PROSECUTION v. MUTIGANDA ET AL.

# PROSECUTION v. MUTIGANDA ET AL.

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2025-02-14 - Case/document no.: RPA 00103/2021/CA - Collection: Court of Appeal

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PROSECUTION v. MUTIGANDA ET AL. [Rwanda COURT OF APPEAL - RPA 00103/2021/CA (Tugireyezu, P.J.) 14 February 2025] Criminal procedure – The offence of terrorism – Terrorist groups or affiliated organisations – Where it is established that a group already designated as a terrorist group is composed of other groups or associations pursuing the same objective, such groups or associations automatically acquire the status of terrorist groups. Criminal Procedure – The offence of terrorism – Membership of a terrorist group – Attempt – Scope of constitutive acts – Non-applicability of attempt – The constitutive acts of the offence of membership of a terrorist group include joining such an organization, consenting to become a member, commencing participation in its activities, or undertaking any act that increases its operational capacity. There is no attempt in relation to the offence of membership of a terrorist organization, since the execution of even any single constitutive act suffices to completely commit an offence. Facts: In April 2019, after Ndayisenga Vedaste had conspired with Haragirimana Abdallah and reached a common plan to join an irregular armed group of Kayumba Nyamwasa, he travelled to Nyanza District where he met with Niyonizeye Claude, Mutiganda Thierry, Nshimiye Eric, Maniraho Théoneste and Ndayisenga Claude, whom he incited to enlist in the said armed group, assuring them that a woman named Umugwaneza Shakira would facilitate their passage to Uganda. Following these discussions, upon returning home, Ndayisenga Claude immediately disclosed the matter to his parents, who in turn reported it without delay to the local administrative authorities, thereby triggering investigations by security and intelligence services. The Prosecution arraigned them before the High Court, Specialized Chamber with jurisdiction over international and transnational crimes, indicting the accused for the offence of inciting persons to join an irregular armed group, the offence of consenting to membership of a terrorist organization, and the offence of being an accomplice to the accused in relation to Umugwaneza Shakira. The Prosecution requested that the accused should be held guilty of the charges, Umugwaneza Shakira should be sentenced to the imprisonment for a term of fifteen (15) years and each of the other co-accused sentenced to the imprisonment for a term of twenty (20) years. The Court found that, with the exception of Umugwaneza Shakira, the accused were guilty of the charges and accordingly sentenced each of them to the imprisonment for a term of fifteen (15) years. The accused appealed against the judgment before the Court of Appeal, raising a preliminary objection that they ought to be released on grounds that the indictment had been brought by incompetent Prosecutor. They argued that the offence of forming an irregular armed group falls within the competence of the Prosecutor General or a Prosecutor duly delegated by him, in their case such provision had not been observed. They further contended that the offences of joining an irregular armed group and membership of a terrorist organization are mutually exclusive, submitting that their liability, if any, could only arise under the offence of membership of an irregular armed group. The Prosecution acknowledged that the two offences cannot be cumulative,

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but maintained that the accused had in fact committed the offence of membership of a terrorist organization. The Court held that the offence for which the accused were properly liable was that of membership of a terrorist organization. Upon further consideration of the grounds of appeal, Haragirimana argued that he had not committed the offence for which he was convicted, contending that Ndayisenga accused him due to personal enmity and that the other co-accused only repeated what they had heard from Ndayisenga, since he had never met them. The Prosecution responded that this defence was unfounded, pointing out that Haragirimana himself had admitted during the investigative stage that he had no prior conflict with Ndayisenga, and further that it was Haragirimana who informed Ndayisenga of the existence of Kayumba Nyamwasa’s irregular armed group in Uganda. Ndayisenga and Mutiganda, for their part, requested that the legal characterization of the offence be altered so that they would only be punished for the attempt to join a terrorist organization, arguing that although they had agreed to enlist in Kayumba Nyamwasa’s irregular armed group, they were apprehended before reaching their destination, and thus sought mitigation of sentence. The Prosecution submitted that their acceptance to join an irregular armed group affiliated with a terrorist organization constituted the full commission of the offence, since they were arrested while already prepared to depart, and that their sentences could not be further mitigated given that the trial court had already granted them the penalty reduction. Held: 1: Where it is established that a group already designated as a terrorist group is composed of other groups or associations pursuing the same objective, such groups or associations automatically acquire the status of terrorist groups 2. The constitutive acts of the offence of membership of a terrorist group include joining such an organization, consenting to become a member, commencing participation in its activities, or undertaking any act that increases its operational capacity. 3. An attempt cannot exist in relation to the offence of membership of a terrorist group, since the mere commission of any of the constitutive acts of that offence is sufficient to completely commit an offence. The appeal lacks merit; The accused are guilty of the offence of membership of a terrorist group.

Statutes and statutory instruments referred to: Law Nº 46/2018 of 13/08/2018 on counter-terrorism, article 18. Cases referred to: RPA 00047/2021/CA, Prosecution v. Maj (Rtd) Mudathiru Habib alias Mussa et al., rendered by the Court of Appeal on 14/03/2024; RPA 00016/2020/CA, Prosecution v. Abayisenga Venant et al., rendered by the Court of Appeal on 22/03/2024; RPA 00012/2019/CA, Prosecution v. Lt Mutabazi Joël et al., rendered by the Court of Appeal on 22/11/2019; RPA 00029/2022/CA, Prosecution v. Habineza, rendered by the Court of Appeal on 23/02/2024;

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RPA 00016/2020/CA, Prosecution v. Abayisenga Venant et al., rendered by the Court of Appeal on 22/03/2024; RPA 00016/2020/CA, Prosecution v. Abayisenga Vénant et al., rendered by the Court of Appeal on 22/03/2024; RPAA 00293/2021/CA, Prosecution v. Murindahabi Jean de Dieu, rendered by the Court of Appeal on 15/07/2022; RPA 00060/2021/CA, Prosecution v. Nsabimana Callixte alias Sankara et al., rendered by the Court of Appeal on 04/04/2022; RPAA 00086/2022/CA, Prosecution v. Munyanshoza Eric, rendered by the Court of Appeal on 24/03/2023. Judgment I. BACKGROUND OF THE CASE [1] In April 2019, Ndayisenga Vedaste alias Abdoullah, who served as muezzin in Nyagatare, was suspected of the fact that, after communicating with HaragirimanaAbdallah, he travelled to his place of birth in Nyanza District, Kibirizi Sector, Cyeru Cell, Muyebe Village, where he met with Niyonizeye Claude, Mutiganda Thierry, Nshimiye Eric, Maniraho Théoneste and Ndayisenga Claude. They discussed the matters relating to an irregular armed group of Kayumba Nyamwasa, including the ways to join and the routes to reach Uganda, assuring that a woman named Umugwaneza Shakira would facilitate their connection with a man named Kabila to reach Uganda without following recognized procedures. Following these discussions, Ndayisenga Claude reported to his parents that a young man intended to take him and others to Kayumba Nyamwasa’s terrorist armed group, prompting his parents to immediately report the matter to local authorities and they were tracked by the investigation organs. [2] Upon completion of the investigation, the Prosecution arraigned them before the High Court, Specialized Chamber with jurisdiction over the international and transnational crimes, charging Haragirimana Damien alias Abdallah and his co-accused with the offences of inciting persons to join an irregular armed group, the offence of consenting to membership of a terrorist organization, and the offence of being an accomplice to the accused in relation to Umugwaneza Shakira. The Prosecution prayed that the accused should be held guilty of the charges, Umugwaneza Shakira was sentenced to the imprisonment for a term of fifteen (15) years and each of the other co-accused was sentenced to the imprisonment for a term of twenty (20) years. [3] All the accused pleaded not guilty and, in their defence, requested to be given justice, asserting that they did not participate in the offences for which they were charged. [4] In the judgment No RP 00001/2020/HC/HCCIC, rendered on 18/11/2021, the High Court, Specialized Chamber with jurisdiction over international and transnational crimes, found that there were sufficient elements of evidence to convict the accused, including:  The statements of Ndayisenga Vedaste alias Abdoullah recorded during the Investigation on 29/11/2019;  The testimony of Ndayisenga Claude;

