taken to Kigali by agents of a dangerous totalitarian leader.

Even if some acknowledge that he is the co-founder and the chairman of the Rwandan Movement for Democratic Change (MRCD) and its militia wing, Front for National Liberation (FLN) and that this militia group has on different occasions attacked and killed innocent people inside Rwanda, they still have mercy to call for the intervention of international community to save ‘this good man’ from an imminent ‘unfair’ trial. For instance, Human Rights Watch (HRW) acknowledges that ‘Rusesabagina pledged an “unreserved support” to the FLN, the armed wing of the MRCD’, and that ‘since 2018, the FLN has claimed responsibility for several attacks around Nyungwe forest, Southern Province, near the border with Burundi.’

However, it goes ahead to argue that ‘the fact that Rwandan authorities circumvented the legal process of extradition in Rusesabagina’s case, seriously undermines their claims as to the legitimacy and good faith of their efforts to prosecute him.’ Several local commentators have attributed this bizarre and clearly contradictory analysis to his very well-coordinated PR machine around Paul Rusesabagina Foundation. This is the basis of this piece.

I am interested in legal questions more than whether he is a hero. I am not interested in his role in the 1994 genocide against the Tutsi, or whether he is indeed a humanitarian activist. The legal question I am interested in is whether the manner in which he was arrested (abducted or lured into arrest) is something that violated his pre-trial rights to an extent that would persuade an independent Court to vacate his case. I will ignore though the claim of ‘enforced disappearance’ or ‘torture’ because I think those are claims intended to attract unnecessary attention using an unknown expansive legal interpretation.

According to the Rome Statute, enforced disappearance occurs when the arresting state refuses to ‘acknowledge the whereabouts of the person’ and for ‘a prolonged period of time,’ and for the case of torture, given the status of the person in question, Rwanda knows that it is being watched, and I strongly believe that it is in its interests to keep him safe. In the process of arresting a suspect, some rights are fundamental and these include the suspect’s right to remain silent, the right to be informed that he or she is being arrested and the reasons for the arrest, the right to counsel and if she or he cannot afford one, the right to legal aid.

The right to counsel and the right to remain silent are rights a suspect is entitled to invoke during interrogation and the investigator(s) will be obliged to stop the questioning, but these are rights a suspect also has the right to waive as well. Article 9 (1) of the International Covenant on Civil and Political Rights states that: ‘Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.’ Therefore, what we need to discuss is whether Rusesabagina’s arrest was done according to a procedure established by law, and if not, are the (alleged) violations so serious to vitiate the integrity of a criminal process (rightful trial).

The details concerning the arrest of Rusesabagina still remain a big mystery. However, given the available information so far, it looks like he was lured into a trap of arrest as opposed to abduction (kidnapping). This distinction is very important to make because it is more tolerable to lure a suspect into arrest than abducting him or her. This is so because luring a suspect does not involve violence, and more importantly, it does not violate the sovereignty of the hosting state. Of course, some scholars still wonder whether we should consider an arrest to have occurred at the time that person was deceived, or whether it is when the actual physical arrest happened.

Note that the existing jurisprudence supports the view that arrest takes place when there is an actual restriction of someone’s liberty, and in this case, it is not when Rusesabagina was in Dubai, but it is when the handcuffs were put on him at Kigali International Airport. It appears that, as Paulussen notes (in his 2010 Male Captus Bene Detentus…), ‘as long as the deceived person boards the plane (…) of his own free will and not under duress, (…) comes voluntarily to a jurisdiction where the arrest can be executed, (…) there is nothing wrong with this technique (…).’ In brief, whereas abduction involves the use of violence and violates state sovereignty, luring is not, and thus somewhat tolerable.

For purposes of argument, let us take a moment to assume that he might have been abducted (which is unlikely given the fact the CNN quoted an anonymous source in Dubai indicated that Rusesabagina boarded a private jet on his own will), the existing jurisprudence from different national and international courts regarding the prosecution of suspects (who are victims) of wrongful arrests is not uniform. The court’s decision will always depend on balancing the alleged violations that occurred during the arrest – whether such violations are so flagrant to vitiate a rightful trial in a due process – and the serious nature of crimes she or he is suspected of.

