PROSECUTION v. MUGIMBA

# PROSECUTION v. MUGIMBA

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2025-02-14 - Case/document no.: RPA /GÉN 00001/2022/CA - Collection: Court of Appeal

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PROSECUTION v. MUGIMBA [Rwanda COURT OF APPEAL - RPA /Gén 00001/2022/CA (Gakwaya, P.J., Umugwaneza, Tugireyezu, J.) February 14, 2025] Criminal procedure –The judgment must respond expressly or directly to all the requests of the parties, to the objections they presented and to the arguments (reasons) they put forward, but it is not required to examine all of them one by one, what is essential is that the decided case indicates the reasons why the requests, the objections and arguments (reasons) presented were invalidated. Criminal law – Conspiracy to commit genocide – Conspiracy to commit genocide is considered a crime of genocide in such a way that the specific intent to commit these two crimes is the same, which means that the agreement between two (2) or more people to commit genocide is aimed at destroying in whole or in part people, who have in common the nationality, race, skin color or religion, because of who they are, and it is done by one or more of them. Criminal law – Complicity in genocide – The intention of complicity in genocide is evident when the alleged accomplice in the crime of genocide helped or prevented or deceived, knowing what he/she did and wanted, another person or people to commit genocide, knowing for sure that such person or those people are committing genocide, even if the accused did not intend to destroy all

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people or some of them, who have in common the same nationality, ethnicity, skin color or religion, because of who they are. Criminal law – Aggravating and mitgating circurmstances – The seriousness of the crime and the aggravating circumstances that constitute the crime, do not bar the judge from acknowledging the mitigating circumstances that appeared in the interests of the convicted person, aiming to sentence him/her based on the way the crime was committed and his personal life (individualization of the penalty). Facts: The Prosecution indicted MUGIMBA Jean- Baptiste, former employee of the National Bank of Rwanda and the Acting Secretary General of CDR party at the national level, before the High Court, Specialized Chamber with jurisdiction over international and transnational crimes, for conspiracy to commit genocide and complicity in genocide. He denied the charges against him, stating that there is no evidence upon which the Prosecution relies to indict him, but the Court, based on the interpretation of Article 93, Paragraphs 1 and 5 of Law Nº 68/2018 of 30/08/2018 determining offences and penalties in general, which provides that conspiracy to commit genocide and complicity in genocide are punishable as a crime of genocide, as well as the definition of conspiracy of genocide presented by the Supreme Court in the judgment n˚ RPA/GEN 0001/15/CS in Prosecution v. Bandora Charles, rendered on 22/03/2019, and the interpretation related to the complicity in genocide established by the

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International Criminal Tribunal for Rwanda in the judgment n˚ICTR-96-13-A, in Prosecution v. MUSEMA Alfred, rendered by that Tribunal on 27/1/2000, which held that he was convicted of the crimes he was accused of , and sentenced him to the imprisonment for a term of 25 years. Both parties were dissatisfied with the judgment and appealed against it to the Court of Appeal, MUGIMBA Jean-Baptiste criticizing the fact that in relying on the testimony of the witness DAM, the Court only chose one part of it against him, yet it consisted of two parts, including the disculpatory one but it is obvious that what he/she stated in charging him is fabricated because it was later contradicted by other witnesses. The fact that the Court convicted him of crimes that did not materialize, that it refused to consider some of the disculpatory elements of evidence, and invalidated some other elements of evidence, the fact that it relied upon the witnesses who did not tell the truth, that it did not observe the precedent set and published in the collection V.1-2015 by the Supreme Court in January, 2015, which states that it is not allowed to rely on contradictory testimonies and that it did not comply with the laws determining the offences it convicted him of, requested to be acquitted. On the other hand, the Prosecution criticizes the fact that the Court did not validate the testimony given by Nyabyenda Jean Marie Vianney, and held that the testimony is confusing without indicating its reasons, and that it mitigated the sentence in favour of Mugimba Jean- Baptiste without specifying any basis.

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Held: The fact that in the explanations it provided, the court of first instance or court in which the proceedings were initiated did not mention a certain element of evidence or certain testimony, does not necessarily mean that it disregarded it, and it is not required to indicate in detail the reason why it validated or invalidated it. The court is not required to respond to all the arguments submitted by the parties, but it must respond to all their requests, indicating the reasons underlying its responses. The judgment must expressly and directly respond to all the requests of the parties, to the objections they presented and to the arguments (reasons) they put forward, but it is not required to examine all of them one by one. The intention (mens rea) of conspiracy to commit genocide is evident in case of the agreement between many people to commit genocide, which means destroying in whole or in part people, who have in common the nationality, race, skin color or religion. Conspiracy to commit genocide is committed with the purpose (special intent) to destroy in whole or in part people, who have in common the nationality, race, skin color or religion, because of who they are, this clearly indicates that it indirectly found that in the meeting held at Mugimba Jean-Baptiste’s home, he plotted with others to kill the Tutsi with the aim of destroying them in whole. Regarding the conspiracy to commit genocide, in order to confirm that the person prosecuted for that crime really committed it, it is not necessary to prove that he/she

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personally committed any of the acts that constitute the crime of genocide. The intention of complicity in genocide is evident in case the alleged accomplice in the crime of genocide helped or prevented or supervised or deceived, knowing what he/she did and wanted, another person or people to commit genocide, knowing for sure that that person or those people are committing genocide, even if the accused did not intend to destroy all people or some of them, who have in common the same nationality, ethnicity, skin color or religion, because of who they are. Thus, due to the fact that Mugimba Jean-Baptiste requested for and distributed guns while he was aware that they would be used to kill the Tutsi, the Court finds him guilty of complicity in the genocide. Acknowledging mitigating circumstances does not rule out the seriousness of the crime, which means that applying mitigating circumstances in favour of a convict does not reduce the gravity of the crime. This means that the gravity of the crime and the aggravating circumstances constituting the crime, do not bar the judge from acknowledging in the interest of the convicted person the aggravating circumstances that have been found, aiming to sentence him/her based on the manner in which the crime was committed and his personal life, (individualization of the sentence), that is why the legislator stipulated that the judge, in determining the sentence, must take into account the reasons for the continuation of the crime and the reasons for mitigating the crime. So, even though the crimes of which Mugimba Jean-Baptiste was convicted are serious and brutal crimes,

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it does not prevent him from having his sentence reduced if there are mitigating circumstances. The appeal lacks merit. Statutes and statutory instruments referred to: Law Nº 68/2018 of 30/08/2018 determining offences and penalties in general, article 20, 49, 91 and 93. Cases referred to: Prosecutor v. Munyagishari, RPA/GEN 00004/2019/CA rendered by Court of Appeal on 7/5/2021. Prosecutor v Twahirwa François, RPAA/Gén 00002/2018/CA16 rendered by Court of Appeal on 25/7/2023. Prosecutor v Shema Ernest, RPAA 00050/2024/CA rendered by Court of Appeal on 26/4/2024. Prosecutor v Abayisenga et.al, RPA 00016/2020/CA rendered by Court of Appeal on 22/3/2024. Prosecutor v Nsabimana Alias Sankara et.al, RPA 00060/2021/CA rendered by Court of Appeal on 04/04/ 2022. Prosecutor v Ntaganzwa Ladislas, RPA/GEN 00001/2021/CA rendered by Court of Appeal on 3/3/2023. Prosecutor v Birindabagabo Jean-Paul, RPAA/GEN 00004/2020/CA rendered by Court of Appeal on 8/4/2022. Prosecutor v Kabilimana Jean Damascène, RPAA/GEN00009/2019/CA rendered by Court of Appeal on 16/10/2020.

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Prosecutor v Twagirayezu Wenceslas, RPA/GEN 00001/2024/CA rendered by Court of Appeal on Prosecutor v Musema Alfred, ICTR-96-13-A rendered by ICTR, Appeals chamber on 16/11/2001. Prosecutor v. Mikaeli Muhimana, ICTR-95-1B-A, rendered by ICTR, Appeals chamber on 21 /05/ 2007. Prosecutor v. Zigiranyirazo Protais, ICTR-01-73-A Prosecutor v. Mikaeli Muhimana, ICTR-95-1B-A, rendered by ICTR, Appeals chamber on 16 /11/2009 Prosecutor v Nahimana Ferdinand et.al, ICTR 99-52-A rendered by ICTR, Appeals chamber on 28/10/2007. Prosecutor v. Zigiranyirazo Protais, ICTR-01-73-A rendered by ICTR, Appeals chamber on 16/11/2009. Prosecutor v. Mikaeli Muhimana, ICTR-95-1B-A, rendered by ICTR, Appeals chamber on 28/10/2007. Prosecutor vs Simon Bikindi, ICTR-01-72-A rendered by ICTR, Appeals chamber on18 /03/2010. Prosecutor v Jean Kambanda, ICTR-97-23-S, rendered by ICTR, Appeal Chamber on 19 /10/ 2000. Prosecutor v Bagosora Théoneste André et .al, ICTR-98- 41-T, rendered by ICTR, Trial Chamber on 18/12/2008. Prosecutor vs Renzaho Tharcisse, ICTR-97-31-T rendered by ICTR, Trial Chamber on 14/07/2009 Prosecutor v Gatete Jean Baptiste, ICTR-2000-61-T rendered by ICTR, Trial Chamber on 31/03/2011.

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Prosecutor v. Mikaeli Muhimana, ICTR-95-1B, rendered by ICTR, Trial Chamber on 28 /04/2005. Prosecutor v. Jean de Dieu Kamuhanda, ICTR-99-54A-T, rendered by ICTR, Trial Chamber on 23/01/2003.

Legal wrtitings referred to: Gaston Stéfani, Georges Levasseur et Bernard Bouloc, ‘’ Procédure pénale’’, 16e édition, Dalloz, Paris, 1996, P. 681, n° 669. Henri-D. Bosly et Damien Vandermeersch, Droit de procédure pénale, 2e édition, La Charte, Bruges, 2001, P. 906. Crim. 11 mai 1971, Bull. n° 147, Gaz. Pal. 1971.2. 524, in Gaston Stéfani, Georges Levasseur et Bernard Bouloc, op.cit., P. 682, n° 669. Antoine Rubbens, Le Droit judiciaire congolais, L’instruction criminelle et la procédure pénale, Tome III, Larcier, Bruxelles, 1965, P. 220, n° 214. Michel Franchimont, Ann Jacobs et Adrien Masset, Manuel de procédure pénale, 2e édition, Larcier, Bruxelles, 2006, P. 722. Jean Pradel, Procédure pénale, 10e édition, Cujas, Paris, 2000, P. 680, n° 784. Judgment I. BACKGROUND OF THE CASE

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After the Genocide against the Tutsi, MUGIMBA Jean-Baptiste who lived in Kabuguru Cell, Nyakabanda Sector, Nyarugenge Commune, in the houses of the employees of the Central Bank of Rwanda where he also worked, and was the Acting Secretary General of the CDR Party at the national level, fled to the Netherlands. In November 2012, the National Public Prosecution Authority requested that he should be arrested and transferred to Rwanda to stand trial for genocide-related crimes. On 11/07/2014, the Court of that Country (The Hague District Court) decided to transfer him to Rwanda to stand trial.

The Prosecution indicted him before the High Court, Specialized Chamber with jurisdiction over international and transnational crimes, for conspiracy to commit genocide and complicity in genocide. MUGIMBA Jean-Baptiste denied the charges against him, alleging that there are no elements of evidence upon which the Prosecution relies to indict him.

In the judgment n˚ RP/GEN 00002/2017/HC/HCCIC rendered on 28/5/2020, basing on the interpretation of Article 93, paragraphs 1 and 5° of Law Nº 68/2018 of 30/08/2018 determining offences and penalties in general which provides that conspiracy to commit genocide and complicity in genocide is punishable as a crime of genocide, as well as the definition of conspiracy of genocide presented by the Supreme Court in the judgment n˚ RPA/GEN 0001/15/CS in Prosecution v. Bandora Charles, decided by that Court on 22/03/2019, and the interpretation related to the

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complicity in genocide established by the International Criminal Tribunal for Rwanda in the judgment n˚ICTR- 96-13-A, in Prosecution v. MUSEMA Alfred, was sentenced by that Court on 27/1/2000, the Court held that: - MUGIMBA Jean-Baptiste is convicted of conspiracy to commit genocide and complicity in genocide - Sentences him to the imprisonment for a term of twenty-five (25) years.

MUGIMBA Jean-Baptiste, as well as the Prosecution were dissatisfied with the judgment, and appealed against it to the Court of Appeal.

In the appeal submissions of MUGIMBA Jean- Baptiste dated 14/4/2022, he criticizes the judgment rendered by the High Court because in relying on the testimony of the witness DAM, the Court only chose one part of it against him, yet it consisted of two parts, including the disculpatory one but it is obvious that what he/she stated in charging him is fabricated by him/herself because it was later contradicted by other who testified that the meeting of 8/4/1994 is the one that was relied upon to hold that he was convicted of conspiracy to commit genocide, they stated that they do not know whether it was held, yet he/she stated that they had attended it. Due to the fact that the Court convicted him of the crimes that did not materialize, due to the fact that it disregarded some of the elements of evidence, others were not validated, that it relied upon the witnesses who did not tell the truth, that it did not observe the precedent set and published in the collection V.1- 2015 by the

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Supreme Court in January, 2015, which states that it is not allowed to rely on contradictory testimonies and due to the fact that it did not comply with the laws determining the crimes for which he was convicted, he requested to be acquitted.

The Prosecution contended that it had provided the elements of evidence for all acts constituting the crime, based on eyewitnesses’ testimonies and other elements of evidence submitted to the Court. As for the precedent that was previously set, it alleged that it cannot retort about it because it is not linked with the decided case, and the he alleged that the laws were not complied with, it notes that he did not indicate them, rather it requests that he should be sentenced to life imprisonment.

With regards to the appeal submissions of the Prosecution, the latter criticizes the judgment of the High Court for invalidating the testimony given by NYABYENDA Jean Marie Vianney, alleging that it is confusing without explaining its reasons, and the fact that it reduced the sentence in favour of MUGIMBA Jean- Baptiste without specifying its basis.

MUGIMBA Jean Baptiste contended that the Court did not err because it justified both the testimony and the sentence.

Both appeal cases were joined and the resulting case was registered under n° RPA/GEN 00001/2022/CA, the hearing was scheduled on 16/7/2024, MUGIMBA Jean-Baptiste assisted by Counsel GATERA GASHABANA and Counsel BARAGONDOZA Jean

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Damascène, the Prosecution represented by NKUSI Faustin and BIDERI Diogène, National Prosecutors. On that day, the Court bench agreed with the parties on both sides on the schedule of the hearing and the next hearing was fixed on 16/9/2024 at 9:00 am.

