Global Policy Forum

By Kate Gehring

Late yesterday, prosecutors in the so-called "Butare Trial" quietly filed a potentially explosive motion in which they allege that defense investigators working on the case of genocide suspect Joseph Kanyabashi posed as International Criminal Tribunal for Rwanda (ICTR) investigators in Rwanda in order to gain access to information about several protected witnesses, and tried to discourage them from coming to testify against Kanyabashi at the Arusha-based tribunal.

The "extremely urgent" motion alleges "witness intimidation, tampering and contempt of the tribunal" in conjunction with defense investigations conducted in Rwanda last week. The prosecutors ask the court to order an investigation, to demand the surrender of travel documents and passports, to impose sanctions and remove the alleged offenders from the Kanyabashi defense team. Kanyabashi, one of six defendants in the Butare Trial, is charged with genocide and crimes against humanity. He was formerly mayor of Ngoma commune in Butare prefecture.

The motion charges that:
"On or about 6 June 2001, four defense team members approached four prosecution witnesses, at least two of whom are Butare cases prosecution witnesses, and attempted to persuade them, and in particular with a view to 'making them change their minds not to testify for the Prosecution.' "

It also contains allegations that a four-man defense team, which included Mauritanian investigator Boubou Diabira and "a white man ...alleged to be the son-in-law of Kanyabashi," misrepresented themselves as "from the ICTR," on several occasions while conducting investigations in Rwanda last week.

Although the UN pays their fees, neither defense lawyers nor their investigators are ICTR employees. Still, preparations for the Kanyabashi case are being made for his trial before the ICTR. According to Michel Marchand, Kanyabashi's lead counsel, Diabira was working in Rwanda on behalf of the Kanyabashi defense team last week, for the case before the ICTR.

The prosecution motion alleges that last week, while in Rwanda, the Kanyabashi team of investigators, and a man named Joseph Biroto Nzabirinda, whom it describes as "a Rwandan national and a former member of the Interahamwe," who was working as their translator, "falsely misrepresented" their identity and aims to witnesses, and to communal officials who granted them access to files and documents on the basis of those misrepresentations.

The motion was supported by two affidavits from tribunal investigators. The first of these, sworn by John Fomuso, of the prosecutor's Witness Management Team, calls the investigators' contact with witnesses a "trend of intimidation" that has led prosecution witnesses to fear for their personal safety. The Fomuso affidavit also emphasizes the role of Nzabirinda in the team, saying he was "immediately identified by the witnesses" as a former Interahamwe.

Fomuso's affidavit also says "the threat of infiltration into Rwanda by ex-FAR forces and Interahamwe militia returning from the Democratic Republic of Congo into the southern, north and western prefectures has heightened the level of insecurity against prosecution witnesses."

As a result, the affidavit concludes, the identities of tribunal investigators, language assistants and interpreters should remain equally protected. The name of the associate investigator who submitted the second affidavit in support of the prosecution motion is blacked out.

In that affidavit, the associate investigator claims that the medical director of Butare University told him that the four 'investigators' sought contact with witnesses who were in the university hospital. The medical director, also unnamed, told the ICTR prosecution investigator that he released the witnesses to these men, after being led to believe that the defense investigators were in fact part of an official ICTR prosecution team.

One of the witnesses -- whose name has been withheld to protect her identity -- however, recognized the supposed former Interahamwe interpreter, and became suspicious of the team. The witness told the Butare University Hospital director that Diabira told her that Kanyabashi was "a good man worth commending." But that after she replied that "a treacherous man like Kanyabashi should not go unpunished when he personally asked two men to rape her," the investigators lost interest in her and sought contact with others. Apart from Diabira and 'the white man,' the alleged fake investigators are not identified in the motion.

Although trial attorney Silvana Arbia stood and requested a hearing of the motion at the end of yesterday's court session, she did not elaborate on it's urgency. And, neither the judges nor the defense appeared to have been notified about the motion or received copies of it before it was announced as yesterday's session was adjourned.

In turn, presiding Judge William Sekule adjourned proceeding until Monday. The court will sit today, however, to hear a motion by another of the Butare defendants, Arsene Shalom Ntahobali.

Asked to comment about the motion, Marchand said he still had not seen it. The prosecutor had not provided courtesy copies, and, the ICTR archives closed before the court session adjourned.

Unable to respond to the motion, Marchand did say that Diabira was "a good, honest and trusted" member of the defense team. But, he added, he would have to ask him what was going on. Marchand said he had no knowledge of "the white man" alleged to be Kanyabashi's son-in-law, nor whom the other supposed investigators may have been.

A Rwandan investigator named Joseph Nzabilinda has been hired to work on the case of Joseph Nsabimana, another of the Butare defendants. His name is listed in the List of Butare Case Defense Teams submitted with Thursday's motion. Neither Marchand nor members of the Nsabimana defense team were available to confirm if this is the same person as Nzabirinda.

Marchand also expressed concern for the safety of Diabira, and said that the prosecutor's publicly filed motion could pose a threat to his own team's investigations and case. Diabira joined the Kanyabashi team in March of this year. An experienced lawyer, he worked with Avocats sans Frontieres in Rwanda, representing genocide suspects in Rwanda's domestic genocide courts before working on the ICTR case.

The Butare Trial will resume with the examination of the first prosecution witness on Monday, after today's motion hearings. The case is being heard before Judges William Sekule of Tanzania (presiding), Winston Churchill Matanzima Maqutu of Lesotho and Arlette Ramaroson of Madagascar.