PROSECUTION vs INGABIRE

PROSECUTION vs INGABIRE

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2013-12-13 - Case/document no.: RPA 0255/12/CS - Collection: Supreme Court

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PROSECUTION v. INGABIRE ET. AL. [Rwanda SUPREME COURT – RPA 0255/12/CS (Nyirinkwaya, P.J., Havugiyaremye and Mukamulisa, J.) December 13, 3013] Human rights law – Fair trial – Equality of arms – Check on parties prior to entering the courtroom – Check on parties is no an infringement of the law when it is ordered by the court. Criminal procedure law – Order in the courtroom – Leading the hearing – Bringing to order any party who deviates is not the violation to the principle of fair trial, it is rather an obligation of the judge – Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, article 73 Criminal procedure law – Witness hearing – Hearing of exculpating witnesses – The fact that she was notified that at any time one of the party may be in need of exculpatrory witness hearing may in return notify it to the Court and that she had never grabbed this opportunity, cannot be considered as denying hearing them. Criminal procedure law – Seasrch against witnesses – Search against witnesses conducted after their testimony neither damage their statements nor their the testimony that he/ she was about to give. Criminalprocedure law – Seisure – The seized documents and statements thereto related does not impact the verdict in case they have no been used in the case. Criminal procedure law – Changing the qualification of the crime – Ruling

extra petita/infra petita – Changing the qualification of the crime is not ruling extra/ infra petita as it is the right and obligation of the judge, in case the facts of the case are not reflecting the qualification done by the Prosecutor – Law NO13/2004 of 17/5/2004 Realating to the code ofcriminal procedure, article 64 and 119. Criminal procedure law – Defence presentation – Opportunity to present his/ her defence – He/ she cannot pretext that she had not been given the opportunity to present his/her defence in case her counsel (s) had commented on the contested issue. International law – Bilateral agreement – The agreement not to bring to justice the ex-army members of FAR and Interahamwe who committed genocide, war crimes and crimes against humanity – To bring them to justice does not infringe that agreement in case the latter is silent on other crimes punished by both countries. Law governing competence of courts – The procedure of exequatur before Rwandan jurisdictions – It is not a judgment of the court to be executed before Rwandan jurisdictions; there is neither imposed penalty nor awarded damages – Organic Law Nº 51/2008 of 09/09/2008 determining Organization, functioning and competence of the courts, article 91 and Law NO13/2004 of 17/5/2004 relatingf to the code of criminal procedure, article 17. Agreement between countries on production of evidence – In case contries agreed on the use of evidence collected from one of those countries on a given crime, it is only and only used to the agreed extent.

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Evidence law – Capacity to give his/her testimony – The convict has no capacity to give testimony, however, when it is corroborated by other evidence, then it may be assessed whether it containes the truth – Law n° 15/2004 of 12/06/2004 Relating to evidence and its production, article 63. Evidence law – One’s address – Lying on address is not a ground for not examining his/her testimony because it had no effect on on the disputed issues. Evidence law – Collection of testimonial evidence – Collection of exculpating testimonial evidence is not an issue as such; it is the right entitled to every party to the proceeding. Evidence law – Testimony – Testimonial evidence is statements made in court by an individual regarding what he or she personally saw or heard with that is relevant to the object of trial – Law n° 15/2004 of 12/06/2004 Relating to evidence and its production, article 62. Evidence law – Important, consistent and precise evidence – The consistence of witnesses with regard to the facts as well as of money transfer demonstrate that they testify as to their truthfulness – Law N°15/2004 ryo kuwa 12/06/2004 relatinbg to evidence and its production, articles 104 108 and 119. Evidence law – Inculpating evidence – The statements of the accused being examined together with the message they swapped demonstrate that they conspired in the commission of the crime. Human rights law

– Freedom of expression – Genocide minimization – Enacting law punishing the crime of genocide ideology is not infingment of article 19 International covenant on civil and political rights or any other law – The Constitution of the Republic of Rwanda of May 26, 2003, article 1, Internatio nal Convention on civil and Political Rights, articles 19(3) 33 (1) and African Charter on Human and Peoples Rights, article 9(2). Evidence law – Analysis based on document found on website, wikipedia – Analysis based on the document found on wikipedia cannot be invalidated by the mere fact that they have been carried out throughout that site in case it had been written by a recognised author while he/she who challenges it does not demonstrate that it is not truthful. Criminal law – Genocide ideology – The confirmation of double genocide in Rwanda – Public proclamation of the provisions of article 5 of the Charter of FDU-Inkingi and public declaration that – two genocides hav been committed in Rwanda is minimizing genocide committed against Tutsi Law No. 33n bis/2003 of 2003 Repressing the Crime of Genocide, Crimes Against Humanity and War Crimes, article 4. Criminal law – Threat to external and internal State security – These crimes differs one from another though they all committed gainst the State – Decree law n°21/77 of 18/8/1977 instituting the penal code, article 163. Criminal procedure

law – Appeal – Tantum devolutum quantum appellatum – The Court cannot rule on the on the grounds that have not been ruled on at the first instance – Law nº 13/2004 of 17/05/2004 relating to the code of criminal procedure, article 119 and Law n°30/2013 of 24/05/2013 Relating to thecode of criminal procedure, article 124, 1°. Criminal procedure law – Seizing the court – Seizing the Court is done by the Prosecutor who bring before the Court the accused who is aware of the charges against him/sher and the qualification of the alleged crimes – Law nº 13/2004 of 17/05/2004 relating to the code of

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criminal procedure, article 119 and Law n°30/2013 of 24/05/2013 Relating to thecode of criminal procedure, article 12. Criminal law – Knowingly spreads rumours, alarm or attempts to alarm the population with intention to excites the population against established Government – Rights to freedom of expression – Though these rights are protected by the law, they are subjected to limitations and the latter must be respected by anyone – The Constitition of the Republic of Rwanda of June 26, 2003, articles 33 and 34, International Covenant on Civil and Political Rights, article 19 and Decree law n°21/77 of 18/8/1977 instituting the penal code, 166. Criminal law – Cuncurrence of crimes – Real concurrence – There is real concurrence since she committed different crimes in different periods – Organic Law N° 01/2012/OL of 02/05/2012 instituting the penal code, article 83. Criminal law – Determination of the penalties – Retroactivity in mitius – Crimes committed prior to publication of Organic Law N° 01/2012/OL of 02/05/2012 instituting the penal code in the Official Gazette are punished in accordance whih the former law save in case this organic law provides for the lesser penalties – Organic Law N° 01/2012/OL of 02/05/2012 instituting the penal code article 765. Criminal law – Determination of pnalty – Aggravating circumstances – The fact that the conspiracy against the established

Governmant has serious effects, it must be considered as aggravating circumstance – Organic law Nº 02/05/2012/OL of 02/05/2012 instituting the penal code article 76. Criminal law – Determination of the penalty – Mitigating circumstance – The fact that she is jailed far from her family and that she is the first offender are the mitigating circumstances – Organic law Nº 02/05/2012/OL of 02/05/2012 instituting the penal code article 76. Criminal law – Determination of the penalty – Aggravating circumstances – Mitigating circumstances – Concurrence of the crimes – She must be sentenced to 15 years of imprisonment which is reserved for conspiracy against established Government and attempt to the constitution because all crimes of which she is guilty were committed under real concurrence – Organic law Nº 02/05/2012/OL of 02/05/2012 instituting the penal code articles 71, 76, 82, 83 and 84. Criminal law – Determination of the penalty – Convicts of different crimes whose penalties are also different must not be sentenced to the same penalties. Criminal law – Reduction of the penalty – Suspension of the penalty – He cannot benefit the suspension of the penalty because it had been done and there is no any other motivation to reduce it again, it cannot further suspended in case it had been suspended by the first insance court Facts: The case case tried by the Supreme Court on appeal

level, the last resort. It started before the High Court. The accused were Ingabire Umuhoza Victoire charged of genocide ideology, complicity in terrorism, sectarianism practices, deliberate spread of rumours to incite the population against established government, formation of military organization with intention of military attack and attempt to conspiracy against established Government attempt against the Constitution via terrorism and war.

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In this case further, Nditurende Tharcisse, Habiyaremye Noël, Uwumuremyi Vital and Karuta Jean Marie Vianney were accused all being charged with being part and working in a groups of terrorism, sectarianism practices, involvement in attacks purposing harm to established Government in Rwanda and attempt against the Constitution using terrorism and war and formation of military organization with intention of military attack. Prior to the trial of the case on merits before the High Court, the accused raised their objections including whether the ex-combatants of FDLR who were back to Rwanda may not be prosecuted for the crimes they committed in DRC based on the agreement signed betweenthe Republic of Rwanda and DRC on November 11, 2007, whether the order of the Court in Holland transferring to Rwanda evidence labelled A, D and E might have been subjected to the procedure of exequatur prior to its use in the proceedings and whether the Court is competent to requalify the allged crimes. In the case on merit, the High Court found Rukuru rwahamije Uwumuremyi, Nditurende, Habiyaremye and Karuta guilty of conspiracy against established Government and attempt against the Constitution through the military attack while Uwumuremyi and Ingabire were found guilty of conspiracy against established Government and attempt against the Constitution through terrorism and war after the Court had

changed the qualification of the crime of formation of military organization as alleged and based on the fact that it is Ingabire who transmitted to Uwumuremyi the conception of forming a military organization under the control of FDU- Inkingi. Habiyaremye was acquitted of formation of military organization. After finding them guilty of those crimes, the High Court sentenced Ingabire Umuhoza Victoire to the term of imprisonment of 8 years, Uwumuremyi to 4 and six months, Nditurende and Habiyaremye to 3 years and 6 months while Karuta was sentenced to 2 years and 7 months. In imposing these penalties, the Court based on unequivocal guilty plea, forgiveness seeking and the first offender status of Karuta, Nditurende, Habiyaremye and Uwumuremyi. The Court based further on the fact that Karuta had fled while he was still young and that he had committed the alleged crimes while he held the lowest rank while the crimes of conspiracy against established Government and attempt against the Constitution through terrorism and war that Uwumuremyi was alleged to have committed had no minor effects. As to Ingabire, she benefited the reduction of the penalty because she had passed long time abroad and she had no sufficient information about the country. The Court further based on the letter of Ingabire to the President of the Republic for pardon. Ubushinjacyaha, Ingabire and Uwumuremyi were

dissatisfied of the decision and they appealed to the Supreme Court. In its appeal, the Prosecution lamented that Ingabire was sentenced to the least penalties and, in their reduction, the Court based on her guilty plea while she had not pleaded so. Ingabire lamented that there are objections that the Court left out including that the ex- combatants of FDLR have not to be prosecuted for the crimes they committed while they were still in the forests of DRC based on agreement dated November 9, 2007 and concluded between the Republic of Rwanda , the fact that the order of the Court in Holland transferring to Rwanda evidence labelled A, D and E might have executed without the prior subjection to the procedure of exequatur, the fact that that set of evidence had only to be used on thecrime of complicity in terrorism, the fact that the High Court had no power to convict Ingabire for the crime of genocide