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 The statements of Mutiganda Thierry during the Investigation. Relying on those elements of evidence, the Court held that Haragirimana Damien alias Abdallah, Ndayisenga Vedaste alias Abdoullah, Mutiganda Thierry, and Nshimiye Eric were guilty of membership of a terrorist group. It further held that Ndayisenga Vedaste alias Abdoullah, Mutiganda Thierry and Nshimiye Eric were guilty of voluntarily consenting to join or being recruited into an irregular armed group. Haragirimana Damien alias Abdallah and Ndayisenga Vedaste alias Abdoullah were also convicted of the offence of incitement to join an irregular armed group. However, as the acts committed did not cause significant harm—despite the malicious intent toward the security of Rwanda and its population, and because no adverse consequences materialized—the Court mitigated their sentence, sentencing each to the imprisonment for a term of fifteen (15) years. The Court further found that Umugwaneza Shakira, Niyonizeye Claude, and Maniraho Théoneste were not guilty of the charges against them, as there were no conclusive elements of evidence proving their involvement, and ordered their immediate release upon the pronouncement of the judgment. [5] Haragirimana Damien alias Abdallah, Ndayisenga Vedaste alias Abdoullah, Mutiganda Thierry and Nshimiye Eric, being dissatisfied with the ruling of the judgment, lodged an appeal before the Court of Appeal under Case Nº RPA 00103/2021/CA. The hearing was initially scheduled for 13/11/2024 but was not held on that date due to the illness of one of the judges and was adjourned to 14/11/2024. At the hearing, Mutiganda Thierry was assisted by Counsel Rugamba Jules, Haragirimana Damien alias Abdallah was by Counsel Nshuti Salim, Ndayisenga Vedaste alias Abdoullah by Counsel Ntazika Nehemie and Nshimiye Eric by Counsel Mukakalisa Jeanne d’Arc, while the Prosecution was represented by Ninahazwa Roselyne, National Prosecutor. The proceedings were closed and the parties were informed that the judgment would be delivered on 27/11/2024. On that date, however, the Court held that before rendering its decision, the parties had to provide clarification regarding the classification of the offences for which the accused had been convicted, and accordingly ordered the reopening of the proceedings on 05/12/2024 at 9:00 a.m. On the said date, the hearing could not proceed as some of the parties failed to appear, and it was further adjourned to 09/12/2024, with legal representation maintained as previously. [6] On 09/12/2024, the hearing resumed, the Court posed various questions to the parties, including whether the military wing of the RNC under Kayumba Nyamwasa constituted a terrorist organization, and whether the offence of membership of a terrorist organization could be cumulated with that of membership of an irregular armed group, given that the accused had been convicted based on the same conduct. The accused and their counsels raised a procedural objection, arguing that the accused ought to be released immediately as they had been prosecuted unlawfully, without the direct prosecution by the Prosecutor General or by a competent prosecutor duly authorized by him/her, as required under Article 200 of Law No 68/2018 of 30/06/2018 determining offences and penalties in general. They contended that, since the prosecution was not instituted by the Prosecutor General nor with his authorization, the accused should be released forthwith, as had been decided in the judgment No RPA 00029/2022/CA, Prosecution v. Habineza, rendered by the Court of Appeal on 23/02/2024. On that date, the case was adjourned to 07/01/2025 as the Defence and the Prosecution had requested the time to conduct research on the raised issues. On 07/01/2025, the hearing proceeded but was not concluded, and the matter was adjourned to 27/01/2025, at that date, the proceedings were formally closed.

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[7] In their appeal submissions and pleadings, Haragirimana Damien alias Abdallah and his counsel contended that the Trial Chamber erred in convicting him without adducing evidence beyond reasonable doubt, and requested his acquittal on the grounds that the conviction was improperly based solely on the statements of Ndayisenga Vedaste alias Abdoullah, whose the testimony, as they argued, was tainted by personal animosity and marked by inconsistencies and contradictions. They further submitted that the Court wrongly found that Haragirimana had incited Ndayisenga Vedaste alias Abdoullah to commit the offences in question through YouTube, whereas he neither owned a YouTube channel nor was there any evidence proving that such communications concerning the alleged offences had taken place. Additionally, in a supplementary appeal brief dated 04/12/2023, Haragirimana Damien alias Abdallah petitioned the Court to order an inquiry in order to establish his good moral character and to verify the existence of personal disputes he had with Ndayisenga Vedaste alias Abdoullah, which he claimed were the sole basis for the latter’s incriminations. [8] In their appeal submissions and pleadings, Ndayisenga Vedaste alias Abdoullah and his counsel argued that, although he maintained a plea of not guilty during trial, he had, during his interrogation by the Investigation Bureau, confessed to the offence and provided detailed explanations of how it was committed. They submitted that such confession ought to have been considered as a mitigating circumstance warranting a reduction of sentence, and that he should instead be sentenced to the imprisonment for a term of three (3) years and six (6) months equivalent to one-half of the seven (7) years provided as the minimum penalty for the offence of voluntarily joining or being recruited into an irregular armed group, and that the sentence should further be suspended. They also requested that the offence should be requalified as an attempt to become a member of a terrorist group, on the basis of the fact that their involvement progressed beyond mere discussions and moved towards the practicalities of an armed group operating outside Rwanda. [9] In their appeal submissions and pleadings, Mutiganda Thierry and his counsel requested a reclassification of the offence for which he was convicted, he should be found guilty only of attempt to become a member of a terrorist organization, and further sought a reduction and suspension of the sentence imposed. They argued that although he denied the charges during trial, he had previously admitted the offence during interrogation by the Investigation Bureau, and that such admission should be accepted and considered as a mitigating factor which should serve for being imposed a lesser sentence that would enable him to reintegrate into normal life, particularly given that he had no prior record of misconduct. [10] In their appeal submissions and pleadings, Nshimiye Eric and his counsel contended that the only offence he acknowledged was the failure to disclose information, as did Ndayisenga Claude, because he joined his co-accused while they were discussed matters relating to an armed group and he heard their discussions, he denied the offence of membership of terrorist group, since he never harbored any intention of joining it. Accordingly, Nshimiye Eric and his counsel prayed the Court to reduce the sentence imposed on him for the admitted offence of failure to disclose information as did Ndayisenga Claude and to suspend the execution of the penalty previously imposed to him. [11] In its submissions, the Prosecution stated that the grounds of appeal raised by all the accused persons were unfounded, since the trial court had thoroughly explained the evidence on which its decision was based. It nevertheless indicated that, although the appellants’ arguments

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lacked merit, Ndayisenga Vedaste alias Abdoullah, Mutiganda Thierry and Nshimiye Eric could again benefit from the sentence reduction pursuant to Article 2 of Law No 059/2023 of 04/12/2023 amending Law No 68/2018 of 30/08/2018 determining offences and penalties in general and accordingly should be sentenced to the imprisonment for a term of seven (7) years and six (6) months, representing one-half (½) of the fifteen (15) years originally imposed, this being the minimum penalty prescribed for the offence of membership of a terrorist group, which is the most serious of the offences for which they were convicted. Concerning the request for the suspension of the sentence, the Prosecution submitted that it was not applicable, since the penalty imposed exceeded the five-year limit required for suspension. During the hearing, the Prosecutor requested for the revision of the submissions drawn up by the Prosecution about the penalty reduction for the accused and prayed the Court to consider his statements before the Court, thus arguing that the accused should not benefit from any further sentence reduction, given that they had already benefited from mitigation, and the penalty imposed was proportionate to the gravity of the offence they committed. [12] During the hearing, the accused and their legal counsels raised a preliminary objection, seeking their release on the grounds that they had been prosecuted in contravention of the law. The Prosecution, however, submitted that this objection was unfounded, noting that Article 200 of Law Nº 68/2018 of 30/08/2018 determining offences and penalties in general does not require that such authorization should be in written form, as it may be either written or oral. Accordingly, since the Prosecutor General did not object to their prosecution, this implied that the required authorization had effectively been granted. [13] Basing itself on the foregoing submissions, the Court finds that the issues requiring determination in the present case are the following: 1. Whether the preliminary objection raised by the accused, seeking their release on the grounds that they were prosecuted in contravention of the law, is founded; 2. Whether Haragirimana Damien alias Abdallah was convicted without conclusive elements of evidence establishing his guilt; 3. Whether the classification of the offence for which Ndayisenga Vedaste alias Abdoullah and Mutiganda Thierry were convicted should be changed and they should be convicted for attempt to membership of a terrorist group; 4. Whether the sentence imposed on Ndayisenga Vedaste alias Abdoullah and Mutiganda Thierry should be further reduced and suspended; 5. Whether Nshimiye Eric was properly convicted of the offence of membership of a terrorist group notwithstanding his claims of non-participation, and whether he should benefit from a reduction of sentence in respect of the admitted offence of failure to disclose information. II. ANALYSIS OF LEGAL ISSUES II.1. Whether the preliminary objection raised by the accused, seeking their release on the grounds that they were prosecuted in contravention of the law, is founded