It is a common doctrine of law, especially in matters of public security, that a person might be wrongly arrested but still be accorded proper detention and a rightful trial (male captus bene detentus). Paulussen again notes, ‘the use of irregular means was and is still considered an option in apprehending suspects, especially when the interests are (considered to be) strong.’ The list of suspects who have been tried after wrongful arrests is long. The abduction of Adolf Eichmann in 1960 from Argentina and his effective trial in Israel, the cases of Slavko Dokmanovic and Dragan Nikolić before the International Criminal Tribunal for the former Yugoslavia, the case of Jean Bosco Barayagwiza before the International Criminal Tribunal for Rwanda, the case of Abdullah Öcalan v. Turkey before the European Court of Human Rights, the case of Alvarez-Machain v. U.S., or Fawaz Yunis v. U.S., and the famous application of the Ker-frisbie doctrine, where U.S. courts are permitted to prosecute a suspect even when the arrest did not follow an established due process of extradition.

In the case of Barayagwiza, even if his case was not abduction, but his pre-trial rights had been violated including unlawful detention in the Republic of Cameroon. Amnesty International reacting on the ICTR Appeals Chamber’s decision, for the stay of the proceeding and his release, stated that ‘Amnesty International regrets that there have been violations of the procedural rights of fair trial of Jean-Bosco Barayagwiza (…) but nonetheless argued the Prosecution to file for ‘a request for a review of the decision’ which effectively resulted in the decision of March 31, 2000, reconsidering the earlier decision and ordered for a reduced sentence if he is found guilty and financial compensation if found innocent.

The trial of a person who has been brought before the court under a wrongful arrest is often justified under the protection of the interests of justice, and is more accepted when the prosecuting state had either applied other means (lawful) and failed, or when other means would not have resulted in a surrender of the suspect – the principle of Nunquam decurritur ad extraordinarium sed ubi deficit ordinarium (we should never resort to what is extraordinary, not until what is ordinary fails). This could be due to the fact that the hosting state is reluctant in executing the arrest warrant. For this case, it is fair to argue that charges against Rusesabagina are very serious (terrorism, murder, arson, etc.) making his trial justifiable under the interests of justice, and Rwanda had issued an arrest warrant against him, but given his popularity (visible in the current western media attention), it is predictable that Rwanda would have faced an uphill battle to obtain his extradition.

Therefore, it does make sense to suggest that when it is established that there was indeed some kind of violations of his pre-trial rights, that another remedy such as the reduction of the sentence be found, or financial compensation (if found innocent) as provided for under ICCPR (in its Article 9(5)) that: ‘Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.’ These are some of the legal issues we need to be discussing more, as we wait for his day in court, the rest is a distraction.

Dr. Alphonse Muleefu is a Senior Lecturer at the School of Law and Acting Principal of the College of Arts and Social Sciences (CASS) both of the University of Rwanda and is a member of the Rwanda Bar Association.

7 Comments

7 Comments

  1. MARIDADI KENNEDY

    September 12, 2020 at 3:26 pm

    This argument is more academic than factual. what matters is that the criminal was netted and is sound. I never heard any international organ shut when our own Gen karenzi was (lured) to UK for a meeting with intent to arrest and incarcerate him. So this one-sided standard (also called double) is to be treated as is.

  2. Professor Pacifique Malonga

    September 12, 2020 at 4:19 pm

    All these arguments on the way Rusesabagina reached Kigali are good for entertainment .The real issue is that he came, is fine ,visited and waiting for his case in court . That is where the real deal resides , let’s wait and see ! As for me , I thank all those who use the brains and pens to provide wonderful reading materials .

  3. Emmanuel Turatsinze

    September 12, 2020 at 7:08 pm

    A very insightful article I have read today. A very balanced and easy-to-understand academic argument. Though the available and confirmed information on circumstances of his arrest opt-out the alleged abduction, it still holds no water to overlook the gravity of his charges and limiting the media attention to his arrest.

  4. John

    September 14, 2020 at 7:12 am

    Very academic indeed. Though however, the rights of an individual ends where other’s start. When people were killed in Nyungwe Rusesabagina was busy soliciting more funds to kill more….let’s not be rured onto thinking the Bin laden was a victim of wrongful termination. Then justifyies the means – Rwandans are protected period

  5. Shaphic KARENZI

    September 14, 2020 at 9:17 am

    Provide facts or shut up your baseless arguments and wait for his words soonest about his arrest, Period.

