THE PROSECUTION v. NGAMIJE

# THE PROSECUTION v. NGAMIJE

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2016-07-29 - Case/document no.: RPA 0129/12/CS - Collection: Supreme Court

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THE PROSECUTION v. NGAMIJE [Rwanda SUPREME COURT – RPA 0129/12/CS (Hatangimbabazi, PJ, Kalimunda and Gakwaya, J.) July 29, 2016] Criminal Procedure Law – The burden proof – Prove innocence when his/her guilt was not established – The burden of proof shall be on the Public Prosecution or, in case of a claim for damages or private prosecution, on the victim of an offence or his/her rightful beneficiaries – n accused shall not be obliged to prove his/her innocence unless his/her guilt has been established – Law n 30/2013 of 24/5/2013 relating to the criminal Law, article 85 ᵒ Facts: Ngamije and another one were brought before the High Court, Chamber of Nyanza, accused to have killed the second wife of Ngamije, but he pleaded guilty. The court found that only Ngamije was guilty and sentenced him to the life imprisonment and to pay the court fees. Not satisfied by the decision, he appealed to the Supreme Court, stating that the High Court denied to conduct an investigation into the cell where he stays as he requested and to interview witnesses he suggested. He further stated that concluding him guilty of the crime to which he is alleged, the High Court only based on the statements of the people who know nothing concerning his relationship with the late as they do not live in that cell. As for the Prosecution, he states that the basis of the High Court in declaring him guilty included: the fact that no door or window was broken so as to prove that the killer was some else coming from outside the house the reason being that after killing her he went out and then closed the door, the killed did not holler and shout loudly for help as a sign that she was attacked and that there are some statements of witnesses proving that they saw the accused in dawn at 5 a.m with unusual conduct, and thus, basing on all these it is clear that there were conflicts between the accused and witnesses which means that they are not the ones to accuse him before the Court. Held: The prosecution failed to prove the role of Ngamije in the killing of Mukamazimpaka Chantal. Therefore, he is not guilty of the offence he is charged with. Thus, he is acquitted. Appeal has merit. Accused acquitted and immediate release ordered. Court fees charged to the public treasury. Statutes and statutory instruments referred to: Law n 30/2013 of 24/5/2013 relating to the code of criminal procedure, article 85 ᵒ Law nº 15/2004 of 12/06/2004 relating to evidence and its production, article 119 No case was referred to. Judgment I.BRIEF BACKGROUND OF THE CASE

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[1] The Prosecution lodged a case against both Ngamije Faustin and Musengimana Patricie in the High Court, Chamber of Nyanza, due to the fact that on the date of 17/12/2010 when they were in Sabake village, Kibyagira cell, Uwinkingi sector, Nyamagabe district, Southern province, at around 4 a.am, killed the second wife to Ngamije Faustin called Mukamazimpaka Chantal. Ngamije Faustin defended himself denying the crime. [2] On 12/10/2011, the same court tried the case nᵒ RP 0003/11/HC/NYA, and decided that only Ngamije Faustin was found guilty of the crime of assassination, and sentenced him with life imprisonment, and obliged him to cover court fees. [3] Ngamije Faustin was not happy with the court conclusion and then appealed to the Supreme Court stating that the High Court denied to conduct an investigation into the cell where he stays as he requested and to interview witnesses he suggested. He further stated that concluding him guilty of the crime to which he is alleged, the High Court only based on the statements of the people who know nothing concerning his relationship with late Mukamazimpaka Chantal as they do not live in that cell. [4] The case was tried in public on 22/02/2016, Ngamije Faustin being supported by Byamukama Pascal, the Counsel, while the Prosecution was represented by Bunyoye Grâce, the public Prosecutor. [5] On 1/4/2016, the Court conducted the pre-trial conference, and decided that before the hearing, it would be able to convene witnesses including Mukankusi Spéciose, Tuyisenge Mukeshimana, the child who used to live with late Mukamazimpaka Chantal, Niyitegeka Violette, Ndabamenye Bitirehe, Niyirora Jacqueline, Baranyeretse Edouard and Nyirabukara, child of Ngamije Faustin, as they all appear in this case file, to state before the Court what they saw and what they know concerning charges against Ngamije Faustin. [6] The hearing continued on 6/6/2016, Ngamije Faustin being supported by Byamukama Pascal, the Counsel, while the Prosecution was represented Munyaneza Nkwaya Eric, the public Prosecutor. ANALYSIS OF LEGAL ISSUES Whether Ngamije is guilty of the offence he is charged with. [7] Ngamije Faustin argues that his appeal intends to prove that he did not commit the offence with which he is charged and that the High Court omitted to conduct investigation to the Cell in which he lived and interrogate the witnessed he had proposed, instead, hthe court relied on testimonies from people who ignore the relationship that was between him and Mukamazimpaka Chantal, the deceased, because they don’t live in the same cell. [8] Ngamije Faustin keeps explaining that the Court convicted him without any evidence, omitting to know how he lived in harmony with his wife, without any quarrels, and they have never been separated within ten years they lived together. He explains further that he does not understand how Mukankusi Spéciose who was the first to reached his place and discovered the corpse together with Tuyisenge Mukeshimana, a kid aged of 13 years old who lived with the deceased and who was aware that he did not pass the night at home during that night, were not interrogated in the Judicial Police nor Prosecution. He added that Muhimpundu with whom they

