Building vibrant and tolerant democracies
(Read the full artilce here or download it below) - By Rakiya Omaar, Director of African Rights - When the Association of African Prosecutors (APA) met in the Rwandan capital, Kigali, in August 2011, John Bosco Siboyintore, the head of Rwanda’s Genocide Fugitive Tracking Unit, was blunt and direct. He told the large gathering of justice officials from Africa that they lagged far behind their counterparts in Europe and North America in investigating and prosecuting Rwandan genocide suspects who live openly, and in large numbers, in their midst.
He referred, without naming the country, to the case of Charles Bandora, a businessman indicted by Rwanda while he was living in Malawi. Bandora was arrested in Malawi in January 2010 and released almost immediately afterwards without justification. Last year, Bandora, armed with a passport from Malawi, left Africa for Europe. He ended up in Norway, where he was arrested on an Interpol notice. A court in Norway recently approved his extradition to Rwanda – a decision that is currently on appeal.
At the conclusion of the two-day meeting, the Association published a declaration to ‘encourage its members and facilitate training programmes to develop capacity in the training, arrest and extradition of criminals so that African countries do not become safe havens for criminal offenders’.
The quick, and at times impassioned, reactions from the floor to Siboyintore’s presentation capture the conflicting responses in Africa to debates on international justice. Stung by arguments that contrast inaction from Africa with limited, but tangible, steps by western countries to bring perpetrators of the Rwandan genocide to account, Africa has sought refuge in pointing out various constraints and difficulties, which are real enough, but not sufficient. And Rwanda is but one example. The decision by victims of violence in Sudan, Kenya, Mauritania, Chad and elsewhere to seek redress outside the continent – in the courts of Belgium and France, or at the International Criminal Court (ICC), while yearning for a justice which is more accessible, immediate and resonates more powerfully at the local level – highlights the predicament Africa faces.
With important exceptions, Africa’s record on facilitating the arrest of Rwandan genocide suspects sought by the International Criminal Tribunal for Rwanda (ICTR) has in fact been largely positive. Based in the Tanzanian town of Arusha, the ICTR – the principal international body responsible for genocide, crimes against humanity and war crimes committed in Rwanda between I January and 31 December 1994 – has benefitted from collaboration with Africa. The first indictees arrived in Arusha from Zambia in May 1996, while the single largest number of suspects was arrested in a well co-ordinated swoop in Nairobi in July 1997. Senegal, Cameroon, the Democratic Republic of the Congo (DRC), Uganda, South Africa, Tanzania, Namibia and Angola, among other African countries, have also contributed to the work of the ICTR by transferring individuals to its detention facilities.
However, as the ICTR prepares to close its doors, it is unfortunate, and instructive, that the remaining indictees at large are believed to be living in Africa, principally in the DRC, Zimbabwe and Kenya. In June 2011, the Prosecutor of the ICTR, Hassan B. Jallow, took the unusual step of making a public appeal to Zimbabwe for co-operation with regard to Major Protais Mpiranya, head of the Presidential Guard in 1994. The Tribunal has also devoted substantial resources to securing the arrest of the elusive Félicien Kabuga in Kenya, where he is thought to be living. A wealthy businessman, Kabuga funded Radio Télévision Libre des Mille Collines, which was famous for its campaigns to incite and justify the genocide of the Tutsi minority.
Assisting the ICTR was in fact the ‘soft’ option for all countries – in Africa and beyond. But in accordance with the terms of the ‘completion strategy’ set out for the ICTR by the United Nations Security Council, there have been no new indictments since the end of 2004. However, during the past seven years, there have been arrests, trials, convictions and new investigations in a number of European countries, New Zealand and Canada, as well as deportations from the United States. And there has been silence from Africa.
The emphasis by the participants at the APA meeting on training and capacity cannot simply be dismissed as excuses. The lack of the necessary human resources – namely a sufficient number of qualified and experienced investigators, prosecutors, judges and other personnel, who become knowledgeable through exposure – is a major handicap. In addition, given the economic realities and competing priorities, few, if any, African countries can afford to mount and sustain extremely expensive domestic prosecutions of Rwandan genocide suspects. Even in Canada, there have been complaints about the cost of putting a Rwandan accused of genocide crimes on trial, while a number of European countries, including Britain and the Netherlands, are seriously considering extradition to Rwanda, in large part because of the financial burden associated with domestic prosecutions.