    • MARIDADI KENNEDY

      September 14, 2020 at 5:52 pm

      Facts he provided and his arguments are pro-con if you read well. Procedure in criminal code is as important as the acts themselves.
      If you enter my residence stealthily and you discover a cache of deadly weapons and ammunition, it holds no water if you did not have an authorised search warrant. The law(some say it is an ass) will maintain you could not have seen the arsenal because you did not enter.
      In cross-examination, if you are asked whether your ‘elder brother’ who you have known for 35 years is your brother, you are supposed to respond that: “my lord, when I reached maturity, I was informed that this fellow is my sibling but I cannot say with full conviction that he is my brother because he was born before me”……………. just like you cannot testify about you parents marriage because you were not there…
      Doesn’t it puzzle you to hear a self-confessing murderer being called suspect (‘ukekwaho’) some mischief-makers say it is the valve of a judge to solicit a bribe..
      Law is a vehicle and Justice is a destination…… to reach justice, you must put fuel, oil and driver in law.

  6. Mugisha daniel

    September 14, 2020 at 4:07 pm

    Time will tell, he has been on run for a long time in European countries and USA but his Will to finish Rwandans has not come to end until he lured and fall in trap. So victims of his terrorism needs justice

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Rwanda Police Chief Briefs 240 Officers Ahead Of S. Sudan Deployment

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The Inspector General of Police (IGP) Dan Munyuza, on Tuesday, March 9, briefed 240 police officers set to be deployed for peacekeeping duties under the United Nations Mission in South Sudan (UNMISS).

The pre-deployment briefing of the hybrid Formed Police Unit-One (FPU-1) contingent was held at the Rwanda National Police (RNP) General Headquarters in Kacyiru.

The contingent commanded by Chief Superintendent of Police (CSP) Faustin Kalimba, will replaced the same number in Malakal, Upper Nile State where they will be largely charged with protection of civilians in internally displaced camps, UN personnel, security of key installations and humanitarian assistance, among others.

IGP Munyuza urged the officers to use their experience and the high level of training acquired to execute their peacekeeping mandate effectively.

He further reminded them that they will work with other peacekeepers from different countries and they will have to exercise respect of diversity.

“Learning will be continuous throughout your tour-of-duty, use your experience to build on what your predecessors achieved, cooperative with other peacekeepers in the mission area and respect the people under your protection as well as their culture,” IGP Munyuza emphasized.

He urged them to keep up the good conduct and protect the image set by previous contingents adding that ” you are representing your country, be at the best of your performance.”

“Your country and Rwanda National Police in particular, have full trust in you, resilience and sacrifice are key. Remember, your conduct and professionalism will depict the image and values of Rwandans, ensure your performance is exceptionally good and maintain the same spirit to the end of your mission,” said IGP Munyuza.

The Police Chief reminded them that Rwandan peacekeepers are defined by their professionalism, discipline, teamwork, integrity, values and alertness, and urged them to keep the momentum to “maintain and protect the image and reputation.”

He emphasized that respecting each other and their superiors in particular, discipline, hard work, teamwork, dignity and respect for diversity are strong guiding values and principles which will help them towards mission excellence.

IGP Munyuza appealed to the officers to maintain the spirit of supporting others and to engage in human security activities with the local people they are mandated to serve.

‘’Participating in human security activities is our culture as Rwandans, you should not only conduct peacekeeping duties just to maintain peace and security. It goes beyond that as our tradition to work towards the overall wellbeing of the people,” IGP Munyuza said.

As the wolrd is still faced with the pandemic of COVID-19, the Police Chief reminded them to always observe all health guidelines including wearing face masks, avoiding shaking hands, washing hands and practicing social distancing, among others.

This will be the sixth rotation of FPU-1 hybrid since the first one was deployed in South Sudan in 2015.

It is also one of the three Rwandan FPU contingents currently deployed in South Sudan.

Currently, RNP maintains over 1000 police peacekeepers in various UN missions, including six contingents serving in UNMISS and the United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA).

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Chinese Companies Win Tender to Construct Railway From Mwanza to Isaka 

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The Standard Gauge Railway from Mwanza to Isaka in neighbouring Tanzania will be constructed by two Chinese Companies that have won a lucrative tender for this job.

Prof. Palamagamba Kabudi Tanzania’s foreign minister said on Thursday during a presser on the eve of the Chinese foreign minister Wang Yi’s two-day visit to Tanzania.

The Mwanza-Isaka railway stretch will cover a distance of 341 kilometres and construction is estimated to cost TShs3 trillion will be handled by China Civil Engineering Construction (CCEC) and China Railway Construction Company (CRCC).

The Tanzanian government through the Tanzania Railway Corporation (TRC) is constructing a 2,561Km SGR network that links Dar es Salaam, Mwanza, Kigoma, Katavi and neighboring countries of Rwanda, Burundi Uganda and DRC.

