PROSECUTION v NZABONIMPA

# PROSECUTION v NZABONIMPA

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2019-07-15 - Case/document no.: RPA 00059/2018/CA - Collection: Court of Appeal

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PROSECUTION v NZABONIMPA [Rwanda COURT OF APPEAL – RPA 00059/2018/CA (Rugabirwa, P.J., Kaliwabo and Tugireyezu, J.) July 15, 2019] Law relating to evidence – Evidence in criminal cases – All elements of evidence collected in accordance with the law are admissible, however, statements made before organs other than the prosecution, investigation, or courts must be accompanied by other corroborating evidence for them to be considered as incriminating evidence. Facts: The case started before the High Court, Musanze Chamber, the Prosecution sued the defendant for providing assistance to the FDLR group by supplying food to it. The very Court heard the case and convicted him of participation in terrorist acts, and accordingly sentenced him to 15 years imprisonment. The Court based its decision on the testimony provided by Makombe and on the defendant’s statements made before a military officer who received him from DRC, and on the fact that both statements indicate that the defendant used to supply food to members of FDLR and accommodate them, and he is also accused of providing information about Rwanda Defence Forces to FDLR. The defendant appealed to the Supreme Court, and following the judicial reforms, the case was transferred to the Court of Appeal. He pleaded that he was convicted for an offense he did not commit, because the Court relied on the testimony of Makombe whom he had chased from his land, and the very witness was the one who kidnapped him from his home, and more of that, no other person is accusing him of working with FDLR forces. In his appeal, the defendant also denied the statement he made before a military officer who received him since he was forced to admit it. For the Prosecution, the witness has no interest in accusing the defendant, and his testimony corroborates with the statements made by the defendant himself before the military officer who received him, and such statements are valid since they were made before a military officer who is also a military investigation officer. Held: Even though all elements of evidence collected in accordance with the law are admitted, their validity varies according to their nature and collection procedure. This is why testimonies made before organs other than the investigation or courts must be accompanied by other corroborating evidence for them to be considered incriminating evidence. The appeal has merit; Statutes and statutory instruments referred to: Law no 30/2013 of 24/5/2013 relating to the code of criminal procedure, article 165; Law no 15/2004 of 12/06/2004 relating to evidence and its production, article 65. No cases referred to.

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Judgment I. BACKGROUND OF THE CASE [1] Nzabonimpa David, a former resident of BUHUMBA Village in DRC, was arrested for providing assistance to the FDLR organization by supplying food to it as well as providing that organization the information related to the positions of Rwanda Defence Forces. MAKOMBE Deo, head of BUHUMBA Village brought him to Rwanda Defence Forces at the Kabuhanga border and testified that NZABONIMPA David does not respect their administration, on the pretext that he works with FDLR combatants by supplying food to them in Rugali. [2] On 31/12/2019, NZABONIMPA David was interrogated by Sgt RUKUNDO and revealed to him that, in collaboration with MAKOMBE Deo, collected food and stored it in the warehouse in Rugali, where FDLR combatants found it. He also admitted that FDLR combatants, some of which he still remembers their names, namely KAMURE, CYITATIRE, and SIBOMANA, were used to coming to his home to take the food they have purchased for them. [3] NZABONIMPA David was transferred to the Investigation Bureau for interrogation and denied the charge, stating that he was a victim of the conspiration by MAKOMBE Deo who intended to grab his land, and for that reason, the latter chased from home his wife and children, and the defendant further rejected the statement he made before military organs since he admitted it by force. He maintained such pleading up to the High Court which heard his case at first instance. [4] The High Court, Musanze Chamber, heard the case RP 00002/2017/HC/HC/MUS on 10/04/2018 and convicted NZABONIMPA David of participation in terrorist activities, and sentenced him to a 15-year imprisonment. [5] The very Court relied its decision on the testimony delivered by MAKOMBE Deo and on the statements made by NZABONIMPA Deo before a military officer who received him from DRC, and on the fact that those statements indicate that the defendant used to supply food to the combatants of FDLR and accommodate them, and he is also accused of providing information about Rwanda Defence Forces to FDLR. [6] NZABONIMPA David appealed against such a ruling before the Supreme Court, and his appeal was registered to n° RPA 00015/2018/SC, but following the judicial reforms, the case was transferred to the Court of Appeal and registered to n° RPA 00059/2018/CA, as per the provisions of articles 52 and 105 of the Law nº 30/2018 of 02/06/2018 determining the jurisdiction of courts. [7] NZABONIMPA David and his legal Counsel NKUNDIRUMWANA Joseph appealed stating that the defendant was convicted of the offence he did not commit because the Court relied on the testimony by Makombe whom he had chased from his land, and the very witness was the one who kidnapped him from his home, and more of that, no other person is accusing him of working with FDLR forces. In his appeal, the defendant also denied the statement he made before a military officer who received him since he was forced to admit it. [8] The Prosecution represented by RUDATINYA Gaspard, National Prosecutor, argues that MAKOMBE Deo had no interest in accusing NZABONIMPA, and his testimony corroborates