But while inadequate resources, training and capacity are very real impediments, they are not insurmountable obstacles, provided the political will exists. It is the absence of political will, above all else, which explains why Africa has not addressed, in any serious and systematic fashion, the presence on African soil of the men and women responsible for one of the worst crimes of the 20th century. The governments concerned cannot plead ignorance; they have received detailed indictments about some of the alleged perpetrators who have settled in their countries. Interpol has published some of these names. Human rights organisations have submitted dossiers to governments to help them locate the whereabouts of certain suspects, as well as providing information about the allegations concerning their participation in the genocide. In some instances, their justice officials have visited Rwanda and they in turn have hosted their Rwandan colleagues – visits which are followed by joint statements that underline the necessity and the urgency of taking action to ensure justice for the victims of the Rwandan genocide.
It is tempting, and all too easy, to list the many international, continental, regional and national conventions and laws that impose legal obligations on African countries to bring genocide suspects to book. This is fine, as far as it goes. The problem is, it does not go very far, if the goal is to inch African countries towards practical initiatives, which will result in concrete action.
The reality, however unpalatable, is that few African countries can afford investigations and domestic prosecutions of genocide suspects that are acceptable to the international community. It is simply too costly. It would also be unrealistic to expect western countries, which have grown weary of subsidising the ICTR, and which are, for the most part, reluctant to mount trials at home because of the financial implications, to fund prosecutions in various African countries.
The International Residual Mechanism for Criminal Tribunals, approved by the Security Council in December 2010, comes into effect for the ICTR on 1 July 2012. It allows the ICTR to handover some cases to national courts. It is unlikely that African countries, which have not investigated or prosecuted any genocide suspects, will offer instead to try ICTR detainees. Speaking at the ICC Review Conference in Kampala in 2010, Prosecutor Jallow listed the impediments to the referral of cases to national jurisdictions as “weak and already overburdened national legal systems, inadequate laws, jurisdictional lacunae, constraints in skilled manpower, lack of other resources and the inadequacy of support structures which are so critical to an effective legal system." It is difficult to name a country in Africa which does not face these challenges.
But the alternative is not the status quo – allowing genocide suspects impunity and, in some instances, platforms and opportunities for mobilising armed attacks, which have killed civilians and caused mayhem and instability throughout the Great Lakes region. Extradition to Rwanda – and trials held under international scrutiny and with international assistance – is an option, which eases the financial burden on foreign countries, meets the expectations of survivors of the genocide, obliges Rwanda’s judiciary to continue making far-reaching reforms and, very importantly, undermines the culture of impunity that emboldened perpetrators to commit crimes in broad daylight, so confident were they that it was ‘business as usual’.
The struggle for extradition, marked by hope and disappointment, has been a salutary lesson for Rwanda and forced it to implement reforms which, although often unpopular, are beneficial to the legal system as a whole and to the population at large. The demands by judges at the ICTR and in Europe have been wide-ranging, touching on issues which might be deemed ‘political’ but which were perceived as essential to the prospects of a fair trial and due process. The result is a stronger and more professional judiciary.
Indeed, on 28 June 2011, judges at the ICTR ruled for the first time in favour of sending an ICTR detainee to Rwanda to be tried in a national court. Jean Uwinkindi could be tried there, said the judgement, because “Rwanda possesses the ability to accept and prosecute Uwinkindi’s case." The achievement is not Rwanda’s alone. The ICTR and many donors have invested resources, time and effort to support legal reforms in Rwanda, bolster the skills and confidence of the legal community, and build the capacity of individuals and institutions, underscoring the extent to which the pursuit of justice is a shared responsibility.
The opportunity to face, in a court of law in Rwanda, the men and women they accuse of killing their families and friends and of devastating their lives is an aspiration shared by virtually all survivors of the genocide. Laetitia, a farmer from the region of Gitarama, describes trials abroad as ‘only half-justice’. Her words echo those of countless survivors I have interviewed over many years, whether they are peasants in the countryside or highly educated professionals in urban centres. In 17 years as a researcher on the Rwanda genocide, I have never spoken to a survivor who did not express a strong preference for genocide trials ‘at home’. For Hyacinthe in Kibungo, who was interviewed in Rwanda regarding a trial at the ICTR, the reasons are evident and compelling.
“In Rwanda, you can follow the court every day. You have the opportunity to give your testimony to the court and to face the person you are accusing. But more importantly, the people on trial have to face the people whose lives they wrecked.”
Even survivors who live abroad, like Dominique in Norway, would vote in favour of trials in Rwanda if they had a choice.
“Genocide was committed in Rwanda by Rwandese and against Rwandese. Real justice demands that the torturer be tried in front of his victims and his accomplices where the crime was committed. When the victims of genocide look at their torturers dressed in a suit and tie, be it in the tribunals in Arusha or in Europe, they have the impression that what they are witnessing is an absence of justice.”