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[14] The accused and their counsels raised a preliminary objection seeking their immediate release on the grounds that they were unlawfully prosecuted, since the prosecution was not initiated by the Prosecutor General nor by a person expressly authorized by the latter, as required under Article 200 of Law No 68/2018 of 30/06/2018 determining offences and penalties in general. They argued that, because the prosecution was not conducted by the Prosecutor General or upon his express authorization, their continued prosecution was unlawful and they ought to be released immediately, relying on the precedent set in the judgment No RPA 00029/2022/CA, rendered by the Court of Appeal on 23/02/2024, for the Prosecution v. Habineza Olivier1. [15] The accused and their legal counsels further submit that the indictment filed by the Prosecution ought not to have been admitted at first instance pursuant to Article 200, paragraph 3, of the Law determining offences and penalties in general, since the offences with which they are charged—namely, inciting others to join an irregular armed group, and deliberately agreeing to be hired or recruited to join an irregular armed group—cannot be prosecuted or brought before a court unless by the Prosecutor General or by a person duly authorized by him. They therefore stated that they should be released and the Prosecution should indict them anew if it deems it necessary. [16] The accused and their counsels submit that Article 200 of the aforementioned Law provides that, for a person to be prosecuted for the offence of forming or joining an irregular armed group, such prosecution must either be initiated or expressly authorized by the Prosecutor General or the Military Prosecutor General, depending on the alleged offender. They further contend that, although the Law does not expressly prescribe the form in which such authorization must be given, it is evident that such authorization must be in writing, as is consistently the practice whereby such instruments are issued in written form. Consequently, they argue that the offences for which the accused stand charged could only lawfully be prosecuted if the proceedings had been initiated by the Prosecutor General personally or upon the basis of his written authorization. [17] The accused and their counsels further concur that Article 200 referenced above does not apply to the offence of membership of, or joining, a terrorist group. They contend, however, that the RNC military wing cannot be classified as a terrorist organization, since it has never been included on any official list of terrorist groups. They acknowledge only that they had joined an irregular armed group, but deny that this amounted to joining a terrorist organization. They further argue that, in line with established jurisprudence, the offence of forming or joining an irregular armed group cannot be combined with that of membership of a terrorist organization, where both charges arise from the same set of acts. [18] The State Attorney submits that the argument presented by the accused and their counsels that the prosecution was unlawfully conducted, on the basis that it was not initiated by the Prosecutor General personally nor upon his express written authorization, is unfounded. She argues that Article 200 of the Law determining offences and penalties in general does not stipulate that such authorization must be in written form, since the authorization may be either written or

1 In that case, the Court of Appeal held that the indictment lodged at first instance ought not to have been examined on the merits, since the Prosecutor General had not granted authorization to investigate and prosecute Habineza Olivier for the offence of formation of an irregular armed group or joining it. For all these reasons, the Court of Appeal found that the indictment had been brought in contravention of the law, and accordingly all proceedings were to be nullified, with Habineza Olivier to be released immediately upon pronouncement of the judgment, and the Prosecution ordered to comply with the requirements of the law. See paragraphs 16 and 17 thereof.

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oral. Accordingly, the fact that the indictment was lodged by the National Prosecutor suffices to demonstrate that the Prosecutor General had approved the prosecution, given that he neither opposed nor halted the proceedings. The Prosecution further emphasizes that this provision must be interpreted in light of national security interests, and that the very act of instituting proceedings indicates that the Prosecutor General had either consented to or authorized the prosecution. [19] With regard to the case No RPA 00029/2022/CA decided on 23/02/2024 by the Court of Appeal for the Prosecution v. Habineza, the advocates of the accused aver that it established a precedent whereby the Prosecutor General alone is vested with the competence to grant such authorization. However, the State Attorney submits that the Court of Appeal ought to revisit this issue and provide a proper interpretation of Article 200 of the said Law, aligning it with the intent of the Legislator. She contends that the previous holding was premised on a flawed analysis and therefore constituted an error, which should not continue to serve as binding precedent in the interest of justice. Accordingly, she requests to the Court to hold that the filing of the case by a National Prosecutor duly empowered by the Prosecutor General was done in full conformity with the law. [20] With regard to the statements of the accused and their counsels that the RNC military wing of Kayumba Nyamwasa does not constitute a terrorist organization on the ground that it does not appear on any official list of terrorist groups, the State Attorney submits that such an argument is unfounded, since several judicial precedents have already affirmed that the RNC qualifies as a terrorist organization. She further explains that in the case No RPA 00047/2021/CA, decided on 14/03/2024 for the Prosecution v. Rtd Major Mudathiru et al., on the paragraph [117], this Court held that the P5 coalition was a terrorist organization, given its manifest intent to carry out terrorist acts, demonstrated by enlisting the fighters who underwent the military training and deployed in terrorist operations. Similarly, in the case No RPA 00016/2020/CA, decided on 22/03/2024, the Prosecution v. Abayisenga Venant et al., on the paragraph [178], the Court reaffirmed the reasoning in the judgment No. RPA 00047/2021/CA, holding that P5 constituted a terrorist organization. The Court further noted the existence of an agreement establishing a coalition of opposition political parties known as Platform Five (P5), signed in Brussels on 14/08/2015, comprising five parties, namely: Amahoro PC, FDU Inkingi, PDP-Imanzi, PS-Imberakuri, and RNC. Accordingly, since the RNC was a constituent member of P5, which was judicially recognized as a terrorist organization, it logically follows that the RNC itself must also be considered as a terrorist organization, as its members were actively engaged in the terrorist activities carried out under the P5 structure, therefore, it is evident that the constituent groups are terrorist groups. [21] The State Attorney further submits that additional evidence confirming that the RNC is a terrorist group arises from the case No RPA 00012/2019/CA, wherein the parties were the Prosecution v. Gatabazi Joel et al., from paragraph [103] to [105], the Court analyzed the activities of Nshimiyimana Joseph and found evidence establishing his collaboration with the FDLR and the RNC in carrying out acts of terrorism. Consequently, given that the RNC was a constituent part of P5, itself judicially recognized as a terrorist group, and that the RNC independently was found to have engaged in terrorist activities, there exists sufficient and unequivocal basis to affirm that the RNC is a terrorist group.

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[22] Regarding the statements of the accused that the offence of forming or joining an irregular armed group cannot be cumulated with that of membership of a terrorist group based on the same acts, the State Attorney avers that she concurs with the accused because in the judgment No RPA 00060/2021/CA, on the paragraph [97], and in the judgment No RPA 00047/2021/CA, on the paragraph [134], the Court clarified that once an armed group is recognized as a terrorist group, it is not possible to prosecute it for the offence of joining an irregular armed group, rather, the accused can be prosecuted solely for membership of a terrorist group in consideration of the fact that the group pursues terrorist acts as defined under Articles 2, 18, and 19 of Law No 46/2018 of 13/08/2018 on counter terrorism. [23] In conclusion, the State Attorney submits that in case the Court could find that the objection raised by the accused is well-founded on the ground that the authorization was not granted in accordance with Article 200 referred to above, the accused should not be released as requested, rather, the Court should assess whether the acts for which they are prosecuted constitute the offence of membership of a terrorist group. She argues that the provisions of Article 200, on which the accused based their objection, are not applicable to the offence of membership of a terrorist group, which remains among the charges established against them. Consequently, even if the offences of voluntarily joining or being enlisted into an irregular armed group, as well as that of inciting others to join such a group, were to be excluded, this would not preclude the prosecution of the accused for membership of a terrorist group. DETERMINATION OF THE COURT [24] The debate is based on determining whether the objection raised by the accused, seeking their release on the ground that they were prosecuted in violation of the law, is well-founded. In order to assess this objection, it is necessary first to determine the following:  Whether the military wing of the RNC of Kayumba Nyamwasa, which the accused intended to join, constitutes a terrorist group or merely an irregular armed group, and whether it was therefore necessary to obtain authorization from the Prosecutor General to prosecute the accused, such that they should be released because no authorization of the Prosecutor General, as required under Article 200 of Law No 68/2018 of 30 June 2018 determining offences and penalties in general, was issued;  Whether the acts for which the accused are prosecuted, namely membership of a terrorist group, may be cumulated with the offence of forming or joining an irregular armed group, such that the accused could be prosecuted and convicted for both charges. a. Whether the military wing of the RNC of Kayumba Nyamwasa, which the accused intended to join, constitutes a terrorist organization or an irregular armed group, and whether it was therefore necessary to obtain authorization from the Prosecutor General to prosecute the accused, such that they should be released because no authorization of the Prosecutor