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went to pick the tea leaves, was not heared while they were together when a kid called him for help telling him that his wife Mukamazimpaka Chantal was died. [9] Ngamije Faustin ends his speech requesting to the Court to conduct further investigation to his neighbours who know well how he lived in harmony with his wife, that those who accuse him are the killers of his wife, because Baranyeretse and Ndabamenye used to propose sexual relationship with his wife and the later refused. As for Niyirora, he wanted to cohabite with her at the place where the deceased lived, and that he once reported Baranyerete and he was imprisoned, as he was a thief and had robbed 8.000 Frw from him. [10] Byamukama Pascal, the counsel, argues that witnesses who accused Ngamije Faustin, are Niyirora Jacqueline, Ndabamenye and Baranyeretse Edouard, and that among them are some who have land related conflict with him while others have been imprisoned after being reported by him because they had robbed from him. He explains that some of them live far from his home, and he finds that the real information about the murder of the deceased should have been told by neighbours to Ngamije Faustini stead of people from far. Away. [11] Counsel Byamukama Pascal states that among the witnesses interrogated during pre-trial phase include those who have land related conflict with Ngamije Faustin, those who were imprisoned being reported by him after robbing his staffs and others live far away from his home in Rugote village, so it was difficult for them to know how he lived with his wife. [12] Counsel Byamukama Pascal further states that a part from the contradicting statements they provided, as Niyirora Jacqueline stated that she met Ngamije Faustin around 4h AM in 5 kilometers, Baranyeretse Edouard stated that he met Ngamije Faustin around 5h00 AM while Ndabamenye affirmed that he met Ngamije Faustin at 5AM in his bar, drinking banana beer. [13] Regarding testimony as provided by Ndabamenye, Byamukama Pascal, the Counsel, states that as a person who reached there (he went there), following distance between shop locality and the street, it is really impossible to see a person and know what he/she is drinking, and it is even known that no banana beer sold there. He continued saying that Ngamije Faustin would have called upon his neighbours with whom they have blood relationship, instead of other people living in other cell, other village so as to help him, as Ndabamenye wants to false account. [14] Byamukama Pascal, the Counsel, states that this Court should not consider the statements of the witnesses interviewed during the investigation process, since it is normal that murderers lock people into houses after stealing their belongings or kill them, following that fact the Court is requested to initiate its investigation on the witnesses as there is no evidence that Ngamije Faustin is the one who killed Mukamazimpaka Chantal- his wife. [15] The Prosecution states that the basis of the High Court in declaring Ngamije Faustin guilty included: the fact that no door or window was broken so as to prove that the killer was some else coming from outside the house the reason being that after killing her he went out and then closed the door, the killed did not holler and shout loudly for help as a sign that she was attacked and that there are some statements of witnesses proving that they saw Ngamije Faustin in dawn at 5 a.m with unusual conduct, and thus, basing on all these it is clear that there were conflicts between Ngamije Faustin and witnesses which means that they are not the ones to accuse him before the Court.

