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Justice, but not in my backyard
10 March 2016

Rwanda’s sudden withdrawal of its declaration that allows its citizens to petition the African Court of Human and Peoples’ Rights – just as it was about to hear a tricky case from a Hutu dissident against Kigali – unfortunately reinforces an impression that many governments on the continent only allow justice when it suits them.

Rwanda was one of only eight of the African Union’s (AU’s) 54 member states that had deposited declarations under Article 34(6) of the court’s protocol. That allows individual citizens and NGOs of their states to petition the continental court when they feel they have been denied justice by their national courts.

Rwanda deposited its declaration in 2013.

By then the case against Victoire Ingabire was well under way. A member of the majority Hutu ethnic group, she had returned from 16 years in exile to Rwanda on 16 January 2010 to contest the upcoming presidential elections in August, as the leader of the FDU–Inkingi party.

On her first day back on home soil, she went to lay a wreath at the Gisozi Genocide Memorial Centre in Kigali, which commemorates the 1994 genocide in which nearly a million Rwandans, mostly members of the minority Tutsi ethnic group, were massacred by Hutu extremists.

The timing of Rwanda’s withdrawal is suspicious, coming just days before the Ingabire case
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Ingabire urged peace and reconciliation between the two groups who have inflicted so much pain and suffering on each other down the years. She spoke against those who advocated armed struggle to resolve Rwanda’s problems. ‘We do not believe that shedding blood resolves problems. When you shed blood, the blood comes back to haunt you.’

But she also had this to say: ‘For us to reach reconciliation, we need to empathize with everyone’s sadness. It is necessary that for the Tutsis who were killed, those Hutus who killed them understand that they need to be punished for it. It is also necessary that for the Hutus who were killed, those people who killed them understand that they need to be punished for it too.’

Ingabire was arrested in October that year and this speech was cited as evidence of her alleged violation of the legislation that outlaws, ‘revisionism, negationism and trivialisation of genocide’, as the constitution summarises it. She was later charged with several offences related to her alleged support for the Democratic Forces for the Liberation of Rwanda, which have been fighting to topple the Kagame regime from the bases in the eastern Democratic Republic of Congo.

On 30 October 2012, Ingabire was convicted by the High Court of the charges of ‘conspiracy in harming authorities through terrorism and war’ and denial of Rwanda’s 1994 genocide, and was sentenced to eight years of imprisonment. She had originally been indicted with six offences: creating an armed group, complicity in terrorist acts and complicity in endangering the state through terrorism and armed violence, ‘genocide ideology,’ divisionism, and spreading rumours intended to incite the public to rise up against the state.

The Rwandan Ministry of Justice said the timing is a mere coincidence
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She appealed to the Supreme Court, but on 13 December 2013 it upheld the conviction and increased her prison sentence to 15 years. The whole trial was widely condemned by international human rights groups as legally flawed and politically motivated.

Amnesty International and Human Rights Watch denounced the trial as unfair, saying it was tainted by ‘non-disclosure of potentially exculpatory evidence that could have assisted Ingabire’s defence, witness intimidation and interference with the right to remain silent after her notes were seized.’ 

On 8 October 2014, Ingabire appealed to the African Court of Human and Peoples’ Rights, which set the case down to be heard from last Friday, 4 March. But the day before that, the AU officially informed the court that Rwanda had withdrawn its declaration that allows its citizens to petition the court.

Radio France International (RFI) quoted Caroline Buisman, Ingabire’s lawyer, as saying that on 1 March, Rwanda had told the court that it was rescinding the declaration and calling for the suspension of the Ingabire case and several others pending against Rwanda.

‘A coincidence,’ RFI reported the Rwandan Ministry of Justice saying, denying any link between its rescinding of the declaration and the Ingabire case. ‘A political decision of Rwanda in response to cases that displease it,’ RFI reported Florent Geel, head of the International Federation for Human Rights’ Africa office as saying.

The Rwandan Ministry of Justice issued a statement saying that it had already decided on 26 February this year to withdraw its declaration ‘for review.’ It said it had deposited its withdrawal with the AU on 29 February, with a copy to the court. The AU had officially communicated the withdrawal to the court on 3 March, it said.

Rwanda’s decision could further damage continental justice
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The ministry said it had decided to withdraw because the declaration ‘was being exploited and used contrary to the intention behind its making. 

'Specifically, convicted genocide fugitives secured a right to be heard by the Honourable Court, ultimately gaining a platform for re-invention and sanitization in the guise of defending the rights of the Rwandan people.’

Last week Rwanda’s The New Times newspaper suggested that the Ministry of Justice was referring to Stanley Safari, a former senator, who was found guilty by a Gacaca court on many counts of murders of ethnic Tutsis during the 1994 genocide, and sentenced to life in prison. But he escaped and fled the country before the trial was over.

The New Times quoted Rwanda’s Minister of Justice, Johnston Busingye, as saying Safari had petitioned the African Court of Human and Peoples Rights. He told the paper that his government had informed the court last year ‘that we would take serious exception if Safari was allowed a platform in the African court because with genocide, Rwanda would not compromise.’

Safari’s case does not appear in the list of cases before the court on its website, suggesting the court did indeed withdraw it in response to Rwanda’s demand. So, why was it necessary for Rwanda to withdraw from the declaration entirely? Its general withdrawal from the declaration also raises the question of why it should be concerned about a re-airing of the misdeeds of genocidaires.

And the timing of this withdrawal remains suspicious, coming just days before the Ingabire case was due to start, with all the potential it held for exposing the flaws in her national trial.

This is looking more like NIMBY justice than African justice
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Angela Mudukuti of the Southern African Litigation Centre says: ‘Rwanda’s decision to “withdraw for review” the declaration that allows NGOs and individuals to approach the African Court is a unfortunate decision which could further damage the already fragile state of continental justice mechanisms.’ She added: ‘Again, it is the victims who are being denied access to a regional body that could defend and protect their rights.’

Rwanda's actions recall the fate of the Southern African Development Community (SADC) Tribunal, which had the same power to hear complaints from individuals until 2010. That power was then quashed by SADC leaders after the court had issued several judgements against the Zimbabwean government, in favour of white farmers whose land had been seized.

In 2012, SADC leaders resolved that a new Tribunal should be negotiated with a mandate confined to interpretation of the SADC Treaty and Protocols relating to disputes between member states.

That would give it essentially the same reduced powers as the African Court now has in relation to the 47 AU member states that have not deposited their Article 34(6) declarations – plus Rwanda, it now seems.

The contradictions exposed by these episodes raise some serious questions about the continent’s insistence that it remains firmly committed to the fight against impunity – despite its quarrel with the International Criminal Court (ICC), for instance. African leaders’ relationship with the ICC was going fine until it got too close for comfort by indicting Sudanese President Omar al-Bashir.

Likewise, the justice meted out by the SADC Tribunal and the African Court of Human and Peoples’ Rights was essentially uncontroversial until they touched issues that actually mattered to the leaders of the defendant governments, in each case.

These developments suggest the motto ‘African solutions to African problems’ should be enhanced, at least as far as justice is concerned, by the rider, ‘but not in my backyard.’

This is looking more like NIMBY justice than African justice.

Peter Fabricius, ISS Consultant

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