PROSECUTION v. HABONIMANA

# PROSECUTION v. HABONIMANA

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2013-06-28 - Case/document no.: RPA 0484/12/HC/NYA - Collection: High Court

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PROSECUTION v. HABONIMANA [Rwanda HIGH COURT – RPA 0484/12/HC/NYA (Kamanzi, P.J.) June 28, 2013] Criminal law – Lack of sufficient inculpating evidence – Doubt in favour of the accused.– The fact of not providing the court with evidence that the statement made by the accused concerned the corps of Tutsi victimised by genocide which were exhibited during the TV broadcast and even never provide the CD of theat broadcast, brings about doubt and the latter favours the accused. Facts: Faustin Habonimana was indicted by the Prosecution at Intermediate Court of Huye accused of genocide ideology. The court found him guilty and sentenced him to fifteen years of imprisonment and a fine of 400. 000 Rwf. He appealed against the decision alleging that those who were in the cabaret were dancing doing their business. He added just a passerby crossed nearby there and wondered whether people of that place were not concerned by the mourning as they were dancing and he responded that they were in their business. He articulated that there was no TV show at that time. Rather, he opposes, they were playing a CD and passed by there about mid from the farm and entered as security officer and asked why they were dancing and ordered to switch off the TV. The prosecution pleaded that the accused made the statement while he was in

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cabaret and that if he had had good mentality he should not have been in cabaret at those hours. Held: A court decides a case before it in accordance with the rules of evidence applicable to the nature of the case. The fact that the prosecution failed to demonstrate that it was the corps of Tusti victims of genocide which were exhibited on TV that the accused referred to as a business and that the acknowledgment of the accused that he made the statement does not constitute an offence itself, rather the offence is taking the TV broadcast exhibiting the corps of the victim of genocide to business. Therefore, it causes doubt which roots in the failure of the prosecution to present the CD of the broadcast between mid day and 2pm so as to assess whether the broadcast was referred to as business so as to be qualified as genocide ideology. Appeal has merit. The accused is acquitted. Appealed judgment overturned. Faustin Habonimana should be automatically released Statutes and statutory instruments referred to: Law no.15/2004 of12/06/2004 relating to evidence and its production, articles 4 and 65. Law no.13/2004 of17/05/2004 relating to the code of criminal procedure, articles 44 and 153.

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Law no.18/2008 of 23/07/2008 relating to the punishment of the crime of genocide ideology, article 2. No case was referred to: Authors Cited J.M. Scheb, Criminal law and procedure Judgment BRIEF BACKGROUND OF THE CASE [1] Faustin Habonimana is accused that when he was having a drink together with Asman Rudakubana and watching an broadcast concerning genocide on Rwanda TV and in which coffins containing the bodies of the victims of the genocide were exhibited then had the nerve and said: '' all about the broadcast on TV concerns their business '' The individual who was nearby him named Faustin Tuyisenge then asked whether he saw buyers or sellers on TV and as he got scared he move out then they informed security agencies and investigations so started. [2] The case was tried at the first instance by Intermediate Court of Huye registered under RP 0204/12/TGI/Huye. It was rendered on June 28, 2012 and the Court sentenced Faustin Habonimana to fifteen years (15 in prison) and a fine of 400 000 Rwf.

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[3] Dessatisfied of the decision of the court, Faustin Habonimana appealed to this court and the case on the appelate level was heared on March 14, 2013, Habonimana Faustin with no defence counsel while the prosecution was represented by Lamber Deo Mugabo, a National Prosecutor. [4] In presenting his grounds of appeal, Faustin Habonimana pleads that his statement which he held then was that people who were in the cabaret dancing was in their business. He continues that there was an individual who was passing near by the place wondered whether people of that place were not concerned with the mourning since they were dancing and replied that they were in doing business. He added that there was no broadcast on TV, rather the CD that they were playing. He articulates that he passed by there about midi from the farm and entered in the role of security officer and asked them the reason why the were dancing and ordered them switch off the TV. [5] In response to the grounds of appeal, the Prosecution declared that Faustim Habonimana admitted that he states those words in cabaret. The Prosecution added that if he had had the positive mentality, he would not have been in cabaret at that hour. The Prosecution in addition states that the accused had never provided the reason as to why the Prosecution could unduly initiate a criminal action against her and that he accepted all charges. II. ANALYSIS OF LEGAL ISSUES.