Based on the submissions and arguments of the parties, this Court finds that the issues to be considered are as follows : A. Regarding the appeal of MUGIMBA Jean- Baptiste a. Determine whether the lower Court tried MUGIMBA Jean-Baptiste without due regard to the criminal act it was seized of. b. Determine whether there are exculpatory elements of evidence in favor of MUGIMBA Jean-Baptiste, that the lower Court disregarded and did not consider others and convicted him of conspiracy to commit genocide and complicity in genocide on basis of the statements of two unreliable witnesses. c. Determine whether the lower Court did not comply with the precedent set by the Supreme Court, leading it to make a judgment based on contradictory testimonies. d. Determine whether the lower Court convicted MUGIMBA Jean-Baptiste of conspiracy to commit genocide and

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complicity in genocide without establishing the specific intent to commit these crimes. B. Concerning the appeal of the Prosecution a. Determine whether the lower Court erred in disregarding the incriminating testimony of NYABYENDA Jean-Marie Vianney. b. Determine whether MUGIMBA Jean- Baptiste should not have a reduced sentence. II. LEGAL ISSUES AND ANALYSIS THEREOF A. Regarding the appeal of MUGIMBA Jean- Baptiste a. Determine whether the lower Court tried MUGIMBA Jean-Baptiste without due regard to the criminal act it was seized of

MUGIMBA Jean-Baptiste alleges that before the Court of the first instance, he was accused of having plotted with the conseillers in the meeting on 8/4/1994 to plan the genocide in four (4) Sectors in the City of Kigali. He explains that on page ten (10) of the indictment, the Prosecution indicates the intention to kill the Tutsi and the people it claims to have conspired with in his home, that is, the Conseiller of Nyakabanda, Biryogo, Gitega and Nyamirambo Sectors, but the issue is that the High Court, Specialized Chamber with jurisdiction over international

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and transnational crimes, held that he had committed the crime of conspiracy to kill the Tutsi, jointly with the people other than those conseillers as arraigned by the Prosecution, and the conspiracy for which he is sentenced is only related with Nyakabanda Sector, but the Prosecution accuses him of conspiracy to kill the Tutsi in the four (4) above mentioned Sectors. He concludes by alleging that this indicates that the Court rendered the judgment on the facts that were not part of the indictment.

Counsel BARAGONDOZA Jean Damascène, MUGIMBA Jean-Baptiste's lawyer, submits that, as indicated in the fifty-seventh (57) paragraph of the appealed judgment, the High Court, Specialized Chamber with jurisdiction over international and transnational crimes erred in taking its decision on the facts that were not part of the indictment because, after relying on the testimony of the witness DAM, held that MUGIMBA Jean-Baptiste is convicted of the crime of conspiracy to kill the Tutsi, he committed it with other people, who were not the Conseillers of Nyakabanda, Biryogo, Gitega and Nyamirambo Sectors, while such was not what he was indicted of as it is stated on the page ten (10) of the indictment, whereby MUGIMBA Jean-Baptiste was accused of conspiracy to kill the Tutsi with four (4) Conseillers and the witness DAM.

Counsel GATERA GASHABANA avers that in paragraphs forty-nine (49), fifty (50) and fifty-four (54), the High Court, Specialized Chamber with jurisdiction over international and transnational crimes decided that MUGIMBA Jean-Baptiste held the meetings at his home,

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together with various people, including soldiers, Conseillers of four (4) Sectors, he made a list of the Tutsi who were to be killed, it also held that there are witnesses who have been heard testifying that they did not know it, and only one who testifies that he knows it, that is DAM, based only on the statement of that witness, and now in paragraphs fifty-seven (57) and fifty-eight(58), it held that he had committed the conspiracy to commit genocide, while the facts indicated by that witness are different from the facts of which MUGIMBA Jean-Baptiste was indicted, that this indicates that the Court disregarded the provisions of Article 10 of Law n° 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure because it decided more than it had been asked to.

In the submissions of MUGIMBA Jean-Baptiste presented by his lawyer, BARAGONDOZA Jean Damascène, he alleges that the meeting to plan the genocide mentioned by the Prosecution in its indictment is the one that took place at MUGIMBA Jean-Baptiste’s home on 8/4/1994, between 8:00 and 10:30 A.M, and submits that MUGIMBA Jean-Baptiste had invited many people including the witness DAM and other Conseillers of Nyakabanda, Biryogo, Gitega and Nyamirambo Sectors from the City of Kigali, however, the lower Court assigned to itself the authority to change the claim, by disregarding the law governing the justice system, which requires it to decide only what it is asked to and only that

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issue1, it rendered the judgment on the intention mentioned by the witness DAM that materialized between the defendant and other people, but not revealed by the indictment, and it disregarded his statements, whereby he stated that the Conseillers were not in the meeting in which he participated as he alleged it and that plan only concerned Nyakabanda Sector.

Counsel BARAGONDOZA Jean Damascène proceeds with alleging that the lower Court should not invalidate the indictment since none of the Prosecution witnesses especially KIVUTA REGERO Innocent, IMANANIBISHAKA Jean Berchmans alias BARANANIYE Sukari and NYABYENDA Jean-Marie Vianney who testified that MUGIMBA Jean-Baptiste had worked with the Conseillers but in convicting him of the conspiracy to commit genocide, the lower Court relied upon the testimony of DAM, yet the witness had given disculpatory and incriminating elements of evidence, whereby he explained that the meeting of 8/4/1994 was held at MUGIMBA Jean-Baptiste’s home, that he very well knows the fact because he was invited in such meeting, but in the hearing held on 9/10/2008, he alleged that those Conseillers from Nyakabanda, Biryogo, Gitega and Nyamirambo Sectors were not in that meeting, yet the Court only considered his incriminating testimony.

1 Article 7 of Law n° 21/2012 of 14/6/2012 relating to the civil, commercial, labour and administrative procedure "The judge shall rule only and on all that which is referred to the court".

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He concludes by requesting this Court to rely on Article 7 of Law n° 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure and to confirm that the lower Court should not decide the case on the other “agreement” brought in by witness DAM, which was not part of the indictment.

The Prosecution asserts that on pages ten (10) and eleven (11) of the indictment, they indicted MUGIMBA Jean-Baptiste of having chaired at his home a meeting which planned to commit genocide, that he was not indicted of having had certain people in that meeting, that what he is indicted of is the conspiracy that was committed in the meeting that took place at his home. It avers that apart from that, as indicated in its indictment, not only Conseillers attended the meeting, but also there were other people, that the most important thing is that the meeting took place and conspiracy to commit genocide was plotted there.

In its indictment, the Prosecution explained that as it is indicated from paragraph fifty-three (53) to paragraph seventy-four (74) of the appealed judgment, the lower Court examined whether on 8/4/1994 there was a meeting chaired by MUGIMBA Jean-Baptiste at his home, which plotted the conspiracy to kill the Tutsis, so the act for which he was indicted was not the fact that the Conseillers attended it, but it is the meeting itself, whether the Conseillers participated in it or not. It also explained that in its indictment, it did not mention that the meeting MUGIMBA Jean-Baptiste held was attended by him and three (3) Conseillers only, so that it can be understood that

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when the witness DAM testified that at MUGIMBA Jean-Baptiste’s home, no other Conseillers were present, to mean that it was a different meeting from the one the Prosecution complained about, that apart from what is in the indictment, it is also clear from DAM's statements that the meeting was attended by different people.

The Prosecution also explained that one of the facts that MUGIMBA Jean-Baptiste was indicted of, which is also a ground of appeal for him, is a meeting to plan the genocide held at his home on 8/4/1994, and that it was also the same that the lower Court underscored, and held that the meeting really took place and was indeed an act of conspiracy to commit genocide, so the lower Court did not ignore the provisions of Article 7 of Law n° 22/2018 of 29/04/2018 Law relating to the civil, commercial, labour and administrative procedure.

DETERMINATION OF THE COURT

The principle of law according to which the criminal courts are seized of the facts2, means that these courts examine the facts that are submitted to them, and

2 “The court is seized in rem”, Gaston Stéfani, Georges Levasseur and Bernard Bouloc, ‘’ Procédure pénale’’, 16th edition, Dalloz, Paris, 1996, P. 681, n° 669.

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are the only ones to review3, which means that they cannot change or add facts that have not been submitted to them or that are not mentioned in the indictment, for their consideration4.

The indictment before the High Court, Specialized Chamber with jurisdiction over international and transnational crimes on page ten (10) indicates that MUGIMBA Jean-Baptiste is accused of holding a meeting at his home on 8/4/1994 between 08:00 and 10:00 A.M, in which the attendants were MBARUSHIMANA Callixte, MUGENZI Joseph, MUDAHINYUKA Jean- Marie Vianney alias Zuzu, TWAHIRWA Oreste, RWAGAHUNGU Innocent, NIBIZI Alphonse, KIVUTA REGERO Innocent, KIGINGI HABYARIMANA also known as Général de Brigade, SAKABAKA, Zacharie son of RWATAMBUGA, the former military operations

3 “The court must rule on all the facts brought validly before it (…..) and only on those”, Crim. July 23, 1967, J.C.P. 1968. II 15678, note J. Michaud, in idem. ''The referral to the judge concerns only the precise fact indicated in the referral document; the latter must not mention all the legal elements constituting the act charged nor all the factual elements. It is up to the judge, if necessary, to assess the scope of the act of referral, without however violating the faith due to this act, (….)'', Cass., June 2, 1887, Pas., I, P.283, in Henri-D. Bosly and Damien Vandermeersch, Droit de procédure pénale, 2e édition, La Charte, Bruges, 2001, P. 906. 4 “But it cannot substitute or add to the facts brought before it other facts not covered in the referral document”, Crim. May 11, 1971, Bull. No. 147, Gas. Pal. 1971.2. 524, in Gaston Stéfani, Georges Levasseur and Bernard Bouloc, op.cit., p. 682, n° 669.

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commander in Nyamirambo war zone Col. HAKIZIMANA Edouard, Lt. KANYAMUHANDA, Lt. MUSERUKA, Lt. KAMARI, Lt. BAZIRUWIHA, there was also NTAMFURAYISHYARI Félix, who worked at the Embassy of Rwanda in Kampala, there were also the Conseillers of NYAKABANDA, BIRYOGO, GITEGA and NYAMIRAMBO Sectors, there were also representatives of the Interahamwe and Impuzamugambi militia in those Sectors, including NDAHAYO Godefroid of NYAKABANDA, HABYALIMANA of Nyamirambo, ZUBERI of BIRYOGO and Stan of Gitega. This meeting assessed how to kill Tutsis, making the lists of Tutsis to be killed, how to set up barriers that would help in killing the Tutsi, how to get guns to use for killing the Tutsi5. This is what is stated in the paragraphs eight (8) and nine (9) of the appealed judgment.

In paragraph forty-nine (49) of the appealed judgment, the High Court, Specialized Chamber with jurisdiction over the international and transnational crimes briefly explained that the Prosecution accuses MUGIMBA Jean-Baptiste of conspiracy to commit genocide, arguing that before 1994, he held meetings at his home to plan to kill the Tutsi, which was attended by many people including Interahamwe, after those meetings the Tutsi were beaten, accusing him of having

5 On page eleven (11) of the complaint document, it appears that in that meeting, MUGIMBA Jean-Baptiste asked Col. HAKIZIMANA Edouard, Army Commander in Nyamirambo war zone for the guns that would be used in Nyakabanda, and the latter accepted, and those guns were distributed and were later used to kill the Tutsis.

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held a meeting at his home on 8/4/1994 which planned to kill Tutsi which was attended by various people including soldiers, Conseillers of Nyakabanda, Nyamirambo, Gitega and Biryogo Sectors, the cell leaders, Interahamwe and Impuzamugambi, in that meeting the list of Tutsi who should be killed was made, and it was authorized to set up roadblocks to assist in the killings, MUGIMBA Jean-Baptiste requested for guns to be used in those killings.

As mentioned in the fifty-one (51) to seventy (70) paragraphs of the appealed case, basing to articles 107, first paragraph, and 108 of the Law Nº 027/2019 of 19/09/2019 relating to the criminal procedure and to articles 62, 65 and 119 of Law No 15/2004 of 12/6/2004 relating to evidence and its production, which examined the testimony given in Court and given in the investigation regarding the meeting on 8/4/1994 alleged to have taken place at MUGIMBA Jean-Baptiste's home, it found that there were witnesses who stated that no meeting took place there (MURASANDONYI Augustin, DIM, MUGABIRE Jean de Dieu, MUTEGANDEGE Charles, MUTAMURIZA Xavérine, MUGENZI Védaste, IMANANIBISHAKA Jean Berchmans alias BARANANIYE Sukari, KIVUTA REGERO Innocent), others confirm that the meeting took place, and that they were involved or were told about it (DAM and DFM), as well as the testimony of the witnesses presented by MUGIMBA Jean-Baptiste (DJM and DKM), it concluded in paragraph seventy-one (71) of the judgment, that based

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on the statements of DAM6 and DFM7, it is worth holding that on 8/4/1994 at MUGIMBA Jean-Baptiste's

6 As indicated in paragraphs twenty-one (21) and twenty-two (22) of the appealed judgment, before the High Court, DAM explained that on 8/4/1994 he went to the Sector Office to give documents to people who had lost their identity cards, he arrived at around 7:30 a.m. a person named NKAMIRABASHAKA Sostène told him that MUGIMBA Jean-Baptiste wanted him at his home, he went there at 7:30 and five (7:35), there were twelve (12) people in the house including Colonel HAKIZIMANA Edouard, Dr. MUGENZI Joseph, MBARUSHIMANA Callixte who worked with UNDP, KIVUTA REGERO Innocent, Kigingi HABYARIMANA who was Interahamwe, RWAGAHUNGU Innocent who was the leader of Kabuguru Cell, SAKABAKA who lived at NGENZI’s home, Zakariya, son of RWATAMBUGA, MUDAHINYUKA Jean-Marie Vianney alias Zuzu, NYABYENDA, TWAHIRWA and many others about eight (8) were outside guarding the occupants of the house, that around eight o'clock MUGIMBA Jean-Baptiste presided over a meeting at about 10:30 p.m., that apart from him who represented the Conseiller of Nyakabanda Sector, no other conseiller was present. He went on to say that the purpose of the meeting was to be told that President HABYARIMANA's plane had been downed, that they should defend themselves and fight against the accomplices and that they were threatened by the attack, that at that time MUGIMBA Jean- Baptitse asked Colonel HAKIZIMANA Edouard, Army Commander in Nyamirambo war zone for guns to protect themselves against the Tutsi, and lists of those who should be killed including the Tutsi who were called accomplices and Hutu who opposed the MRND party were made, that everyone among those in the meeting gave the name of the person who was to be killed, MUGIMBA Jean-Baptiste says that NDUNGUTSE Jean Bosco, HIGIRO Isaïe and Doctor Emmanuel who worked in ONAPO, that he himself gave the names of others including BAGABO Dany family, MUKAKIMENYI and KAYIBANDA and that later those mentioned were killed. He explained that the person who made the list was NIYIBIZI Alphonse, that he gave it to MUGIMBA Jean-Baptiste, who in turn gave it to Kigingi. He also said that even though he was the Conseiller of

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home, a meeting was held and plotted to kill the Tutsi from Nyakabanda Sector and its suburbs, the lists of Tutsi who were to be killed were made, and MUGIMBA Jean- Baptiste requested for guns to be used in the killings.

