Ingabire in one last attempt to avoid life in prison
Chances for the jailed opposition politician Victoire Ingabire to escape prison life for the better part of her life are now in the hands of the Supreme Court which she has petitioned to repeal some articles in the laws used to try her.
The embattled leader of the yet to be registered political party—FDU Inkingi, has asked the Court to repeal articles 2 to 9 of the genocide ideology law which she says encroaches on her constitutional rights.
The prosecution has used the genocide ideology law to pin Ingabire for allegedly saying that there was ‘a double genocide’ in the country, a statement that has been interpreted as a denial to the 1994 Genocide against the Tutsi, which is recognized locally and internationally.
Ingabire’s lawyer Gatera Gashabana told the Supreme Court that his client has a fundamental right to think and opinionate about anything, but Article 2 of law No 18 of 23/07/2008 relating to the punishment of the crime of genocide ideology has been used to accuse her of denying the genocide.
The article states that “Genocide Ideology is an aggregate of thoughts characterized by conduct, speeches, documents and other acts aiming at exterminating….”
But Gashabana urges that article 2 contravenes Ingabire’s rights, adding that there is a mismatch between articles 2 to 9 of the same law and articles 20, 33, 34 and 35 of the constitution. Ingabire also urges that the crime of genocide ideology contravenes the universal human rights declaration which states that people have a right to freedom of speech and expression.
Article 33 of the constitution states that “Freedom of thought, opinion, conscience, religion, worship and the public manifestation thereof is guaranteed by the State in accordance with conditions determined by law.”
But the article concludes that “Propagation of ethnic, regional, racial or discrimination or any other form of division is punishable by law.”
However, state Attorney Theophile Mbonera, defending the prosecution of Ingabire argued passionately that the plaintiff had ignored an exception to article 33 of the constitution which stated “propagation of ethnic, racial or discrimination or any other form of division shall be punishable by the law.”
If Ingabire’s petition gets the Supreme Court nod when the verdict is announced on October 5, it will mean that the laws that the Prosecution has used to try her for genocide ideology would be null and void, and the prosecution would have to drop some charges against her.
She is accused of six crimes that include genocide ideology, complicity in terrorism, discrimination and sectarianism, willingly disseminating rumors, creating and recruiting into an armed force with the aim of waging war, and attempt to national security by using war.
Ingabire is accused along with four others namely Col. Tharcise Nditurende, Lt.Col Noel Habiyaremye, Maj. Vital Uwumuremyi and Capt Jean Marie Vianney Karuta who have already pleaded guilty and also adduced incriminating evidence against her.
Gashabana, who has represented Ingabire in court since September 2011, believes that Articles 2 to 9 relating to the punishment of the the genocide ideology are vague and ambiguous, and so cannot be used to try Ingabire.
Gashabana even believes that “the penalties that punish the crimes of genocide are also not proportional to the crime.”
He told the nine members of the Supreme Court panel that the sentence for someone convicted of genocide ideology starts from 10 years to 25 years to life in prison and fines of Rwf200.000 to Rwf1million even when the crime is threatening, intimidating, and degrading of genocide. “Surely can that also carry such a heavy sentence?”I don’t think so,” asked Gashabana.
Vague laws?
Article 2 defines genocide ideology as “an aggregate of thoughts charatercised by conduct speeches, documents and other acts aiming at exterminating or inciting others to exterminate people basing on ethnic group, origin, nationality, region, color, physical appearance, sex, language, religion or political opinion committed in normal periods or during war.”
Article 3 goes further to explain the characteristics of the crime of genocide ideology but Gashabana and his client say the law especially the word ‘aggregate’ is not precise and therefore gives the state powers to ‘prosecute a person over the crime of genocide ideology.’
The Independent Magazine sought out Gashabana numerous times to expound more on his client’s petition but he was not reliable. He even refused to pick up his phone after failing to show up for an interview.
State Attorneys confident
The laws against genocide have come under heavy criticism since they were enacted into law in 2003 and later amended in 2008 but state Attorney Mbonera, who is representing the prosecution in the trial, says there is no ambiguity in the law, and says Ingabire is just looking for ways to manipulate the law.
“How is the law vague”? Mbonera asks before adding that different people can have different interpretations of the law but this does not make the law vague or ambiguous.