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General, as required under Article 200 of Law No. 68/2018 of 30 June 2018 determining offences and penalties in general, was issued. [25] In order to determine whether the accused were prosecuted in a manner contrary to or in accordance with the law, such that it was necessary to obtain authorization from the Prosecutor General to prosecute them, it is first essential to establish whether the RNC, which the accused intended to join, constitutes a terrorist organization or an irregular armed group. [26] As noted above, the accused argue that the RNC is not a terrorist organization because it does not appear on the list of terrorist groups, but rather is an irregular armed group. The Prosecution, on the other hand, maintains that the RNC is a terrorist organization and emphasizes that this has already been confirmed by the courts. [27] Concerning the determination of whether the RNC constitutes a terrorist organization or an irregular armed group, in judgment No RPA 00047/2021/CA2, rendered on 14/03/2024, involving the Prosecution v. Maj (Rtd) Mudathiru Habib alias Mussa et el., the Court of Appeal affirmed that the P5 group is a terrorist group. This finding was based on evidence showing that P5 planned and executed terrorist activities, recruiting combatants, providing them with military training, and subsequently moving them from South Kivu (Bijabo) to North Kivu near the Rwandan border. On the night of 04/10/2019, some of these combatants, together with the RUD- URUNANA group, carried out terrorist attacks in Kinigi, Musanze District, resulting in fourteen (14) civilian deaths, eighteen (18) injuries, and the looting of property, as corroborated by the testimonies of RUD-URUNANA combatants involved in the attack. [28] In the judgement No RPA 00016/2020/CA3, rendered on 22/03/2024, involving the Prosecution v. Abayisenga Venant et al., the Court noted that, as reflected in the agreements establishing the coalition of opposition political parties known as Platform Five (P5), concluded in Brussels on 14/08/2015, the coalition comprised five parties: Amahoro PC, FDU-Inkingi, PDP– Imanzi, PS–Imberakuri, and RNC. The Court further observed that P5 operates as a terrorist organization within the DRC, intending to carry out terrorist activities on Rwandan territory4. [29] In the judgment No RPA 00012/2019/CA5, decided on 22/11/2019 by the Court of Appeal, involving the Prosecution v. Lt Mutabazi Joël et al., the Court, in explaining the acts of Nshimiyimana Joseph, found that there was evidence showing that he collaborated with FDLR and RNC in terrorist activities, including organizing a meeting that planned an attack at Kicukiro market, resulting in the death of 2 persons and injuries to 46 others. [30] The Court of Appeal finds that, considering the matters discussed in the aforementioned cases, it is evident that Kayumba Nyamwasa’s RNC was one of the groups constituting the P5 coalition, and as established by the Court of Appeal in Case No RPA 00047/2021/CA, that coalition was confirmed as a terrorist organization. The Court noted that on the night of 04/10/2019, some of its combatants, in collaboration with the RUD-URUNANA group, carried out terrorist attacks in Kinigi, Musanze District, killing fourteen (14) civilians, injuring eighteen (18) others, and

2 See paragraph 117 of this judgment. 3 See paragraph 180 of this judgment. 4 See paragraph 207 of this judgment. 5 See paragraphs 103 and 105 of this judgment.

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looting their property, as confirmed by statements from RUD-URUNANA combatants involved. It is therefore clear that because P5 carried out terrorist acts and RNC was part of that coalition, RNC also participated in such acts. This establishes that when a group has already been designated as a terrorist organization and includes other groups or associations with the same objectives, those constituent groups or associations are also considered terrorist organizations. Accordingly, RNC, being one of the groups within P5, once P5 was recognized as a terrorist group, is itself deemed as a terrorist group. [31] The Court of Appeal finds that, in addition to Kayumba Nyamwasa’s RNC being designated as a terrorist group and being part of the P5 terrorist coalition as previously explained, another indication that it is a terrorist organization is the acts it carried out independently. As established in Case No RPA 00012/2019/CA, for Lt. Mutabazi Joël v. the Prosecution, RNC, in collaboration with FDLR, carried out terrorist acts, including organizing a meeting that planned an attack at Kicukiro Market, which resulted in the death of two (2) persons and injuries to forty- six (46) others. [32] The Court of Appeal further finds that, although none of the aforementioned cases explicitly declared Kayumba Nyamwasa’s RNC as a terrorist group, it is evident from those cases that RNC played a direct role in various terrorist acts, including attacks carried out either as part of P5 or in collaboration with FDLR against Rwanda, resulting in deaths, injuries, and destruction of property. The Court thus finds that these terrorist activities by Kayumba Nyamwasa’s RNC clearly demonstrate, beyond any doubt, that RNC is not merely an irregular armed group, as it was not aiming to conduct a conventional armed attack on Rwanda as per Article 200, paragraphs 1 and 2, of Law No 68/2018 of 30/06/2018 determining offences and penalties in general. Rather, based on its demonstrated involvement in attacks within Rwanda, notably in Musanze and Kicukiro Districts as part of P5 or alongside FDLR, RNC is confirmed to be a terrorist group. [33] The Court of Appeal finds that, given that Kayumba Nyamwasa’s RNC is a terrorist group, it is clear that the accused should have been prosecuted for the offense of membership of a terrorist group. Accordingly, it was not necessary for the prosecution to be initiated by the Attorney General or with authorization from the latter, since Law No 46/2018 of 13/08/2018 on the Prevention and Suppression of Terrorism does not require prior authorization from the Prosecutor General to prosecute individuals suspected of belonging to a terrorist group. The requirement for such authorization is only provided in Article 200, paragraph 3 of Law No 68/2018 of 30/08/2018 determining offences and penalties in general, which concerns only the offenses of forming or voluntarily joining an irregular armed group. Therefore, the objection raised by the accused seeking release on the grounds of being unlawfully prosecuted has no merit. [34] With regard to the judgment No RPA 00029/2022/CA rendered on 23/02/2024 by the Court of Appeal, for Prosecution v. Habineza, the defense counsels argue that this judgment established the principle that only the Prosecutor General may grant such authorization. The Court of Appeal finds that this precedent is inapplicable to the present case because that case concerned the offenses of forming or voluntarily joining an irregular armed group, whereas in the present case, the Court has already determined that the accused should be prosecuted for the offense of membership of a terrorist group. 1. b. Whether the acts for which the accused are prosecuted, namely membership of a terrorist group, may be cumulated with the offence of forming or joining an

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irregular armed group, such that the accused could be prosecuted and convicted for both offenses [35] The debate on this issue concerns whether, once it has been established that the accused must be prosecuted for the offense of membership of a terrorist group, they may also be prosecuted for the offense of forming or joining an irregular armed group and be convicted of both offenses based on the same acts. [36] In the paragraphs 43 and 44 of the judgment under appeal, the High Court, Specialized Chamber having jurisdiction over for the international and transnational crimes prosecuted Haragirimana Damien alias Abdallah, Ndayisenga Vedaste alias Abdoullah, Mutiganda Thierry, and Nshimiye Eric, convicting them of both membership of a terrorist group and membership of an irregular armed group based on the same acts, while Haragirimana Damien alias Abdallah and Ndayisenga Vedaste alias Abdoullah were additionally prosecuted for the offense of inciting others to join an irregular armed group. [37] However, with respect to the issue of whether the offense of forming or joining an irregular armed group can be combined with that of being or consenting to be a member of a terrorist organization, the Court of Appeal finds that this matter has already been settled in various judgments rendered by this Court, including the judgment No RPA 00016/2020/CA, decided on 22/03/2024, the Prosecution v. Abayisenga Venant et al. In that case, the Court of Appeal held that the offense of membership of a terrorist group cannot be combined with that of membership of an irregular armed group, and that the conduct of the accused cannot constitute the offense of joining an irregular armed group but must instead be characterized as the offense of membership of a terrorist group6. Consequently, no further debate on this issue is needed in the present case. [38] The Court of Appeal therefore finds that since the accused were prosecuted and convicted of the offense of membership of a terrorist group, in addition to the offenses of inciting others to join an irregular armed group and membership of an irregular armed group, such concurrent convictions are inconsistent with the established jurisprudential position excluding the possibility of combining those offenses. It follows that the trial court erred in this respect, an error which must be corrected by holding that, in the present case, the accused should be prosecuted solely for the offense of membership of a terrorist group. II.2. Whether Haragirimana Damien alias Abdallah was convicted without conclusive elements of evidence establishing his guilt [39] Haragirimana Damien alias Abdallah and his counsel state that he was convicted by the Court without reliance on any conclusive and credible elements of evidence. They submit that he should be acquitted, as the Court convicted him of an offense he did not commit, basing its finding solely on the testimony of Ndayisenga Vedaste alias Abdoullah. They argue that the Court disregarded the fact that Ndayisenga had animosity towards him, a bias that motivated false accusations, further compounded by his contradictory statements. Moreover, none of the co-

6 See Paragraph 234 of the judgment N° RPA 00016/2020/CA rendered by the Court of Appeal on 22/03/2024, for the Prosecution v. Abayisenga Venant et al.