The Court of Appeal finds that the examination of the indictment indicates that on 8/4/1994, between 8:00 and 10:00 A.M., MUGIMBA Jean-Baptiste invited different people to a meeting which was held at his home, where they agreed, and conspire to commit genocide, to learn how to kill Tutsi, to make lists of the Tutsi to be killed, how to set up the roadblocks that would help in killing Tutsi and how to find weapons to be used to kill Tutsi. This indicates that MUGIMBA Jean-Baptiste was

Nyakabanda Sector, he attended the meeting which was convened by MUGIMBA Jean-Baptiste because he had the authority as the leader of nyumbakumi (ten households unit ) who led him, and he was intellectual who was part of crisis committee it included educated people who supported the Conseillers in committing the killings that was put in place on 30/4/1994, and he was the Secretary General of the CDR party, that they worked together because MRND and CDR were all the same. 7As indicated in paragraph twenty-three (23) of the appealed judgment, DFM explained in the High Court that on 8/4/1994 MUGIMBA Jean-Baptiste convened to his home a meeting attended by many people including Kigingi, NIYIBIZI Alphonse and Colonel HAKIZIMANA, and he was informed by the people who were working with him, that he was told by the cell leader called KABONEYE Théoneste and Nyirimanzi Grégoire who found them in front of the stadium in Nyamirambo alongside with the people who were once saying in chorus that people were killed as a result of the meeting held at MUGIMBA Jean- Baptiste’s home and at Interahamwe called Zuzu’s home.

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prosecuted for the agreement between him and different people that was made in the meeting held at his home on 8/4/1994, who planned to commit genocide, with the aim of killing the Tutsi.

The Court of Appeal also finds that the witness DAM incriminates MUGIMBA Jean-Baptiste of having held on 8/4/1994 a meeting at his home, and invited him, and found different people, some in the house (12), others outside (8); and explained that the purpose of the meeting was to be told that the plane of President HABYARIMANA had been downed, that they should defend themselves and fight against the attacks and that they are threatened by Inkotanyi, that at that time MUGIMBA Jean-Baptitse requested Col. HAKIZIMANA Edouard who was at the meeting to provide them with guns to defend themselves against the Tutsi and the lists of those to be killed were made, including the Tutsi who were called the accomplices and Hutu who opposed the MRND party.

Basing on the abovementioned statements, the Court of Appeal finds that the statement of MUGIMBA Jean-Baptiste that he was accused at the first level of attending a meeting on 8/4/1994 where he agreed with the Conseillers to plan genocide in four (4) Sectors of the City of Kigali, must be invalidated because he was instead accused of having been with different people at his home on 8/4/1994 where they agreed and conspired to commit genocide, they killed the Tutsi, the Prosecution did not indict him of specifically holding a meeting at his home on that date, he conspired to commit genocide with

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only the Conseillers of Nyakabanda, Nyamirambo, Gitega and Biryogo Sectors to kill the Tutsi who were living there.

The Court of Appeal also finds that the incriminating testimony of DAM does not confirm that in the meeting on 8/4/1994, the Conseillers of Nyakabanda, Nyamirambo, Gitega and Biryogo Sectors were present, which does not mean that the facts shown by the witness are different from the facts shown by the Prosecution against MUGIMBA Jean-Baptiste at the first level because what is important is that there are facts shown by the Prosecution and what was revealed by the witness DAM, both assertions confirm that on 8/4/1994 he held a meeting at his home in the morning, where different people were conspiring to commit genocide, making lists of the Tutsi who should be killed, and learning how to get guns to use in killing them. It also finds that the fact that the Prosecution failed to demonstrate that those Conseillers of those Sectors were among those who agreed with him in the meeting of 8/4/1994, and conspired to commit genocide, which does not mean that the facts brought up were changed because the High Court confirmed that he had conspired in that meeting with the other people mentioned in the indictment, what is important is that it showed that in that meeting there was indeed an agreement among people conspiring to commit genocide.

The Court of Appeal finds that the allegations of MUGIMBA Jean-Baptiste that he was accused by the Prosecution of plotting to kill Tutsi in Nyakabanda,

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Nyamirambo, Gitega and Biryogo Sectors, but the lower Court concluded that the plot was intended to kill the Tutsi in Nyakabanda Sector only, that Court changed the constituent elements of the offence he was accused of, are not relevant because the indictment does not show directly that it was what he was indicted of, rather it shows that he had attended the meeting, and had requested Col. HAKIZIMANA Edouard, who was in charge of the military operations in Nyamirambo war zone, for the guns to be used in the killings in Nyakabanda.

Based on the abovementioned statements, the Court of Appeal finds that, apart from the fact that MUGIMBA Jean-Baptiste was granted at the first instance the right (time and means) to defend himself against the charges brought against him by the Prosecution and the testimony of DAM, the High Court, Specialized Chamber with jurisdiction over international and transnational crimes did not change the constituent elements of the offence MUGIMBA Jean-Baptiste was accused of by the Prosecution, which means that it decided on the facts it was seized of, so this ground of his appeal is without merit. b. Determine whether there are exculpatory elements of evidence in favour of MUGIMBA Jean- Baptiste, that the lower Court disregarded and did not consider others and convicted him of conspiracy to commit genocide and complicity in genocide on basis of the statements of two unreliable witnesses

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i. Regarding the documentary exculpatory elements of evidence in favour of MUGIMBA Jean-Baptiste disregarded by the lower Court

MUGIMBA Jean-Baptiste and his lawyers allege that, based on articles 110 and 139, subparagraph seven (7°) of Law nº 027/2019 of 19/09/2019 relating to the criminal procedure, the lower Court erred by failing to examine the documentary exculpatory elements of evidence he produced to it, they include the document legalized in 2011, which contains the fabricated meeting dated 8/04/1994 of which he is accused, it is alleged that it has been approved by the Gacaca Court of Nyarugunga on 31/12/2010, while it is not true, the indictment n° Pro- justitia RONPJ: 0305920/S1/12/NR/NJ dated 25/7/2012 and the judgment no RP 0345/12/TB/NYG rendered by the Primary Court of Nyarugenge on 21/2/2013.

MUGIMBA Jean-Baptiste and his lawyers explain that the legalized document was the one that first revealed the meeting of 8/4/1994, emphasizing that the meeting was evoked for the first time in the Gacaca Court of Nyakabanda, and it was later approved by the Gacaca Court of Nyarugunga of 31/12/2010 at the level of appeal, and all this was confirmed by the information from the CNLG (National Commission against Genocide) and the investigation carried out by that Court. They also explain that the indictment n° Pro-justitia RONPJ 0305920/S1/12/NR/NJ dated 25/7/2012 indicates that some people were prosecuted for having given false testimony in the Gacaca Courts in order to appropriate themselces the houses of MUGIMBA Jean-Baptiste, one

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of them has pleaded guilty saying that fabricating charges against MUGIMBA Jean-Baptiste's crimes was done in a bar called Panorama. They explain again that in the judgment n° RP 0345/12/TB/NYG, the Primary Court of Nyarugenge confirmed that such witness committed the crime of giving false testimony in the Gacaca Courts.

MUGIMBA Jean-Baptiste and his lawyers conclude that all these elements of evidence confirm that the charges against MUGIMBA Jean-Baptiste are false, they have been forged by a group of people who used to meet in "Panorama" (bar) in 2010, and they fabricated the charges against him with the aim of appropriating themselves his property, but the Court disregarded these elements of evidence and the investigation findings carried out by the Court itself in a bid to know whether the alleged meeting of 8/4/1994 was really mentioned in the Gacaca Court, but it relied on an excerpt of the DAM's testimony against him8.

The Prosecution avers that the allegations of MUGIMBA Jean-Baptiste are irrelevant because the Court considered all the elements of evidence produced to it, that concerning his arguments showing that he was the victim of the fabricated charges by those who wanted to appropriate his property, they were examined by the High Court, and as indicated in the paragraphs eighteen (18) ad seventy-one (71) of the appealed judgment, it held that they are baseless. They explain that, considering the acts of which he is accused in the indictment, these elements of evidence are not linked with it because in the Gacaca

8 See paragraph 57 of the appealed judgment.

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Courts, MUGIMBA Jean-Baptiste was accused of looting other people's property, while in the judgment RP 0345/12/TB/NYG, the accused were people who made false statements against him in the Gacaca Courts, one of them was convicted. They also explain that, apart from that, these elements of evidence do not confirm that he did not commit the crime he is accused of, the fact that it was evident that they made false statements against him in those cases, does not mean that other charges against him have been fabricated. DETERMINATION OF THE COURT

The debate on this ground of MUGIMBA Jean- Baptiste's appeal is based on determining whether the High Court disregarded the documentary elements of evidence that highlight that the charges brought against him are false, especially because it did not mention in the judgment it rendered, the explanations for which it did not consider them, so that the appealed judgment should be quashed.

As held in the judgment n° ICTR-96-13-A rendered by the International Criminal Tribunal for Rwanda (ICTR), the Appeals Chamber, the fact that in the explanations it provided, the court of first instance or the court where the proceedings were initiated did not mention an element of evidence or testimony, does not

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necessarily mean that it ignored it9, it is not even required to specify in details the reason why it validated or invalidated it10. In the judgment No. IT-96-21-A rendered by the International Criminal Tribunal for the former Yugoslavia, the Appeals Chamber, held that the Trial Chamber is not bound, in its judgment, to present and explain its reasons on all arguments presented in the judgment11.

Legal scholar Antoine Rubbens12, explains that the court is not bound to respond to all the arguments presented by the parties, but it should respond to all their requests, showing the reasons supporting its responses. This is what the legal scholars Michel Franchimont, Ann Jacobs and Adrien Masset, explain based on the precedent set by the Court of Cassation of Belgium, which ruled that the judgment must respond directly or openly to all the requests made by the parties, to the objections they raised and to the arguments (reasons) they presented, but that it

9“ It does not necessarily imply that, since a trial chamber did not refer to such evidence or testimony during its reasoning, it is because it ignored it,” para. 20. 10“The trial chamber is not required to explain in detail the reasons which led it to admit or reject a given testimony”, idem. 11The Trial Chamber is not required, in its judgment, to set out and justify its findings with respect to each of the arguments presented during the trial”, para. 498. 12 ‘’Il n’est pas nécessaire de répondre à tous les arguments des parties publiques ou privées, mais bien à chacune de leurs demandes, et c’est chacune de ces réponses qu’il convient de motiver’’, Antoine Rubbens, Le Droit judiciaire congolais, L’instruction criminelle et la procédure pénale, Tome III, Larcier, Bruxelles, 1965, P. 220, n° 214.

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is not required to examine one of the other arguments they presented, what is necessary is that the judgment that was rendered indicates the reasons causing the requests, the objections raised and the arguments (reasons) presented to be invalidated13.

As indicated in the preliminary submissions of MUGIMBA Jean-Baptiste in case n° RP/GEN 0002/2017/HC/HCCIC, he explained that the indictment is not based on any concrete evidence, that it came to strengthen the fabricated crimes attributed to the decision of the Gacaca Court of Appeal of Nyarugunga of 31/12/2010, that those lies are mentioned in the document he received from the Embassy of Netherlands in Rwanda from the National Public Prosecution Authority; however, the document issued by CNLG on 26/1/2017 insists that there is no document mentioning MUGIMBA Jean- Baptiste in the Nyakabanda Gacaca Court, and it was

13 ‘’La décision doit répondre explicitement ou implicitement à toutes les demandes, les exceptions et les moyens, formulés par les parties et le ministère public. Le juge ne doit toutefois pas les examiner un à un: il suffit que de l’ensemble de la décision apparaissent les raisons pour lesquelles la demande, le moyen ou l’exception a été rejeté’’, Michel Franchimont, Ann Jacobs et Adrien Masset, Manuel de procédure pénale, 2e édition, Larcier, Bruxelles, 2006, P. 722. ‘’ Attendu que si le juge du fond doit répondre à tout chef de demande, à toute défense et à toute exception présentée par l’une des parties, il n’est pas tenu de rencontrer en termes exprès les arguments ou allégations de pur fait; que les décisions sont suffisamment et légalement motivées si elles opposent à ces arguments ou allégations une appréciation de fait dont résulte leur défaut de fondement’’, Cass., 27 février 1939, Pas., 1939, I, p.101 in Michel Franchimont, Ann Jacobs et Adrien Masset, idem.

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accompanied by the minutes showing all the words uttered in the hearing of the case decided by the Nyarugunga Gacaca Court of Appeal on 12/31/2010. He also stated that the document "Pro-justitia RONPJ: 0305920/S1/12/NR/NJ" of the National Public Prosecution Authority dated 25/7/2012 and the judgment of the Primary Court of Nyarugenge n° RP 0345/12/TB/NYG dated 21/2/2013 indicate that he was falsely accused in the Gacaca Courts, and that one of the defendants in that case was convicted of false testimony and sentenced to one (1) year’s imprisonment, because he pleaded guilty. He also stated that the fact that the document of the CNLG dated 26/1/2017 directly i that the crimes of genocide he is accused of in this case were never mentioned in the Gacaca Court of Nyarugunga dated 31/12/2010, alone is enough to confirm that they are fabricated charges.

The case file indicates that among the elements of evidence given by MUGIMBA Jean-Baptiste in the High Court, there is the document dated 3/5/2012 regarding additional information in the file DCM/AT-U 100624.0036 of MUGIMBA Jean-Baptiste, file RONPJ: 0305920/S1/12/NR/NJ of the Prosecution (Indictment) HATEGEKIMANA Charles accused of giving false testimony in the Gacaca Court, the judgment n° RP 0345/12/TB/NYG rendered on 21/2/2013 by the Primary Court of Nyarugenge , in

Prosecution v. HATEGEKIMANA Charles, charged with the crime of giving false testimony in the Gacaca Appeal Court of Nyarugenge, where he gave this testimony in order to confirm that MUGIMBA Jean-Baptiste looted the beer

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store of BIGIRUMWAMI Aloys in 1994; that Court held that he is convicted of that offence.

Paragraphs seventeen (17) and eighteen (18) of the appealed judgment indicate that MUGIMBA Jean- Baptiste contended that the proof that he did not commit the crimes he is accused of is the collection of information from the Gacaca Courts that took place in Nyakabanda Sector which emphasized that he had no role in the killings perpetrated there, as well as the National Commission for the Fight Against Genocide, in the letter dated 26/1/2017 in response of the Prosecution’s letter, stated that it has no information about the crimes of genocide allegedly he committed in Nyakabanda Sector. He also argued that the indictment is based on a plot mounted by those who wanted to appropriate themselves his property, they accused him before Gacaca Courts for having looted their property, they provided false information against him.

In the paragraph fifty (50) of the appealed judgment, regarding the issue of whether MUGIMBA Jean-Baptiste held the meetings at his home in which the conspiracy to commit genocide was plotted, the High Court held that the defendant presented the elements of evidence including the witnesses and various documents including copies of letters written by the witness referred to as DAM to the Gacaca Courts admitting the charges and pleading guilty to crimes.

The appealed judgment indicates that from the paragraph fifty-three (53) to the paragraph seventy (70), the High Court examined the elements of evidence

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produced by the parties and explained the reasons that are valid or not, and again in the paragraph seventy-one (71), it concluded that, based on the provisions of Article 65 of Law n° 15/2004 of 12/06/2004 relating to evidence and its production, the testimony given by DAM and DFM must be relied upon to hold that on 8/4/1994 at MUGIMBA Jean-Baptiste's home a meeting was held in which a plan was made to kill the Tutsi from Nyakabanda Sector and its suburbs, the lists of Tutsi to be killed were made and MUGIMBA Jean-Baptiste requested for guns to be used in the killings; therefore, the statements of MUGIMBA Jean-Baptiste that the crimes he is accused of were committed by those who wanted to appropriate themselves his property and based on his position in the CDR party, are baseless.