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minimization based on the law which is inconsistent with that used by Prosecution during her interrogation and the institution its accusation to the Court, the fact that the High Court was not qualified to convict her of conspiracy against the established Government, attempt against the Constitution, genocide minimization as they were not in indictment against her the fact that the crime of genocide minimization is inconsistent with International Law that Rwanda signed. The Court found that those objections are closely related to the grounds of appeal on merit and decided to assess them together.With regard to the case on merit, Ingabire protested that the trial did not follow tenets of fair trial. She had further lament of having been found huilty of the crimes she had not committed. As to Uwumuremyi, he pleaded that she was praying for the suspension and reduction of the penalties based on his guilty plea and forgiveness seeking. Prior to the entering into the merit of the case, Nditurende and Habiyaremye raised an objection of being illegally detained. Held: 1. The check on parties prior to their entering the courtroom cannot be considered as infringement of the principle equality of arms in case it was ordered by the Court and while it was never established that such an order was not enforced by either party.

2. Though there is no evidence in support, silencing one party to the proceeding with intention leading the hearing by bringing to order any of the party who is not badgering her, impartiality or infringing the fundamental principle for the fair trial, it is rather an obligation of the judge.

3. She cannot allege that the court denied hearing her witness while it had notified the parties that whoever wishes the summon of witness and establish their contribution to the court and they did not do it on that day or during the following hearings.

4. Search conducted against him did not bring any change for what he was ready to testify because it was conducted after he had given information for which he was needed.

5. The presence of the seized document and statements thereto can change nothing with regard to the ruling of the case because it was not based on to consider his testimony.

6. She cannot allege that the Court ruled on the matter which was not submitted to it because courts are seized of facts. Hence changing the qualification of the crime is the right and obligation of the judgein case the facts are not reflecting the qualification of the crime made by the Prosecutor.

7. She cannot pretend that she has not been given the opportunity to present her defence since it is proven by judgment where her counsels had pleaded on that.

8. Agreement between Rwandaand Congo about no bringing to justice ex-FAR and Interahamwe to answer to the crimes of jenocide, war crimes and crimes against humanity because those agreement are silent on other crimes.

9. The order of the Court in Holland transferring evidence labelled A, D and E B is not the order which must be subjected to the Procedure of exequatur before Rwandan jurisdictions because there is no imposed sentence or awarded damages.

10. The fact that evidence labelled A, D, and E B had to be used only on the crime of financing terrorism while it was used on the crime of complicity in terrorism implies that had not tobe

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used on that crime since they are two different crimes, though they are all committed against the State.

11. The fact that he has no capacity to give testimony since he was sente nced for the crime implies that information he had given s invalid. However, as long as it is by other testimonial evidnce, it must be assessed to find whether it tells the truth.

12. To lie about his residence address is not a ground itself of not assessing his testimony because it had no effects on the debated issues.

13. To seek AA so that he can give testimony is not an issue itself because it is the right of every party to collect evidence in prove what he/ she alleges. With regard to whether he might have been sought to deceive, it must be assessed on the basis of whether he tell lies or not.

14. Testimonial evidence is statements made in court by an individual regarding what he or she personally saw or heard with that is relevant to the object of trial. Therefore, the statements of AA. Is not what he saw or heard. It is rather the outcome of his analysis because she stated that when Uwumuremyi was shown the picture of Ingabire on the newspaper, he looked as she had never known her and he had initially read out her name to know it was Ingabire and request used to support FDLR.

15. She was not found guilty based on contradictory and incoherent evidence because;rather, the fact that Ingabire has encouraged those who incupates him to separate from FDLR and form their own military organization FDLR/FOCA under the control of FDU-Inkingi is a truth because the co-accused and her accusers converge on the same facts including electronic mails, different air trips made by accused with intention to meet with her which imphasized bythe statements made by Ingabire who acknowledged that on the said dates she was on the destination of her accusers and the money that she used to send to them, as conformed by evidence collected from the country from which it was transferred and in the one it was withdrawn. Therefore, evidence based on is important, consistent and precise.

16. The content of the messages thazt Ingabire used to swap with Uwumuremyi in addition to the statements that Uwumuremyi was a close person with Ingabire and that their cooperation went on till when Uwumuremyi was back to Rwanda during the operation umoja wetu, implies that she used to use her in forming a military organization under the control of FDU-Inkingi.

17. The repeated change of the qualification of the crime and the law based on in accordance with the progress of the case through deifferent judicial organs while the facts remain unchanged till the courts gives it final qualification is not contrary to law.

18. The fact that the rights of freedom of expression is limited, the fact that the Constitution of the Republic of Rwanda embody that minimization of the genocide must be punished, the fact that that repression is not only the particularity of Rwanda only, the fcat that those who minimize genocide use different strategies and its minimization is the manner od its denial and the signal of the preparation of another one and the intent is always to shield those who committed it not to be punished, the fact that Rwanda is a country in which genocide which had been recognised by International community occurred, it is then justifiable that enact the law for its repression. Further, the fact that the limitation imposed by that law were not proven by Ingabire and her counsels to be unnecessary, demonstrates that the Court did not infringe article 19 of International Covenant on Civil and Political Rights or other laws.

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19. The use of the Week pedia in analysing the ''theory of double genocide '' is not a flaw that may invalidate the findings reached from thereon because it was written by a recognized author in history who conducted research on the crimes of genocide, crimes against humanity and he is not the only author who is not a lawyer who analysed that crime. The fact that he was not notified of the author cited in deciding the case is no a ground of appeal since the accused had time to present her defence in regard with the elements constituting the alleged crimes which was assessed in accordance with law and doctrines and then decides the case. Hence, the fact that he does not challenge the author per se and never demonstrates that the contents of his writings do not reflect the truth is the cause to invalidate his pleadings. This procedure is rather in accordance with the traditions of courts with regard to special knowledge in custody of experts. 20 The Public proclamation of contents of article 5 of the charter of FDU-Inkingi and endorsement the theory of double genocide in Rwanda while it is indisputable that only on genocide committed against Tutsi happened in Rwanda while the one committed against Hutu is inexistent is the minimization of the crime of genocide. Therefore, the fact that the drafters of the the Charter of FDU-Inkingi including the accused consider on the same scale

genocide and other crimes which take the lives of many people, indicates that those tenants aim at nothing apart from downsizing the weight of the genocide committed against Tutsi by indicating that the perpetrators also suffered it in turn. Hence, she is guilty of that crime. 21.The acts of undermining public institutions of established Government in the context of overthrowing or forcing the the established government into negociations are not crimes of contempt of State external security; they are rather crimes contempt of State internal security since for the former, the target is shaking independence and soiverignity of the State and threatening its security and interests with other States while the latter the target threatening internal security and undermining public institutions.

22. The acts in relation to article163 imputed to the accused cannot be assessed by the appeal court based on articles 164, 165 of 169 of the Decree – law n°21/77 of 18/8/197 7 Instituting bthe penal code in order to confirm that the Court of first instance might have wrongly interpreted evidence submitted by the Prosecution because, its admission that the alleged acts constitute the crime of conspiracy against established Government through terrorism and that it conceded that it is not in the indictment submitted at the first instance and it cannot rule on the the grounds which have not submitted to the appealte court.

23. Seizing the court is done in accordance with the procedure prescribed by the law whereby the accused is brought to trial being aware of the alleged acts and their qualification. Therefore, the fact that in the broadcast with Radio Voice of Africa, that with a journalist at her house, that she had with a journalist at Serena Hotel are new charges because the accused has never been interrogated on that neither before the Judicial Police nor Prosecution and never appear in the indictment, hence she cannot be prosecuted on that.

24. Though the right to freedom of expression is protected by the law, the proclamation and the writings of Ingabire are not her opinions as a politician in opposition. It is rather deliberate spreading of rumours with intention of inciting the public against the established Government because she states that there are Rwandans who are underestimated compared to others, there is in Rwanda a group of persons who believe to be above the law, who have power in their personal possession and amend the constitution and other laws in their personal interests, which corrupted the judiciary to the extent that impunity became a tradition, judges no longer rules cases based on

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laws, rather based on the instructions issued by high ranking military officials of APR, the secret power around President Kagame and his tools especially the group badly known under the DMI, the military organization which replaced the the Government, persons go missing and slaughtered…It aims at nothing else save inciting people against the Government following what they hear which may sow troubles in the population who may in turn incite citizen against each other.

25. There is real concurrence because she committed different offence during different periods.

26. In punishing conspiracy against established Government, it is necessary to take into account its effects both on nation and the citizens.

27. The fact that the accused committed the crime in complicity but during the trial the had pleaded differently and even during the commission of the crime one of them is the masterminder and transmit the plan to others implies that they must not be sentenced to the same penalties.

28. The fact that she is in prison far from her family and that she is the first offender are mitigating circumstances.

29. She must be sentenced to 15 years of imprisonment reserved for the crime of conspiracy to against established Governement since she committed the crimes under real concurrence and that there are the concurrence of both mitigating and aggravating circumstances.