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accused implicated him directly, with their assertions merely reiterating what they had heard from Ndayisenga Vedaste alias Abdoullah. [40] Haragirimana Damien alias Abdallah and his counsel further aver that the Court erred in finding that he had incited Ndayisenga Vedaste alias Abdoullah to commit the alleged offenses through the use of YouTube, notwithstanding the fact that he does not own or operate any YouTube channel, nor did the Court rely on any evidence establishing that he engaged in conversations with Ndayisenga pertaining to the commission of such offenses. Moreover, in his additional submissions dated 04/12/2023, Haragirimana Damien alias Abdallah petitioned the Court to conduct further inquiries so as to ascertain his good character and to take cognizance of the existing conflicts between himself and Ndayisenga Vedaste alias Abdoullah, who was the principal accuser. He also produced before the Court a certificate attesting to his good conduct, together with documentation evidencing the longstanding disputes with Ndayisenga Vedaste alias Abdoullah. [41] Haragirimana Damien alias Abdallah further submits that all witnesses interrogated, including his co-accused, consistently stated that it was Ndayisenga Vedaste alias Abdoullah who incited them, with some being apprehended while attempting to depart, and that none of them implicated him or even knew him personally, as they were only acquainted with Ndayisenga. He states that their testimonies merely reiterated what Ndayisenga Vedaste alias Abdoullah had told them verbally, without offering any independent evidence demonstrating his involvement in their plans. [42] The State Attorney submits that the grounds of appeal raised by Haragirimana Damien alias Abdallah are unfounded, arguing that Ndayisenga Vedaste alias Abdoullah testified both during the investigative stage and before the Primary Court of Busasamana during the hearing on provisional detention and release, affirming that Haragirimana Damien alias Abdallah had incited him to join the military forces of Kayumba Nyamwasa. The Prosecution maintains that the appellant’s defence, namely that Ndayisenga Vedaste alias Abdoullah falsely accused him out of personal animosity, is baseless, since in his own statement to the Investigation Bureau, Haragirimana Damien alias Abdallah acknowledged that he had no prior conflict with Ndayisenga that would have motivated him to fabricate such allegations. Consequently, the Prosecution contends that the appellant’s current defence amounts to an attempt to evade criminal liability. The State Attorney further argues that, even assuming a conflict had existed, such a circumstance would not undermine the credibility of Ndayisenga Vedaste alias Abdoullah’s testimony, particularly given that he explicitly confirmed having been incited by the appellant to join the armed forces of Kayumba Nyamwasa. Moreover, it is the Court that retains the competence to assess the probative value of such testimony, as established by the Supreme Court in the judgment No RPAA 0117/07/CS, rendered on 17/09/2010, wherein the parties were the Prosecution v. Cpl Ngabonziza Faustin & Sgt Biziyaremye Jean Baptiste. [43] With regard to Haragirimana Damien Abdallah’s statements that the Court wrongly held he had incited Ndayisenga Vedaste alias Abdoullah to commit the offences in question through YouTube, despite the fact that he does not operate any YouTube channel, the State Attorney argues that this line of defence is unfounded, since at no point did Ndayisenga Vedaste alias Abdoullah claim that Haragirimana Damien Abdallah had shown him videos of Kayumba Nyamwasa’s army on his own YouTube channel; rather, he stated that Haragirimana Damien Abdallah had informed

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him of the existence of Kayumba Nyamwasa’s armed forces in Uganda, encouraged him to join them, and when asked where he had obtained such information, he replied that he got it from YouTube. DETERMINATION OF THE COURT [44] The debate in the present case turns on whether the elements of evidence relied upon to convict Haragirimana Damien Abdallah were insufficient to establish his participation in the commission of the offence, and whether such elements of evidence are doubtful given that they are based on the statements of Ndayisenga Vedaste alias Abdoullah, who contradicted himself on several occasions and harbored animosity towards him; furthermore, none of the other witnesses interrogated mentioned him or even knew him. The issue also concerns whether further investigation ought to have been conducted in order to ascertain the truth. 3.a. Determining whether the statements of Ndayisenga Vedaste could not be relied upon, given that he repeatedly contradicted himself, he was the sole basis for the conviction and he had animosity towards him [45] In the judgment No RP 00001/2020/HC/HCCIC rendered on 18/11/2021, the High Court Specialized Chamber having jurisdiction over international and transnational crimes, relying on the testimony of Ndayisenga Vedaste alias Abdoullah who incriminated Haragirimana Damien Abdallah of having provided him with information about the army of Kayumba Nyamwasa and further encouraged him to join it, he held that Haragirimana Damien Abdallah was guilty of the offence of inciting others to join an irregular armed group and of membership of a terrorist group. [46] With regard to the issue of relying on the testimony of a single person whose statements are contradictory, in the judgment No RPA 00016/2020/CA, the Court of Appeal set the position that the testimony or statements of any person (with capacity) may be heard and relied upon in a case, even if that person was a party to the case, provided that he or she has sufficient knowledge concerning the disputed matter7. As to the statements of a single individual who contradicted himself before different authorities, in the judgment No RPAA 00293/2021/CA, it was established that the Court is not bound to uphold the statements made before it when such statements contradict those given before the investigative authorities; rather, it is for the Court itself to analyze and determine which version reflects the truth of the facts8. This position was further reaffirmed in the judgment No RPAA 00450/2023/CA rendered by the Court of Appeal on 26/04/2024, wherein the parties were the Prosecution v. Muhabwizina Odette. [47] The Court of Appeal finds that the argument advanced by Haragirimana Damien alias Abdallah and his counsel, namely that the statements of Ndayisenga Vedaste alias Abdoullah could not be relied upon because he was the sole source of evidence and had contradicted himself, is unfounded. Indeed, during the investigation, Ndayisenga Vedaste alias Abdoullah indicated that Haragirimana Damien Abdallah was the one who provided him with information concerning the army of Kayumba Nyamwasa and further encouraged him to join it, a statement he reiterated

7 See paragraph 151 of the judgment n° RPA 00016/2020/ca rendered by the Court of Appeal on 22/03/2024, wherein the parties were the Prosecution v. ABAYISENGA Venant et al. 8 See Paragraph 28 of the judgment N° RPAA 00293/2021/CA rendered by the Court of Appeal on 15/07/2022, wherein the parties were the Prosecution v. MURINDAHABI Jean de Dieu

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before the Primary Court of Busasamana during the hearing on provisional detention and release. Although before the High Court, Ndayisenga Vedaste denied that Haragirimana had ever encouraged him to join Kayumba Nyamwasa’s group, claiming that his earlier testimony had been made under coercion after being struck with an iron object on his arm, and that what he had actually stated was that Haragirimana Damien had only shown him the information on YouTube9, the Court of Appeal holds that such inconsistencies do not invalidate his testimony. This is because, as previously clarified, the testimony of any person (with capacity) may be heard and relied upon in judicial proceedings, even if such a person was a party to the case, provided that he or she possesses sufficient knowledge relating to the disputed facts. [48] The Court further finds that the fact that Ndayisenga Vedaste alias Abdoullah modified his statements made before the Investigation Bureau when he appeared before the High Court, claiming that his earlier admissions were made under duress, does not preclude reliance on those statements. Indeed, apart from what he declared before the High Court, he provided no evidence to substantiate his claims. The Court is not bound to accept the statements made before it if they contradict those given during the investigation; rather, it is the Court’s duty to assess and determine which statements accurately reflect the truth of the events, as previously explained. The Court also finds that the statements given during the investigation are the ones to be relied upon, since during the hearing of this case10, Ndayisenga Vedaste alias Abdoullah reaffirmed them, stating that Haragirimana Damien Abdallah provided him with information regarding Kayumba Nyamwasa’s army and explained that they had various discussions during which he was informed that there was an army in Uganda associated with Kayumba Nyamwasa, which he had seen on YouTube. He further requested that his statements made during the investigation should be given precedence because before the High Court he stated that he did not encourage him for it due to his misunderstanding of the term “encourage”. [49] With regard to the argument advanced by Haragirimana Damien alias Abdallah and his counsel that the testimony of Ndayisenga Vedaste alias Abdoullah should not be relied upon because it was allegedly motivated by prior disputes between them, the Court of Appeal finds such a defense to be without merit. Indeed, during the interrogation before the Investigation Bureau, Haragirimana Damien Abdallah himself admitted that no conflict existed between him and Ndayisenga Vedaste11, the fact that he stated for the first time before the Court that they had disputes is deemed to be an attempt to evade liability. Furthermore, the allegation that Ndayisenga Vedaste alias Abdoullah had animosity towards him was debated by both parties during the hearing, but the Court finds that the testimony of Ndayisenga Vedaste alias Abdoullah must be relied upon, as it establishes the truth of the facts (principle of freedom of evidence in criminal matters). It is for the Court to determine the admissibility and probative value of such evidence, as affirmed in the judgment No RPAA 00692/2021/CA, rendered on 20/1/2023, wherein the parties were the Prosecution v. Ndayishimiye Jean Damascène. [50] The Court further finds that another factor demonstrating that the testimony of Ndayisenga Vedaste alias Abdoullah—incriminating Haragirimana Damien Abdallah of having informed him