The over Sh7 trillion project is being implemented in phases with the first round covering 202km between Dar es Salaam and Morogoro, was initially scheduled to be ready by November 2020 but heavy rains disrupted construction works.

Construction of the first and the second phase is being undertaken by Turkish construction company, Yapi Markez.

The first phase will have six main stations at Dar es Salaam, Pugu, Soga, Ruvu, Ngerengere and Morogoro, with the Dar es Salaam and Morogoro stations being the largest.

The second phase which is under implementation involves 422km between Morogoro and Makutupora in Singida with the project set to be completed within 36 months at a cost of $1,924 billion.

The railway is East Africa’s fastest and will use electricity to move trains will travel at 160km per hour and transport 10,000 tonnes of freight which is equivalent to 500 cargo trucks.

Upon completion, the SGR project is expected to payback the investment value after 15 years.

In October 2020, Tanzania government signed $60 million (about Sh138 billion) contract with a South Korean firm to supply trains for the standard gauge railway (SGR).

 

The Citizen

 

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Trump Attacks Election Integrity As Biden Nears 270 Electoral College Votes

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President Donald Trump is testing how far he can go in using the trappings of presidential power to undermine confidence in this week’s election against Joe Biden, as the Democrat contender gained ground in tight contests in some key battleground states.

With his pathway to re-election appearing to shrink, Trump has advanced unsupported accusations of voter fraud to falsely argue that his rival was trying to seize power. Thursday’s moves amounted to an extraordinary effort by a sitting American president to sow doubt about the democratic process.

“This is a case when they are trying to steal an election, they are trying to rig an election,” Trump said from the podium of the White House briefing room.

The president’s remarks deepened a sense of anxiety in the U.S. as Americans enter their third full day after the election without knowing who would serve as president for the next four years.

His statements also prompted a rebuke from some Republicans, particularly those looking to steer the party in a different direction in a post-Trump era.

Electoral college magic number

Neither candidate has reached the 270 Electoral College votes needed to win the White House. But Biden eclipsed Trump in Wisconsin and Michigan, two crucial Midwestern battleground states, and has been inching closer to overtaking the president in Pennsylvania and Georgia, where votes are still being counted. It remains unclear when a national winner will be declared after a long, bitter campaign dominated by the coronavirus and its effects on Americans and the national economy.

On Wednesday, The U.S.set another record for daily confirmed cases as several states posted all-time highs. The pandemic has killed more than 233,000 people in the United States.

Rising tensions

Biden spent Thursday trying to ease tensions and project a more traditional image of presidential leadership. After participating in a coronavirus briefing, he declared that “each ballot must be counted.”

“I ask everyone to stay calm. The process is working,” Biden said. “It is the will of the voters. No one, not anyone else who chooses the president of the United States of America.”

 

Biden’s victories in the upper Midwest put him in a strong position, but Trump showed no sign of giving up. It could take several more days for the vote count to conclude and a clear winner to emerge. With millions of ballots yet to be tabulated, Biden already had received more than 73 million votes, the most in history.

Trump’s erroneous claims about the integrity of the election challenged Republicans now faced with the choice of whether to break with a president who, though his grip on his office grew tenuous, commanded sky-high approval ratings from rank-and-file members of the GOP.

Lawsuits and late mail-in ballots

Trump’s campaign engaged in a flurry of legal activity to try to improve the Republican president’s chances, requesting a recount in Wisconsin and filing lawsuits in Pennsylvania, Michigan and Georgia. Judges in Georgia and Michigan quickly dismissed Trump campaign lawsuits there on Thursday.

Trump has held a small edge in Georgia, though Biden has been gaining on him as votes continue to be counted. The same is true in Pennsylvania, where Trump’s lead had slipped to about 22,000 votes — and the race is destined to get tighter.

One reason is because elections officials were not allowed to process mail-in ballots until Election Day under state law. It’s a form of voting that has skewed heavily in Biden’s favour after Trump spent months claiming without proof that voting by mail would lead to widespread voter fraud.

Mail ballots from across the state were overwhelmingly breaking in Biden’s direction. A final vote total may not be clear for days because the use of mail-in ballots, which take more time to process, has surged as a result of the coronavirus pandemic.

The Trump campaign said it was confident the president would ultimately pull out a victory in Arizona, where votes were also still being counted, including in Maricopa County, the state’s most populous area.

The AP has declared Biden the winner in Arizona and said Thursday that it was monitoring the vote count as it proceeded.

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