30. Uwumuremye had benefited sufficient penalty reduction following mitigating and his penalty got suspended. Hence, his requests have no merit. Appeal of the Prosecution has merit in part; Appeal of Ingabire has only merit with regard to evidence collected in Holland labelled A, D and E which must not be used in the case; Appeal filed by Uwumuremyi has no merit; Ingabire is guilty of conspiracy against established Government and attempt against the Constitution through terrorism and war or other force whatever, the crime of genocide minimization, the crime of knowingly spreading rumours with intention of inciting the citizens against established Government; She is sententenced to 15 years of imprisonment; The judgment delivered by the High Court is not changed with regard to the crimes of which Nditurende Tharcisse, Habiyaremye Noel, Uwumuremyi Vital and Karuta Jean Marie Vianney were found guilty. Statutes and statutory instruments referred to: The Constitution of the Republic of Rwanda of June 26, 2003, articles 4, 2º, 13, 33, 2º and 34. International Convention on Civil and Political Rights, articles 19(3) and 33 (1) Convention on the Prevention and Punishment of the Crime of Genocide, article 2. African Charter on Human and Peoples Rights, articles 1, 9 (2) and 34. Organic law Nº 02/05/2012/OL of 02/05/2012 instituting the penal code articles 12, 71, 76, 82, 83, 84, 116, 462,and 84, 765

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Organic Law Nº 51/2008 of 09/09/2008 determining Organization, functioning and competence of the courts, articles 17 and 91 Law Nº 84/2013 of 11/09/2013 Relating to the crime of genocide and related crimes, articles 5, 6, and 12. Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure, article 73 Law nº 45/2008 of 09/09/2008 Realating to counterterrorism,. Law N°18/2008 OF 23/07/2008 Relating to the punishment of the crime of genocide ideology, articles 2 and 4. Law N° 15/2004 of 12/06/2004 Relating to evidence and its production, article 62, 63, 104 and 119. Law NO 13/2004 of 17/5/2004 Realating to the code ofcriminal procedure, article 17, 64 and 119, 124, 1°. Law No 33n bis/2003 of 2003 Repressing the Crime of Genocide, Crimes against Humanity and War Crimes, article 4. Decree law n°21/77 of 18/8/1977 instituting the penal code, articles 163, 164-177,165, 169, 462 and 463 Cases referred to: Prosecution vs Jean Kambanda (Appeal Judgment), ICTR-97-23-S, International Criminal Tribunal for Rwanda (ICTR) 9 September 1998. Umuhoza Victoire, RS/INCONST/PEN 0002/12/C10, Rwaciwe n’Urukiko rw’Ikirenga ku wa 18 Ukwakira 2012 Ubusinjacyha v .Cpl Ngabonziza Faustin et al , RPAA 0117/07/CS, Urukiko rw’Ikirenga, (17/09/2010),

https://www.google.rw/url? sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0ahUKEwjD8tnIqavKAhXEWiwKH cIoCO0QFggbMAA&url=http%3A%2F%2Fwww.judiciary.gov.rw%2Fuploads %2Ftx_publications%2FMP%2520c%2520Sgt%2520BIZIYAREMYE%2520%2520et %2520Cpl%2520NGABONZIZA %252017%252009%252010%2520.pdf&usg=AFQjCNHRyKuBGLoKJNHhQr5_sfcAJL LLuw&sig2=H5j83uUviPXqNBmov8YcQQ Ubushinjacyaha v Nyawera Célestin, RPA 0033/11/CS, (14/09/2012) Icyegeranyo cy’Ibyemezo by’Inkiko, Igitabo cya 3, no 7, 2013. Authors cited: Henri-D.Bosly et Vandermeersch D., Droit pénal général zaïrois, Kinshasa, Editions Droit et Société ‘‘DES‘‘, 1989. Franchimont M., Ann Jacobs et Masset A., Manuel de procédure pénale, 2è éd., Bruxelles, Larcier, 2006. Merle R. et Vitu A., Problèmes généraux de la science criminelle, Droit pénal général Traité de Droit Criminel, Tome I, 3è ed., Paris, Editions Cujas, 1978. Judgment I. BRIEF BACKGROUND OF THE CASE

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[1] Nditurende and Habiyaremye, purported to have been possessing the rank of lieutenant- colonel, Habumuremyi who was claimed to have possessed the rank of Major and Karuta who was purported to have been holding the rank of Captain all were soldiers in FDLR, rebel group operating the Democratic Republic of Congo (DRC). The Prosecution issued an indictment alleging that such a group were intending to take over the Government through the war, the context in which all the accused participated in different attacks led against Rwanda at different period. [2] In the indictment further, the Prosecution alleged that Uwumuremyi alongside Nditurende, who was his superior, as his co-offenders, separated from FDLR and upon Ingabire’s sensitization founded an other rebal group called coalition des Forces Démocratiques (CFD) tied to FDU-Inkingi led by Ingabire. The Group aimed at sowing insecurity in Rwanda through terrorism. The Prosecution alleged that Ingabire financed such a armed group. The Prosecution added that the fact that such an aim was not reached as result of the arrest of Nditurende in Burundi dealing with preparatory activities for such purpose which was followed by arrest of others. [3] Habiyaremye and Nditurende, arrested in Burundi as well, was indicted by the Prosecution as well to have surrendered from Babacengeze and intertatined relationship with a politician called

Rusesabagina Paul based oversease with intention of founding anpother armed group not accepted by the State (PDR-Ihumure) which also aimed at attacking Rwanda. [4] The Prosecution also indicted Ingabire for having in different period expressed opinion containing genocide ideology and misleading people with intention of minimize it,occurrence of divisionism and knowingly spreading rumours with intention exciting the population against established Government through different means includinginternet, written media, radio and TV. Emissions. [5] Based on these acts, the Prosecution indicted all the accused for the crimes listed above. [6] Prior to the hearing of the case on merit, the High Court examined the preliminary questions a as submitted by the accused mong others : Whether the ex-combatants of FDLR who surrendered to Rwanda may m not be prosecuted for the crime they committed while still on the DRC territory based on the agreement between Rwanda and DRC ON September 11, 2007; Whether the order of Dutch Court transferring to Rwanda evidence lebeled A, D and E had to be subjected to exequatur prior to its production. [7] Regarding the the ex-combatant of FDLR, the Court in short held that the agreement between Rwanda and DRC intended the reinforcement the Cooperation in tracking those responsible for the crimes of genocide, crimes against humanity and war crimes but

without prejudice to the Prosecution of of others responsible of other crimes provided for and punished by Rwandan law and, in addition, it is not specified nowhere in the agreement. [8] Concerning evidence labeled A, D, and E, based on article 91 item 1 of Organic Law nº 51/2008 of 09/09/2008 determining Organization, Functioning and Organization of Courts as modified and Complemented todate, the Court judged that the order of Duch Court to transfer to

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Rwanda that evidence is not an order that must be subjected to exequatur procedure before Rwandan Courts because it has been executed by competent Dutch Organs. The Court held further that the task of the Court is the examination of that evidence in accordance with Rwandan Law. [9] In the matter of the competence of the Court to reclassify the crime, the Court held that at any time it is deemed necessary, it is the one entitled to reclassify the crime vis-à-vis the alleged acts in accordance with the Law. [10] With regards to the case on merit, the Court held that Uwumuremyi, Nditurende, Habineza and Karuta are guilty of Conspiracy against the established attempt against the constitution though the war because of their rematkble role in the various attacks led against Rwanda in different periods at the time they were still FDLR combatants. Furthermore, after the reclassification of the alleged crime of formation of irregular armed group, Uwumuremyi and Ingabire were found guilty of Conspiracy against the established Government and attempt against the constitution through terrorism and war based on the fact that it is Ingabire who sumitted to Uwumuremyi the proposal to formation of armed group in connection with FDU- Inkingi to which they had agreed upon and encourage Nditurende to adhere. However, the Court found that he did not agree with them even though he had entered into

the negotiation to that proposal. [11] With regard to Habiyaremyee agreement, the Court found that though he had entered into negotuations with Rusesabagina, there is no proof that they were on the extent of undoubtble agreement tofounding the armed group and its purpose,he was acquitted on that crime. [12] With regard to to their afflitiation and working in the association of terrorism, the Court found that Uwumuremyi, Nditurende, Habiyaremye and Karuta,could not be prosecuted on that based on Law nº 45/2008 of 09/09/2008 relating to Fighting terrorism because the allged acts stranspired prior to its publication. [13] Regarding penalties, the High Court sentenced Karuta to 2 years and seven months of imprisonment, Nditurende and Habiyaremye to 3 years and six months, Uwumuremyi to four years and six months whose three years and 3 months must be served in jail while the sentence of one year must be suspended in the period of two years. Ingabire was sentenxed to 8 years. [14] In the reduction of the penalty imposed to Karuta, Nditurende, Habiyaremye and Uwumuremyi, the Court based on the fact that they had unquivocally pleaded guilty as provided for article 35 of the Law relating to the code of criminal procedure, their expression of need of pardon which contributed to administration of justice. The Court further based on the fact that they were first ofenders. The Court in

particular found that Karuta fled the Country while he was still young and was holding the lower rank at the time of the commission of the alleged acts. With regard to Uwumuremyi, the Court found that conspiracy against established government and attempt against the constitution through terrorism and war had minor effects. [15] On Ingabire, the Court reduced the sentence based on the long time h\she had spent oversease which caused her no to have sufficiency of reliable information about the nation a dn that one of the motivation which pushed her to come to Rwanda was her intention to verrify such