9 See paragraph 12 of the judgment under appeal. 10 See the minutes of the hearing of 14/11/2024, page 4. 11 See the statement of 15/12/2019 for the questioning of Haragirimana Damien Abdallah before the Investigation Bureau.

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about Kayumba Nyamwasa’s army and encouraging him to join—ought to be regarded as credible and not as a product of personal retaliation, is the fact that he made such statements before he was even aware that they would later be apprehended. This is corroborated by the co-accused, namely Maniriho Théoneste, Nshimiye Eric, Niyonizeye Claude, and Mutiganda Thierry, all of whom confirmed that when Ndayisenga Vedaste alias Abdoullah spoke to them about Kayumba Nyamwasa’s army, he also indicated that the information had been provided to him by Abdallah12. [51] With respect to the argument raised by Haragirimana Damien Abdallah and his counsel that none of the co-accused implicated him, the Court of Appeal finds this submission unfounded. Although the co-accused did not state that they had personally met or conversed with Haragirimana Damien Abdallah, Maniriho Théoneste, Nshimiye Eric, Niyonizeye Claude and Mutiganda Thierry all confirmed that when Ndayisenga Vedaste alias Abdoullah informed them about Kayumba Nyamwasa’s army, he also indicated that the information had been given to him by Haragirimana Damien Abdallah. This corroborates the assertion that, even if the co-accused did not directly accuse him, they reinforced Ndayisenga Vedaste alias Abdoullah’s account that Haragirimana Damien Abdallah was the one who encouraged him to join Kayumba Nyamwasa’s army. Accordingly, there is no reason preventing the Court to rely on such evidence. [52] Based on the foregoing analysis, the Court of Appeal finds that the High Court, Specialized Chamber having jurisdiction over international and transnational crimes did not err in convicting Haragirimana Damien Abdallah on the basis of the statements made by Ndayisenga Vedaste alias Abdoullah, as those statements reveal no material doubt. Consequently, the ground of appeal advanced by Haragirimana Damien Abdallah, alleging that the testimony of Ndayisenga Vedaste was unreliable on account of inconsistencies, he was the sole basis for his conviction and there is personal animosity, is without merit. 4. b. With regard to the investigation requested by Haragirimana Damien alias Abdallah [53] Haragirimana Damien requests that further investigations should be conducted in order to establish the truth, particularly to verify whether he is indeed known for good conduct and whether he has had prior conflicts with Ndayisenga Vedaste. He emphasizes that the case file contains supporting elements of evidence to this effect, including the elements of evidence from local administrative authorities attesting his good character, as well as a proof confirming the existence of conflicts between him and Ndayisenga Vedaste. [54] The State Attorney submits that the request for an investigation is unfounded and should not be granted, since it is for the first time he requests the investigation and he never raised such issue in prior proceedings. Furthermore, even if such an investigation should be conducted and it was established that the accused was indeed of good character, this would not invalidate the elements of evidence already relied upon by the lower court, as the fact of having previously demonstrated good conduct does not preclude the commission of an offence. [55] The Court finds that the investigation requested by Haragirimana Damien Abdallah, namely to establish that he was previously of good conduct and that he had personal disputes with Ndayisenga Vedaste alias Abdoullah, with a view to discrediting the latter’s testimony, cannot

12 The person referred to is Haragirimana Damien alias Abdallah.

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constitute exculpatory evidence sufficient to absolve him of the offence for which he is charged. The Court further finds that it is not necessary to order such an investigation, as the available evidence is sufficient for the adjudication of the case. The Court recalls that it is not bound, in every instance where a party so requests, to order an investigation or summon witnesses where it is satisfied with the evidence already on record, provided that both parties have been afforded adequate opportunity to address the evidence, as was affirmed in the judgment No RPAA 0101/09/CS rendered on 09/03/2012. [56] Based on the foregoing considerations, the Court of Appeal finds that the ground of appeal raised by Haragirimana Damien, alleging that his conviction was not supported by conclusive elements of evidence, is unfounded. However, as above analyzed, the Court should not have convicted Haragirimana Damien Abdallah simultaneously of both the offence of inciting persons to join an irregular armed group and that of membership of a terrorist group, given the principle that these two offences cannot be concurrently sustained. Accordingly, Haragirimana Damien Abdallah stands to be convicted solely of the offence of membership of a terrorist group. II.3. Whether the classification of the offence for which Ndayisenga Vedaste alias Abdoullah and Mutiganda Thierry were convicted should be reclassified as attempt to accept to join a terrorist group [57] Ndayisenga Vedaste alias Abdoullah and Mutiganda Thierry, together with their lawyers, request that the classification of the offence for which they were convicted should be reclassified, and that they should be held guilty of attempt to accept to join a terrorist group on the grounds that although they had consented to join the armed force of Kayumba Nyamwasa, they were apprehended before joining such force. [58] The State Attorney submits that this ground of appeal is unfounded, since the act of consenting to join an irregular armed group that also qualifies as a terrorist organization constitutes a consummated offence of acceptance to join such an organization. He argues that, together with their co-accused Nshimiye Eric, they were arrested while already prepared to depart and integrate into the said irregular armed and terrorist group, which clearly demonstrates, beyond doubt, that they had indeed consented to join it; as had already been explained in paragraph 27 of the judgment under appeal. [59] The State Attorney explains that Ndayisenga Vedaste alias Abdoullah and Mutiganda Thierry, having been convicted of the offence of consenting to join an armed group, were clearly found to have consented and were even apprehended on their way to join the irregular armed group. She stresses that the offence had already been consummated, since once consent is given, the offence is complete, and therefore the notion of attempt does not apply. DETERMINATION OF THE COURT [60] On this issue, the Court of Appeal recalls that the accused were prosecuted for the offence of membership of a terrorist group, as previously explained. This means that the joinder of both offences for which the accused were prosecuted and convicted is no longer open to debate at this stage. Consequently, the remaining issue is whether the fact that Ndayisenga Vedaste alias Abdoullah and Mutiganda Thierry consented to join the RNC terrorist organization of Kayumba

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Nyamwasa and were apprehended before joining it constitutes the consummated offence of membership of a terrorist group or merely an attempt thereof. The issue pertaining to offence reclassification [61] Article 18 of the Law Nº 46/2018 of 13/08/2018 on counter terrorism stipulates that “A person who is member of a terrorist group or accepts to join a terrorist group or who deliberately participates in the acts of a terrorist group or a group which contributes to the capacity-building of another terrorist group, commits an offence.” [62] An attempt to commit offence is punishable where the intent to commit an offence is manifested by one or more unequivocal acts constituting the inception of the offence and leading towards its commission, but which are subsequently halted, prevented from reaching the intended result or frustrated by circumstances beyond the control of the perpetrator. [63] A joint reading of these provisions indicates that an attempt to commit offence exists where unequivocal acts marking the inception of an offence and leading towards its commission are halted, prevented from achieving the intended result, or frustrated by circumstances beyond the perpetrator’s will. In contrast, the offence of membership of a terrorist group is consummated once a person has joined such a group, consented to join it, begun to take part in its activities or undertaken any act contributing to its capacity. It follows, therefore, that since the commission of any of the constituent acts of this offence suffices to consummate it, there can be no attempt to commit offence in relation to the offence of membership of a terrorist group. [64] The case file shows that Ndayisenga Vedaste alias Abdoullah admitted having been incited to join the RNC army of Kayumba Nyamwasa, to which he consented and further encouraged others to do the same, whereas Mutiganda admitted that he too had been incited to join that army and accepted to do so. However, both were apprehended while en route before reaching Uganda, where the alleged army operates. [65] The Court of Appeal finds that, as above explained, being in a terrorist group, consenting to join that group, participating in its activities, or performing acts that enhance its capacity constitutes the offence itself, meaning that merely consenting to join constitutes a consummated offence rather than an inchoate or preparatory offence. [66] The Court finds that the request by Ndayisenga Vedaste alias Abdoullah and Mutiganda Thierry to be convicted of an inchoate offence because they consented to join the group but were apprehended before reaching it has no merit, as mere consent to join the group is sufficient for the offence of consenting to join to be consummated, even if the individuals were intercepted en route and had not yet begun participating in or contributing to the group’s activities. [67] Based on the elucidations above provided, the Court of Appeal finds that the appellants’ argument—that the High Court, Specialized Chamber hearing the international and transnational crimes, should have convicted Ndayisenga Vedaste alias Abdoullah and Mutiganda Thierry of an inchoate offence for the crimes they were charged with—has no merit, since the offence had already been consummated as above explained; consequently, they must be convicted of the offence of being members of a terrorist group.