The Court of Appeal finds that the fact that the High Court concluded that the allegations of MUGIMBA Jean-Baptiste that the charges against him were committed by those who wanted to appropriate themselves his property are baseless because it found at its discretion that the testimony of DAM and DFM is reliable regarding the meeting allegedly held at his home on 8/4/1994, in which was plotted the plan to kill Tutsi from Nyakabanda Sector and its suburbs and the lists of Tutsi to be killed were established, he requested for the guns to be used in the killings, such facts indicate beyond reasonable doubt that the Court did not disregard the elements of evidence composed of the above-mentioned documents he produced, even though he did not specifically indicate the analysis that was made for every

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element of evidence, so that they were not taken into consideration as he expected.

The Court of Appeal finds that, based on the above-mentioned explanations and positions, the High Court did not err in directly indicating the reason for which these elements of evidence are not reliable ; thus, this ground of appeal of MUGIMBA Jean-Baptiste is unfounded. ii. Regarding the exculpatory elements of evidence in favour of MUGIMBA Jean- Baptiste, disregarded by the lower Court

MUGIMBA Jean-Baptiste and his lawyers submit that the lower Court did not validate the testimony given by the defense witnesses namely DKM and DJM who indicated that the alleged time when he held a meeting at his home on 8/4/1994, they saw him in another place, one of them testified that he had seen him going to collect the rent, the other said that he saw him at Gitega at that time.

MUGIMBA Jean-Baptiste and his lawyers proceeded with alleging that the Court should not have confirmed that the testimony of DKM and DJM did not contradict the fact that the meeting of 8/4/1994 took place14, ignored the question of the mentioned hours, because the Prosecution says that the meeting took place between eight (8:00) and half past ten (10:30)A.M and those witnesses explained that on that day during those

14 See paragraph 60 of the appealed judgment.

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hours the accused was at Gitega and Nyamirambo at Mirongwine, that they showed that they did not know that the meeting took place, they assert that at the hours mentioned by the Prosecution they were with him, that he could not have been in the meeting that is said to have been held at his home during those hours. They also allege that he could not be in two places at the same time, and they find that the High Court should have been careful and carefully analyzed those statements, finding that they contradict the statement of witness DAM, to confirm that there is doubt that should protect the accused. They conclude that the High Court did not provide sufficient explanation (insufficient justification) to invalidate the testimony of DKM and DJM.

The Prosecution alleges that the statement that the High Court may have invalidated the exculpatory elements of evidence, is not irrelevant, because in paragraph fifty-nine (59) of the appealed judgment, the Court explained why the testimony of KIVUTA REGERO Innocent cannot be relied upon as it is not supported by other evidence or other testimony given before the Court , in paragraph sixty (60) of the appealed judgment, it also shows that the testimony of DJM and DKM does not exculpate MUGIMBA Jean-Baptiste.

The Prosecution also submits that in their testimonies, DKM and DJM indicated that they had no knowledge as to why the defendant had brought them to the Court, that is why in paragraph sixty (60) and paragraph sixty-two (62) of the appealed judgment, the High Court explained that their statements are not

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substantial to it because they do not bar the fact that there are other people who know that the meeting for which he is accused to have chaired on 8/4/1994 took place, and they also attended it. DETERMINATION OF THE COURT

The debate on this appeal ground of MUGIMBA Jean-Baptiste is based on determining whether the lower Court erred in analyzing the substance of the statements of witnesses DKM and DJM and invalidating them, but contradicting the charges emphasized by witness DAM because they indicate that he did not hold the meeting of 8/4/1994 because he was not at home at the alleged time.

As held in the judgment n° RPA/GEN 00004/2019/CA rendered on 7/5/2021, in Prosecution v. Bernard MUNYAGISHARI, it is not enough for the appellant to allege that in the appealed case there is an error based on the provisions of the law or there are errors in the law, he/she must also show explanations in the law that support his/her allegations, and show how the error made the decision to be invalidated. Regarding factual error, the Court, at appeal level, overturns the decision made only if the appellant has indicated that the assessment of the acts constituting the crime made by the lower Court led to miscarriage of justice15.

15 ‘’ Furthermore, it is easily understood from the terms of the aforementioned article 18 that it is not enough for the appellant to point out such an error of law, he must also present legal

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As held in the judgment n° RPAA/Gen 00002/2018/CA16 rendered by the Court of Appeal on 25/7/2023, while considering the issue of determining the reliability of the testimonies in such a way that they can be relied upon as evidence in the trial, the principle regarding testimony is that the witness submits to the Court what he/she witnessed or what he/she directly heard, that only the Court evaluates at its discretion the reliability or quality that should be attributed to them; that the precedent was observed in case n° RPAA 00050/2024/CA17 decided by this Court on 26/4/2024, in Prosecution v. SHEMA Ernest and in the judgment n° RPAA 00386/2021/CA rendered on 3/7/2024, in Prosecution v. KAYINAMURA Télésphore alias Maso and RYABONYENDE Cyriaque.

In paragraph fifty-seven (57) of the appealed judgment, the High Court, Specialized Chamber with jurisdiction over international and transnational crimes

argumentation in support of his thesis and demonstrate how this error of law invalidates the criticized decision. As for the error of fact, consistent case law from the Appeals Chamber of the International Criminal Tribunal for Rwanda establishes that erroneous findings of fact made by the first judge can only be overturned or modified at the level of appeal if a judicial error resulted. In addition, it indicates that the appellate court will only overturn the findings of the court of first instance when no judge of fact could reasonably have reached the same conclusion or when they are totally erroneous. Also, the appeal court must be careful not to lightly overturn the material circumstances of the offense as noted by the court of first instance in the contested decision”; MUNYAGISHARI Bernard case, Para. 14. 16 See judgment no RPAA/Gen. 00002/2018/CA rendered by the Court of Appeal on 7/25/2023, in Prosecution v.TWAHIRWA François.

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explained that the testimony of DAM must be relied upon as proof that on 8/4/1994, MUGIMBA Jean-Baptiste held a meeting at his home in which the plan to kill Tutsis was plotted, especially because this testimony is in line with his statements before the Rwanda Investigation Bureau and those on 7/12/2016 before the Prosecution.

In paragraphs sixty (60) and sixty-two (62) of the appealed judgment, the High Court, Specialized Chamber with jurisdiction over international and transnational crimes explained that the witnesses DJM and DKM presented by MUGIMBA Jean-Baptiste did not contradict the fact that there was a meeting that he chaired because their testimony is that on 8/4/1994 they saw him at their residences at Gitega and Nyamirambo at Mirongwine; the statements of DJM that he saw him at two (8:00') or three (9:00'), the statements of DKM that he saw him at four (10:00'), whereas his DAM states that he was with MUGIMBA Jean-Baptiste in the meeting between two (8:00') and four-thirty (10:30'), cannot lead to the invalidation of his assertion (DAM) that the meeting took place because it found that it is relevant and supported by other elements of evidence.

As above reiterated, after considering all the elements of evidence produced by the parties, the lower Court concluded that the testimony given by DAM and DFM must be relied upon to hold that on 8/4/1994 at MUGIMBA Jean-Baptiste’s home, there was a meeting in which a plan was made to kill the Tutsi from Nyakabanda Sector and its suburbs, the lists of Tutsi to be killed were

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made, and MUGIMBA Jean-Baptiste asked for guns to be used in the killings.

The hearing report of 9/10/2018 indicates that the witness DAM explained to the lower Court that on 8/4/1994, there was a meeting at MUGIMBA Jean- Baptiste’s home, which started at 8:00 and ended at 10:00 or 10:30 A.M.

As per the hearing report dated 30/9/2019, the witness DJM submitted to the lower Court that he was with MUGIMBA Jean-Baptiste at his parents’home in Gitega on 8/4/1994, at around 8:30 or 9:00 A.M, he came to say goodbye to his father, while the witness DKM told to the Court that he was with him at ten (10:00) at Mirongwine, Rwampara at the main bus stop, he came to claim from him the rent fees.

The Court of Appeal finds that MUGIMBA Jean- Baptiste's allegations, especially regarding the hours on which he allegedly held the meeting, the fact that DJM and DKM contradicted the statements of the Prosecution, confirmed by the witness DAM, that the lower Court should have concluded that the indictment is groundless because the contradiction between the prosecution witness and defense witness cast doubt on what he is accused of, that must benefit him, cannot be considered because this is not always the case, as the analysis of the testimony given is done at the discretion of the Court for pointing out the truthfulness of the facts and confirming that it is trustworthy or not.

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Based on what was mentioned in the previous paragraph, the Court of Appeal finds that, although the witnesses DJM and DKM contradicted the witness DAM, such does not necessarily mean that the lower Court had the task of invalidating the indictment, but the Court at its discretion, having examined the statements of those witnesses, found that the testimony of DJM and DKM is irrelevant because it only explained that on 8/4/1994, one saw him at Gitega, the other saw him at Mirongwine, and invalidated it, but it found DAM’s testimony trustworthy because it clearly explains how he was invited to the meeting on 8/4/1994 as a leader in the Nyakabanda Sector, he indicated the participants, the decisions made, including the civil defense for fighting against accomplices, making a list of those who should be killed and requesting for guns, thus, DJM's and DKM’ testimony cannot lead to invalidating DAM’s one.

The Court of Appeal thus finds that the allegations of MUGIMBA Jean-Baptiste that the lower Court erred in not considering the testimony of DJM and DKM contradicting that of DAM, it provided insufficient explanations, while the contradiction would have led to his acquittal because the doubt should benefit him, are groundless ; consequently, this ground of his appeal is irrelevant. iii. Regarding the unreliable testimony upon which relied the lower Court to convict MUGIMBA Jean-Baptiste of the crimes of which he was accused

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MUGIMBA Jean-Baptiste and his lawyers allege that the lower Court relied upon the statement of DAM as a witness to convict him of the crimes of which he is accused, but the testimony was not trustworthy. They explain that DAM stated that he was served with the invitation of MUGIMBA Jean-Baptiste at the Sector Office, but on 8/4/1994, which was the second day of the Genocide against the Tutsi, the situation was so risky in Nyakabanda that DAM could not come on that date, at thirty past seven (7:30') A.M to give out the papers to people who had lost their identity cards, and at that time no one could go out without being escorted by the soldiers, all work was stopped, this was confirmed in the case Prosecutor v. BAGOSORA Théoneste and others17 which was decided by the International Criminal Tribunal for Rwanda (ICTR). They proceed with explaining that DAM did not tell the truth because he told to the lower Court that he had talked about that meeting before in the Gacaca Courts, and in fact it was never mentioned as the lower Court found it out after conducting an investigation in the CNLG, and DAM, when being tried by Gacaca Courts, never stated that MUGIMBA Jean-Baptiste was among the people who committed genocide. They concluded that DAM does not tell the truth because MUGIMBA Jean-Baptiste could not have invited him to the meeting of 8/4/1994 as the Conseiller of Nyakabanda Sector, because he took office on 13/4/1994 after he was spotted as a prominent Interahamwe in the previous killings, this was shown in the case Prosecutor v.

17 See para. 2024 of Case No. ICTR-98-41-T

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RENZAHO Tharcisse that was decided by the International Criminal Tribunal for Rwanda (ICTR) 18.

Regarding the witness DFM upon whom relied the lower Court, MUGIMBA Jean-Baptiste and his lawyers state that his statements are not trustworthy because he asserted that he well knows MUGIMBA Jean- Baptiste, that he knew him in 1980, when he graduated from the University and came to work in BNR as an intern, yet MUGIMBA Jean-Baptiste started working there in 1982, and everything else DFM told to the Court, was what he was told by DAM and other workmates, not what he witnessed, which means that his testimony does not corroborate DAM's statements. They conclude that, to that effect, the lower Court should not have relied upon the statements of one witness to establish that MUGIMBA Jean-Baptiste committed the crimes of which he was convicted because his statements are not enough to disclose the truth about the facts or to establish that the accused was involved in the acts of which he is accused.

The Prosecution avers that the allegations of MUGIMBA Jean-Baptiste that the statements of DAM should be invalidated by the lower Court because he explained that, on 8/4/1994 in the morning, he had gone to the Sector office to give out identity cards while it was no longer possible, are groundless because, during the genocide, the government of Kambanda with a plan was established, they appointed workers who were assigned duties, even apart from those who were hunted down, the normal course of life continued, the work continued, the

18 See para. 466 of Case No. ICTR-97-31-T.

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markets were operating, the schools were attended, the killers and people who were not being hunted down continued their normal lives, even MUGIMBA Jean- Baptiste himself stated that himself and his family went out to different places (to Gitega and to Mirongwine), and to Gisenyi. It also submits that, apart from those facts, MUGIMBA Jean-Baptiste provided evidence that on 8/4/1994 at the Prefecture Headquarters, the Prefet RENZAHO Tharcisse held a meeting of Conseillers.

Regarding the fact that the lower Court had to invalidate DAM's testimony because on 8/4/1994, MUGIMBA Jean-Baptiste could not have invited him as Conseiller of Nyakabanda Sector because he took office on 13/4/1994, the Prosecution alleges that at that time DAM was the head of Kabuguru Cell, he replaced the Conseiller of Nyakabanda Sector who had fled, thus he invited him while he was acting Conseiller (interim period), and was finally approved on 14/4/1994.

The Prosecution submits that the allegations of MUGIMBA Jean-Baptiste that DAM's testimony should be invalidated because in the Gacaca Courts he did not mention him in the list of those who had committed genocide in Nyakabanda, and he did not mention the meeting of 8/4/1994 of which he is accused, should not be considered because in the Gacaca Courts, DAM was questioned about his personal involvement, that as explained in paragraphs sixty-seven (67) and sixty-nine (69) of the appealed judgment, the fact that DAM did not mention him, or did not mention the meeting of 8/4/1994, it does not mean that in case there is relevant evidence, he

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would not be prosecuted for the crimes he is accused of19, which also does not mean that the meeting was not held.

Regarding the statements of MUGIMBA Jean- Baptiste about the witness DFM who sustained that he knew him in BNR in 1980, while MUGIMBA Jean- Baptiste had come in 1982, the Prosecution alleges that if there were no flaws in the testimony he gave that would make it untrustworthy, because looking at the past years from the time he had met MUGIMBA Jean-Baptiste for the first time until today, are so many that it is possible to make mistakes or contradictions depending on the circumstances and the time elapsed, as established in various cases decided by the International Criminal Tribunal for Rwanda, such as in the case of MUHIMANA Michael20 and in the case of KAMUHANDA Jean de Dieu21 , due to the fact that DFM would be wrong about the year he saw him for the first time, while he was interrogated about thirty-six (36) years later, it is not surprising that he would be wrong about the year.

19 See para. 130 of the case ICTR-2000-61-T, GATETE Jean- Baptiste case, decided by the Trial Chamber of the International Criminal Tribunal for Rwanda. 20 Case N° ICTR-95-1B, The Prosecutor v. Mikaeli MUHIMANA, judgment of 28 April 2005, para. 65 “The Chamber is of the view that in situations where witnesses are called to testify on events which took place over a decade ago, discrepancies relating to the time and date of the event may occur”. 21 Case N° Case No. ICTR-99-54A-T, The Prosecutor v. Jean de Dieu KAMUHANDA, judgment of 23 January 2003, para.35 “The Chamber recognises, in addition, the time that had elapsed between the time of the events in question ad the testimonies of the Witness”.