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information that she had from people from inside the country or or tat he read in the different reports. [16] The Court further based on the latter that the Prosecution submitted written by Ingabire to the President of the Republic of Rwanda on November 6, 2011 whereby she was asking forgiveness for the individuals she might have cased harm either in her statments or writings. [17] Not satisfied of the ruling, the Prosecution, Ingabire and Uwumuremyi appealed to the Supreme Court. [18] With regard of the appeal launched by the Prosecution, the latter pleaded that it was dissatisfied of the fact that Habiyaremye, Nditurende, Uwumuremyi, Karuta and Ingabire were acquitted of formation of armed group aiming at leading attack based on article 163 of Law nº 21/77 of 18/08/1977 instituting the penal code in Rwanda which was into effect due to wrong interpretation of the Law. [19] Moreover, appeled against the acquittal of the crime of knowingly spread rumours with intention of aiming at inciting the population against established government regardless of applicable law and produced evidence. [20] Further, the Prosecution disputes that the penalties imposed to Ingabire had been wantonly reduced regardless of the gravity of the crimes and in the precessof their reduction, the Court held that she pleaded guilty while, instead, she pleads not guilty of all allged offences. [21] In her

appeal, Ingabire and her counsels states that the High Court disregarded the following preliminary questions : The fact that the ex-combatant of FDLR cannot be prosecuted on the alleged crimes when they were still in the forests of RDC based on agreement of November 9, 2007 that Rwanda concluded with RDC. The fact that the order of Dutch Court transferring eviudence labeled A, D, and E could not be executed prior to the procedure of exequatur in Rwanda. The fact that that evidence had to be used only on the crime of complicy in terrorism. The fact that the Court was not competent to find Ingabire guilty of genocide minimization based on theLaw which is inconsistent that invoked by the Prosecution at the time of her interrogation and indictment before the Court. The fact that the High Court had no competence to find her guilty of conspiracy against established governement and attempt against the constitution and the crime of genocide minimization since they were not in the indictment. The fact that genocide minimization does not fulfil the elements of the crime required by international law ratified by Rwanda. [22] In examining such questions, t5he Court found out that they are closely linked to the grounds of appeal of Ingabire against the case onb merit. The Court decided to examin them together with those grounds of appeal.

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[23] With regard to the case on merit, Ingabire and her counsels disputed that the judgment did not respect the princnples of fair trial. She lamented that she was found guilty of the crimes she has not committed. [24] Uwumuremyi as to his side appealed requesting the reduction and suspension of the penalty based on his guilty plea and that he seeks the forgiveness. [25] The hearing took place on March 25, 3013 on different dates which followed till July 31, 2013 the date of the closure of the hearing. The Prosecution was represented by Hitayezu Alphonse, the then Deputy Prosecutor, Bonaventure Ruberwa and Mukurarinda Alain, the National Prosecutors while Ingabire was assisted by counsels Gatera Gashabana and Ian Eduards, Uwumuremye assisted by counsel Murenzi Eugène, Habiyaremye assisted by counsel Ntambara Emmanuel, Karuta assisted by counsel Ngabonziza Joseph while Nditurende assisted by counsel Mucyesha David. [26] In limine litis, Nditurende and Habiyaremye raised an objection of their illegal detention while, according to them, they have served their sentence taking into account March 28, the date they claim their initial imprisonment. In the interlocutory judgment, the Court decided that the objection has no merit. [27] In the course of the haering of the case, the Court heard three witnesses namely Rwamamara Angelus and Musonera Franck and another witness who had been

heard in open court but whose name was kept anonymous and the face covered. He was named ‘’AA.’’ II. ANALYSIS OF LEGAL ISSUES 1. Whether the High Court disregarded the principle of right to fair trial A. Regarding appeal of Ingabire [28] Gatera Gashabana, counsel, disputed that the core ground of appeal of his cleint is the failure of the High Court to respect the principle of right to fair trial which seentaially consist of right to be presumed innocent,right to equality of arms, right to be triad by independent and impartial tribunal. [29] He declared that the non-respect of these rights are typified by examples among others : The regular check carried out against counsels for Ingabire by security officers prior to entering the courtroom which was not the case for the Prosecution while all of rhem are parties who must be treated the same, The failure to examine the objection raised about principle of legality of criminal offenses and penalties and the principle of non-retroactivity. The fact that during the hearing, the judge focused on silencing counsels for Ingabire at any time they wanted to have a speech in the defense of her interest and that the judge overtly went against them,

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The denial of hearing the witness who wrote to the court on April 10, 2012 with intention of giving his/her testimony about how the official of intelligence asked Uwumuremyi to falsely testify that Ingabire cooperates with FDLR, The fact that the Court kept silence with regard to check that had been carried ou against the witness that had been suggested by counsels for Ingabire (Lieutanant Colonel Habimana Michel) with an aim of intimidating him while he had no counsel. [30] The Prosecution pleaded that the statements of counsels for Inagbire that check had been regularly carried out against them prior to entring the courtroom while it was not the same practice for the Prosecution has no merit because in the course of the hearing they prayed the Court to issue an order about such check. From the objection, the Prosecution insisted, the Court decided that whoever enters the courtroom, either parties, the public, legal advocates or Prosecution, must be checked. [31] With regard to the denial to examin raised objection of principle of legality of offences and penalties and of non retroactivity of law, the Prosecution claimed that the statement of counsel Gashabana has no merit since the High Court examined that and took decision thereon as it is highlighted on page 5 paragraph 7 of the judgment. [32] With regard to the pleading of Ingabire that the judge used to badger them and

silence them at any time they wanted opportunity to plead in her interests, the Prosecution responded that during the hearing counsel Gashabana was characterized by offensive and aggressive assertions against the other parties without forgetting judges. He concluded that the Court could not tolerate such behaviours. [33] With regard to the declarations of Ingabire and his counsels that the High Court denied hearing the witness who wrote requesting to give the testimony about how Uwumuremyi was involved in the proceeding to testify against Ingabire upon the request of Intelligence Organs, the Prosecution disputed that it was not true because none requested his/her sommon nor raised such objction and the Court disregarded its examination. [34] On this objection, Murenzi, the counsel, explained that in the hearing of April 4, 2012 before the High Court the judge specified that whoever need a witness to be summoned may notify the Court and indicate what they want the Court to know. Counsels for Ingabire have only precised Habimana Michel while the Prosecution gave only the one called Nsabimana Phocas. The Court held that only those witnesses must be summoned. The Prosecution then wound up that the Court had nothing to comment on that. [35] He stated further that it is not comprehensible how someone who wrote the said letter had requested to give his testimony on April 10, 2012

whilst the Court Has declared that it would hold nothing about witnesses who were not on its agenda and, the Prosecution added, it goes the same way for for the statements of counsels for Ingabire about the the Court which did not comment on that letter while they had never requested the summon of the one who wrote it. He stressed that did they believed that that testimony would play a vital role in the proceeding, they would justify it.

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[36] With regard to the concern that the judge held nothing about the check which was was conducted against the accused's witness with intention to intimidating him in violation of his rights, the Prosecution responded that no legal provision was infringed while searching on the prisoner in jail so long as search can be carried out against prisoners at any time and at any hour if deemed necessary. [37] The Prosecution further asserted that such search had no negative effect either on him or the progress of the proceedings because it was done after he had given the information to the Court in such a way that the search could change anything. Therefore, there was no justification for intimidating him as he was searched after the information had been given. [38] The concern that the witness might have been interrogated not assisted by a lawyer, the Prosecution responded that he was not interrogated as accused; rather, the Prosecution insisted, he was interviewed in the context of giving information pertaining papers that he had been caught with when he was searched. He was interviewed in administrative framework. Hence, the Prosecution concluded, it was not necessary to be interviwed assisted by a lawyer in accordance with the Law relating to the code of criminal procedure. The view of the Court [39] The Court is of the view that search carried out against Ingabire and his

counsels prior to entering the courtroom did not infringe rights of the accused of equality of arms in case the High Court had took an order that whoever enters the courtroom had to to be searched either parties, the public or legal advocates; and there is no proof that such an order was not enforced on either party. [40] With regard to the statements of counsels for Ingabire that the judge used to silence and badger them at any time they tempted to defend the interests of their client, the Court find neither in minute of the hearing nor in copy of the judgment that the judge had deviated from his duties of leading the hearing where which he/ sheis entitled to bringing to order any party to proceeding who deviate from the subject matter by virtue of article 73 of Law N° 21/2012 of 14/06/2012 Law relating to the civil, commercial, labour and administrative procedure which provides for the guidlines that the judge must observe. Therefore, in cases such lines are followed, it must not be implied as impartiality, badgering the party to the proceeding, or infringment of fundamental principle of fair trial. [41] With regard to the ground of appeal of counsels for Ingabire that the High Court denied hearing the witness’ application for giving the testimony about how Uwumuremyi was brought in the proceeding, the Court finds that it is without merit because, as highlighted in the minute

of the hearing dated April 4, 2012, the Court had notified all the parties that whoever wants the summon of the witnesses may list them and highlights their prospective contribution. However, the Court held, Ingabire and her counsels did not make any query about their summon neither on that very day nor on the following proceeding. [42] The Court therefore finds that the High Court had respected the rights of the parties as recognised by the Law with regard to the witnesses whom they wanted in their trial because, the fact that Ingabire and his counsels had respected the requirements on April 4, 2012 only on the

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witness Habimana Michel while they did not do it for the witness that they challenge the Court to have not summoned cannot be implied as a defect in the judgment rendered on the first instance. [43] With regard to search that had been carried out against Habimana Michel in prison on the same day after giving his testimony, the Court finds that it had neither impact on his statements nor on his prospective statements since it occured after he had already given his the needed information. [44] The Court finds further that papers that had been seized from inside the room of Habimana and statements on those papers had no impact on the adjudication of the case since they had not been based on for the assessment of the value of his testimony. Hence, the worries of counsels for Ingabire have no merit. [45] In conclusion, based on the process of procceding at the first instance, the Court finds that appeal of Ingabire concerning alleged violation of the rights on fair trail has no merit.