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[6] Taking into consideration the appealed judgment, in convicting Faustin Habonimana of genocide ideology, Intermediate Court of Huye based on the testimony given by Faustin,Asman Rudakubana and Jacques Bigirimana and on the fact that Faustin Habonimana had accepted that he made that statement '' they are doing their business '' [7] The appellate court finds insufficient the testimony based on in the conviction of Faustin Habonimana since there is no evidence proving that he made that statement with intent to minimize genocide perpetrated against Tutsi since he accepted that he is the author of the statement but opposes that there was no broadcast concerning genocide which was on the TV that time, rather, they were playing the CD with footage of dancing women. Therefore, the court cannot consider the statement '' they are doing their business '' demonstrates as if it was related to the broadcast which concerned genocide perpetrated against Tutsi which was on TV as it is provided for by article 65 of the Law no.15/2004 of 12/06/2004 related to evidence and its production which stipulates that ''only the court can assesses the relevance, pertinence and admissibility or rejection of testimonial evidence. It shall not be influenced by the number of witnesses. It shall mainly consider their knowledge of facts and the objectivity and sincerity of their testimonies'' [8] Retrieving the duties of the prosecution with respect to Rwandan law as provided for by article 44 of the Law no.13/2004 of 17/05/2004 relating to the code of

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criminal procedure as amended to date, if the prosecution, victim of an offence or his or her guardians, have filed an action for damages or have taken the accused to court, they have the duty to present evidence for the commission of the offence. An accused is presumed innocent until proved guilty. Prior to proof of offence the accused shall not present his or her defence. case. [9] With respect to the legal aspect, this implies that the prosecution has the burden of proof in that Faustin Habonimana is guilty of genocide minimization since it has the duty to prove that he made the statement with intent to refer the broadcast on TV given that the court cannot rely on the fact that he so stated during the mourning of April 4, 2012 and hold that it is the corps of the victims of the nenocide committed against Tutsi during 1994 which he referred to in his word business. In so doing, the proscution should clearly indicate phisical act which is commonly called actus reus alongside the intention commonly known as mens reus as highlighted by some of legal scholars like, JOHN M.Scheb in his book '' Criminal law and procedure'' when he eplains the elements of an offence he explains that the prosecution is bound by the duty to establish that a crime has been actually committed and that the offender premeditated and similitaneously intended to commit that. He precised, ''To establish that a defendant is guilty of a crime,the prosecution must prove that the defendant committed some legally proscribed act or failed to act when the law recquired certain action.It is also essential to prove that such act

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or failure to act occurred with a simultaneous criminal intent'' [10] Other evidence relied upon by the court in the appealed judgment as highlighted above, include the acknowlrdgment of Faustin Habonimana that he is the author of the statement '' they are in their business''. On this ground the court not that it cannot consider it as a conclusive inculpatng evidence since an offence is not the statement '' they are in their business'' Rather the offence is watching the corpsy of the victims of genocide as a broadcast on RTV and refer to them as a business. By virtue of the provisions of article 2 of the Law no.18/2008 of 23/07/2008 relating to the punishment of the crime of genocide ideology, regarding the meaning of genocide and article 3 of the same law with regard to the elements genocide ideology [11] Regarding the broadcast which was onTV at the time the statement ‘they are in their business’’ the court requested the prosecution to present the CD bearing the broadcast which was on RTV ON April 9, 2012 between 12 and 1 pm but unfortunately did not. The prosecution responded that it would be available in two weeks and the hearing was postponed on June 18, 2013 and yet the prosecution did not present it. Hence, at any time this broadcast cannot be available so as the appelate court to match it with the statement they are in their business, there is no motive to hold that the statement lead to genocide ideology though i twas relied upon by the trial judge at the first instance whereby he based on the testimony given byAsman Rudakubana ( mark 12-13)

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and that of Faustin Tuyisenge( mark 9 - 10) who testified that he got the information from Rudakubana. Hoever, the appelate court does not take its as inculpating evidence in case the broadcast is not presented since the statement is not in conformity with the nature of the subject matter of the claim which is genocide ideology. It implies that the statement itself should be linked to the broadcast which was on RTV. It means that the court cannot rely on that statement as provided for by article 4 of the Law no.15/2004 of 12/06/2004 relating to evidence and its production which provides that a court decides a case before it in accordance with the rules of evidence applicable to the nature of the case. [12] For all of these grounds as highlighted above by the court, there is doubt for the court which is caused by thee fact that the prosecution failed to present the CD of the broadicast which was on RTV on April 9, 2014 between mid and 2 pm so that assess whether the broadcast which was on TV was the one which was called they are in their business so that it can be qualified as genocide ideology as it is provided for by article 153 of the law no.13/2004 of 17/05/2004 relating to the code of criminal procedure as it is amended to date which providedes that any doubt should be resolved in favour of the accused and when proceedings have been carried out and completed as much as possible and no evidence has been found to remove the doubt in the minds of the Judge(s) or Magistrate(s) on whether the accused really committed the offence, he or she should be acquitted.

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[13] This means that Faustin Habonimana is acquitted and the ruling of the case RP 0204/12/TGI/HUYE decided on June 28, 2012 by Intermediate Court Huye is overturned in its entirety. III. THE DECISION OF THE COURT. [14] Accept to receive appeal filed by Faustin as i twas filed in conformity with the rules of procedure and the examination proved its merits. [15] Decides that Faustin Habonimana is not guilty of genocide ideology. [16] Overturns in entirety the ruling of the case 0204/12/TGI/HUYE as decided on June 28, 2012 by Intermediate Court Huye. [17] Decides that Faustin Habonimana wins the case, orders Faustin’s release after the judgment is rendered.