It is not only survivors who insist upon extradition of genocide suspects to Rwanda. Genocide prisoners who have admitted their part in the killings, and whose testimonies have been central to the success of trials in Rwanda, at the ICTR and abroad, do not mince their words. They speak of double standards for perpetrators: impunity for those with the education, means and contacts to flee abroad and punishment for the large army of foot soldiers in Rwanda, who were, for the most part, armed and incited by those living overseas.
Ultimately, the goal of judicial co-operation – between countries and between international and national institutions – is to foster an environment in which the rule of law and due process can take root. In Rwanda in 1994, people did not hesitate when officials, the wealthy or the educated told them to hunt and kill their friends and neighbours, so deeply ingrained were obedience to authority and respect for social hierarchy. Prosecutions in Rwanda of these men and women, who had inspired awe and fear and whose word was law, would demystify their power and encourage people to question commands and decisions that are wrong, cruel, unethical or that perpetuate injustice.
Promoting accountability in Africa is not the responsibility of governments alone. International and regional organisations, professional associations, non-governmental groups and the media all have a role to play. Speaking at a recent conference in Johannesburg on the Rwandan genocide, Siri Frigaard, a Norwegian prosecutor, gave credit to civil society and the media in Norway for creating ‘a public outcry’ about the presence of Rwandans who may have taken part in the killings, and pushing their government to respond appropriately.
Where the media has shown interest and resolve in Africa, as with the Charles Bandora case in Malawi, the results have been encouraging. Press coverage of Bandora’s arrest, and the suspicious circumstances of his release, coupled with tough questions to senior police officers as to whether money had changed hands during his brief detention, may well be the reason Bandora did not linger in Malawi. Rather, he embarked on the journey which subsequently led to the decision to extradite him from Norway. The Bandora incident also illustrates the importance of an effective partnership between the media and civil society: it was human rights groups in Malawi who had alerted local journalists.
Countless university lecturers, teachers, doctors, nurses, medical assistants and clergymen called for genocide of the Tutsis in 1994 and participated directly in the massacres as organisers and/or executioners. Many of these same individuals are today respected doctors, researchers and priests working in hospitals, universities, schools and churches in South Africa, Zambia, Swaziland, Tanzania and Mozambique, to mention only a few countries in Africa. The potential of professional associations in Africa to contribute to justice by demanding answers and action from their governments so as to ensure proper vetting procedures and, where appropriate, to investigate allegations of complicity in the genocide, remains largely untapped.
Strengthening the international justice system is not limited to what takes place in a court of law. Throughout Africa, men and women who orchestrated massacres in which thousands perished have obtained recognition as ‘refugees’ entitled to international protection, contrary to the 1951 Refugee Convention. Well-known genocide suspects hold influential positions as ‘community leaders’ in camps for Rwandan refugees run by international agencies and national refugee commissions, for example in the DRC, Zambia, and Uganda, using intimidation and persuasion to discourage others from returning home voluntarily.
Millions of dollars were spent on trying to understand how and why the international community allowed the camps for Rwandans in the DRC in the mid-1990s to become military training grounds for the officers and militiamen at the helm of the genocide. Some of the men who were later convicted of genocide crimes by the ICTR were their trainers and leaders. The lessons of 1994-1996 have yet to be translated into principles and practices, which distinguish between refugees and fugitives and which protect genuine refugees while advocating justice with respect to fugitives.
Talk of ‘international justice’ in Africa is sometimes seen as a form of judicial imperialism, an imposition from outside that critics dismiss as politics by other means. This perception is unfortunate. African countries need to reform and reinforce their judicial structures, first and foremost, in the interests of their own people. If the ICTR feels confident to refer a case to the Netherlands or Sweden, it is not because either country has established a separate and special system to accommodate suspects from Rwanda. Only strong national judiciaries, which can respond to the needs of their own citizens, are in fact capable of handling the additional complexity of foreign prosecutions.
Faced with pressure to act on Rwanda, African governments would do well to reflect on the recent experiences of Kenya. In addition to Kabuga, a number of other Rwandans sought in connection with the genocide are known to have been living in Kenya for more than a decade. The same system that failed the Rwandan victims of the genocide also failed the Kenyan victims of the post-election violence, prompting widespread calls in Kenya for the intervention of the ICC. The ICC is now prosecuting a number of Kenyans who could have been tried at home, delaying the establishment of a judiciary that can be trusted with both domestic and international justice.
The 1994 genocide in Rwanda was a collective international failure. It was, in particular, a failure for Africa. Given the mass exodus of the key perpetrators and their presence throughout Africa, the quest for justice still presents Africa with huge challenges – as well as real opportunities to contribute to international justice.