2. Whether Ingabire is not guilty of conspiracy against established government [46] The High Court found Ingabire guilty of conspiracy against the established government based mostly on the statements of her co-accused, ex-FDLR/FOCA Bahama Battalion who testify that she encouraged them to separate from them to found a new group based on FDU- Inkingi. They testify further that they met at Kinshasa and Brazzaville upon her rendez-vous in the context of shaping their collaboration that had started and in different periods of since February 20008 till January 2009 she had been sending them money through other persons and that such money had been used for buying various military equipments including rifles, medications, food while another portion was sent to their families. [47] It based further on different evidence including electronic correspondences via e-mail address vumuhoza@cs.com and gpascal05@yahoo.fr based also on papers from Holland and Congo which the Court found showing that Ingabire had been sending them money and that they had been meeting in Kinshasa and Brazzaville as they btestify. [48] The legal questions that must be analyzed based on the defects arising from Ingabire pleading are the following: Whether the High Court had found her guilty of conspracy against established government while it was in her indictment. Whether she was found guilty of the crime based on

statements made by her co-accused and that the latter has pleaded guilty of crimes that they had not to be prosecuted and punished for. Whether evidence collected from Holland had not to be used in the proceeding since the court order Rotterdam was not been subjected to the procedure of exequatur before Rwandan jurisdictions. Whether based agreement concluded between Rwadna and Holland, evidence labelled A, D, and E had not to be used for the crime of conspiracy against established government Whether information given by Habimana Michel and AA indicates that the co-accused of Ingabire concocted against her upon respect intelligence organs;

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Whether the High Court found her guilty based on contradictory and inconsistent evidence and statements Whether the Court found her guilty without demonstrating her particular intention. i. Whether the High Court had found Ingabire guilty of conspiracy against established government while it was not in her indictment [49] Ingabire contended that the judgment frendered by the HigH Court must be overturned because the Prosecution indicted her for complicity in terrorism, formation of armed forces with intention of military attack and attempt against the constitution and attempted overthrowing of established government through terrorism and war while the Court found her guilty of conspiracy against established government which was not in her indictment. Sh lamented that such practice is in violation of article 119 of the Law relating to the code of criminal procedure which prvides based on evidence at hand, the Prosecution compile and transfer to the Court the complete case file and the Court assesses the acts in indictment and then found him/her guilty or acquit her. [50] She claimed that she had not been given time for presenting her defence on the alleged crime of attemp against established government which is in violation of article 64 of the Law relating to the code of criminal procedure which specifies that the accused must be notified of the charges against him/her and

specific provisions of the Law. [51] The Prosecution pleads that the defence of Ingabire has nomerit because no law prohibits the court to adjust the qualification of an offence in accordance with applicable law that it bases on in case the Court finds it otherwise. The Prosecution added that the qualification can change based on circumstances around the commission of the crime and the defence of either party at any time the court had not yet delivered its final verdict. The Prosecution added that some acts may be prosecuted in a different manner without giving a new notice to the accused and then be punished as attempt, the initial crime as such or a new crime. The view of the Court [52] The Court finds that concerning the qualification of an offence in general, the High Court has explained with accuracy that acts composing the alleged crime are submitted to the judge who in return adjust them with appropriate provisions to that offence and then qualify it in the manner that may differ from the qualification of the Prosecutor. [53] The Court finds that the duty of the judge to adjust the qualification of an offence in case the alleged offence does not reflect the acts committed is confirmed by legal scholars like Henri- D.Bosly and Damien Vandermeersch who were cited by the High Court and some others including Nyabirungu Mwene Songa1, Michel Franchimont, Ann Jacobs and Adrien Masset2, Roger Merle and André Vitu3. 1Droit pénal Général zaïrois, Kinshasa, Editions Droit et Société ‘‘DES‘‘, 1989, p. 111. 22 Manuel de procédure pénale, 2è édition, Bruxelles, Larcier, 2006, p.528 3Traité de Droit Criminel, Tome I, Problèmes généraux de la science criminelle, Droit pénal général, 3è ed., Paris, Editions Cujas, 1978,p. 448 et s.

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[54] The Supreme Court also in it precedent4 confirmed that courts are zseized with the acts composing the crime and that reclassification of the crime is his right and duty so long as the committed acts do not reflect the alleged crimes [55] About the statements of Ingabire claiming that she had not been granted time to present her defence on the crime of conspiracy against established government and attemp to the Constitution, the Court finjds that it is not true because, as highlighted on paragraph78 of judgment rendered by the Highj Court, Gatera Gashabana, the counsel, himself declared that in line with the High Court explanations, the acts alleged acts of forming the armed forces that Ingabire is accused are not intended of attempt to exterior security of the State, rather they aim at attempt to the interior security of the State which is privided for by article 164-177 of the penal code which was into effect athe time of the commission of the elleged acts. Whether she was found guilty of the crime based on statements made by her co-accused and that the latter has pleaded guilty of crimes that they had not to be prosecuted and punished for. [56] Ingabire and his counsel stated that the agreement signed on November 9, 2007 between Rwanda and DRC was conceived in the context of appeasing FDLR combatants who wanted to come back to Rwanda peacefully but who feared because of

the crime they committed which is the reason why the crimes which were provided concerned genocide, war crimes and crimes against humanity and those who had to be prosecuted were those who were wanted by Rwandan justice or International Criminal Tribunal for Rwanda based in Arusha. The continued pleading that the fact that the High Court had [57] With regard to this issue, the Prosecutor pleaded that this ground has no merit for the reasons set forth : She had never lived in Congo so as to plead that the agreement concerns her; She is not entitled by the law to defend FDRL members because criminal liability is personal and hence her appeal must reflect his concerns only; From the first instance, she pleaded confirming that she had never been a member of FDLR collaborate with them and therefore there is no ground to request the Supreme Court to change the decision of the High Court so as to appease the former combatants of that group; The agreement does not specify that those who committed other crimes provided and punished by Rwandan Law will not be prosecuted; The agreement only concerns the ex-combatants of FDLR who willingly came back while her co-accused was did not come back in that context. The view of the Court 4 RPAA 0117/07/CS rendered on 17/09/2010

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[58] In the ageement between Rwanda and DRC5 sined on November 9, 2007 the Government of Rwanda and that of DR Congo committed work together for the remedy on the issue of peace in both Countries and in the Great Lakes Region. [59] In this contex, the Government of DR Congo committed among other things to relocate far from Rwandan borders the combatants of FDLR and Interahamwe who are still holding their arms at any time they would not be intending to came back to Rwanda and not wanted by Rwandan justice or International Criminal Tribunal for Rwanda till the solution to their problem would be reached, arrest of those wanted for the crimes of genocide, crimes against humanity and war crimes and transfert hem to Rwanda or to International Criminal Tribunal for Rwanda. [60] The Government of Rwanda on its side committed itself among other things to encourage through appropriate programs Ex-FAR and Interahamwe and their families to come back to their country and help them to integrate into ordinary life. Both Countries further committed to working together in order to bring to justice those suspected of having committed genocide, war crimes and crimes against humanity. [61] It is clear that both Governments committed to work hard mostly to bring to justice those who are wanted for most serious crimes of genocide crimes against humanity and war crimes. However, the Court reiterated,

nothing was legislated about other crimes. [62] The Court finds that, as held by the High Court, the fact that both Countries provided nothing on other crimes apart from the crimes of genocide, crimes against humanity and war crimes does not imply that those crimes could not be tried or punished based on applicable laws in both countries. Whether evidence collected from Holland had not to be used in the proceeding since the court order Rotterdam was not subjected to the procedure of exequatur before Rwandan jurisdictions. [63] Ingabire laments that evidence labeled A, D, and E that was gathered from Holland had not to be produced in Rwanda because the court order of the Court of Rotterdam in Holland confirming its transfer to Rwanda had not been subjected to the procedure of exequatur as provided for by article 91 of Organic Law n° 51/2008 of 9/09/2008 Determining Organization and functioning of Courts. [64] The Prosecution responded that such ground of appeal has no merit since in the criminal proceedings, the decisions of the courts which must pass through exequatur procedure so that they can be inforced in Rwanda are the ones whoch had determined penalties which may be valid before Rwandan jurisdictions upon the request by the Prosecution or the one harmed by the crime in case it set the damages whose payment must be executed on Rwandan territory as stupilated by article 17

of the penal code which was into effect. The Prosecutor contunued exolaining that with regard to the issue, it was neither a judgment whose execution in Rwanda was being sought by the Prosecution nor the judgment determining damages whose payment had to be carried out in Rwanda. 5 Communiqué conjoint du Gouvernement de la République Démocratique du Congo et du Gouvernement du Rwanda sur une approche commune pour mettre fin à la menace pour la paix et la stabilité des deux pays et de la Région des Grands Lacs.

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The view of the Court [65] Article 91 of Organic Law nº 51/2008 of 09/09/2008 determining Organization, Functioning and competence of Courts provides that in its competetce, the High Court is competent to try cases requesting execution of judgment or orders delivered by the foreign courts while article 17 of the penal code which was into effect at the time of the trial of the case before the High Court provides that foreign criminal judgment may at the request of the public prosecutor or the victim of the offense, be recognized in Rwanda, if she determines damages which are to be executed in the territory of the Republic of Rwanda. [66] When these articles and the order of the Court in Holland ordering the transfer of evidence labeled A,D, and E so as to be used in the acts of prosecution and production in the acts of trial of the crime of complicity in terrorism that Ingabire is alleged to have committed are jointly analysed, the Court finds that, as held by the High Court, that order is not of the nature whose execution is sought in Rwanda because it does neither impose any penalty nor it orders the payment of damages whose execution must be carried out on the territory of the Republic of Rwanda. iv. Whether based on agreement concluded between Rwanda and Holland, evidence labelled A, D, and E had not to be used on the crime of conspiracy against

established government [67] Ingabire complains that the Court of Rotterdam in Holland ordered the transfer of evidence labeled A, D, and E to Rwanda that has been seized from in her house when the latter has been searched by institutions of that Country so that only they may be produced in the trial of the acts of complicity in terrorism. [68] She complained that her disatsfation about the decision of the High Court is that after it was confirmed that shed id not finanance the acts of terrorism of FDLR as embodied in paragraph 254 of the judgment, page 68, the Court disregarded the agreement between two Countries as well as the holdings of the decisions of the Court themselves and use that evidence on the new crime that had been qualified conspracy against establisged government and attempt to the fundamental principles of the constitution through terrorism and war. [69] She concluded praying the Court both to respect the conlcusion that had been reached when the Rotterdam Court issued that order and the agreement conluded by both countries as far as its inforcement concerned. [70] The Prosecutor pleaded that the acts in indictment constitute the crime of terrorism which had been also examined as such by the High Court which found that those acts had really transpired, then gave them an appropriate qualification. Therefore, the Court infringed no law when it found that those

acts constitute complicity against established government since it is the one which confirm the real qualification of the crime. It is not bound by the qualification made by the parties. In addition, the agreement between Rwanda and Holland had been respected because the Court had been clearly demonstrated that conspiracy against established government could not occur without recourse to terrorism or war.

