THE PROSECUTION v. BAKUNZIBAKE et al

# THE PROSECUTION v. BAKUNZIBAKE et al

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2016-06-22 - Case/document no.: RPA 0361/10/CS - Collection: Supreme Court

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THE PROSECUTION v. BAKUNZIBAKE et al [Rwanda SUPREME COURT – RPA 0361/10/CS (Nyirinkwaya, PJ, Kayitesi and Mukandamage, J.) July 22, 2016] Criminal Law – presenting facts challenging incriminating evidence – In lack of the facts challenging the veracity of incriminating evidence, the accused is convicted – Law n⁰ 30/2013 of 24/05/2012 relating to the code of criminal procedure, article 85 (2). Criminal procedure Law – Doubt – Favors the accused – Law n⁰ 30/2013 of 24/05/2012 relating to the code of criminal procedure, article 165. Facts: The Prosecution alleged against Maniriho Cyrille, Bakunzibake Théoneste and Mbonyimbuga Venuste in the High Court, for having killed the old woman called Nyirabwandagara Mariane. The court delivered the verdict of the judgment, convicted all of them of murder, sentencing Maniriho Cyrille to twenty years (20) of prison, reducing his penalty because he cooperated by pleading guilty and seeking forgiveness, while Bakunzibake and Mbonyimbuga were sentenced to life imprisonment each. Furthermore, the court ordered the convicted to pay in solidum to the civil party. Mbonyimbuga and Bakunzibake appealed to the Supreme Court, Mbonyimbuga Venuste stating that the court convicted him basing on the fact that there was conflict between him and Nyirabwandagara that ended in courts while it is wrong because he had it with her grandchild called Ntezirizaza, that in case the land was the root of her death, her family members would have proceeded on it. He adds that the Court found that he was helped by Maniriho Cyrille to kill Nyirabwandagara while he is his old enemy. Another issue, he added, is the fact that he was arrested to the grave without interrogating people who were with him. As for Bakunzibake, he states that he appealed to prove how much he pleads guilty and seeks forgiveness with all his heart, because he started complicating justice entities by pleading not guilty, but in court, he changed his mind and pleads not guilty. The Prosecution states that the appeal lodged by Bakunzibake Théoneste lacks merit because he admitted the offence in the Judicial Police, the Prosecution and before courts during provisional detention and provisional release and explained how they killed Nyirabwandagara, and he failed to prove whether he was forced to do so, therefore, pleading not guilty is the way to escape criminal responsibility. the Prosecution states that the papers that both Mbonyimbuga and his counsels said to have been written by Ntezirizaza are falsified as he does not recognise them, and that the fact that he had a case with the grandchild of the late Nyirabwandagara proved that he had a serious issue with the late Nyirabwandagara, and that the fact that he participated in burial ceremonies as the evidence that he did not plan to kill her is without merit since he had to participate in burial ceremonies so as to avoid any latent suspicion, and that testimonies accusing him as provided by Maniriho remain with merit considering that he was not forced to accuse him. Held: 1. The fact that Bakunzibake changes his pleading before the court cannot be considered, especially that when he lodged his appeal was pleading guilty, and then, he does not challenge incriminating evidence to which he is facing. His appeal lacks merit.