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The Prosecution argues that the allegations of MUGIMBA Jean-Baptiste that the lower Court should not have relied upon the statements of one witness (DAM) to establish that MUGIMBA Jean-Baptiste had committed crimes of which he was convicted because what was stated by one witness is not enough to prove the truth about the facts or to confirm that the accused is involved in the acts of which he is accused, are irrelevant because for holding that the meeting of 8/4/1994 took place, the Court did not only rely upon the statements of DAM, but also it based on the statements of DFM who also confirmed it; as mentioned in the paragraphs sixty-five (65) and sixty-six (66), the Court analyzed their statements basing on the provisions of the law and the precedents set by the International Criminal Tribunal for Rwanda. DETERMINATION OF THE COURT

The debate on this appeal ground of MUGIMBA Jean-Baptiste are based on determining whether the explanations given by the lower Court in the appealed judgment, it erred in convicting him of the crimes of which he is accused after relying upon untrustworthy testimony, to that effect, the judgment should be quashed.

As above mentioned, in the judgment n° RPA/GEN 00004/2019/CA rendered on 7/5/2021, in Prosecution v. MUNYAGISHARI Bernard, it was decided that it is not enough for the appellant to allege that the appealed judgment is tainted with an error based on the

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provision of the law or there is an error of the law, he/she must also show legal explanations that support his/her allegations and show how the error would lead to the invalidation of the decision made. Regarding the factual error, the appellate Court reverses the decision made only if the appellant justifies that the assessment made by the lower court regarding the acts constituting the crime led to miscarriage of justice22, meaning that at the appeal instance, the appellant cannot reiterate the issues presented at the first level, while they were not considered, without indicating the errors made by the court of first instance by invalidating them and how those errors must be rectified23 .

22 ‘’Furthermore, it is easily understood from the terms of the aforementioned article 18 that it is not enough for the appellant to point out such an error of law, he must also present legal argumentation in support of his thesis and demonstrate how this error of law invalidates the criticized decision. As for the error of fact, consistent case law from the Appeals Chamber of the International Criminal Tribunal for Rwanda establishes that erroneous findings of fact made by the first judge can only be overturned or modified at the level of appeal if a judicial error resulted. In addition, it indicates that the appellate court will only overturn the findings of the court of first instance when no judge of fact could reasonably have reached the same conclusion or when they are totally erroneous. Also, the appeal court must be careful not to lightly overturn the material circumstances of the offense as noted by the court of first instance in the contested decision”; MUNYAGISHARI Bernard case, Para. 14. 23 “A party cannot simply repeat on appeal arguments which failed at first instance, unless it demonstrates that their rejection constituted an error such as to justify the intervention of the Appeals Chamber”, Case No. ICTR-01-73-A, The Prosecutor v. ZIGIRANYIRAZO Protais, Para. 12. In this sense, see also Case No. ICTR-01-74-A The Prosecutor v. François KARERA, Para. 11.

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As held in the judgment n° RPAA/GEN 00002/2018/CA rendered by this Court on 25/7/2023, in Prosecution v. TWAHIRWA François, the witness states before the Court what he witnessed or what he directly heard, that the Court evaluates at its discretion the reliability and the relevance that must be attributed to it; that considering the Court's jurisdiction to examine independently and at its discretion all the elements of evidence produced, considering the purpose of the law of evidence to determine the truth, the courts admit indirect or hearsay elements of evidence, this means that it is a principle that direct or indirect testimony is admitted if it is trustworthy.

As also held in the judgments nº RPA/GEN 00001/2021/CA24, nº RPAA/GEN 00004/2020/CA25 and nº RPAA/GEN 00009/2019/CA26 , and also decided in the judgment n° RPAA/GEN 00002/2018/CA27 and n°

24 See paragraph 27 of the case nº RPA/GEN 00001/2021/CA decided on 3/3/2023, The Prosecutor v. NTAGANZWA Ladislas. 25 See paragraph 125 of the judgment nº RPAA/GEN 00004/2020/CA decided on 8/4/2022, the Prosecutor v. BIRINDABAGABO Jean-Paul. 26 See paragraph 71 of judgment no RPAA/GEN00009/2019/CA rendered on 16/10/2020, Prosecution v. KABILIMANA Jean Damascène. 27 ‘’The testimonial discrepancy may be due to the time elapsed since the event witnessed had happened, it does not remove his credibility or its relevance", see paragraph 54 of the judgment n° RPAA/GEN 00002/2018/CA, in Prosecution v. TWAHIRWA François.

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RPA/GEN 00001/2024/CA28, self-contradiction or contradiction between the witnesses regarding the dates, hours, clothing, where the person was standing or in case the testimony the witness given before the Court is not consistent with what he/she stated before, is not considered a serious flaw that would invalidate the testimony, rather, considering the long time elapsed between the time of the killings and the time the testimony was given, these are minor flaws that do not undermine the relevance of the testimony because it is possible that the witness does not remember exactly what he/she testifies about. Also established in the case n° RPAA 00141/2022/CA29, self-contradiction on minor facts do not detract the quality of the provided testimony.

The hearing report dated 9/10/2018 indicates that the witness DAM told before the lower Court that since 1990 he was the leader of Kabuguru Cell, in 1993 he became the tax collector of Nyamirambo market, exercising both duties, and in that year he later became the President of MRND in that Cell. He also stated that he used to replace the Conseiller of Nyakabanda Sector when he was sick, that in 1994, on 14/4/1994, he was appointed as the Conseiller of Nyakabanda Sector until 3/7/1994 because the person he had replaced was accused of complicity with Inkotanyi. He also stated that when MUGIMBA Jean-Baptiste convened the meeting, he was

28 See paragraph 174 of the judgment n° RPA/GEN 00001/2024/CA, in Prosecution and TWAGIRAYEZU Wenceslas. 29 See paragraph 33 of that judgment, in Prosecution v. NTAMAHEREZO Iryamukuru.

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a substitute for the Conseiller, he had not yet taken office as a Conseiller.

In paragraph sixty-five (65) of the appealed judgment, the lower Court explained that the allegations of MUGIMBA Jean-Baptiste that the testimony of DAM cannot be relied upon to confirm that the meeting took place because he was the only one who confirmed it, are irrelevant, because, based on the provisions of Article 65 of the Law n° 15/2004 of 12/06/2004 relating to evidence and its production, there is no element that precludes to rely upon his testimony because of its relevance, pertinence and admissibility. Moreover, as above explained, this testimony was highlighted by DFM who was the Bourgmestre of Nyarugenge Commune.

That Court explained in paragraph sixty-six (66) of that judgment that the testimony of one witness can be relied upon, this was also explained in the cases decided by the International Criminal Tribunal for Rwanda such as in MUSEMA Alfred case whereby it explained that the Court can rely upon the testimony of one person if it finds that it is valid and the person who gave it is trustworthy30, as well as in the judgments of the International Criminal Tribunal for the former Yugoslavia, such as in HARADINAJ and others and TADIC whereby it established that the Court can rely upon the testimony of

30 “The Chamber may rule on the basis of a single testimony, provided that, in its opinion, this testimony is relevant and credible”, case no. ICTR-96-13-T, The Prosecutor v. Alfred Musema, January 27, 2000, para. 43.

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one witness even if it is for an important fact without the need for other evidence to support it31.

In paragraph sixty-seven (67) of the appealed judgment, the lower Court explained that the allegations of MUGIMBA Jean-Baptiste that there are the letters that DAM wrote to the Gacaca Courts confessing and admitting that he committed crimes, including the one written on 6/12/2007 to the President of the Gacaca Court of Rwezamenyo Sector and the one written on 21/9/2005 to the President of the Coordinating Council of the Gacaca Court of Kabuguru Cell without mentioning the meeting of 8/4/1994 that took place at his home, are irrelevant because in those letters he mentioned his personal actions, and the fact that he did not mention the meeting does not mean that it did not take place because the Court found that there was unquestionable evidence that it took place.

Also in paragraph sixty-nine (69), the Court explained that the fact that DAM did not impart information regarding the meeting of 8/4/1994 during his trial in Gacaca Courts, once he/she stated it, does not make his statement unfounded, even without stating that the meeting was not held and that he chaired it because when assessing the role of the accused person, it is his

31 See also judgment IT-04-84-A. Haradinaj et al, para. 219: “The Appeals Chamber recalls that a trial chamber may rely on the testimony of a single witness to formulate its findings. The testimony of a single witness, even on an essential fact, may be placed in the file without having to be corroborated” and Judgment Tadic, para. 65.

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personal actions, as well as the evidence presented that are taken into consideration. This is in line with what was established by the International Criminal Tribunal for Rwanda, in GATETE Jean-Baptiste and others wherein the Court pointed out that the fact that the witnesses have not spoken about GATETE Jean-Baptiste and others whereby the Court established that the fact that the witnesses did not mention him in Gacaca Court does not mean that he did nothing, that the fact that they did not mention him, may be due to the fact that they were not asked about him32.

The Court of Appeal finds that the allegations of MUGIMBA Jean-Baptiste that the testimony of DAM is unreliable because he stated that he was served with MUGIMBA Jean-Baptiste's invitation to the meeting on 8/4/1994 at work at the Sector office at half past seven (7:30) A.M, but on that date, the situation was so risky in Nyakabanda, that he could not go out to give out the

32 ‘''The defense also maintains that GATETE's name was not mentioned during the Gacaca trials held in Rwankuba from 2003, and that BBR and AIZ did not speak of the accused when they recounted during these trials the facts that occurred in Rwankuba in April 1994. The Chamber considers, however, that the fact that Gatete's name was not mentioned during these trials is of no importance. It is indeed pure hypothesis to assert that the non-mention of an accused in other legal proceedings necessarily means that he is exonerated. The Chamber also recalls that BBR and AIZ testified in Gacaca trials concerning different persons. It is therefore plausible that they would not necessarily have spontaneously provided information concerning GATETE and that they would not necessarily have been asked questions about it”, ICTR-2000-61-T, The Prosecutor v. GATETE Jean-Baptiste, March 31, 2011, p.43, para.130.

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papers to the people whose identity cards were lost, and at that time no one could go out without being escorted by soldiers, all activities were stopped, are not irrelevant because, even though in the case n° ICTR-98-41-T in Prosecutor v. BAGOSORA Théoneste and others, the International Criminal Tribunal for Rwanda established that on 7/4/1984, the Ministry of Defense informed the people about the death of the President of the Republic, and requested them to stay at home until further notice, such does not mean that no one went out on 8/4/1994, because MUGIMBA Jean-Baptiste himself admitted that on that date he arrived at Gitega and Mirongwine , even the witnesses NYABYENDA Jean-Marie, MURASANDONYI Augustin, MUGABIRE Jean de Dieu and DIM33 testified that since 7/4/1994, there had been meetings at Nyakabanda Sector Office, again as MUGIMBA Jean-Baptiste argued in the lower Court, based on the case ICTR-97-31-T Prefet RENZAHO Tharcisse, the latter held the meeting on 8/4/1994 at the Prefecture Headquarters, which means that some people could get out of their homes.

The Court of Appeal finds that the allegations of MUGIMBA Jean-Baptiste that the testimony of DAM is unreliable because he was not invited to the meeting on 8/4/1994 as a Conseiller of Nyakabanda Sector because at that time he was an unknown person in the leadership of Nyakabanda Sector, that he even became a Conseiller only from 13/4/1994, are unfounded because DAM never confirmed that he was invited to the meeting as a

33 See paragraphs 24, 25, 26, 27 and 28 of the appealed judgment.

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Conseiller of Nyakanda Sector, but as it was shown above, he had attended it as substitute for the Conseiller, and was finally approved on 14/4/1994, this is confirmed by the documents and the elements of evidence provided by MUGIMBA Jean-Baptiste himself. It also finds that the allegations of MUGIMBA Jean-Baptiste that he could not invite the witness DAM to the meeting because he was not known in Nyakabanda Sector leadership, are also irrelevant because since 1990, he has been the leader of Kabuguru Cell, in 1993 he has been Nyamirambo market tax collector, and occupied both positions and in that year he became the President of MRND in that Cell, and he also used to replace Nyakabanda Conseiller when he was sick.

The Court of Appeal finds that the statements of MUGIMBA Jean-Baptiste that the testimony of DAM are unreliable because in the Gacaca Courts he did not mention him in the list of those who committed the genocide in Nyakabanda, and he did not mention the meeting of 8/4/1994 of which he is accused, are irrelevant because as above evoked within the related legal positions, he did not show any flaws in the explanations provided by the lower Court by responding to this issue, and it is not allowed that at appeal level, for the appellant to refer back to his grounds that he presented at the first level, which were not upheld without pointing out the errors made by that the lower Court, by invalidating them and how those errors should be rectified.

Regarding MUGIMBA Jean-Baptiste's allegations that the testimony of DFM should not be relied upon by

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the lower Court to convict him of the crimes he is accused of, because it is not reliable as he stated that he had known him in BNR in 1980, yet the accused started working there in 1982, and everything else he stated, which he was told by DAM and the people he worked with, was not something he had witnessed, cannot be validated because, based on the precedents above mentioned, it is not surprising that after thirty-six (36) years, a person would be mistaken about the dates or the year when the facts he is talking about happened, and erring about those facts does not detract the testimony given because they are small things that do not affect the acts constituting the crimes the defendant is being prosecuted for, especially in this case when the age in question refers to the precedent set in relation to the hearsay shown above, there was no mistake made by the lower Court in relying upon the statements of DAM because given the authority of the Court to examine independently and at its discretion all the elements of evidence submitted, given the purpose of the law of evidence to find the truth, the Courts accept direct evidence or evidence based on hearsay if it is reliable.

Regarding the allegations of MUGIMBA Jean- Baptiste that the lower Court should not have relied upon the testimony of one witness, that is DAM, to hold that he committed the crimes of which he was convicted because the testimony of one person is not enough to hold that the accused is involved in the acts of which he is accused, the Court of Appeal finds that they are irrelevant because he contradicts himself and what he states is not true, because the Court also relied upon the testimony of witness DFM,

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and he does not show any flaws in the explanations given in the appealed judgment, and explains that the Court can rely upon the statements of one witness in confirming that the accused is involved in the charges against him when it finds them relevant and the witness is trustworthy.

Based on all the elucidations presented in the previous paragraphs, the Court of Appeal finds that MUGIMBA Jean-Baptiste did not prove that the lower Court erred in convicting him of the crimes of which he is accused based on unreliable testimony; therefore, his ground of appeal is unfounded. iv. Determining whether the lower Court did not observe the precedent set by the Supreme Court, leading it to make a judgment based on contradictory testimony

In his submissions, MUGIMBA Jean-Baptiste submits that DAM and NYABYENDA Jean-Marie Vianney are the witnesses presented by the Prosecution, who came to contradict each other before the lower Court, where both admit that they were in the same meeting, on 8/4/1994, which planned the killings that took place in Nyakabanda Sector, DAM alleging that it was held at MUGIMBA Jean-Baptiste’s home, whereas NYABYENDA Jean-Marie Vianney alleges that it took place at the general headquarters of Interahamwe from Nyakabanda, yet the lower Court ignored it, and disregarded all the other exculpatory elements of evidence provided by MUGIMBA Jean-Baptiste, relying on one part of DAM's testimony that is only incriminating, and asking the Court of Appeal to rely on what was

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established in the judgment RPAA 0034/10/CS decided by the Supreme Court on 8/11/201334, that the contradictions in the testimony invalidate it, where it explained that while the witnesses state in different ways the things they believe they saw at the same time, all their testimonies are not relied upon to confirm that the accused committed the crimes, thus, both witnesses (DAM and NYABYENDA Jean-Marie Vianney) contradict each other about the meeting that took place on 8/4/1994, their contradictions should not prejudice him as the defendant, but they detract the charge based on their statements incriminating him.