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[16] Regarding the mismatch in statements of witnesses, the Prosecutor states that basing on the hours that witnesses report to have seen Ngamije Faustin, it remains reliable as there is no big extension between hours provided by them all. The Prosecutor then wishes that in case the Court decides to convene other witnesses (decides to conduct an investigation), they should be asked of where Ngamije Faustin was; where he was heading to; the distance between where he was and to where he lives; and about the mood he was in; because it is clear that Mukamazimpaka Chantal was killed by someone they got along with, she should have shouted for help if the killer had been somebody else. THE VIEW OF THE COURT [17] Article 119 of the Law n° 15/2004 relating to evidence and its production provides that yerekeye ibimenyetso mu manza n’itangwa ryabyo iteganya ko “In criminal cases, evidence is based on all grounds, factual or legal provided that parties have been given a chance to be present for cross-examination. The courts rule on the validity of the prosecution or defence evidence”. [18] Article 85 (1) of the Law n 30/2013 of 24/5/2013 relating to criminal procedure ᵒ providing that “ The burden of proof shall be on the Public Prosecution or, in case of a claim for damages or private prosecution, on the victim of an offence or his/her rightful beneficiaries”. Its paragraph 2 keeps stating (……). “An accused shall not be obliged to prove his/her innocence unless his/her guilt has been established ’’. [19] As it is clear in the paragraphs 6, 7, 8 and 9 of this case as appealed for, Ngamije Faustin was declared guilty of assassinating Mukamazimpaka Chantal by the High Court, Chamber of Nyanza, basing on the fact that witnesses including Ndabamenye, Niyirora Jacqueline and Baranyeretse Edouard stated that they met Ngamije Faustin at 5 a.m with unusual conduct, while he himself stated that he left home after 6 a.m and definitely denied to have met someone around the road, this proves that he is lying as witnesses have no interest in giving statements in his disfavour. The Court further explained that following statements of witnesses, no one else should have killed Mukamazimpaka before breaking the door, except the one who spent night inside the same house since the investigation did not find any broken door or window as it is clear that the killer finished killing her, went out the house and closed the door, more to this, she did not holler for help, thus this proves that she was killed by someone to whom she had trust, and that is not other than Ngamije Faustin. [20] The witnesses including Ndabamenye Bitirehe, Baranyeretse Edouard and Niyirora Jacqueline were convened by the Supreme Court respecting the law so as they give their testimonies regarding the hearing of 6/6/2016, yet they did not come for no reason. The Court, further, finds that Tuyisenge Mukeshimana, who lived with late Mukamazimpaka Chantal, was convened by the Court but did not attend the Court since she is not currently staying in Kibyagira village, Sabake cell, Uwinkingi sector, Nyamagabe district, where she lived with late Mukamazimpaka Chantal. [21] Witness called Mukankusi Spéciose informed the Court that during the hearing of 6/6/2016 she had gone to Mukamazimpaka Chantal's early in the morning between 6 a.m and 6:30 a.m, and found the door was closed. Leaving there, she heard Tuyisenge Mukeshimana calling, and telling her that her mother was inside the house, on bed, and that Tuyisenge Mukeshimana passed the key through beneath the door, and opened the door, entered and then