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2. The prosecution bring the same evidence as before and they are inaccurate to be taken into consideration to convict Mbonyimbuga, thus, he must be acquitted. His appeal has merit and the appealed judgment must be overturned. Appeal lodged by Bakunzibake lacks merit. Appeal lodged by Mbonyimbuga has merit. Mbonyimbuga is acquitted. Appealed judgment changes with regard to Mbonimpaye and damages. Court fees charged to the public treasury. Statutes and statutory instrument referred to: Law n⁰ 30/2013 of 24/05/2012 relating to the code of criminal procedure, article 85 (2) and 165 Civil Book III, article 258 No case referred to. Doctrines: Manuel de Procédure Pénale`` ``, Ed. Collection Scientifique de la Faculté de Droit de Liège, 1989, p. 772 Judgment I. THE BRIEF BACKGROUND OF THE CASE [1] The case started in the High Court, Nyanza chamber, where the Prosecution was accusing Maniriho Cyrille, Bakunzibake Théoneste and Mbonyimbuga Venuste that in the night of 23 March 2007, they killed the old woman called Nyirabwandagara Mariane in her house, by hiting her twice in the head with the hoe. The court delivered the verdict of the judgment RP 0525/07/HC/NYA on 25 February 2010, convicting all of them of murder, sentencing Maniriho Cyrille to twenty years (20) of prison , reducing his penalty because he cooperated by pleading guilty and seeking forgiveness, while Bakunzibake and Mbonyimbuga were sentenced to life imprisonment each. Furthermore, the court ordered all of them to pay in solidum to Mukabaziga, Nyirangirente, Karambizi and Kabayundo four million (4.000.000) of moral damages, five hundred (500.000) of moral damages, one humdred and fifty thousand (150.000) they robbed, two hundred and thirty thousand (230.000) of procedure fees and one hundred and eighty thousand (180.000) of prorated fees to Ntezirizaza. [2] Mbonyimbuga and Bakunzibake appealed to the Supreme Court, Mbonyimbuga Venuste stating that the court convicted him basing on the fact that there was conflict between him and Nyirabwandagara that ended in courts while it is wrong because he had it with her grandchild called Ntezirizaza, that in case the land was the root of her death, her family members would have proceeded on it. He adds that the Court found that he was helped by Maniriho Cyrille to kill Nyirabwandagara while he is his old enemy. Another issue, he added, is the fact that he was arrested to the grave without interrogating people who were with him.

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[3] In his appeal ground, Bakunzibake Théonèste states that he appealed to prove how much he pleads guilty and seeks forgiveness with all his heart, because he started complicating justice entities by pleading not guilty, but in court, he changed his mind and pleads not guilty. [4] The hearing was held public on 30 May 2016, Bakunzibake Théonèste being assisted by Counsel Bimenyimana Emmanuel, Mbonyimbuga Vénuste assisted by Counsel Niyonsenga Vincent, Ntezirizaza Jean Bosco representative of the civil party was represented by Counsel Nsengiyumva Viateur while the Prosecution was represented by NIYONKURU Françoise, the National Prosecutor. II. ANALYSIS OF LEGAL ISSUES Whether there are strong evidence convicting Mbonyimbuga Venuste and Bakunzibake Théoneste of the offence charged to them. a. With regard to Bakunzibake Théoneste [5] Bakunzibake Vénuste debates that he appealed against the judgment because he showed to the prosecution that people who were with him while the offence was committed but it ignored it and when he appeared before the High Court Nyanza chamber, he did not request that they be summoned thinking that the court would have ignored it as the prosecution did. He kept on stating that he pleaded guilty because Maniriho Cyrille convinced him to do so. [6] Counsel Bimenyimana Emmanuel assisting him states that the offence of murder with which Bakunzibake Venuste is accused, was committed when he was with Mugabonake Ferdinand, therefore, the court should summon him to be heard. [7] The representative of the Prosecution states that the appeal lodged by Bakunzibake Théoneste lacks merit because he admitted the offence in the Judicial Police, the Prosecution and before courts during provisional detention and provisional release and explained how they killed Nyirabwandagara, and he failed to prove whether he was forced to do so, therefore, pleading not guilty is the way to escape criminal responsibility. THE VIEW OF THE COURT [8] Article 85 (2) of the Law n⁰ 30/2013 of 24/05/2012 relating to criminal procedure proves that "However, where evidence to support the offence is presented, the accused or his/her legal counsel must present all the defences available to him/her, raise a plea of inadmissibility or show that the allegations against him/her do not constitute an offence or he/she is innocent and present all the facts challenging the veracity of incriminating evidence." [9] The Court finds that the main reason on which the High Court, Chamber of Nyanza based declaring Bakunzibake to have had complicity in the crime of assassination was his statement as recorded by the Prosecution, in the Judicial Police and before the Judge of provisional confinement and release where the later expalined how Mbonyimbuga invited them at his home to come to drink beers at around 4 p.m, later on at around 7 p.m he introduced that he wanted to give them money so that they kill Nyirabwandagara, they bargained and come up with the total