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The view of the Court [71] As it is clear in the document that had been translated into French, the Court of Rotterdam in Holland examined whether documents that had been seized by security agencies of that country might be transferred to Rwanda in the context of cooperation requested by the Rwandan Prosecution. [72] In its decision, that Court held that it had to examin the document that had been seized from inside the house of Ingabire with regard to the crime terrorism of which she was suspected. The Court found that evidence labeledA, D and E might be transferred to Rwanda since they are the only one likely pertaining the crime of complicity in terrorism punishable by both countries taking into account both the penal code of Holland and Rwandan Law n°45/2008 of 09/09/2008 relating to fighting against terrorism. [73] Appropriate Institution of Hooland and Rwanda agreed that evidence labeled A,D and E had to be used only on the crime of complicity in terrorism and examination of the acts of financing terrorism. [74] However, as highlighted in copy of the judgment delivered by the High Court, evidence labeled A, D and E had been used in examination of the crime conspiracy against established government provided for by article 164 of the panal code which was into effect at the time which is defferent from the crime of terrorism which was provided for by Law nº 45/2008

of 09/09/2008 on counter terrorism. [75] The Court finds in the new penal code that though those crimes have a close relationship, the crimes committed gainst the State, they differ from in their nature since they are provided for and punished by diferrent laws. [76] Therefore, the Court finds that that those pieces of evidence labeled A,D nad E had been used on the wrong crime. Hence, the Court decided, they must not be taken into account in assessing whether Ingabire is guilty or not guilty of conspiracy against government. Hence, her complaint against this evidence has merit. v. Whether information given by Habimana Michel and AA indicates that the co- accused of Ingabire concocted against her upon respect intelligence organs; The statement of Habimana Michel [77] Ingabire and her advocates complained that the High Court rushed to invalidate information given by Habimana Michel who was Lt Colonel in FDLR/FOCA and its spokesperson who came back to Rwabda at the same time as Uwumuremyi during the Operation Umoja Wetu and who all got subsequently detained at Kami in the same cell because that information could destroy evidence, the basis of criminal action. [78] They pleaded that Habimana Michel had specified that when they were at Kami, Intelligence Officials told them that would they accused Ingabire of having worked with them, it would end up in their release. They added that Uwumuremyi accepted that and him refused.

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They concluded that it implies that all the statements made by Uwumuremyi regarding his cooperation with Ingabire in forming an armed group is not a truth, rather, they stated, it had been forged by intelligence officials with the mere target of her imprisonment. [79] They pleaded further that such information implies the cause of her interrogation before the Judicial Police on February 2010 about the alleged electronic correspondences between her and Uwumuremyi and Nditurende while they had not yet interrogated about them because the initial interrogation of Nditurende was done in April 2010 while Uwumuremyi was interrogated in October 2010. It implies further the reason why they could not show evidence on which they based to interrogate her about the formation of an armed group because such evidence was still being forged, matched with her statements as well as all her trips in Congo. [80] The Prosecutor pleaded that the information given by Habimana was not overlooked. Instead, the High Court had convincingly explained that evidence Ingabire and his counsels produced (including the statements made by Habimana) with intention of showing that the alleged acts had never occurred had no merit. [81] The Prosecutor explained that it had been evident during interrogation of Habimana before the High Court that he had come to the Court already being told what would be the quetions

during the interview and the answer thereon which is revealed of the fact of answering the unasked question which was listed among the question that counsels for Ingabire had prepared but the Court had denied them while in taking such a decision Habimana had been denied access awaiting for calling to give his testimony. [82] They claimed that the fact that he was acquainted with potential questions had contradicted the defence of Ingabire and her counsel that they named him as exculpating witness without knowing him, or having ever met or ever talked to him because they have seen him with Uwumuremyi in the news paper/Imvaho when they were forced of coming back to Rwanda after being captured during the Operation Umoja Wetu and then thought that he might have had relevant information to the Court. [83] They pleaded further that after it was identified that he was acquiainted with the statements to the Court, the Prosecution issued the search warrant in the prison which resulted into the seisure of the the papers on which he had written all information constituting the statements concerning Uwumuremyi that he had made before the Court. The High Court found that the writings on that papers were looking totally like the manner in which counsel Gatera Gashabana had prepared questions that were he was to asked him. The statement of AA [84] In his letter to the the High Court, AA

stated that in 2009 when he was at Mutobo, the training center for soldiers who separated themselves from Abacengezi, three men came into the house in which he was from Kigali upon the call of the person called Angelus who was an emplyee of the center. They called then PPU (Uwumuremyi), the representative of the trainees round 25 and told him that they got a job for him. They then told him that he had to testify that Ingabire supports FDLR in order to attack Rwanda. He testified that Uwumuremyi accepted and immediately they sign a check of 300 000 Frw in return and immediately promote him from the

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rank of capitain that he held at the time he came from Congo to to the rank of major and request him to seek other persons in achieving the assigned task. [85] In his testimony before the High Court, he stated that since 2007, he was a resident of Musanze District, Gataraga Sector, Rubindi Cell, Gataraga Village. He reiterated however that sometimes he used to go to Mutobo to pay a visit to a person who lived there. He recited the content of the writtings in the said letter but also added that prior to giving a him a job, those who called up Uwumuremyi showed him a photo in the newspaper and after they asked him whether he knew who was pictured but he could not know her and after a while and heard them reading out the name of Ingabire and after reading it they told him that such a person was to come to Rwanda and then they ask him whether he might accept the job of confirming that she had supported FDLR. [86] In his explanations to the question asked by both parties and the Court, he declared that the house in which all those happened had a dinning and a sitting room and another small room with a dore which opens outward. He added that that house had also other rooms with door which open outward chich also hosted other people about 8 in numbers who had also heard or had been told by those who heard the task assigned to Uwumuremyi because those people had spread it to others but

he could not recall their names. s [87] With regard to whether those who gave Uwumuremyi the mission of accusing Ingabire at one occasion knew that he was hearing them, he replied that they knew that since they were seeing him moving from bedroom to the sitting room and go back to the bedroom and that they know that individuals who were in other rooms could hear them. [88] Concerning the date and month on which all those happened, he replied that he does not remember but it was on the fourth day of the week. He stated that he remember that day because every Friday, they used to supply meat whose order was already done on Thursday. [89] With regard to whether the day three men were called up by Angelus is the same day they showed up, he did not reply, rather, he stated that the advocate who asked him that question could himself ask it Rwamamara Angelus. [90] With regard to the number of those who came to seeUwumuremyi for the assignemnt of the mission, he replied that those who came from Kigali were two in number and Rwamamara Angelus being the third. With regard to how he managed to know where they were coming from, he replied that he heard Angelus asking, ''at which time have you left Kigali? '' [91] On the question of whether he knew Uwumuremyi before, he replied that there was no reason not to know him because they were living in the same center.( ''How could not I know

the person with whom we were living in the same compound? '') [92] With regard to the reason of his letter to the High Court requesting to give the testimony, he replied that counsel Gatera Gashabana sought information from him and about March 2010 via the telephone of another person that he had kept the possession and when he answered the call, he told him that he is a court employee and asked him the information about that very person whom he had the possession of the cell phone. He asked him further about the one who was the representative of the trainees round 25 and replied that it was Uwumuremyi. He asked

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him again about how he knew him, and finally asked him about how he may meet him then they met at Byangabo. He added that counsel Gatera Gashabana was asking him things that happened in the house in which they had been. He insisted that after he gave him all information about what he saw, he asked him to put them on a paper which he did and bring him the writings to the High Court. [93] He stated further that after counsel Gatera Gashabana sought information from him, he phoned the Director of the Center seeking advice and he adivised him that he must not be intimidated by whoever and he must answers to their questions, if he thinks it is necessary. [94] With regard to to whether apart from counsel Gatera Gashabana thre are other perosns who phoned him, he replied, none. [95] With regard to how he managed to know that he got information that he was wanted to give the testimony before this court not through his address and the phone number he submitted to this court, he replied that counsels for Ingabire used as the messenger her friend called Mama Zuzu whom he does not know the real names. With regard to how he knew that Mama Zuzu was his friend, he replied that they were close for so long and whoever saw him, asked about his news. [96] With regard to the check that he purports it was given to Uwumuremyi, he stated he saw it hen it was being done. He added that he saw it when

Uwumuremyi was down the house showing it to his colleague and told him also the sum of money that they gave to him but without taking care of who was the holder of the bank account as he thought he was not concerned. Asked about to whom he showed the check, he replied that he does not remember him. [97] With regard to how Uwumuremyi was promoted to the rank of Major, he replied that he was not registered in Mutobo with such rank. He added that it is inside the house in which he was that those who gave him the mission of accusing Ingabire at one occasion authorized him that since then he was authorised to respond to the rank of Major. [98] With regard to Rwamamara Angelus’ employment in the Center of Mutobo, he replied that he was in charge of collecting information and worked for ''DMI'' The statements of both Rwamamara Angelus and Musonera Franck [99] In his testimont, Rwamamara Angelus declared that he is a soldierholding a rank of Sergent in charge of security in the Center of Mutobo since 2008.The work certificate issued by MINADEF specifies that he is Land Forces Mbember in Division 2, Brigade 305 and is in charge of security in Center of Mutobo which is in charge of re-integration of those who separated themselves from Babacengezi. [100] He testified that he knew Uwumuremyi as the representative of the trainees, phase 33(he had before precised 34 but he correcte dit after). He testified tat he had never talked to him in a particular manner and that he knows the witness AA because he used to see him some times in the center coming to visit someone who live there. He insisted they were not connected though