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5. II.4. Determining whether the sentence imposed on Ndayisenga Vedaste alias Abdoullah and Mutiganda Thierry should be further reduced and suspended [68] Ndayisenga Vedaste alias Abdoullah and Mutiganda Thierry and their counsel request the sentence reduction and suspension. They submit that although they denied the offence in the trial court, they had previously admitted it during the investigation. They request that their prior admission should be taken into account as a mitigating factor, resulting in a reduced sentence of three (3) years and six (6) months’ imprisonment, equivalent to half of the seven (7) year sentence, which is the minimum penalty provided for the offence of voluntarily agreeing to join or being recruited into an irregular armed group and that the sentence should be suspended. [69] The State Attorney argues that the accused should not be granted any further reduction of their sentence, since they have already been granted a reduction and the sentence imposed corresponds to the gravity of the offence they committed. DETERMINATION OF THE COURT [70] The debate on this issue is based on determining whether the admission of guilt made by Ndayisenga Vedaste alias Abdoullah and Mutiganda Thierry before the Investigation Bureau should constitute a mitigating circumstance warranting a further reduction of their sentence, or whether no further reduction should be granted at this stage on the grounds that they have already sufficiently benefited from a sentence reduction. [71] With regard to the consideration of admission of guilt as a ground for sentence reduction, the jurisprudence has clarified this point in several cases, including Case No. RPA 00060/2021/CA decided by the Court of Appeal on 04/04/2022 wherein the parties were the Prosecution v. Nsabimana Callixte alias Sankara et al.13, and Case No. RPAA 00086/2022/CA decided on 24/03/2023, wherein the parties were the Prosecution v. Munyanshoza Eric14. In these cases, the Court of Appeal held that the admission of guilt can only serve as a mitigating factor when it is beyond doubt, meaning it does not distort facts about how the offence was planned and executed, the persons involved, the role of the one admitting, and the means and methods used; when the accused demonstrates an understanding of the seriousness of the acts and their consequences; when they express genuine remorse by acknowledging the wrongfulness of the acts and a resolve not to repeat them; when they seek forgiveness; and when they show readiness to repair the caused harm, as reasonably expected. Furthermore, the Court clarified that admission of guilt made before the Investigation Bureau may benefit the accused in terms of sentence reduction only if it has been consistently maintained from the investigation stage through the trial before the first instance court, rather than when such admission made during the investigations is later retracted during trial at first instance and only repeated at a final stage. [72] With regard to the issue of further sentence reduction, the position was set in Case No. RPA 00060/2021/CA decided by the Court of Appeal on 04/04/2022 wherein the parties were the Prosecution v. Nsabimana Callixte alias Sankara et al. In that case, the Court of Appeal held that in criminal matters, where the appellants do not contest any other aspect of the impugned judgment

13 See paragraph 136 of this judgment. 14 See paragraph 26 of this judgment.

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except to argue that the sentence was not sufficiently reduced, every judge, at whatever level, is vested with discretion to impose a sentence proportionate to the seriousness of the offence and its consequences, in accordance with Article 4915 of Law No. 68/2018 of 30/08/2018 determining offences and penalties in general. However, at the appellate level, the Court emphasized that the judge is only permitted to alter the sentence imposed by the trial court where it has been demonstrated that the trial court either misapplied the law or improperly exercised its discretion in determining the sentence16. [73] In light of the foregoing considerations, this Court shall, in the following paragraphs, examine whether in the judgment under appeal there is any manifest error, or any misapplication of discretion or of the law, in the determination of the sentences imposed on Ndayisenga Vedaste alias Abdoullah and Mutiganda Thierry. [74] The case file demonstrates that upon their arrest, both before the Investigation Bureau and the Prosecution, Ndayisenga Vedaste alias Abdoullah and Mutiganda Thierry admitted the offence and explained the manner in which it was committed; however, before the Trial Court at first instance they denied the offence, only to reiterate their admission at this appellate stage. The record further shows that the High Court, Specialized Chamber hearing the international and transnational crimes found them guilty of the offence of deliberately agreeing to be hired or enlisted to join an irregular armed group, with an additional conviction against Ndayisenga Vedaste alias Abdoullah for inciting others to join such an irregular armed group, and consequently sentenced each of them to the imprisonment for a term of fifteen (15) years, being the minimum sentence prescribed for the offence of membership of a terrorist group. [75] The Court of Appeal finds that the argument advanced by Ndayisenga Vedaste alias Abdoullah and Mutiganda Thierry, that they should benefit from a sentence reduction on the ground that they admitted the offence during the investigation stage, is unfounded. As above explained, an admission of guilt made before the investigation organs can only serve as a mitigating factor if it is consistently maintained from the investigation stage through the trial at first instance before the court hearing the case on the merits, rather than being followed by retraction before such courts and only reiterated at the appellate stage. Consequently, since Ndayisenga Vedaste alias Abdoullah and Mutiganda Thierry admitted the offence at the investigation stage but denied it before the Trial Court, only to renew their admission at this appellate level, their admission cannot be relied upon as a mitigating circumstance warranting a reduction of the sentence. [76] As above elaborated, at appeal level, the judge must think that he/she is only permitted to change the sentence imposed by the Trial Court where it has been demonstrated that the Trial Court either misapplied the law or improperly exercised its discretion in imposing the penalty. This implies that, where an appellant seeks a reduction of sentence, the Appellate Court must examine whether the grounds relied upon by the appellant in support of such a request are well-founded. At the same time, the Court must also assess whether the sentence imposed is proportionate to the

15 This article reads that: “A judge determines a penalty according to the gravity, consequences of, and the motive for committing the offence, the offender’s prior record and personal situation and the circumstances surrounding the commission of the offence”. 16 See judgment N° RPA 00060/2021/CA rendered by the Court of Appeal on 04/04/2022 wherein the parties were the Prosecution v. Nsabimana Callixte alias Sankara et al., paragraphs 252-254.

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gravity of the offence for which the appellant was convicted, since the misapplication of the law or misuse of judicial discretion in sentencing is not limited to the reasons expressly raised on appeal but also encompasses instances where the punishment imposed is manifestly disproportionate. [77] In paragraphs 40 and 42 of the judgment under appeal, the Court had sentenced Haragirimana Damien alias Abdallah, Ndayisenga Vedaste alias Abdoullah, Mutiganda Thierry, and Nshimiye Eric to the imprisonment for a term of twenty (20) years for the gravest offence among those of which they were convicted, namely, participation in a terrorist organization. However, relying on Article 49 of the Law determining offences and penalties in general, the Court found that, although the accused had been convicted of the said offences, their sentences warranted mitigation, given that the crimes had not resulted in any serious consequences. The Court observed that, despite their malicious intentions against the security of Rwanda and its inhabitants, they were apprehended before causing actual harm. Accordingly, each of them was sentenced to the imprisonment for a term of fifteen (15) years, being the minimum penalty provided for the offence of participation in a terrorist organization, which is the most serious of the offences for which they were convicted. [78] The Court of Appeal finds that, even at this stage, Ndayisenga Vedaste alias Abdoullah and Mutiganda Thierry were convicted of the offence of membership of a terrorist group. It further finds that, in imposing sentence at first instance, the Trial Court had already imposed the minimum penalty prescribed for that offence. However, the appellants lodged an appeal seeking a further reduction of their sentences, without raising any challenge to the decision of the lower court other than requesting mitigation on the basis of their purported admission of guilt. As has been above established, their admission of guilt cannot be relied upon as a mitigating factor since, at first instance, they contested the charges. The Court of Appeal therefore considers the gravity of the offence of participation in a terrorist group for which the appellants were convicted, and compares it with the imprisonment for a term of fifteen (15) years imposed. It concludes that the Trial Court had already sufficiently mitigated the sentence, given that the punishment corresponds to the seriousness of the offence. Accordingly, the judgment of the lower court must be upheld. [79] With regard to the suspension of the sentence requested by Ndayisenga Vedaste alias Abdoullah and Mutiganda Thierry together with their counsel, the Court of Appeal finds that such request cannot be granted, since the sentence of imprisonment for a term of fifteen (15) years imposed upon them is not subject to the suspension under the law17, given that it exceeds five years. II.5. Determining whether Nshimiye Eric was convicted of the offence of membership of a terrorist group while he did not commit it and whether Nshimiye Eric should be granted the sentence reduction for the admitted offence of failure to disclose the information [80] Nshimiye Eric and his counsel submit that the only offence he admits to is failure to provide information, unlike Ndayisenga Claude who did disclose it, explaining that he merely overheard