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amounting to twenty five (25,000) Rwandan Francs and then he gave then an advance fees totaling to five thousand (5,000 ) Rwandan Francs and then conveved that the remaing amount were to be paid just after selling his domestic bull, and that at around 11 p.m they, together with both Mbonyimbuga and Maniriho Cyrille went at Nyirabwandagara's home and that when they reached there Mbonyimbuga opened the door for them, entered the house where Maniriho took a traditional small hoe and bit Nyirabwandagara with it in head twice ( quote 10 – 14, 39 and 40). [10] The Court finds that same to the view of the High Court, Bakunzibake was not forced to give his statement or phisically harmed so that he would have stated all he stated in the favour of saving his life, the fact that he attended the Court when the case was opened and then changed his statements cannot absolutely implicate that what he said should serve the final and convincing evidence by simply basing on the fact that they were stated before the Court due to the fact that the Judge has responsibility to analyse the statements as provided. [11] The court finds that Law scholars share the same view namely Michel Franchimont in his publication ``Manuel de Procédure Pénale``1 states that : `` the judge hearing the case in merit has the power to consider or not the admission of the offence made the in pre-trial phase, even in case the accused reverse it before courts``. [12] The court finds the fact that Bakunzibake admitted the offence during pre-trial phase and before the judge of provision detention and provision release and he does not prove that it was done under pressure, furthermore, it is confirmed by Maniriho Cyrille who accuses him to be the one who hit twice Nyirabwandagara with the hoe in the head, it is enough evidence convicting him complicity in murder as the High Court, Nyanza chamber decided it. The fact that he changes his pleading before the court cannot be considered, especially that when he lodged his appeal was pleading guilty, and then, he does not challenge incriminating evidence to which he is facing. His appeal lacks merit. b. With regard to MBONYIMBUGA Vénuste [13] Mbonyimbuga Venuste states that appealled basing on the fact that the Court declared him guilty by simply basing on the fact that he had a case with the late Nyirabwandagara and that Ntezirizaza, the grandchild of the late Nyirabwandagara, was one of both parties in the same case tried on village level and by mediators, and that the field which was the case matter had been the reason for the death of the late Nyirabwandagara, her relatives would have kept on following up the field. [14] He further states that he could not have partnered with Maniriho Cyrille in killing the old woman and that it was rampant that they have far reaching conflicts as he used to steel her belongings, and that he attended burying ceremonies as others, where he was immediately arrested yet funeral attendants were not interviewed so as to witness that he had not played any role in the killing of the late Nyirabwandagara, and that on 03/08/2010 Maniriho Cyrille wrote to 1 Manuel de Procédure Pénale`` ``, Ed. Collection Scientifique de la Faculté de Droit de Liège, 1989, p. 772: Le juge de fond appécie souverainement la sincérité d’un aveu fait par le prévenu au cours de l’instruction préparatoire, m me quand cet aveu a été ultérieurement rétracté devant le tribunal. L’aveu en matière repressive peut ȇ toujours tre rétracté par son auteur, le principe de l’intime conviction laissant le juge libre d’apprécier la valeur de ȇ la rétractation comme la portée de l’aveu lui- m me. ȇ

