Government of Rwanda v Nteziryayo & Ors, Court of Appeal - Administrative Court, July 28, 2017, [2017] EWHC 1912 (Admin)

Resolution Date:July 28, 2017
Issuing Organization:Administrative Court
Actores:Government of Rwanda v Nteziryayo & Ors
 
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Neutral Citation Number: [2017] EWHC 1912 (Admin)

Case Nos: CO/311/2016, CO/312/2016,

CO/313/2016, CO/314/2016, CO/315/2016

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 28/07/2017

Before :

LORD JUSTICE IRWIN

MR JUSTICE FOSKETT

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Between :

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James Lewis QC, Julian B Knowles QC, Ben Brandon, Gemma Lindfield (instructed by The Crown Prosecution Service) for the Appellant

Diana Ellis QC, Joanna Evans (instructed by Clifford Johnston & Co) for the 1st Respondent

Alun Jones QC, Sam Blom-Cooper (instructed by BSB Solicitors) for the 2nd Respondent

Tim Moloney QC, Iain Edwards (instructed by O'Keeffe Solicitors) for the 3rd Respondent

Helen Malcolm QC, Mark Weekes (instructed by Bindmans LLP) for the 4th Respondent

Edward Fitzgerald QC, Kate O'Raghallaigh (instructed by Hallinan Blackburn Gittings & Nott) for the 5th Respondent

Hearing dates: 28, 29, 30 November and 5, 6, 7 December 2016

Further evidence up to March

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Draft 28 July 2017 17:06 Page 2

Introduction

  1. This is the judgment of the Court to which both members of the Court have contributed.

  2. This is an appeal by the Government of Rwanda [``GoR''] against the decision of the then Deputy Senior District Judge Arbuthnot, declining to permit the extradition of these five men to Rwanda. The requested Parties [``RPs''] cross-appeal. The decision of Senior District Judge Arbuthnot [hereafter ``the SDJ''], as she now is, was given on 22 December 2015, following a hearing which occupied the Court for 66 days. She declined to order extradition. Her decision in respect of the first four named Respondents was founded on her conclusion that there was a real risk they might suffer a flagrant breach of their rights to a fair trial if extradited, such that there would be a breach of Article 6 of the European Convention of Human Rights, and of Section 87 of the Extradition Act 2003 [``the 2003 Act''].

  3. The decision in respect of the Respondent Mutabaruka, was also based on Section 80 of the 2003 Act. SDJ Arbuthnot found that his extradition was barred by the Rule against double-jeopardy. However, she indicated that she would also have discharged the fourth Respondent pursuant to Section 87 of the 2003 Act.

  4. The GoR seeks to try the five RPs on various charges arising from the killings in Rwanda in 1994. It is not suggested that the charges faced by these RPs are connected, or that they acted together.

  5. In the course of her judgment now appealed before us, SDJ Arbuthnot gave a helpful summary of the allegations against these five RPs, which reads as follows:

    ``44. Vincent Brown, it is said (...): 1. That VB was a close associate of President Habyarimana, a member of the Akazu (the President's inner circle), he participated in MRND party meetings prior to April 1994 and was a member of MRND until 1993 when CDR was founded. In 1993 he attended a meeting in Myamirambo [sic: read Nyamirambo] Stadium in Kigali where Hutus were called to disassociate themselves from the Tutsi who were said to be the enemy, at this meeting VB was said to be in charge of protocol. Finally in 1 [sic]. He attended the swearing in ceremony for the interim government on 4th July 1994 at Kibehehank where he collected financial contributions. 2. He established and supervised the manning of roadblocks in Rugenge (Kigali) and near to Kibihekane School in the North-West of Rwanda where killings took place. He is said to have participated in the killings of 3. Dominique, 4. Leandre in Rugenge, 5. Charlotte Kamugaja and baby in Rugenge.

  6. In the case of Charles Munyaneza, it is alleged that as the bourgmestre of Kinyamakara in Gikongoro province he encouraged others to kill Tutsis, chaired meetings and organised roadblocks. CM took part in the looting of a property and he punished those who looted without killing the owners first; he also led a number of attacks over some days on Ruhashya over the Mwogo River which killed thousands of Tutsis.

  7. Emmanuel Nteziryayo was the bourgmestre in Mudasomwa commune and therefore was another bourgmestre of the Gikongoro province (see Munyaneza above), it is alleged against him that as a bourgmestre he held meetings with conseillers and gave them guns, he told them to set up roadblocks and to kill Tutsis, he told people that Tutsi bodies should be hidden by being buried, he was present at the same meetings that CM was at on 13th April and on 26th April 1994 when the bourgmestres reported on the numbers of Tutsis that had been killed in their areas. In May 1994 he did nothing to prevent some people being beaten at a roadblock. He later fled to the Congo and was a leader in a refugee camp.