During the hearing, MUGIMBA Jean-Baptiste and his lawyers allege that they criticize the appealed judgment regarding the meeting of 8/4/1994, the lower Court held that DAM's testimony was reliable, but it was contradicted by other testimonies given by other witnesses presented by the Prosecution, namely NYABYENDA Jean-Marie Vianney, KIVUTA REGERO Innocent and IMANANIBISHAKA Jean Berchmans. They explained that the Court refused to accept their statements because, except for Mr. Jean- Marie Vianney who stated before the Court that the meeting was held at the headquarters of Interahamwe in Nyakabanda, others stated that they did not know about the meeting on 8/4/1994, so there is contradiction between their statements and that of DAM who confirmed that the

34 In that case, the parties were the Prosecution v. NSHIYIMANA Samuel.

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meeting on 8/4/1994 was held at MUGIMBA Jean- Baptiste’s home, thus validating the testimony of DAM in violation of the precedent set in case RPAA 0034/10/CS above mentioned.

The Prosecution avers that this ground of appeal is irrelevant because the case he is relying on does not match with the appealed case, explaining that in case No RPAA 0034/10/CS, the issue that was resolved is when two witnesses state that they witnessed the same thing at the same time and say it in different ways, however, regarding the witnesses DAM and NYABYENDA Jean- Marie Vianney, they are not contradictory, but from the investigation they talked about the meeting on 8/4/1994 in the same way, but later in the Court, NYABYENDA Jean- Marie Vianney changed his statement due to the money he was given by MUGIMBA Jean-Baptiste, that is the reason why the Prosecution appealed against changing the statements by NYABYENDA Jean-Baptiste.

During the hearing, the Prosecution alleges that since KIVUTA REGERO Innocent and IMANANIBISHAKA Jean Berchmans stated that they did not know of the meeting of 8/4/1994, and DAM stated that he knows of it, this is not a contradiction referred to and explained in the case decided by the Supreme Court. DETERMINATION OF THE COURT

The debated issue in this ground of appeal is to determine whether the lower Court did comply with the

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precedent set by the Supreme Court in the judgment No RPAA 0034/10/CS, validating the testimony of DAM and contradicts that of other witnesses namely NYABYENDA Jean-Marie Vianney, KIVUTA REGERO Innocent and IMANANIBISAKA Jean Berchmans, so that he was denied the right to due process of law.

As decided in the judgment No RPAA/Gén 00002/2018/CA35 rendered by the Court of Appeal on 25/7/2023, which examined the issue of determining the reliability of the testimonies of witnesses in such a way that they can be used as tangible evidence in the case, the principle regarding the testimony is that the witness submits before the Court what he witnessed or what he directly heard, that the Court alone evaluates the credibility or quality that should be given to it.

In the judgment RPAA 0034/10/CS rendered by the Supreme Court on 8/11/2013, as indicated in paragraph fourteen (14), the Court found that among the witnesses who were interrogated and who incriminate the defendant of having raped a child under fourteen (14) years of age, UMUBYEYI Francine, the mother of the child who was allegedly raped, stated that on the date when the facts happened in the evening, she asked where her child was, they told her that she was with the accused,

35 See case no RPAA/Gen. 00002/2018/CA decided by the Court of Appeal on 25/7/2023, in Prosecution v. TWAHIRWA François.

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she went back to the house, she also stated that later she called the accused and asked him to bring his child to her, the accused took him out while the child was dozing, that later she washed her, when she touched her genitals, the child screamed, she looked and saw there were small wounds and sperms, thus she immediately went to show it to the boss of the accused who is GATETE. Another witness interrogated is UGIRASE Goretti, who is the daughter of UMUBYEYI Francine, who said that they searched for the child and did not find the child out, the mother began to insult her, they saw the accused take her out from GATETE’s home and picked her up, that in the evening the mother noticed that her child was damaged when she bathed her and went to inform the defendant's mistress. This is different from what her mother states that she called Samuel to bring her (because she was sure that she was there).

As mentioned in paragraph fifteen (15), after examining the two statements, the Supreme Court explained that the statements of these witnesses are different because one says that she called the accused to bring the child, the other stated that the accused himself brought the child after she missed the child, that the statements made by these witnesses who narrate in different ways what they believe to have witnessed at the same time, the Court cannot rely on it to hold without any doubt that Samuel Nshimiyimana is guilty of the crime of which he is accused, especially that they did not state that they saw him committing a crime or that they heard from those who saw him, and also that GATETE, the

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defendant's boss, states that he had spent the whole day there and had not seen him damaging the child.

As mentioned in paragraph twenty-one (21) of the appealed judgment, DAM submitted before the lower Court that on 8/4/1994, he went to the Sector office early morning to give out papers to people who had lost their identity cards, he had arrived at around 7:30, a person called NKAMIRABASHAKA Sostène told to him that MUGIMBA Jean-Baptiste wanted him at his house, he went there at 7:35 A.M, where there were about twelve (12) different people in the house and about eighteen (8) others who were outside protecting those in the house, that around eight o'clock (8:00'), MUGIMBA Jean-Baptiste held a meeting with them and was closed at 10:30, apart from him who represented the Conseiller of Nyakabanda, there was no other Conseiller who attended the meeting.

As indicated in paragraph twenty-four (24) of the appealed judgment, NYABYENDA Jean-Marie stated before the lower Court that, to the best of his knowledge, there was no meeting held at MUGIMBA Jean-Baptiste’s house on 8/4/1994, that what he remembers and explained to the Prosecution, is that on such date at the bar owned by MUSONERA in Munanira Cell, Nyakabanda Sector where leaders of the CDR and MRND parties were gathering, the place also referred to as the Headquarters of Interahamwe, there was a meeting convened by NTAMFURAYISHYARI.

In paragraph fifty-five (55) of the appealed judgment, the lower Court ruled that, before the Prosecution, IMANANIBISHAKA Jean Berchmans alias

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BARANANIYE Sukari stated that he did not know of MUGIMBA Jean-Baptiste's involvement in the genocide, that all he knew was that the place where he lived was called the CDR place.

Again, in paragraph fifty-nine (59) of the appealed judgment, the lower Court ruled that before the investigation body, KIVUTA REGERO Innocent stated that he did not attend the meeting held by MUGIMBA Jean-Baptiste, that they never met in any other cases.

The assessment of the explanations given by the Supreme Court in the case No RPAA 0034/10/CS above mentioned, indicates that the Court dismissed the testimony because the witnesses stated in different ways the facts they saw at the same time, but in this case it is not the case because the witness DAM testifies that there was a meeting at the house of MUGIMBA Jean-Baptiste on 8/4/1994 when NYABYENDA Jean-Marie Vianney, KIVUTA REGERO Innocent and IMANANIBISHAKA Jean Berchmans alias BARANANIYE Sukari stated that they were not aware of the meeting, meaning that there was no difference in their statements about the facts they had witnessed at the same time.

Based on what is stated in the preceding paragraph, the Court of Appeal finds that the lower Court did not err in not complying with the precedent set by the Supreme Court in the case of the RPAA 0034/10/CS, because the legal issues in that case are not similar or different from what is in dispute in this case.

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The Court of Appeal finds instead that based on the above-mentioned precedent set by this Court in the case No RPAA/Gén 00002/2018/CA, the lower Court examined at its discretion the reliability or relevance that should be attributed to that testimony, looking for the truth of the facts, held that the testimony of DAM is reliable because he clearly explains how he was invited to that meeting on 8/4/1994 as a leader of Nyakabanda Sector, and shows those who attended it, the decisions made including fighting the accomplices, making a list of those who should be killed and asking for guns to be used to kill the Tutsis.

In addition, as confirmed by the French Court of Cassation, regarding contradictory testimonies, the judge evaluates their value, and if he/she finds them contradictory, he/she can hold that a certain testimony is reliable because it casts the truth in an indisputable way36. This means that it is not in all instances that the court invalidates the conflicting testimonies.

For all these reasons, the Court of Appeal finds that the ground of appeal of MUGIMBA Jean-Baptiste is unfounded. d. Determining whether the lower Court found MUGIMBA Jean-Baptiste guilty of conspiracy to

36 ‘’ (….), the judge can assess the value of the testimonies and choose, if they are contradictory, those which seem to him the sincerest’’, Crim., 27 mars 1931, B.C., n° 93; 13 janvier 1960, B.C., n°17, in Jean Pradel, Procédure pénale, 10e édition, Cujas, Paris, 2000, P. 680, n° 784.

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commit genocide and complicity in genocide without proving the specific intent to commit these crimes

In his submissions and his arguments, MUGIMBA Jean-Baptiste and his lawyers allege that the High Court erred in convicting him of conspiracy to commit genocide and complicity in genocide, yet it did not prove his specific intent to commit these crimes.

Regarding the conspiracy to commit genocide of which he was convicted, MUGIMBA Jean-Baptiste and his lawyers submit that the lower Court convicted him of that crime based on the acts of setting up roadblocks, making lists, requesting for and distributing guns, training the Interahamwe, but these acts themselves cannot be considered a crime but what was intended was the civil defense, according to what was stated by the witness DAM, instead of conspiracy to commit genocide, thus in convicting him of that crime, the High Court did not prove his special intent to commit the genocide, especially since the Court itself had held that he was not involved in any act of genocide. MUGIMBA Jean-Baptiste and his lawyers eexpound that in the various cases decided by the International Criminal Tribunal for Rwanda (ICTR) such as GATETE Jean-Baptiste case, MUSEMA Alfred case, NAHIMANA Ferdinand case et al., NYIRAMASUHUKO Pauline and others, it was explained that conspiracy to commit genocide is an agreement between at least (2) persons with the intention of committing genocide, that the agreement is the actual action that constitutes the conspiracy to commit genocide, that apart from the actual

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action that constitutes an agreement to commit the crime, the perpetrator must also have a specific intent to commit genocide, which is defined as a specific will to destroy in whole or in part a group of people or some of them who have in common the nationality, race, skin color or religion because of who they are, but that by convicting MUGIMBA Jean-Baptiste of that crime, the High Court did not comply with all that, to show without any doubt the agreement he made with others to destroy the Tutsi as a special intent. In conclusion, they request this Court that because the specific intent was not revealed, he would be acquitted as it happened in Minister NTAGERURA André case which was decided by the International Criminal Tribunal for Rwanda. Regarding complicity in the genocide, MUGIMBA Jean-Baptiste and his lawyers allege that the lower Court erred in convicting him based on the fact that DAM testified that in the meeting held at his home on 8/4/1994, MUGIMBA Jean-Baptiste was the one who requested to Colonel HAKIZIMANA Edouard for guns which were used to kill the Tutsi. MUGIMBA Jean- Baptiste and his lawyers explain that apart from the fact that he did not request for these guns, even if the act he is accused of had taken place, the lower Court did not convict him of that crime, because it is an act that is not considered a crime if it is not demonstrated that a person was killed with the distributed gun or it is demonstrated that these guns were requested and given for the purpose of committing genocide.

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The State Attorney contend that the ground that the lower Court did not reveal the specific intent of MUGIMBA Jean-Baptiste in the crimes for which he was convicted, has no basis, because the High Court did what it had to do, even in paragraph 82 of the appealed judgment, it established that such specific intent existed. The State Attorney explain that in NIYITEGEKA Eliezer case, in paragraph 423, and in MUSEMA Alfred case, the International Criminal Tribunal for Rwanda (ICTR) expounded that the fact that the people met and said that the killings were going to be carried out is punishable itself even if no people were killed, and in NIYITEGEKA Eliezer case (in paragraph 427), the Tribunal (ICTR) established that the fact that he went to the meeting of KAYISHEMA and RUZINDANA Obed which made decisions to give out weapons and attack people who had fled to Bisesero, that the meeting itself is punishable, that if linked to this case, the one who was in the meeting on 8/4/1994 stated that the purpose was to tell them that the plane of President HABYARIMANA was downed, that they should defend themselves, that in that meeting MUGIMBA Jean-Baptiste asked for guns, that the lists of those to be killed were made MUGIMBA Jean-Baptiste handed over some people to be killed, and indeed those people were killed, which is understandable that in distributing guns, setting up roadblocks and making lists of those to be killed, the purpose was to kill the Tutsi, where is a specific intent to commit genocide comes in as the High Court so established.

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The State Attorney also allege that MUGIMBA Jean-Baptiste became an accomplice in the genocide because he provided guns, and these guns were used to kill the Tutsi who were killed at different roadblocks as confirmed by witnesses DAM and DFM. DETERMINATION OF THE COURT The debated issue on this point is based on determining whether the lower Court did not establish the specific intent (basic intent) of MUGIMBA Jean-Baptiste to conspire to commit genocide and to be an accomplice in genocide, such that he should be acquitted.

i. In respect of conspiracy to commit genocide Article 20 of Law Nº 68/2018 of 30/08/2018 determining offences and penalties in general provides that " conspiracy to commit an offence is an agreement between two (2) or more persons to engage in the commission of an offence by any one or more of them ". Article 91 of that Law provides that: "the crime of genocide is killing members of the group, causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within the group and forcibly transferring children of the

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group to another group, done intentionally, with the aim of destroying in whole or in part the members of the group who share the same nationality, race, skin color or religion, because of who they are, either in time of peace or in time of war ". Article 93, subparagraph one (1°), of that Law provides that without prejudice to other provisions of this Law in relation to attempt, conspiracy and complicity, conspiracy to commit genocide is punishable by the penalties stipulated for the crime of genocide. Those provisions mean that conspiracy to commit genocide is considered a crime of genocide in such a way that the specific intent to commit these two crimes is the same, which means that the agreement between two (2) or more people to commit genocide is aimed at destroying in whole or in part, the group of people, who share the same nationality, race, skin color or religion, because of who they are, that would be done by one or more of them. The content of the previous subparagraph was also established in various cases decided by the International Criminal Tribunal for Rwanda (ICTR), whereby it explained that the intention (mens rea) constituting the conspiracy to commit genocide manifested in the agreement of many people, with the aim of committing the crime of genocide, that is, to destroy in

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whole or in part a group of people who share the nationality, race, skin color or religion37 . As indicated in the paragraphs 78, 79, 80, 81 and 82, based on articles 20, 93, subparagraph one (1°), of Law Nº 68/2018 of 30/08/2018 determining offences and penalties in general, on article 3 b. of the International Convention of December 9, 1948 on the Prevention and Punishment of the Crime of Genocide ratified by Rwanda on 12/2/1975, on various cases38 decided by the

37 '' Regarding the moral element constituting the offense of conspiracy to commit genocide, the Chamber notes that it resides in the concerted intention to commit genocide, that is to say to destroy, in whole or in part, a national, ethnic, racial or religious group as such. it thus appears to the chamber that the intention required for the crime of conspiracy with a view to committing genocide is ipso facto the intention required for the crime of genocide, i.e. the special fraud characteristic of the latter'', see paragraph 192 of the judgment n° ICTR-96-13-T MUSEMA Alfred case. “The agreement to commit genocide (….), is defined as a resolution to act on which at least two people have agreed, with a view to committing genocide. This agreement between individuals with the aim of committing genocide (or concerted resolution to act) constitutes the material element (actus reus); in addition, the individuals parties to the agreement must be motivated by the intention to destroy in whole or in part a national, ethnic, racial or religious group as such ethnic, racial or religious as such (the intentional element or mens rea)'', see paragraph 894 of the judgment n° ICTR 99-52-A of NAHIMANA Ferdinand and others. 38 Case n° ICTR-2000-61-T of GATETE Jean-Baptiste, case n° ICTR-96-13-T of MUSEMA Alfred, case n° ICTR n° ICTR-99-52-A of NAHIMANA Ferdinand et al., case n° ICTR-98-42-T of

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International Criminal Tribunal for Rwanda39 and on case n° RPA/Gen 0001/15/CS40 decided by the Supreme Court, the lower Court explained that MUGIMBA Jean- Baptiste convened a meeting at his home where an agreement was reached to kill the Tutsi of Nyakabanda Sector, and linking it to what has already been explained regarding the aforementioned legal provisions, the case law and the evidence, held that he is convicted of conspiracy to commit genocide provided for by Article 93, first subparagraph of Law nº 68/2018 of 30/8/2018 already mentioned. The Court of Appeal finds that, although the lower Court did not directly mention the special intent of MUGIMBA Jean-Baptiste to commit the conspiracy to perpetrate genocide, but the examination of paragraph eighty (80) of the appealed judgment regarding the special

NYIRAMASUHUKO Pauline et al and case n° ICTR-98-44D-T of NZABONIMANA Callixte. 39 The court of first instance pointed out that in those cases, the Court explained that conspiracy to commit genocide is an agreement between at least two (2) persons with the intention of committing genocide, that the agreement is the actual act that constitutes the crime of conspiracy to commit genocide. It also explained that apart from the actual action that constitutes the agreement to commit the crime, the perpetrator must also have the specific intent to commit genocide, which is defined as the specific intent to destroy in whole or in part a group of persons who have in common the nationality, race, skin color or religion, because of who they are. 40 Case n° RPA/Gen 0001/15/CS of BANDORA Charles, decided on 22/3/2019.