17 As stipulated under article 64 Nº 68/2018 of 30/8/2018 determining offences and penalties in general, suspension of sentence is a court decision which orders the stay of execution of a penalty of imprisonment not exceeding five (5) years. Suspension of a penalty is ordered on the basis of the gravity of the offence.

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his co-accused discussing matters related to the military. He therefore denies the offence of membership of a terrorist group, asserting that he never had such an intention. Nshimiye Eric and his counsel request the Court to reduce the sentence in relation to the admitted offence of failure to provide information as Ndayisenga Claude disclosed it, and to hold that the penalty imposed on him is suspended. [81] The State Attorney submits that this ground of appeal is unfounded, since the Court clearly established evidence showing that Nshimiye Eric was incited by Ndayisenga Vedaste alias Abdoullah to join Kayumba’s armed group and that he consented. He was arrested together with Mutiganda Thierry and Ndayisenga Vedaste alias Abdoullah as they were preparing to leave their homes in Nyanza District to travel through Nyagatare and illegally cross into Uganda, as reflected in paragraphs 27 and 28 of the impugned judgment. [82] With regard to the defence argument that Nshimiye Eric should benefit from a reduced sentence on the ground of admitting to the offence of failure to provide information, the State Attorney argues that this submission is without merit, as such conduct does not in itself constitute an offence. Rather, the evidence demonstrates that Nshimiye Eric agreed to join the terrorist organization RNC, an irregular armed group, and was arrested along with his co-accused while en route to Uganda through illegal paths. The State Attorney further maintains that the accused cannot benefit from any further sentence reduction since a reduction was already granted in proportion to the gravity of the offence committed, and that the suspension of sentence he requests is not permissible under the law, given that he was sentenced to a principal custodial sentence exceeding five (5) years, while the law only permits the suspension where the sentence does not exceed five (5) years. DETERMINATION OF THE COURT [83] The debate on this issue is based on determining whether there is evidence of acts committed by Nshimiye Eric which demonstrate that he consented to join a terrorist organization, or whether his conduct is limited solely to the omission of failing to provide information. [84] The case file contains the statement given to the Investigation Bureau by Ndayisenga Vedaste alias Abdoullah on 29/11/2019. In that statement, Ndayisenga Vedaste explained that after discussing with Mutiganda Thierry about Kayumba Nyamwasa’s military group operating in Uganda, they sought out other young men who had previously attempted to enlist in the Rwanda Defence Force but were rejected, in order to inform them about Kayumba’s group and recruit them. They first approached Maniriho Théoneste, who agreed, then Ndayisenga Claude, who also accepted, and finally Nshimiye Eric, who likewise consented. However, Ndayisenga Claude later disclosed the information to the authorities, prompting the initiation of surveillance. Ndayisenga Vedaste further stated that when they learned from Niyonizeye Jean Claude that their plan had been discovered, he, together with Mutiganda Thierry and Nshimiye Eric, decided to leave before the others, fearing imminent arrest, but they were apprehended at a place known as Gasoro. [85] The case file contains the statement of Mutiganda Thierry dated 29/11/2019, given before the Investigation Bureau. In response to question 2, Mutiganda Thierry stated that after Ndayisenga Vedaste alias Abdoullah told them about joining Kayumba Nyamwasa’s military group, among those who accepted was Nshimiye Eric. He further explained that after they had agreed on the

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journey, Ndayisenga Claude informed the local authorities and, realizing that their plan had been discovered, they immediately set off, three of them, meaning himself, Ndayisenga Vedaste alias Abdoullah, and Nshimiye Eric, but were arrested before going far. [86] The case file also contains the statement of Nshimiye Eric dated 12/12/2019, given before the Prosecution. In that statement, Nshimiye Eric admitted the offence, explaining that Ndayisenga Vedaste alias Abdoullah told him that, since he had been refused enlistment into the Rwanda Defence Force, they would instead join the RNC army of Kayumba Nyamwasa in Uganda because it did not require academic qualifications, and he accepted. He stated that he was told this on a Sunday and by Thursday they had already set out, without informing any member of his family, and that he was arrested in Mututu Cell together with Mutiganda Thierry. [87] The Court of Appeal finds that both Ndayisenga Vedaste alias Abdoullah and Mutiganda Thierry indicated that, after explaining to Nshimiye Eric about Kayumba Nyamwasa’s RNC military wing and how to join it, he accepted and, upon learning that they were about to be apprehended, they left together without waiting for the others, but were arrested en route in the company of Nshimiye Eric. These accounts were corroborated by Nshimiye Eric himself in his statement, where he acknowledged that, after being told about the army, he accepted, left without informing his family, and was arrested in Mututu Cell alongside with Mutiganda Thierry. It is therefore evident that Nshimiye Eric’s conduct did not consist merely of being informed and failing to provide information, as he claims, but rather that he accepted the plan, set out to join the terrorist organization RNC’s military group, and was apprehended en route, as he himself admitted. Such conduct constitutes the offence of membership of a terrorist group, as rightly found by the trial court. [88] With respect to the argument advanced by Nshimiye Eric and his counsel that the offence he acknowledges is limited to failure to disclose information and that he was arrested while at work, the Court of Appeal finds this to be without merit. It is a narrative advanced in an attempt to escape liability for the offence of membership of a terrorist organization, since, as shown above, even he admitted during the investigation that he was arrested with Mutiganda Thierry, who in turn explained that they were apprehended at Gasoro while on their way to join Kayumba Nyamwasa’s RNC armed group, after learning that their plan had been discovered and they were about to be arrested. This clearly demonstrates that Nshimiye Eric consented and set out to join the RNC terrorist organization. [89] Regarding the request by Nshimiye Eric and his counsel for a reduction of sentence on the basis that he admitted to the offence of failing to provide information, the Court finds no merit in this claim because the offence for which he was convicted was not failure to provide information, as alleged, but rather membership of a terrorist group. Consequently, the sentence imposed by the trial court must be upheld. [90] As for the request for suspension of sentence made by Nshimiye Eric and his counsel, the Court of Appeal finds that it cannot be granted because the sentence imposed, i.e. fifteen (15) years of imprisonment, cannot be suspended under the law, since it exceeds five (5) years.

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[91] In light of the foregoing considerations, the Court of Appeal finds that the judgment must be reversed only in respect of the classification of the offences for which the accused were convicted. III. DECISION OF THE COURT [92] Holds that the appeal lodged by Haragirimana Damien alias Abdallah, Mutiganda Thierry, Ndayisenga Vedaste alias Abdoullah and Nshimiye Eric, lacks merit; [93] Holds that the judgment n˚ RP 00001/2020/HC/HCCIC rendered by the High Court, Specialized Chamber hearing the international and transnational crimes on 18/11/2021 is hereby reversed in respect of the offences for which the accused were convicted; [94] Declares Haragirimana Damien alias Abdallah, Mutiganda Thierry, Ndayisenga Vedaste alias Abdoullah and Nshimiye Eric guilty of the offence of membership of a terrorist group; [95] Holds that the sentence of the imprisonment for a term of fifteen (15) years imposed by the High Court, Specialized Chamber hearing the international and transnational crimes on Haragirimana Damien alias Abdallah, Mutiganda Thierry, Ndayisenga Vedaste alias Abdoullah, and Nshimiye Eric, which shall remain in force for each of them. [96] Declares that Haragirimana Damien alias Abdallah, Mutiganda Thierry, Ndayisenga Vedaste alias Abdoullah, and Nshimiye Eric are exempted from paying court fees, given that they stood trial while in detention.