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the Court proving his innocence, stating that he forged contentions against him following advices he received from Ntezirizaza Jean Bosco. [15] Niyonsenga Vincent, the Counsel, assisting him states that the Court did not value the statements s provided by both Mbonyimbuga and his counsels since in the paragraph 9 of the case under the appeal he stated that he had no conflicts with the killed one as he is not the one with whom he previously had case rather he had the case with Ntezirizaza, the grandchild to the late Nyirabwandagara and what the field mentioned above was already legally given to him after he won the case, and that the fact that Maniriho accused him of the crime of killing was due to the robbery based problems between them and betrayal acts of Ntezirizaza after failing the case on field. [16] He further states that the Court should not have based on the statements provided by both Maniriho and Bakunzibake saying that Mbonyimbuga told them that he wanted to kill that old woman before analysing whether the statement was true, as he should not go to kill and take his child with him and that the Court did not at the same time analyse whether the small bull said to be sold was truly sold so as to find their remaining instalment or carry out further investigation as those accusing him state that they planed assassination act together as a team, yet they are divergent regarding the hour at which the assassination was executed, following the statements as provided by Maniriho on the quote 4 where he states that after assassinating late Nyirabwandagara at 9 p.m. whereas on the quote 11 he states that they reached there at 11 p.m. and none even proved the part of Mbonyimbuga in her assassination plot. [17] He continues stating that when comparing statements as provided by Mbonyimbuga you find that they differ from the letter written by Maniriho Cyrille accusing him as the only person to profit the demise of the old woman was only Ntezirizaza, her grandchild, and that is the way that things happened as shortly after the death of the late Nyirabwandagara, Ntezirizaza immediately sold the field that was under conflict previously, and this is significantly proved by letters that Ntezirizaza wrote to Maniriho Cyrille on 24/9/2011 and 01/10/2011, requesting the Court to check on them and refer to archaeologists (experts in verifying literatures)and base on the article 100 of the Law n⁰ 15/2004 of 12/06/2004 relating to evidence and its production and then conduct an investigation as the accused kept on requesting yet in vain, he concluded requesting the Court to declare Mbonyimbuga innocent, and be released just after the announcement of the case. [18] Ntezirizaza Jean Bosco states that the written papers that the counsel supporting Mbonyimbuga says to be his are not since it is clear they were written in the Gitarama based prison while he had never been imprisoned and that the hand writing found on those paper is not his, and that if the Court will find those papers to have been written by him, he will definitely lose the case, and that he is not aware of any conflict based issues that Mbonyimbuga had with his grandmother, but he only assisted his grandmother with Court interpretation as she was a hard of hearing person, on the other hand regarding the statement that he went to pay a visit to Maniriho Cyrille at the prison, he denies to have gone there and makes the Lord the loyal witness. [19] The representative of the Prosecution states that the papers that both Mbonyimbuga and his counsels said to have been written by Ntezirizaza are falsified as he does not recognise them,

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and that the fact that he had a case with the grandchild of the late Nyirabwandagara proved that he had a serious issue with the late Nyirabwandagara, and that the fact that he participated in burial ceremonies as the evidence that he did not plan to kill her is without merit since he had to participate in burial ceremonies so as to avoid any latent suspicion, and that testimonies accusing him as provided by Maniriho remain with merit considering that he was not forced to accuse him. [20] He further states that the fact that Mbonyimbuga regularly has good conduct as stated at village level cannot annul his part in the assassination of the late Nyirabwandagara as they both had field based conflicts as the accused himself states. The view of the court [21] Article 165 of the Law n⁰ 30/2013 mentioned above provides “The benefit of doubt shall be given in favour of the accused. If the proceedings conducted as completely as possible do not enable judges to find reliable evidence proving beyond reasonable doubt that the accused committed the offence, the judges shall order his/her acquittal.”. [22] In the case file in hands from the quote 4 to 9 shows the statement from the Prosecution provided by Maniriho Cyrille admitting the offence and explaining that when Mbonyimbuga first introduced to him the draft plan to kill Nyirabwandagara on the first time they were alone, and then confirmed the draft plan on the second time when Mbonyimbuga had produced beer and then invited them home, arriving there he met Bakunzibake and then he requested them to kill Nyirabwandagara as they both had field based conflict, and then agreed upon that he will pay them twenty five thousand (25.000) Rwandan Francs of which they first received five thousand (5.000) each before the full plan execution, and the remaining instalment was to be paid just after selling his cow, then they went and entered the house of the old woman and then Mbonyimbuga switched on the torch, and then took a rabbit which they found there and handed to his child called Apollinaire with whom they were together, then Bakunzibake took a traditional small hoe, bit the old woman twice, and then Mbonyimbuga checked whether she was already dead and then threw her on the other side, and went back at Mbonyimbuga home and then gave them a small gallon filled with banana beer. [23] It is again clear that on the quote 10 against 14, even Bakunzibake accepted the crime that the plan to kill Nyirabwandagara was initiated by Mbonyimbuga when he invited them after producing beer, and before promising to pay them twenty-five (25,000) Rwanda francs, and that Maniriho Cyrille (Munyabarenzi) is the one who killed them by hitting her with a traditional small hoe. [24] Through the analysis of the statements provided by both Maniriho Cyrille and Bakunzibake, the Court find that their testimonies are in contradiction regarding the day on which Mbonyimbuga introduced to the plan to kill Nyirabwandagara and how they came up with strategy to implement that plan since Maniriho stated that he was told of the plan twice whilst Bakunzibake states that the plan was communicated to them just on the day he invited them after