”Article 2 clearly says that someone who uses thoughts, speeches, documents and other acts aimed at exterminating or inciting people to exterminate people basing on ethnic group, origin, nationality, religion, color… is guilty of genocide ideology,” says Mbonera backing up his argument.
“The key issue in that article is using ways to exterminate people based on their ethnicity and so on. The law does not infringe on someone’s right to talk about genocide,” he further urges.
“For example, if am giving a speech to students, telling them about our turbulent history and I have to use ethnicity as examples, do you think I would be guilty of genocide ideology,” Mbonera asks rhetorically.
“But if I am telling people that there was no genocide in the country but just random killings, and then continue to argue that they were two genocides, then definitely a prosecutor would look at the case as one of genocide ideology.”
Not only does Mbonera think that Ingabire has a weak case but he also says that ‘Stare decisis’ or Precedent gives his team a slight advantage. Stare decisis is a principle or rule established in a previous legal case that is either binding or persuasive for a court or tribunal when deciding subsequent cases with similar issues or facts.
“We won a similar case last year when former Minister of state for Primary and Secondary Education Theoneste Mutsindashayka petitioned the Supreme Court to nullify some articles in the penal code relating to procurement of goods to government bodies because they were vague,” explains the confident Mbonera.
Mbonera alluded to that case when he presented his defense in the Supreme Court and although he says that he cannot be 100% certain that the state will win the case, he thinks they have an advantage.
No comment
The Independent Magazine was not able to get neutral opinions from lawyers or law scholars because it would be ‘sub judice’ of the trial. Sub judice means that a person cannot comment publicly on a case which is still under trial or consideration by a judge.
A person is liable to contempt of court, which is a criminal offense if there is sub judice and although deliberations in the trial of Ingabire are over, the Judges have not yet passed judgement, meaning the case is still under consideration before the judge.
Martin Ngoga, Rwanda’s Prosecutor General, echoed the same view when he was contacted, replying that a comment at this stage from the Prosecution risked being interpreted as interference in court or an attempt to guide their decision.
On Ingabire’s various charges, the lead prosecutor in her trial in the High court, Bonaventure Ruberwa says that even if her petition goes through, she might not walk away freely.
“Even if Ingabire was to win her petition in the Supreme Court, it does not mean that she will go scot free,” Ruberwa, who has been a prosecutor for the last 14 years, says.
Although he does not want to make it a big deal, Ruberwa’s conviction rate is very high, something that lawyers measure their successes on.
Ruberwa’s many court wins also include big cases like the Alfred Kalisa case, the former CEO and Shareholder of Bank of Commerce, Development and Industries (BCDI) now Ecobank, who was found guilty of funds’ abuse, Deo Mushayidi who was convicted for destabilizing the country using his links to FDLR, a terrorist organization in Eastern Democratic Republic of Congo (DRC) and the case against terrorists who had became notorious for throwing grenades in Kigali last year.
Allegations of Political interference
Since her trial began last year, Ingabire has constantly claimed of a political witch hunt by the state and has complained that her trial is politically motivated to stop her party from registering and being involved in the political process of the country.
Also during her trial,a couple of boys in the ages of 18-28,who are always dressed shabbily turn up wearing pink neckties to follow proceedings, it is not known whether they are part of her unregistered party and or are mobilized by her cohorts to show support.
Despite her claims of not getting a free and fair trial, the Minister of Justice and Attorney General Tharcise Karugarama has gone on record to say that “it’s after the trial that we should be able to say whether it was fair or transparent.”
Ingabire’s claims of the country’s justice system not having the capacity to give her a free and fair trial have been denied by the government which gives examples of international cases that are sent back to Rwanda for trial, that include the Leon Mugesera and Jean Uwinkindi trials. They are all suspected of committing genocide crimes.
Presidential Pardon
Perhaps the biggest surprise in the Ingabire trial was when Ingabire wrote a two page letter, which The Independent Magazine published, to President Kagame asking for leniency.
In the letter, Ingabire asked for forgiveness from both the President and Rwandans for statements that she said on her arrival at the genocide memorial center in Gisozi, Kigali city in which she insinuated that there was a ‘double genocide’ in the country.
See A copy of the Letter Ingabire Wrote to President Paul Kagame
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