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with the statements made by the defendant himself before the military officer who received him, and such statements of MAKOMBE Deo before Sgt RUKUNDO are valid since the latter is also a military investigation officer. [9] The case was heard in public on 30/05/2019, NZABONIMPA David being assisted by Counsel NKUNDIRUMWANA Joseph, while the Prosecution was represented by RUDATINYA Gaspard, National Prosecutor. [10] In the instant case, the Court intends to determine whether the testimony by Makombe and the statements of NZABONIMPA David made before Sgt RUKUNDO should be considered as evidence incriminating NZABONIMPA David. II. ANALYSIS OF THE LEGAL ISSUE 1. Whether the statements by NZABONIMPA David during his interrogation of 31/12/2016 and the testimony of MAKOMBE Deo should be considered as evidence incriminating NZABONIMPA David [11] NZABONIMPA David alleges that the High Court considered his statement of interrogation made before a military officer who received him, while he denies its content because he made that statement under torture, and he contradicted the very statement as soon as he was brought before an Investigator. NZABONIMPA David further states that if the disputed statement was considered true, MAKOMBE Deo should have also been brought before justice since he mentioned him as the person who helped him in supplying food to FDLR. [12] NZABONIMPA David submitted that he was kidnapped by MAKOMBE Deo, who was the head of BUHUMBA Village, where he was also residing, and that kidnapping emanated from his land MAKOMBE intended to grab from him, and that he informed his wife and children after he was arrested. He added that the said Leader has never ceased to ask him for money, threatening him that he will deport him to his homeland Rwanda if he refuses to pay such money, and this is the very plan he implemented when he decided to wrongly accuse him of collaborating with FDLR, and based on the foregoing, he rejects the testimony issued by MAKOMBE Deo since there is any person other than him accusing him of the same acts. [13] Counsel NKUNDIRUMWANA Joseph assisting NZABONIMPA David states that his client is a victim of the conspiration by MAKOMBE Deo, a conspiration emanating from the disputes between them which led the latter to wrongly accuse him of offence lacking any evidence to corroborate it, but only because he was the sole witness against him. He adds that NZABONIMPA David was accused of providing information relating to Rwanda Defence Forces but those accusing him failed to explain the nature and destination of such information. [14] Counsel NKUNDIRUMWANA Joseph further states that the statement made before Sgt RUKUNDO, a military officer who received NZABONIMPA David, should not be an element of evidence incriminating his client since it was made by an incompetent person, in addition, NZABONIMPA David refuted such statement as soon as he was brought before the Investigation, where he freely presented his submission before a military officer who interrogated him.

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[15] The Prosecution finds the appeal lodged by NZABONIMPA David unfounded on the ground that he was interrogated by a military officer who was authorized to conduct the investigation, and such interrogation was freely done because if he had made such a statement under threat, it should not have similar content with the elucidations issued by MAKOMBE Deo, who accuses him. He further states that NZABONIMPA David has been contradicting himself on matters relating to the disputes between him and MAKOMBE Deo, because at the beginning he stated that the latter first chased his wife and children from home, but once before this Court, he stated that MAKOMBE Deo chased them after his arrestation. In their conclusion, the Prosecution states that NZABONIMPA David accused MAKOMBE Deo of being his accomplice in supplying food to FDLR to take revenge on him, but he should not defend himself based on the fact that the person he is accusing has not yet been brought before justice. DETERMINATION OF THE COURT [16] Article 65 of Law no 15/2004 of 12/06/2004 relating to evidence and its production reads that: “Only the court can assess the relevance, pertinence and admissibility or rejection of testimonial evidence”. [17] The instant Court finds that, in convicting NZABONIMPA David, the High Court, Musanze Chamber, relied on the sole evidence consisting of the defendant’s statement made before the military organs on 31/12/2016 after he was brought to Rwanda Defence Forces, where he admitted the charge and explained how he collaborated with FDLR, and the very Court held that such statement provides all details about the commission of the offence, and NZABONIMPA David failed to produce evidence that he made such statement being under threat, or the disputes he had with MAKOMBE Deo who accused him of such offence. [18] The Court finds that MAKOMBE Deo who was the Head of the village and who arrested and brought NZABONIMPA David to Rwanda Defence Forces and is the sole witness accusing the defendant of working with FDLR, and in his statement, MAKOMBE Deo testifies that NZABONIMPA David disrespects him on the pretext that the latter works with FDLR leaders. [19] The Court finds that a testimony delivered by a single witness who is a leader of NZABONIMPA David and who himself states that the defendant disrespects him, and the same witness is accused of chasing the defendant’s wife and children, raises the court's doubt about the offence of collaborating with FDLR he is accusing him. [20] The Court finds that, even though all elements of evidence collected in accordance with the law are admitted, their validity varies according to their nature and collection procedure. This is why testimonies made before organs other than the investigation or courts must be accompanied by other corroborating evidence for them to be considered incriminating evidence. [21] It is in the finding of the Court that the statement made by NZABONIMPA David before the military organ on 31/12/2016, a statement which he refuted as soon as he was brought before the Investigation Bureau, such statement cannot be considered sufficient evidence proving that he committed such offence in case there is no other corroborating evidence.

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[22] The Court finds that the Prosecution did not manage to present any act proving that NZABONIMPA provided to FDLR the information about the Rwanda Defence Forces, therefore, he should be acquitted of such an offence since the High Court, Musanze Chamber, did not rely on any evidence to convict him. [23] The Court finds that NZABONIMPA David has to be acquitted of the charges brought against him due to the doubt about the evidence produced as per article 165 of the Law nº 30/2013 of 24/5/2013 relating to the Code of Criminal Procedure which reads that "the benefit of the doubt is given to 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 order his or her acquittal”. III. DECISION OF THE COURT [24] Holds that the appeal lodged by NZABONIMPA David has merit ; [25] Holds that NZABONIMPA David is not guilty of the offence of collaborating with a terrorist organisation ; [26] Declares that the judgment n° RP 00002/2017/HC/MUS rendered by the High Court, Musanze Chamber, on 10/04/2018 is reversed ; [27] Orders the immediate release of NZABONIMPA David as soon as the judgment is pronounced ; [28] Orders that the court fee, in this case, be borne to the Public Treasury.