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he had produced beer and then they proceeded with executing the plan, more to that they contradict each other regarding the one who killed Nyirabwandagara where Bakunzibake states that she was killed by Maniriho who also states that she was killed by Bakunzibake, these testimonies cannot be considered as a convincing evidence accusing Mbonyimbuga. [25] The Court finds furthermore that Mbonyimbuga had no reason to give Nyirabwandagara away while he had already worn field based case, and it is not understandable how he promised both Maniriho Cyrille and Bakunzibake to pay them after killing Nyirabwandagara, and then went with them and his child which would latently cause him to be remarked, and that is stressed by the fact that one of the accomplices to allegedly have partnered with Mbonyimbuga had robbery based conflicts with him as it is proved by the report developed by Administrative Committee of Mukorwa village dated 06/01/2008 proving that Maniriho Cyrille alias Munyabarenzi stole cassava and edible banana from Mbonyimbuga (quote 63). [26] Basing on article 165 of the Law n⁰ 30/2013 mentioned above, the fact that testimonies made by Bakunzibake and Maniriho were considered by the High Court while they are contradicting, and that Maniriho Cyrille reversed his pleading in the letter he wrote to the court discharging Mbonyimbuga and explaining that he accused him because Ntezirizaza had promised him fourty thousand (40.000Frw ) so that he kills the old woman Nyirabwandagara, and told them that in case they are apprehended, they will say that the plot was from Mbonyimbuga because they once got in land related conflicts. The court finds that does the prosecution bring the same evidence as before and they are inaccurate to be taken into consideration to convict Mbonyimbuga, thus, he must be acquitted. His appeal has merit and the appealed judgment must be overturned. 2. With regard to damages requested by the representative of the civil party. [27] Counsel Nsengiyumva Viateur representing Ntezirizaza on behalf of the civil party requests to the court to maintain moral damages granted by the High Court, namely four millions (4.000.000 Frw) to Nyirangirente, Karambizi, Kabayundo and Mukabaziga, five hundred thousand (500.000 Frw) and one hundred and fifty (150.000 Frw) of expense and others robbed by Ntezirizaza, plus one million (1.000.000 Frw) of procedural fees. [28] Counsel Niyonsenga Vincent states that he has nothing to say about damages because Mbonyimbuga he represents pleads not guilty. Uko Urukiko rubibona [29] With regard to damages, article 258 CC LIII provides that « Any act committed by a person who causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it. [30] Considering the provisions of article mentioned above, the court finds that the follow up of the case at this level led Ntezirizaza to some expenses such as transport and the court, in its discretion, awards him fifty thousand (50.000Frw) in addition to damages granted to him by the High Court, Nyanza chamber because a million he is requesting is overstated.

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THE DECISION OF THE COURT [31] Dismisses Bakunzibake Théonèste’s appeal; [32] Appeal lodged by Mbonyimbuga Venuste has merit; [33] Acquits Mbonyimbuga Venuste; [34] Decides that the judgment RP 0525/07/HC/NYA rendered by the High Court, Nyanza chamber on 25 February 2010 only changes with regard to Mbonyimbuga Venuste and damages; [35] Orders Bakunzibake Théoneste to pay to the civil party fifty thousand (50.000 Frw) of procedural fees added to the one granted to them in the first instance; [36] Orders that Mbonyimbuga Venuste be released immediately after the pronouncement; [37] Orders that the court fees be charged to the public treasury;