Global Policy Forum

By Mary Kimani

A prosecutor in the trial against Ignace Bagilishema, who was today acquitted of genocide by the International Criminal Tribunal for Rwanda (ICTR) in Arusha, Tanzania has filed a motion seeking a stay of the release and notifying the court of the prosecution's intention to appeal against the ruling. Bagilishema was unanimously acquitted of genocide and crimes against humanity by two of the three judges of Trial Chamber I of the ICTR. The court ordered the immediate release of Bagilishema.

However, Charles Adeogun Phillips, the prosecuting attorney, told the court that the motion to stay Bagilishema's release was motivated by the belief that he could refuse to return to ICTR custody should his release be overturned by the Appeals Court. "Bagilishema has a wealth of contacts and is able to procure fake documents. During the four years following his arrest, he eluded the prosecution and was finally arrested in South Africa going under the name Nelsin Nzondi," Phillips argued. The prosecution alleged that because Bagilishema's family still resides in Mabanza commune where he was mayor, he could interfere with witnesses-whether associated with his trial or with other trials before the ICTR.

"He still has very strong community ties in Mabanza. We therefore believe that there is a real risk that he may interfere with these witnesses in order to obstruct justice either in his case or in other cases," Phillips told the court.

The prosecution requested the court to issue a new warrant of arrest staying the order for release for 30 days or, in the alternative, issue certain orders to ensure that Bagilishema would be available during the hearing of the appeal. Some of the measures recommended by the prosecution include the surrender of traveling documents to the local government officials in the area that Bagilishema decides to reside, and to report to such officials at least every two weeks.

Phillips also asked the court to order that Bagilishema should not contact, "whether directly or indirectly, victims of the alleged offense in connection with this case or any other case before International Criminal Tribunal for Rwanda."

In response, Bagilishema's lead counsel, Francois Roux of France, cited the practice of the human rights court in Europe and in Rwanda on acquitted persons. He cited the trials of Archbishop Augustin Misago and Ignace Banyaga, who were acquitted by the Rwandan government and consequently released while awaiting their appeals. He urged the court to follow their policy of looking at the practice in Rwanda while making their decisions. Roux told the court that there is no merit in the prosecution's argument that his client would interfere with witnesses as the Appeals Court rarely listens to witness testimony.

"Since 1999 Bagilishema has had names and witness statements. Was it even mentioned in court that there was this fear that he will intimidate witnesses? I have never heard any prosecution witness tell this court that they were offered direct or indirect pressure from Bagilishema. What witnesses are you referring to? What pressure?" Roux asked.

On the probability of Bagilishema absconding if released, Roux was emphatic: "For lack of argument, the prosecutor has told you that this man tried to evade justice until his arrest and in any event he had false papers. We are all aware of all the unjust accusations against former Hutu officials in Rwanda, which is what he was evading. He never sought to evade justice and justice has been served today. Nothing justifies his further detention," Roux said. He noted that there was normally a period of one year between a trial chamber ruling and an appeal hearing, which would automatically necessitate his client to be held for a further year. "I do not see anything based on the judgments that you have rendered that would justify his being detained during this period of time," Roux added. He said the defense would offer the court details of his client's proposed residence in Europe and furnish it with two guarantors who would ensure that Bagilishema appears for the appeal.

Commenting on the ruling Kingsley Moghalu, the tribunal's spokesperson, said the judgment "shows that the chamber will make its ruling based on nothing else but the evidence brought before it."

Florence Hartmann, Spokesperson of the ICTR Prosecutor, said the prosecution hoped to win the appeal. "We note that there was no unanimity on the count of complicity in genocide and crimes against humanity. We will insist he stays in detention pending the appeal," she said. Hartmann acknowledged that the prosecution had not been strong enough and had failed to make a proper case. She added that Jane Anywar Adong, the senior trial attorney, has had her contract terminated.

The court adjourned with Judge Mose announcing that a decision on the prosecution's application will be "made soon." The matter is before Trial Chamber I of the ICTR, comprising Judges Erik Mose of Norway (presiding), Asoka de Zoysa Gunawardana of Sri Lanka and Mehmet Guney of Turkey.