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later one one of his family memebrs got imprisoned and then states that it is him who plotted his imprisonment. He added further that he could not receive guests in the house in which he was not resident while he had a house in which he stayed at Center of Mutobo. [101] On the matter of whether in his attribution he was in charge of searching for information, he replied that as an employee in charge of the security of the Center of Mutobo, he must have information pertaining to the area. Asked whether in those attributions he could know secrets that he could not comment on when asked to, he testified that he did not know any secret while on his duties of ensuring the security. [102] In his testimony as well, Musonera Franck stated that he is the Director of Center of Mutobo since 2001. He added that Uwumuremyi was registered by the Center holding thge rank of Major and Rwamamara Angelus was one of the soldiers who were in charge of ensuring security in the center. He stated further that it is not Rwanda Demobilization and Reintegration commission which has security services in its attributions. He testified further that he knows witness AA because he used to come to visit a person who lived in thye center and that he saw him further on two occasions for the matter of one of their family members who was imprisoned. [103] Asked whether he had ever phoned by AA for whatever cause,

he replied that he phoned him for help as one of Mutobo Center, Rwamamara Angelus, had sucessifully plotted the imprisonment of one of his family members. He admitted that AA came later on to see him for the same issue and told him that based on the information he had about the person who plotted his relative imprisonment, does not reflect his statements. [104] Asked whether AA has ever sought advice from him about information he was asked to give about Uwumuremyi, he replied that he told nothing about that. Outcomes of investigation conducted on witness AA [105] After the testimony and explanations of AA before the Court, the Prosecution requested the Court the authorization of conducting investigation about his statements as, according to the Prosecution, much of them were confusing. The Court in its order authorized to do it with due diligence of witness security. [106] During the hearing of the case of June 17, 2013 the Prosecution submitted its report on the investigation. The Prosecution submitted that the investigation found out that AA is not a resident of Norther Province as he purports and that he is not known by the residents of the that place. The Prosecution however stated that he is resident of Kigali for so long as he stay on the land that he acquired from his parents, the same place of issuance of his identity card. The Prosecution further stated that the person that AA qualifies as her close friend, Mama Zuzu, is Alice Muhirwa, the tresurer of FDU/Inkingi. It further asserted that the talked through the phone at least four times on April 18, 2012 through the same line among the lines intercepted at least 70 times since April 7 till April 18, 2012. Parties’ comments on testimony of AA

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[107] The defence counsel for Ingabire claimed that AA had proved that he had neither interests in the case because he has nothing to do neither with Ingabire nor her political party and has not bad relationship with Uwumuremyi. They insisted that he gave his testimony being aware of its significance, it effects on his relationship with his family as well as on his security in general. They concluded that he wanted nothing else apart from interests of justice. [108] They state further that the testimony given by AA must be duly given its value because either Rwamamara Angelus or Musonera Franck conceded that they know him and used to see him at Mutobo and that the manner he described the house in which he lived and those who lived inside of it are consistant with the truth. They artivculated that it demostrates that he testified as to his knowledge though he erred on the numerical number of the phase of camp for the course whereby he stated that it was phase 24 while it was actually 33. To this, they pleaded that it is a slightest error with no effects on his testimony especially that even Angelus had initially erred specifying that it was phase 34 which he rectified afterward. They pleaded in conlusion that the error on the rank of Uwumuremyi is a slightest fault with no weight. [109] They stated that his approach of responding requesting Rwamamara and Uwumuremyi to back him

because they were present at the time when the acts he is testifying transpired, demonstrate his honesty, he does not fabricate the testimony because, if it was the case, he could not asked them to help him to answer the questions he was asked. [110] With regard to whether he might have lied about his address, the defence counsel pleaded that it cannot invalidate his testimony because he did it for the fear that his family could know he had been a witness in this case. [111] They state that in his testimony AA clearly attests the manner Uwumuremyi Vital had been given the mission of inculpating Ingabire when the latter had anounced officically that she would come back to Rwanda to run presidential electoral campain. The defence added that and that AA backs the statements of Habimana Michel that Ingabire had never met or talked to Uwumuremyi. The defence added further that AA demonstrate the reason why the Prosecution interrogated Ingabire in February 2010 about information that it cannot justify the source because the co-accused had not yet intorrogated aboute the same information. [112] The defence in addition states that it is no surprise that intelligence officials ‘‘DMI“ could talk about serious issues as those they were talking to Uwumuremyi while being heard by AA as the latter was considered as and under-estimated person especially that they were sitting to the place

where AA used to be during his regular stay in Mutobo. [113] With regard to the testimony given by Rwamamara Angelus, the defence counsel reponded that it is no surprise that he denied confirming the statements of AA as it would be implied as conspiracy against the government while that was state secret which must not be revealed because, as a soldier, he has to abide with ethic failure of which result in severe penalties. [114] Ingabire states that the testimony of AA stresses her explanations to the Court about how the co-accused had been one after another infiltrated in the case proceeding and that at the time

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of its presentation of its defence to her appeal, the Prosecution conceded that it got information about the alleged crime from Intelligence Service. [115] He states further that the denial of Angelus of confirming the statements made by AA is logical because it concerns the plot against an opponent of the established government who declared her prospective candidacy to the presidential election and, as you might expect, no civil servant could overtly declare that she is being accused of fabricated crimes. [116] With regard to the statements of the Prosecution that AA lied that he had no contact with FDU- Inkingi members, he replied that AA had never been asked such a question before. Rather, he reiterated, he was asked, '' barring counsel Gatera Gashabana who phoned you asking about the issue of Ingabire, have you aver been phoned by any other one for the same issue?'', he replied, none. [117] With regard to whether AA had talked to treasurer of FDU/Inking, Alice Muhirwa, more than 70 times, between April 7 and April 18, 2012, she replied that even her asked herself about the subject of their talk during those frequencies of calls but when you go through the report of MTN, you find that one call repeat itself for many frequencies whileon the other side you find no anthene. [118] Uwumuremyi conced that he know the witness AA because the latter used to come at Mutobo Center to

pay a visit to a certain employee there butt they have never talked or met him to his lodge in the Center. [119] He commented that the testimony of AA reveals on the part of Ingabire and his counsel that they struggle to invent facts and seek how to match them with the real facts by stating that the way witness AA has described the house in which he live is relevant to the description made by Angelus while the matter is not whether AA has never lived there or never frequented the Center of Mutobo. Instead, the matter was to know whether the events he narrates occured or not. [120] He states that the testimony of AA contain much flaws as having testified that he heard individuals asking him to accuse Ingabire at one occasion and specify the day and the year that happened but fail to specify the month, his statement that thre was an issuance of the check of 300 000 issued by CSS but without precising who was the owner of the checkbook and that he confirms he was watching being in the sitting room when he was promoted to the rank of major. [121] Especially, with regard to the rank that he had at the time when at Mutobo, he replied that the statements of AA reflect impossible things since the military promotion has it prescribed modalities and must be done at an appropriate place. He continued stating that in the newspaper Imvaho of from 16 to February 18, 2009 there was a headline

about repatriation of the FDLR Combatant that had been captured at Goma in the Operation Umoja Wetu. It beard also the photo of the repatriated and down of it was written, '' those who separated from FDLR from right is Major Uwumuremyi Vital known under the pseudonymes of Muhindu Muhima Dieudonné or Katumba Pepe PPU, Leuftnant Colonel Habimana Michel and Capt Nkeramihigo Cosma''. He explained that editorial was published in the month of February before he knew the location of

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Center of Mutobo. It means therefore that he was not promoted to the rank of Major being at Mutobo as purported by AA. [122] He commented further that Lt Colonel Habimana Michel he himself when he was asked before the High Court about the rank he held, he stated that when they were at Gisenyi on April 12, 2009 after being captured in Operation Umoja Wetu, and while being at Kami, their detention Camp, he heard him claiming himself Major. However, he added, he was not yet at Mutobo for the alleged promotion. [123] He states that Ingabire and her counsels do not explain how, if he had accepted to accuse Ingabire at one occasion and contact those who would help him, as a person who have already been gotten his award being also the representative of the trainees of 304 in number, he missed at least 10 persons who could help him in accomplishing the mission that was assigned to him. [124] He claims further than they do not specify at least one cause for which they support the statements of Lt Colonel Habimana Michel that Intelligence Service Officials requested him to accuse Ingabire at one occasion when they were at Kami, then accept and then request again to accomplish the same mission as was assigned before when they were at Mutobo. [125] The counsel for Uwumuremyi also states that AA is wrong on many things including his address, the cause which pushed him in wanting to give the

testimony, the fact of meeting with counsel Gatera Gashabana at Byangabo, the fact of seeking advice from Musonera Franck and his statement that he was watching when Uwumuremyi was promoted to the rank of Major. [126] He claimed further that AA erred when he stated that Uwumuremyi was on the course phase 25 while it was phase 33. According to him, it shows that he testifies lies and repeating what he was requested to testify. [127] As to the counsel for Nditurende , the dates of the meetings of AA with counsel Gatera Gashabana being matched with the outcomes of investigation carried out by the prosecution, especially 70 times of the calls he recieved from Mama Zuzu, Muhirwa Alice and the treasurer of FDU-Inkingi who know the case since its beginning till the report of the Prosecution on additional investigation was released and match it further with the correspondence of AA to the High Court and match it finally with the inconsistencies in her testimony, it demonstrates with no doubt that he had worked under pressure of Ingabire defence counsel to give the testimony. [128] He states that the way the testimony of AA is full of inconsistencies and that being matched with his statements, you find that those who sought him to give the testimony has inculcated in him what he had to testify or that there is someone who invented the story to be narrated by someone else. [129] He

stated that, apart from marching things, there is no cause persinbs may talk about serious issue being in the crowd of people who are not concerned. As to him, he states, AA opted for testifying that all happned in the house in which he was simply because it is the sole house in which he could have access. [130] He stated further that AA tells lies about many things. He lists examples among others the promotion of Uwumuremyi to the rank of Major being in his sitting room whille the the