  8. The allegations against Celestin Ugirashebuja is that he was the bourgmestre of Kigoma commune and a long standing member of the MRND. CU would pass by the road blocks and find out how many had been killed. He held a meeting of the conseillers and responsables at the commune office and instructed them to set up roadblocks and bring any ``inyenzi'' (cockroaches) to him. The commune policemen who were under his direct control played an important part in the killings. CU urged people attending meetings to kill Tutsis. He gave instructions that certain Tutsis were to be tricked to come out of hiding so they could be killed, he ordered that Tutsi bodies should be moved so they would not be seen by foreigners. He is also alleged to have distributed guns. In May 1994 he addressed about 300 people and urged them to destroy property belonging to Tutsis.

  9. The evidence against Celestin Mutabaruka are that he took over the running of a forest management company in Musebeya, Gikongoro called Crete Zaire Nil (``CZN'') in January 1992. When he took over he brought in ethnic segregation and by June 1992 it is alleged he was persecuting and discriminating against Tutsis. In November or December 1993 there was an attempt to remove him from his post when he was to be replaced by a Tutsi. CMU refused to go and claimed that his removal was a political issue between two parties, the MRND and PSD. There is documentary evidence which confirms his writing to the President of Rwanda saying he had set up a political party and asking the President to intervene in his removal from CZN.

  10. The evidence shows he set up a political party on 20th October 1993 and called it ``UNISODEC''. It had 50 members ... He describes himself as the President of UNISODEC in a letter dated 4th January 1994. Mr Ngoga describes the party as being an ally of MRND formed as a satellite party in order to strengthen opposition to the RPF ... CMU was said to enjoy the support of the top leadership of the MRND.

  11. Importantly as far as the prima facie case is concerned, it is alleged that during the genocide he played an important role along with his close friend and colleague Jonas Kanyarutoki in the killings which took place at Gatare when people who had taken shelter in the Presbyterian Church were persuaded to leave and then killed on 17th April 1994. He was an organiser and is mentioned by a number of those involved. Once the killing had finished he checked on where the bodies had been dumped.

  12. In mid May 1994, CMU led a gang of killers that murdered many people on Muyira hill in Bisesero. Using CZN vehicles, he led Interahamwe and fired into the crowd killing one person through the eye. He returned the following day and finished off any survivors. He was said to be one of the leaders who would stand with the Interahamwe and give them briefings. About 40,000 Tutsis are said to have died in those attacks.

  13. CMU fled to Congo with his wife in July 1994. One witness who replaced him as director of CZN found several of his documents in his former office. Various letters are exhibits including his asking the President, Prime Minister and Commanding Officer of the Gikongoro gendarmerie for a firearm, another a letter from a CZN employee complaining that he had sacked a number of Tutsis unfairly and a letter from Oswald Rugema complaining of unfair dismissal and of being arrested at the behest of the CMU on what he says is a trumped up charge. In one of the letters which is undated CMU denies the accusations of ethnic segregation at CZN (...). These letters continue into 1994.''

  14. It will be noted that throughout this part of the SDJ's judgment, and indeed throughout the whole of the judgment, the Respondents were, for convenience, referred to by their initials. Thus the First Respondent, Emmanuel Nteziryayo, was `EN', the Second Respondent, Vincent Brown/Bajinya, was `VB', the Third Respondent, Charles Munyaneza, was `CM', the Fourth Respondent, Celestin Mutabaruka, was `CMU', the Fifth Respondent, Celestin Ugirashebuja, was `CU'. We propose to refer to each individual by his surname throughout this judgment.

  15. In relation to four of the RPs, the attempt at extradition is not new. Messrs Brown/Bajinya, Munyaneza, Nteziryayo and Ugirashebuja were the subject of extradition proceedings in 2007/2008. An extradition hearing took place in the Westminster Magistrates' Court over a series of dates between September 2007 and May 2008. DJ Evans heard some 18 days of oral evidence. He decided to send the cases to the Secretary of State, who signed extradition orders in respect of the four on 1 August 2008.

  16. The four RPs appealed successfully to the Divisional Court. Their appeal occupied ten days in December 2008.

  17. There were, and are, no general treaty arrangements covering extradition between the United Kingdom and Rwanda. In 2007/9, and now, extradition was and is sought pursuant to Memoranda of Understanding [``MoU''] between the British and Rwandan governments. The terms of the MoUs may be summarised shortly. In each case the ``Judicial...

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