Rwanda: Félicien Kabuga one step closer to a trial in Arusha
The Paris Court of Appeal has given a favourable opinion on the transfer of Félicien Kabuga to the UN Mechanism, based in Tanzania. It's only the first step of a legal battle that is just getting started.
Despite the reputation surrounding Félicien Kabuga, the man seen today is a far cry from that. Once considered one of the richest and most influential men in Rwanda, he is cowering in a wheelchair that is being pushed by a national police officer who takes him to his desk amidst a silent courtroom, where all eyes are on him.
To his right, members of his family, mainly his children, send him messages of support in Kinyarwanda. To his left, representatives of associations of Tutsi genocide survivors and relatives of victims. “It’s always hard to believe it’s him,” says one of them. “So like this, we can make sure it’s really him. We thought we’d never see him in court,” adds Alain Gauthier, president of the Collectif pour les parties civiles du Rwanda (The Collective of Civil Parties for Rwanda).
A former businessman who prospered before the Tutsi genocide, Félicien Kabuga is facing seven charges including “genocide”, “complicity in genocide”, “incitement to commit genocide” and “crimes against humanity”. Founder and financier of the Radio-Télévision libre des Mille Collines (RTLM), which broadcasted messages of hatred and calls for the extermination of Tutsis, he is suspected of having imported several tonnes of machetes and of transporting Interahamwe militiamen to the sites of the massacres.
Until his arrest on 16 May in Asnières, near Paris, he was one of the last “big fish” still wanted by the Mechanism in charge of ensuring the residual functions of the International Criminal Tribunal for Rwanda (ICTR).
While the road to a possible trial is still long for him, the Paris Court of Appeal, which was responsible for ruling on the validity of the arrest warrant, ordered the transfer of Félicien Kabuga to the Mechanism, which has an office in Arusha, Tanzania, and another in The Hague, the Netherlands, on 3 June.
The file of Félicien Kabuga, is currently in the hands of an investigator from the Central Office for the Fight against Crimes against Humanity, Genocide and War Crimes (OCLCH), in Paris, 19 May 2020.
In the short hearing, barely 20 minutes long, the investigating chamber also rejected a Priority Question of Constitutionality (QPC), which had been raised at the 27 May hearing by Kabuga’s lawyers.
His lawyers said they were not surprised by the French court’s decision. “We are in an extremely political context,” said Laurent Bayon after the hearing. On several occasions during the proceedings, the defence repeated its opposition to any transfer to international jurisdiction.
Invoking both fears about the alleged “bias” of this body and concerns about the health of their client, the lawyers of Félicien Kabuga, who is currently detained at the Maison d’arrêt de la Santé in Paris, had requested that the proceedings continue in France.
“He sees a doctor from the prison administration unit almost every day. By transferring him to Arusha, with an eight-hour flight, we would also be taking the risk of jeopardizing a possible trial and the search for the truth,” said Bayon, a few hours before the appeal court ruled.
At the first hearing, Kabuga had described the charges against him as “lies”. He had also assured that the date of birth on the Interpol Red Notice against him was not the correct one. According to him, he was born in 1933, not 19 July 1935.
Nothing like that this time. Frozen in front of his desk, dressed in a plaid shirt and dark jeans, with a protective mask covering part of his face, Kabuga remained silent. Having all the president’s conclusions translated into Kinyarwanda, he only took off his mask to cough into a handkerchief.
“There is no evidence that Félicien Kabuga’s condition is incompatible with his detention or transfer,” said the president of the court, Pascale Belin, and there is “no objective reason to doubt that the Mechanism is able to provide Félicien Kabuga with the same medical guarantees as those currently offered in France.” Unable to do so himself, Kabuga asked his translator whether he would be sent to The Hague or Arusha.
It should be Tanzania. The Prosecutor of the Mechanism had indeed requested an amendment to the arrest warrant to include a prior transfer to The Hague, because of the COVID-19 pandemic, which complicates long-haul flights. However, William Sekula, duty judge of the NPM, rejected this request.
The defence has already announced that it will file, within ten days, two appeals in cassation: one on the QPC, and another on the transfer to the Mechanism. Once filed, the Court of Cassation will have two months to decide.
Lawyers will then be able to refer the case to the European Court of Human Rights (ECHR), although this procedure is not suspensive. Félicien Kabuga’s fate should therefore be decided by the end of September.
In the meantime, the defence seems determined to increase the number of appeals. Kabuga’s lawyers wrote to the mechanism’s prosecutor, Serge Brammertz, on 2 June asking him to relinquish the case in favour of the French courts. Again, they referred to their client’s health problems and a supposed “bias” in international justice.
But the lawyers’ request seems confused. Bayon mentions the judicial investigation underway in Paris against BNP Paribas, accused by three NGOs of having financed, in 1994, an arms purchase for the Interahamwe militia. According to him, in view of “the similarity of the facts being prosecuted”, it would be preferable for the two investigations to be conducted by the same court.
However, this investigation, which is proceeding slowly, does not seem to implicate Félicien Kabuga directly. Contacted by Jeune Afrique, the Mechanism did not wish to communicate its response to these requests, which are unlikely to be successful, stating however that there is no legal basis for such a transfer of jurisdiction.
In France for several years
The French justice concluded on 2 June the first procedural act that will lift the veil on certain details of the last years of Kabuga’s escape. The man with 28 aliases in 26 years of clandestinity lived in France under a false identity, with a DR Congo passport in the name of Antoine Tounga.
At present, it’s difficult to reconstruct his itinerary since 2007, the year in which he was last spotted. It was in Frankfurt, Germany, where his son-in-law, Augustin Ngirabatware, was arrested. Investigators then lost track of him.
His date of arrival in France remains uncertain today, as does the level of complicity he enjoyed until his capture. But the numerous requests made by Kabuga’s defence to the court, which Jeune Afrique was able to consult, shed some light on certain points. Among the documents on file are numerous reports of hospitalisation in France, the oldest dating from January 2016.
In Arusha, an already thick and well-documented file awaits Félicien Kabuga. The so-called “media trial”, which began in 2000 and in which Jean Bosco Barayagwiza, Ferdinand Nahimana and Hassan Ngeze appeared, partly evokes his role at RTLM.
There is no doubt that, if justice authorises his transfer and his health allows him to sit trial, this file will be one of many Kabuga will have to answer to.