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intent to commit that crime, referred back to what was established in the case n° ICTR-98-44D-T Prosecutor v. NZABONIMANA Callixte case, decided by the International Criminal Tribunal for Rwanda, that the agreement to commit genocide is made with the aim (special intent) to destroy in whole or in part a group of people, who share nationality, ethnicity, skin color or religion, because of who they are, shows that it established indirectly (implicitly) that it found that in the meeting held at his home on 8/4/1994, MUGIMBA Jean-Baptiste agreed with others to kill the Tutsi with the aim of exterminating their ethnic group. Regarding the allegations of MUGIMBA Jean- Baptiste that what he is alleged to have agreed on in the meeting with others to set up roadblocks, to make a list of people who should be killed, to ask for and give out guns and to train the Interahamwe, which in itself cannot be considered a crime, that what was decided in that meeting, as stated by the witness DAM, should be considered as civil self-defense, as established in various cases decided by the International Criminal Tribunal for Rwanda, the Court of Appeal finds that even though MUGIMBA Jean-Baptiste wanted to show that even if the meeting had taken place, it would have been aimed at establishing civil self-defense, are unfounded because the lower Court indicated that the meeting on 8/4/1994 took place and the reasons to confirm that the agreement aimed at destroying the Tutsi. It also finds that given the time when the meeting was held, even though it was mentioned by the Hutu who opposed the MRND party, it does not rule out that the first intention was to destroy the Tutsi

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ethnicity, as explained in the case n° ICTR -98-41-T, the Court based on the statements of experts41. Regarding the allegations of MUGIMBA Jean- Baptiste that the High Court did not show beyond reasonable doubt the specific intention to commit genocide because it established that he did not participate in any act of genocide, the Court of Appeal finds that they can be validated because, with regard to conspiracy to commit genocide, in order to confirm that the person being prosecuted for it really committed it, it does not require that it should be proven that he personally committed one of the acts that constitute the crime of genocide, which was also what he International Criminal Tribunal for Rwanda explained in case no. ICTR-96-13- T42 .

41 Expert Alison Des Forges explained as follows: “that originally, civil defense was intended to respond to the situation created by the resumption of hostilities by the RPF in February 1993, which was entirely understandable. According to him, it changed over time by embracing the mission, after April 6, 1994, of perpetrating attacks against the Tutsis. 42 ‘’With regard to the crime of conspiracy to commit genocide, it is an agreement per se, in other words the process of the conspiracy, which is incriminated and not its result. The Chamber notes in this regard that, both in systems of Roman-continental inspiration and in those of Anglo-Saxon tradition, the crime of conspiracy is considered a formal, or inchoate, offense for which only the criminal act as such counts, and not the result of this act. He Chamber is of the opinion that the crime of conspiracy with a view to committing genocide is reprehensible even if it has not been carried out, that is to say even if the main offense, in this case genocide, has not been carried out. See

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Based on the preceding statements, the Court of Appeal finds that the allegations of MUGIMBA Jean- Baptiste that the court of first instance did not unequivocally establish his specific intention to commit genocide, are irrelevant. ii. Regarding the complicity in genocide In the case n° RP/GEN 00002/2017/HC/HCCIC, Prosecutor v. NTAMABYALIRO Agnès, the Court of Appeal based on the judgment of the International Criminal Tribunal for Rwanda in case n° ICTR-96-4-T rendered on 2/9/1998, in Prosecutor v. AKAYEZU Jean- Paul43 , explained that the intention to be an accomplice in the genocide is characterized when the person accused of being an accomplice in genocide assisted or prevented or supervised, or instigated willingly and deliberately, another person or other people to commit genocide, knowing for sure that that person or those people are committing genocide, even if the accused did not intend to destroy in whole or in part, a group of people who share the same nationality, race, skin color or religion, because of who they are. As indicated in paragraphs 177 and 178 of the appealed judgment, the lower Court based on various cases decided by the International Criminal Tribunal for

paragraphs 193 and 194 of the case the Prosecutor v. MUSEMA Alfred. 43 See paragraph 545 of Case No. ICTR-96-4-T of 2/9/1998.

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Rwanda44, explained that apart from the actual acts that constitute the crime of being an accomplice, while the crime is being committed, the accomplice must be helping the perpetrator of the main crime, which means that the accomplice knows exactly what he/she is doing, but it is not necessary that the accomplice has the intention to commit genocide as possessed by the person who committed the main crime, the Court of Appeal concluded that the fact that MUGIMBA Jean-Baptiste asked for and distributed guns that he knew they would be used to kill Tutsi, and finds him guilty of complicity in genocide Based on the indicated precedent and the explanations provided by the High Court, the Court of

44 “Regarding the moral or intentional element of complicity in general, the Chamber considers that it presupposes awareness on the part of the agent, at the time he/she acts, of the assistance he/she provides in carrying out the main offense. In other words, the agent must have acted with knowledge of the facts", see paragraph 180 of the case n° ICTR-96-13-A The Prosecutor v. MUSEMA Alfred. ‘’In cases of complicity, the required criminal will exist when the agent acts knowing that he/she is helping the main perpetrator or perpetrators to commit the material crime. It is not necessary for the accused to know the precise offense which is being committed by the main perpetrator or perpetrators, but he must have knowledge of the essential elements of the material crime and must have acted with the knowledge that he/she was thus supporting the commission of the material crime”, see paragraph 768 of the case n° ICTR-98-44A-T The Prosecutor v. KAGELIJELI Juvénal. ''There mens rea required for aid and abetment to commit genocide is the knowledge that the accomplice had of the genocidal intention which animated the main perpetrators”, see paragraph 364 of the case n° ICTR-96-I0-A na ICTR--17-A, The Prosecutor v. NTAKIRUTIMANA Elisaphan and NTAKIRUTIMANA Gérald.

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Appeal finds that the Court clearly showed that MUGIMBA Jean-Baptiste was an accomplice in the genocide because after showing the constituent elements of complicity in genocide such as providing tools like weapons or any other means that help to commit genocide, providing support or being close to the perpetrator of the crime of genocide in the preparations or caused the act to be committed (...)45 and to show that the perpetrator of complicity must be helping the perpetrator of the main crime knowing well what he/she is doing, it established that MUGIMBA Jean-Baptiste provided support of firearms that were later used to kill the Tutsi in Nyakabanda Sector including five (5) guns which he requested in the meeting on 8/4/1994, and which he gave out at the roadblocks knowing that they would be used to kill the Tutsi. Based on the abovementioned statements, the Court of Appeal finds that the lower Court did not err in not demonstrating the will of MUGIMBA Jean-Baptiste in committing the crime of complicity in genocide. For all those reasons, the Court of Appeal finds that the ground of appeal of MUGIMBA Jean Baptiste that the lower Court convicted him of the crime of conspiracy to commit genocide and complicity in genocide without establishing his specific intent to commit these crimes, is unfounded.

45 See paragraph 176 of the appealed judgment.

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B. Regarding the appeal of the Prosecution a. Determining whether the lower Court erred in disregarding the incriminating testimony of NYABYENDA Jean-Marie Vianney The Prosecution alleges that there was a misinterpretation of the facts, and that the Court of first instance ignored the relevance and the manner in which NYABYENDA Jean-Marie Vianney explained what he knew well, speaking clearly and he showed in his profile that he lived in Kabuguru Cell, where MUGIMBA Jean- Baptiste lived, which shows that he already knew him because they were neighbors; regarding the meeting on 8/4/1994, he explained that he attended it as a soldier and closely followed up the activities of Interahamwe and Impuzamugambi, whereby he states that the meeting was presided over by MUGIMBA Jean-Baptiste together with NTAMFURAYISHYARI, and submitted their requests to Col. HAKIZIMANA Edouard, who agreed to give them guns, sent his red Toyota Hilux car to bring them, they were given out, and in that meeting a decision was made to set up roadblocks in Nyakabanda, Nyamirambo, Biryogo and Gitega Sectors and a list of Tutsi who were to be killed was made. It also alleges that the fact that the lower Court held that the information he imparted in relation to the meeting of 8/4/1994 is confusing, and should not be the evidence in the case, due to the way he states that he made a statement before the Prosecution, and capitalize on it to invalidate it, is irrelevant because

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he was interrogated in accordance with the law, he answered clearly, showing the date of the meeting, the place where it took place, the participants and what was deliberated and signed without being forced to do it. The Prosecution proceeds with explaining that the findings of the Court of first instance that NYABYENDA Jean-Marie Vianney had found the written statement, are not true because there are details that the Prosecution would not have known if it had not been him who gave them, such as his particulars and what he did in his military service, having been an instructor of Interahamwe in Gabiro, etc.; that NYABYENDA Jean- Marie Vianney's testimony is not confusing as the Court of first instance confirmed, but he changed his statement before the Court, because of the bribe promised by MUGIMBA Jean-Baptiste as he himself admitted in his second interrogation where he stated that because of the harsh living conditions in prison, he accepted one hundred thousand Rwandan francs (100,000 Frw) from MUGIMBA Jean-Baptiste and had already received thirty thousand Rwandan Francs (30,000 Frw), and there were some witnesses questioned during investigation by the Prosecution who confirmed it, but the Court of first instance did not examine their statements to relate them to NYABYENDA Jean-Marie Vianney’s personal statements about the bribe he had received. The Prosecution proceeds with requesting the Court of Appeal to rely on the case n° RPA/GEN 0001/15/CS decided by the Supreme Court on 22/3/2019, in Prosecution v. BANDORA Charles, in which the

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witnesses BAZIGA Emmanuel and HAKIZIMANA de Gaulle explained that what they made statements before the Prosecution out of duress, the Court finds that statement unfounded because what they had stated is consistent with what others stated, and they did not provide evidence of what they stated under duress; and held that the testimony of NYABYENDA Jean-Marie Vianney is not confusing because he explains what he has knowledge of and matches what the other witnesses (DAM and DFM) explained, and what he stated before the Court by changing his statement without any evidence, in addition, he was characterized by self- contradictions where he first stated that what he had stated before the Prosecution was a result of duress, elsewhere he stated that he was not the one who said it, elsewhere he stated that he was confused, and he stated that he had answered what the Prosecution wanted, all this should not detract the relevance of what he had stated before the Prosecution. MUGIMBA Jean-Baptiste and his lawyers aver that the allegations of the Prosecution that NYABYENDA Jean-Marie Vianney's testimony before it is relevant, are unfounded because he was not questioned before the Prosecution, but he found the statement prepared and was tortured to sign it, before the High Court, he was questioned and told the truth, and that the legally valid testimony is the one given before the court. They also submit that it is not clear how the Prosecution would want the Court to rely on the statements it made with the help of its witnesses DAM and DFM who did not tell the truth, while it did not legally prosecute the crime

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of corruption it claims to have been committed, to prove that the contents of the statements of the witnesses it presented are true. MUGIMBA Jean-Baptiste and his lawyers proceeded with alleging that the statements of the Prosecution witnesses show that the crime of corruption was committed in 2018, while the witnesses DAM and DFM appeared before the Court to testify against MUGIMBA Jean-Baptiste, one on 9/10/2018 (DAM) and the other (DFM) on 19/12/2018 and on 17/1/2019, none of them told the Court about the crime of corruption in their testimony, and the Prosecution shows that these statements were made before they appeared before the Court, requested the Court of Appeal to confirm that the testimony that NYABYENDA Jean-Marie Vianney gave before the Court on 29/1/2019, 10/4/2019 and 16/5/2019 is the one legally accepted, to rely on it and to acquit MUGIMBA Jean-Baptiste because they testified in his favour. DETERMINATION OF THE COURT The debated issue is based on determining whether the testimony given by NYABYENDA Jean- Marie Vianney before the Prosecution is valid in such a way that it should have been relied upon to convict MUGIMBA Jean-Baptiste of the crimes he is accused of. Regarding the validity of a testimonial evidence, article 53 of Law n° 062/2024 of 20/06/2024 governing

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evidence provides that "the competent organ assesses the admissibility or inadmissibility and probative value of testimonial evidence. It is not bound by the number of witnesses. Instead, it mainly considers their knowledge of facts and sincerity of their declarations”. The provision of this article is consistent with what was decided in various cases decided by this Court such as the case n° RPAA/Gén 00002/2018/CA46 and the case n° RPAA 00050/2024/CA47, it is only the court that evaluates at its discretion the reliability or relevance to be attributed to the testimony given. This was also confirmed in the case n° ICTR-01-72-A decided on March 18, 2010 by the International Criminal Tribunal for Rwanda, Appeals Chamber, in SIMON BIKINDI v. Prosecution, where in its paragraph 119, it held that " In determining the weight to attach to the evidence of any witness, the Trial Chamber has a broad discretion to consider all relevant factors48 ”. In particular, regarding the testimony given by the witness at the level of the investigation, which is in conflict with the one given before the court, the Court of Cassation of Belgium held that the Court considers with discretion the probative value that should be attributed,

46 See case no RPAA/Gén 00002/2018/CA, decided by the Court of Appeal on 25/7/2023, Prosecution v. TWAHIRWA François 47 See case no RPAA 00050/2024/CA was decided by the Court of Appeal on 26/4/2024, Prosecution v. SHEMA Ernest. 48 SIMON BIKINDI v. Prosecution case, paragraph 119

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and determines which is reliable49 , which means that the Court can at its discretion hold that the testimony given by the witness at the level of the investigation is more reliable than the one given before the Court, or hold that the one given before the Court is more reliable than the one given at the level of the investigation. The case file indicates that the witness NYABYENDA Jean-Marie Vianney before the Prosecution on 9/2/2017, stated that on 8/4/1994, MUGIMBA Jean-Baptiste had convened a meeting at his home with the aim of planning and carrying out the killings of Tutsi, with the participation of different people including himself (NYABYENDA Jean-Marie Vianney) as a soldier who closely monitored the activities of Interahamwe and Impuzamugambi, Col. HAKIZIMANA Edouard who was the army commander in Nyamirambo Military operations zone, Lt. KANYAMUHANDA, Lt. MUSEKURA, Lt. BAZIRUWIHA, NTAMFURAYISHYARI Félix, cousin to President HABYARIMANA who was working in the Rwandan Embassy in Kampala, the former Conseillers of

49 ''The judge can legally decide that the statement of a witness heard without oath during the preparatory information presents more credibility than that made subsequently by him at the hearing, even under oath’’, Cass., 2 décembre 1974, J.T., 1975, P. 62 , in in Michel Franchimont, Ann Jacobs et Adrien Masset, op.cit., P. 1052.''When a witness has been heard several times, the trial judge sovereignly assesses in fact the faith which must be given to the successive statements of a witness and this, in accordance with the principle of the free appreciation of the evidence”, Cass., 18 février 1973, Pas., I, P. 580, Cass., 14 avril 1992, Bull., 1992, P. 732, in Henri-D. Bosly et Damien Vandermeersch, op.cit., P. 942.