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pushed the chamber door yet did not get opened, touching underneath the door she found Mukamazimpaka Chantal laid down, and her legs were too cold, she thought she was sick of traditional diseases, and then went to see Ngamije Faustin so as to tell him that his wife was gravely sick, missing him at the shop, she told Nyirabukara to go to tell her father that his wife was sick. She further explained that apparently Ngamije Faustin was fine, he was sober, and he felt unhappy knowing that his wife may be sick, they both came back at Mukamazimpaka Chantal's, and that Kampire Consolata opened the room where Mukamazimpaka Chantal used to spend nights and then found her dead. She further explained that Tuyisenge Mukeshimana told them that Ngamije Faustin - her daddy did not spend a night there the previous night, and that none else did. [22] Niyitegeka Violette, the witness told the Court that in the hearing of 6/6/2016 that when she woke up in the morning going to cultivate, Mukankusi Spéciose called her that Mukamazimpaka Chantal was dead, and that she went to see her and missed her, and that Tuyisenge Mukeshimana told her that her mother was sick of wombs, and that she gave her the key to open the door of the room of Mukamazimpaka Chantal, and then found her already dead. She further revealed that her mother, went to the shop belonging to Ngamije Faustin, and then found it closed where she told Misigaro who lighted up the torch and told them that Mukamazimpaka Chantal died, they then called upon people, and sent Nyirabukara to go to inform her father. She concluded stating that during those days Ngamije Faustin was not spending nights at his two homes as he was spending nights at his shop where he was doing business, and that he had no conflict with late Mukamazimpaka Chantal. [23] Nyirabakuru alias Nyiranteziryimana Marie, the daughter to Ngamije Faustin, told this Court that during the hearing of 6/6/2016 it was Mukankusi Spéciose who informed them at 6 a.m that Mukamazimpaka Chantal died, and that her father had gone to harvest tea leaves, when reaching in the street corner heading to Bunyambiriri he returned home with Muhimpundu, and then immediately go to late Mukamazimpaka Chantal's. She explained that during those days her father was spending nights at the bar where he was usually doing business. [24] The case file shows that Niyonsaba Alphonsine, the young sister to late Mukamazimpaka Chantal, explained that on 16/12/2010 at between 4 p.m and 7:30 p.m, she was with late Mukamazimpaka Chantal at her home, where Ngamije Faustin came to them, and went she left Ngamije Faustin and Tuyisenge saw her off, and then Ngamije Faustin went to give her salt at his shop, when she was interviewed in Judicial Police on 17/12/2010. She further explained that she does not know any conflict that late Mukamazimpaka Chantal might have with Ngamije Faustin and she suspects that the one who once stole late Mukamazimpaka Chantal some money might be the one who gave her away. [25] The case file shows that Niyirora Jacqueline explained in the Judicial Policy that on 17/12/2010, she saw Ngamije Faustin at around 4 a.m standing near tea field located near Serumondo's, it was almost dark, the case file further shows that Baranyeretse Edouard explained, in Judicial Police on 17/12/2010, that he saw Ngamije Faustin at around 5 a.m at his shop alone where he usually did his trading activities, with a lump, drinking beer on the street, albeit, Ndabamenye Bitirehe explained in the Judicial Police that he met Ngamije Faustin at Modeste's at the corner, heading to Rugeti, and told him that he was going to find people to help him take her wife to hospital as she was sick and that she was sick for days ago, shortly after that moment his little daughter named Nyirabukara came after him to announce that her mother was dead.

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[26] The Supreme Court finds that irrespective of the fact that Ngamije Faustin stated that he did not meet witnesses namely; Niyirora Jacqueline, Baranyeretse Edouard and Ndabamenye Bitirehe on 17/12/2010 during the hours they stated, indeed, analysis of the statement of Niyirora Jacqueline shows that there is a confusion as it is not understandable how she came to guess Ngamije Faustin at around 4 a.m while they did not talk to each other. Furthermore, the Court finds that the fact that Baranyeretse Edouard stated that he saw Ngamije Faustin at around 5 a.m, being alone at his shop where he usually did business, does not categorically mean that he is the one who killed his wife Mukamazimpaka Chantal. It further finds that the statement of Ndabamenye Bitirehe is doubtful since if he would have talked to Ngamije Faustin that morning, and then Nyirabukara came to them together telling him that her mother was had died, should not have forgot to include it in his statement that during that time Ngamije Faustin was together with a lady called Muhimpundu, the same as Nyirabukara revealed, thus, basing on the fact that those statements are doubtful and that they do not prove that it is Ngamije Faustin who killed his wife late Mukamazimpaka Chantal during the night of 17/12/2010, the High Court should not have decided that he is the one who killed her by simply basing on their statements. [27] Basing on article 85 of the Law Nᵒ 30/2013 of 24/5/2013 mentioned above, the Supreme Court finds that it is not up to Ngamije Faustin to prove that he passed the night in his shop, instead, it is up to the prosecution to prove beyond any resonnable doubt that Ngamije Faustin murdered his wife in that night and closed the door after. [28] The Supreme Court finds that irrespective of abovementioned statements, the only reason for which the court based on declaring Ngamije Faustin guilty of the crime of which he is charged are simply based on the suspicion that he might have committed the crime he is alleged, as they were mentioned in the case file that Niyonsaba Alphonsine, the young sister of Mukamazimpaka Chantal was suspecting that a person who once stole late Mukamazimpaka Chantal's money might be the one who gave her away. [29] Thus, basing on the explanations as previously stated, the Supreme Court finds that due to the fact that the Judicial Police failed to provide convincing evidences proving that Ngamije Faustin has played a role in the assassination of Mukamazimpaka Chantal, could not be declared guilty of that crime against him, hence, the Supreme Court declares him innocent. III. THE DECISION OF THE COURT [30] Finds appeal lodged by Ngamije Faustin with merit; [31] Decides that the judgment RP 0003/11/HC/NYA rendered by the High Court, chamber of Nyanza on 12 October 2011 is overturned; [32] Acquits Ngamije Faustin; [33] Orders his immediate release; [34] Orders that the court fees be charged to the public treasury.