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Nyakabanda, Biryogo, Gitega and Nyamirambo Sectors, the representatives of the Interahamwe and Impuzamugambi in those Sectors including NDAHAYO Godefroid of Nyakabanda, HABYARIMANA of Nyamirambo, there were also ZUBERI and SITAN of Gitega. In NYABYENDAJean-Marie Vianney’s testimony before the Prosecution he proceeded with saying that, in that meeting, it was decided to set up roadblocks in Nyakabanda, Nyamirambo, Biryogo and Gitega Sectors, a list of those who were to be killed was made, and guns were given by Col. HAKIZIMANA Edouard was given to the leaders who led the Interahamwe and the Impuzamugambi, distributed at the roadblocks, including the roadblock that was set up at the entrance of MUGIMBA Jean-Baptiste’s home, and was entrusted to the his houseboat called NKAMIYABASHAKA Sostène. He also stated that in that meeting MUGIMBA Jean-Baptiste said that whoever received the Tutsi's money to hide them should undergo the same fate as them, and he said that he needed to see the body of BIZIMANA Loti, an artist who was later killed by HABYARIMANA Frederick. His statement before the Prosecution indicates that after reading it, he agreed that it was consistent with what he stated, and signed it. The case file indicates that NYABYENDA Jean- Marie before the High Court, Specialized with jurisdiction over international and transnational crimes, changed his statement in favour of MUGIMBA Jean-Baptiste, stating

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that the meeting on 8/4/1994 was convened by NTAMFURAYISHYARI Félix and presided over by Col. HAKIZIMANA Edouard who was commander of the military operations zone of Kigali, that it was held at MUSONERA’s home at the Interahamwe Headquarters in Munanira Cell, Nyakabanda Sector where CDR and MRND leaders used to gather, that MUGIMBA Jean- Baptiste did not attend the meeting. He also stated that the statement before the Prosecution was already prepared and signed under duress50. As mentioned above, in DAM's testimony before the High Court, the Specialized Chamber with jurisdiction over international and transnational crimes, he stated that that he had attended the meeting held by MUGIMBA Jean-Baptiste on 8/4/1994 at his home, stating that the meeting was convened by MUGIMBA Jean-Baptiste and held at his home, attended by various people including Col. HAKIZIMANA, Dr. MUGENZI Joseph, MBARUSHIMANA Callixte, NIYIBIZI Alphonse, KIVUTA Regero Innocent, KIGINGI HABYARIMANA who was Interahamwe, RWAGAHUNGA Innocent who was the leader of Kabuguru Cell, SAKABAKA, Zacharie, MUDAHINDUKA Jean-Marie Vianney alias Zuzu, NYABYENDA Jean-Marie Vianney, TWAHIRWA Oreste and 8 other people who were outside guarding the occupants. He also stated that in that , the lists of Tutsi and their accomplices who were to be killed were made51.

50 See the hearing report dated 1/29/2019 of the appealed judgment. 51 See the hearing report 9/10/2018 of the appealed judgment.

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Also, in the case file there is the testimony of DFM given in the lower Court, confirming that on 8/4/1994 at MUGIMBA Jean-Baptiste’s home there was a meeting, that although he was not present but there were people who worked with him who told him that it had happened, he was told by the cell leaders called KABONEYE Théoneste and Nyirimanzi Grégoire. In his testimony, he states that the meeting was attended by many people including Col. HAKIZIMANA Edouard, Capt. NYAMINANI, Interahamwe whose name was HABYARIMANA alias Kigingi, NIYIBIZI Alphonse and others, that in the meeting, the lists of Tutsi who were to be killed were made, and the guns were given out in Nyakabanda and Nyamirambo Sectors52. As indicated in paragraphs 72 and 73 of the appealed judgment, the Court of first instance found that the information provided by NYABYENDA Jean-Marie Vianney regarding the meeting on 8/4/1994 should not be relied upon because what he stated before the Prosecution on 9/2/2017, before the Court he changed his statement stating that the meeting did not take place at MUGIMBA Jean-Baptiste's home on 8/4/1994, instead, it was held in Nyakabanda at the MUSONERA’s bar, which was called the Headquarters of Interahamwe, and the way he said about how the statement of his interrogation was made before the Prosecution is so confusing that it should not be relied on because on one hand he states that he was summoned by the Prosecutors and they showed him the prepared statement, after reading it they asked him to sign it and he agreed, on the other hand, he stated that they read

52 See the hearing report dated 12/19/2018 of the appealed judgment.

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it to him so that it would be sent to the General Prosecutor's Office where he signed it, elsewhere he stated that when they had prepared the statement for another person together with whom they committed crimes and changed his name to MUGIMBA Jean- Baptiste. The Court of Appeal finds that the allegations of MUGIMBA Jean-Baptiste that the statements of NYABYENDA Jean-Marie Vianney before the Prosecution should not be relied upon, because the valid testimony is the one given before the court, thus the one he gave before the Court of first instance is the one to be relied upon to acquit him, cannot be validated because based on the precedents shown above, in criminal cases all the evidence is accepted, that the evidence the parties debated in the trial can be relied upon in making a decision53, the Court may confirm that the testimony given by the witness at the level of the investigation is more reliable than the one given before the Court, or that the testimony given before the Court is also more reliable than the one given at the level of the investigation. The Court of Appeal finds that the allegations of MUGIMBA Jean-Baptiste that, as the Court of first instance confirmed, the statements of NYABYENDA Jean-Marie Vianney before the Prosecution were doubtful

53 See paragraph 95 of the case n° RPA 00016/2020/CA decided by the Court of Appeal on 22/3/2024, Prosecution v. ABAYISENGA Vénant and others.

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and cannot be relied upon, because he stated that before the Court that the testimony contained in the statements before the Prosecution he found it prepared and they asked him to sign it and he agreed, elsewhere he states that the statement was prepared for someone else together with whom they committed crimes, they changed the names to that of MUGIMBA Jean-Baptiste, which is not valid because as long as that witness did not show the Court of first instance the evidence confirming what he stated, his statements before the Prosecution should not be invalidated, which is also the finding of the Court. The Court of Appeal, based on the explanations in the previous paragraphs, on Article 53 of Law No. 062/2024 mentioned above and on the precedent set in the cases decided by this Court and in the case No. ICTR-01- 72-A also mentioned above, finds that the testimony of Mr. Jean-Marie Vianney before the Prosecution on 9/2/2017 regarding the meeting of 8/4/1994, should have been relied upon to confirm that on 8/4/1994, MUGIMBA Jean-Baptiste held a meeting at his home in which the plan to kill Tutsi was plotted, since that testimony matches well with that of DAM and DFM shown above, and it was also based on the case under appeal54. As for the Prosecution's arguments that NYABYENDA Jean-Marie Vianney changed his statement when he appeared before the Court because of the bribe promised by MUGIMBA Jean-Baptiste, the

54 See paragraphs 57 and 58 of the appealed judgment.

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Court of Appeal finds that based on the statements mentioned above, it is not necessary to come back to it. For all the reasons explained above, the Court of Appeal finds that the lower Court erred in invalidating the testimony of NYABYENDA Jean-Marie Vianney before the Prosecution on 9/2/2017, so this ground of appeal of the Prosecution is relevant. b. Determining whether MUGIMBA Jean- Baptiste was not eligible for a reduced penalty The Prosecution alleges that it requested that MUGIMBA Jean-Baptiste should be sentenced to life imprisonment, showing the reasons why it is the right penalty he should be sentenced to, including the fact that his acts seriously affected the Rwandan community because they caused the death of a large number of Tutsi from Nyarugenge Commune, especially in the Nyakabanda Sector, and the position and power that MUGIMBA Jean-Baptiste had over the members of the CDR and the local residents in general, enabled him to hold a meeting at home on 8/4/1994, and encouraged them to participate in the killings against the Tutsi, all of which should have been taken into account in determining the sentence to which he should be punished. The Prosecution proceeds with alleging that that the fact that the High Court did not hold about those reasons, the Court finds that it is a flaw that needs to be corrected, because even though the Court has the jurisdiction to reduce the sentence, it must also provide

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explanations, is different with its ruling in the appealed judgment that the defendant should have a reduced sentence because he did not challenge the Court, which is not enough, because there is a need for an explanation for someone who would understand that the life imprisonment requested was not appropriate; it requested the Court of Appeal that MUGIMBA Jean-Baptiste should be sentenced to life imprisonment as it had requested it because it had provided the reasons why it requested such penalty. MUGIMBA Jean-Baptiste and his lawyers allege that before the Court of first instance, the Prosecution requested that he should be sentenced to life imprisonment, indicating the reasons for its request, it also requested that regarding the reduction of the sentence and the basis for it, the Court decided to reduce the sentence and explained it as indicated in paragraph183 of the appealed judgment, that they do not notice why the Prosecution appealed against the sentence of twenty-five (25) years imposed to MUGIMBA Jean-Baptiste while it agrees that the court has the jurisdiction to reduce the sentence imposed to the accused, it indicates the legal basis; in addition, the appealed judgment was pending for five (5) years at the first instance level, the accused never refused to appear before the Court, he never opposed to the justice system, but he gave his explanations in a polite manner that was evident to everyone on all the allegations made by the Prosecution, they requested the Court of Appeal to ascertain that the appeal of the Prosecution lacks merit.

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DETERMINATION OF THE COURT The debated issue on this point is to determine whether the seriousness of the crimes for which the accused is convicted and the position and the power he had over the CDR and local residents in general, would have been a reason for not to reducing the sentence at the first level. As held in the case n° RPA 00060/2021/CA decided on 4/4/2022, the judge, in handing down the sentence, takes into consideration the life of the offender before committing it, when he was committing it and after committing it, he connects them with the crime committed, its seriousness and how it affected society, and the judge has the right to acknowledge in favour of the person prosecuted , the mitigating circumstances even though the crime of which he is accused is a felony or a misdemeanor because the law did not impose specific treatment on a certain offence55 . In that case, the Court explained that acknowledging the mitigating circumstances does not rule out the seriousness of the crime, which means that reducing the sentence of the convicted person does not reduce the seriousness of the crime he committed56. This

55 The Court of Appeal set the precedent explaining what should be construed in the articles 49 and 58 of the Law Nº 68/2018 of 30/08/2018 determining offences and penalties in general. 56 “Acknowledging mitigating circumstances refers to the evaluation of the sentence and does not take away anything from the seriousness

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means that the seriousness of the crime and the aggravating circumstances of the crime, do not bar the judge from acknowledging in the interest of the convicted person the mitigating circumstances of the crime, with the aim of sentencing him/her based on the manner in which the offence was committed and his personal life (individualization of the sentence), which is the reason why the legislator provided that the judge, in sentencing, must take into account the aggravating circumstances and the mitigating circumstances57 . Regarding the crimes MUGIMBA Jean-Baptiste was convicted of, the case file indicates that he was convicted of conspiracy to commit genocide and complicity in the genocide. These crimes are punishable as crimes of genocide according to Article 93, subparagraph 1 and subparagraph 5, of Law Nº 68/2018 of 30/08/2018 determining offences and penalties in general, as modified to date58. As for the punishment for

of the offense. It mitigates the sentence and not the crime. However, it should be noted that the mitigation of the sentence does not in any way reduce the degree of seriousness of the crime; the question relates more to forgiveness than to the means of justification." case n˚ ICTR-97-23-S, the Prosecutor v. Jean KAMBANDA, sentencing judgment, p.27, n˚56. 57 Article 49, paragraph two, of Law Nº 68/2018 of 30/08/2018 determining offences and penalties in general. Paragraphs 675 and 678 of the appealed judgment. 58 It provides that "without prejudice to other provisions of this Law in relation to attempt, conspiracy and complicity, the following acts are punishable by the penalties stipulated for the crime of genocide : 1º conspiracy to commit genocide; 5º complicity in genocide”.

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the crime of genocide, Article 92 of the aforementioned Law provides that the person convicted is sentenced to life imprisonment. As per the copy of the appealed judgment in paragraphs 183 and 184, in the lower Court, after reduction of the sentence, MUGIMBA Jean-Baptiste was sentenced to the imprisonment for a term of twenty-five (25) years instead of the life imprisonment provided for the crimes he was convicted of, including conspiracy to commit genocide and complicity in genocide, considering the circumstances surrounding these crimes and having facilitated the smooth administration of justice. The Court of Appeal finds that, even though the lower Court reduced the sentence in favour of MUGIMBA Jean-Baptiste at its discretion, it should not have held that he was sentenced to a reduced sentence provided by the Law because he facilitated the smooth administration of justice, without clearly mentioning the reasons for its decision, so this Court does not concur with what was held at the first level. The Court of Appeal finds that, even though the crimes of which he was convicted, were serious crimes, considering the power he had in the CDR, according to the Prosecution, based on the precedent set above, it does not prevent MUGIMBA Jean-Baptiste from having his sentence reduced if there is a mitigating circumstances. This Court finds that during the trial of MUGIMBA Jean- Baptiste in this Court and in the lower Court, MUGIMBA Jean-Baptiste had a good attitude that made the trial go smoothly because there was no adjournment in the trial

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due to him or any other reasons that delayed the trial but he always showed his willingness to plead his case for the trial to proceed smoothly, so he did not bother the Court. It finds that the fact that he did not bother the Court as above mentioned, is the reason why he should have a reduced sentence provided for by the Law, and be sentenced to the imprisonment for a term of twenty-five (25) years, instead of being sentenced to life imprisonment. For all those reasons, the Court of Appeal finds this ground of appeal of the Prosecution is unfounded. III. DECISION OF THE COURT Holds that the appeal filed by MUGIMBA Jean- Baptiste is unfounded. Holds that the appeal filed by the Prosecution is grounded in parts. Holds that the judgment no. RP/GEN 00002/2017/HC/HCCIC rendered by the High Court, Specialized Chamber with jurisdiction over international and transnational crimes on 17/3/2022, is sustained. Holds that the sentence of the imprisonment for a term of of twenty-five (25) years imposed to MUGIMBA Jean-Baptiste in the first instance, is sustained. Declares that the court fees are borne to the Public Treasury.