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promotion of a soldier does not follow such modalities, the statement that he was watching when they gave him a check and see the amount of money and the issuing baknk but without precising the name of the holder of account and his statement that he phoned Musonera Franck seeking advice while the latter disapproved it. [131] With question asked by the Court about the prejudice he would suffer in case it would be found that AA was sought by counsel for Ingabire, he replied that the matter is that they had denied to have sought him. Hence, declared, as layalist, he decided to give the information after hearing on the radio news about the proceedings of Ingabire as they had really to concede that they sought him. [132] As to the Prosecution, the testimony of AA must not be considered for th grounds down listed : He lied about his address as a resident of Northern Provice whicle investigation revelaed that he is a resident of Kigali sinc for so long and is the same place of issuance of his adentity card; He denied specifying the names of the one he name Mama Zuzu that he claimed they were close for a long time while investigations revealed it is Muhirwa Alice, the tresurer of FDU-Inkingi; He kept unknown to the court that he was in conflict with Rwamamara Angelus. He denied to reveal that he was sought to give the testimony while the report of MTN reveals that he had chatted with

Muhirwa Alice about 70 times through the phone between April 12,2012 and April 18, 2012. Those dates preceded and followed later the date of his letter to the High Court requesting to be in the proceeding as Ingabire exculpatory witness; He contradicted himself because he stated that he he decided to give the testimony on his own initiative after hearing the news about the proceeding on BBC but came back the following day before the Court stating that it is Gatera Gashabana who requested him to do so and then met at Byangabo and then asks him about information to which he wanted him to give testimony; He contradicted himself further about the men who came from Kigali upon the call of Angelus for the rendez-vous of Uwumuremyi because he wrote in the letter dated April 10, 2010 to the High Court that they were three while before the Supreme Court he stated that they were two Angelus being the third; He erred twice about the promotion of Uwumuremyi because in his letter to the High Court and in his statement before the Supreme Court he stated that he was registered in phase 25 of the course while he was in phase 33. [133] The Prosecution further claimed that the testimony of AA must not be considered because he failed to name at least one person among eight who were in the house inside of which these discussions about the plot against Ingabire at one occasion happened so that the Court can have the starting point to examine the veracity in his statements if it wishes. The Prosecution insisted further that he had failed to point out the relation or the cooperation between him and Angelus on such extent that the latter could call up people from Kigali to come in conjunction

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with Uwumuremyi for the plot against Ingabirehe and do it while AA was watching. He had further failed to show to the Court the manner he knew that Uwumuremyi came to the Center of Mutobo holding another rank other than that of Major nor he specified such other rank. Furthermore, he failed to show the possessor of the alleged check apart from stating that he believed he was not concerned. [134] The Prosecution further pleaded that the fact that witnesses for Ingabire namely AA and Habimana Michel testify that Uwumuremyi had never held the rank of Major while they do not support their statements with evidence indicates that their testimonies are fabricated or that they had been inculcated. [135] It states further that the statements of AA that Uwumuremyi did not know Ingabire at the time he was assigned the mission of accusing her demonstrates that his statements have been inculcated because, as he conceded, it is the result of his own analysis. [136] With regard to the institution Rwamamara Angelus work for, the Prosecution reiterated that MINADEF disclaimed that he works as Intelligence Sevices which shown that the testomony of AA contains no thuth, rather they had been inculcated. [137] With regard to the defence of counsel for Ingabire that if Angelus dares confirming the statements of AA then he could be revealing the State secrets, and would then be punished as treason,

the Prosecution responded that it does not comprehend the so called secret since the duties of Angelus are limited to ensuring the security and even when he does not specify how he carries out those duties, it cannot stop him from testifying as to his knowledge of what he saw. The View of the Court [138] The issue is to know the value that is to be attributed to the informaztion given by Habimana Michel and AA taking into account the provisions of law and their knowledge about the facts to which they give information. [139] The Court notes that both the testimony of Habimana and AA intends to demonstrate that intelligence authorities and Military services had fabricated crimes against Ingabire because Habimana testifies that when they were still at Kami, Uwumuremyi told him that he had been asked by Intelligence Authorities to accuse Ingabire about her alleged collaboration and cooperation with FDLR and he accepted and AA also testified that when they were still at Mutobo, he heard Uwumuremyi being asked to accuse Ingabire at one occasion about her collaboration and cooperation with FDLR and he accepted. [140] With regard to Habimana who had been sentenced to life imprisonment, as judged by the High Court his information had to be corroborated by other evidence so as to be considered as authentic because article 63 of Law n° 15/2004 of 12/06/2004 relating to evidence and its production provides in its item three that testimony given by people with no capacity to stand as witnesses in courts must be corroborated by other evidence. [141] The Court finds therefore that the High Court committed no error in not considering the testimony of Habimana because the Court had not examined other evidence in support of his

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statements at the time of the trial of the case before that Court as imposed by the Law. However, his statement then must be examined to assess whether it may be thruthworthy because it is supported by the testimony of AA who is heard for the first time by Court at the appelate level. [142] Withg regard to the starting points in in determining the consideration that must be given to testimony of AA, article 62 of the Law 15/2004 of 12/06/2004 relating to evidence and its production provides, ''testimonial evidence is statements made in court by an individual regarding what he or she personally saw or heard with that is relevant to the object of trial''. Article 65 of the same Law states ''only the court can assesses the relevance, pertinence and admissibility or rejection of testimonial evidence. It shall not be influenced by the number of witnesses. It shall mainly consider their knowledge of facts and the objectivity and sincerity of their testimonies'' [143] Those provisions implicate that in assessment of the value that must be attributed to the testimony, the Court is tasked of assessing whether he's is testifying according to what he/she him/ her self saw or heard, the manner in which he/ she got the information, the manner in which he explains it and his/her capacity of retrieval memories of facts. [144] Therefore, with regard to the testimony given by AA, the counsels

for Ingabire claimed that his statement underscores the statement of Habimana Michel because both of them confirm that Uwumuremyi was bribed by Intelligence and Military Authorities so as to falsely accuse Ingabire. They stressed that such statements are trustworthy because AA has no interest in the case and he testifies objectively to his knowledge or according to what he saw while the Prosecution and the co-accused instead states that he lied to the Court about his address, that he tells lied that he he requested to be the witness upon his own initiative after he heard the news on the radion about Ingabire trial while it was found shortly during the proceeding that he was sought to give the testimony and that all his testimonies are fabricated, that they inculcated statements so as to show that Ingabire’s alleged crimes were plotted [145] Withy regard to the fact that AA might have told lies on his residence, the Court finds that the investigation conducted by the Prosecution revealed that the residence he puported to be hi sis not true. Ingabire and his counsels do not deny it though they add that it was a result of fear that his relatives had already known that he gave information in the case proceeding. [146] On the issue of lying about his place of residence, the Court finds that the explanation of Ingabire and her counsels are without merit because AA was granted the

opportunity to answer in closed doors to all questions whose answers he believed could disclose his identification and his place of residence. The Court reiterated that he grabbed that opportunity many times by writing on papers whose access was only allowed to judges, parties and their advocates. The Court however finds that the fact of lying on his address cannot stop examination of his testimony because it had no effect on the debated issue, before the Court, of knowing whether he was watching when Uwumuremyi was assigned of the mission of falsely accusing Ingabire. [147] The Court further notes that though he erred on numerical order of the phase of the course to which Uwumuremyi was affiliated to because in his writing and testimony before the Court he stated that he was affiliated to phase 25 while he was affiliated to phase 33, it does not cause any doubt that he was at Mutobo when Uwumuremyi was living there in training since the

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latter himself conceded to have seen him and other witnesses have attested that he used to frequent that place. [148] With regard to the fact that AA might have been sought to give testimony, the Court finds it is not a problem as such because it is the right of each party to the case to search for evidence in support of the truth he/ she alleges. [149] With regard to the fact that he might have requested to tell lies in the case proceeding and the profit he might have in case, the Court finds that this may be assessed after examination he testifies as to the truth or whether lies. [150] Therefore, if it assesses the statement of AA, the Court finds that it contains the following main grounds : Uwumuremyi had never known Ingabire till 2009 when he met with the men from Kigali upon Rwamamara invitation, Rwamamara serves in intelligence services, Uwumuremyi was missioned to accuse Ingabire at one occasion and he was also advised to seek other people for assistence and he accepted, Uwumuremyi was rewarded the check of 300 000 Frw and the promotion from the rank of Captain to Major. [151] When those grounds are viewed together, they implicate that Uwumuremyi had never known Ingabire but he had been used by Military hOfficials in fabricating incriminating evidence. Now, it must be assessed whether the statements made by AA contain the truth that may guide the Court. [152] With

regard the fact that Uwumuremyi had never known Ingabire, the Court finds that the statement of AA on this ground do not reflect what he has heard or seen. It is rather the outcome of his own analysis because he testified that when Uwumuremyi was shown the photo of Ingabire which was on the newspaper, he looked like he could not know her and he had to read her name and he knew it was Ingabire. He stated further, the Court finds, that after reading it, they told him that at any occasion that person could come to Rwanda, then he would claim that she assisted FDLR6. These statement are irrelevant to the provisions of article 62 of the Law relating to evidence and its production which provides that, as specified above, testimonial evidence is statements made in court by an individual regarding what he or she personally saw or heard with that is relevant to the object of trial. Therefore, his statement on that ground has no merit. [153] With regard to the possibility that Rwamamara worked for Intelligence Services, the Court finds further that AA had not clearly demonstrated how he knew that and the source of that knowledge, whether it was what he heard and who said it, if so, whether it is a result of his personal knowledge or whether it is his own analysis based on what he could see. On this ground 6 Q : You told us that those persons showed him a photo of person in the newspaper,

did he identify him/her immediately? A : The picture was identified by a name and he could know the name but without knowing who was the person. Q : How did you know he could not know him/her? A : Because they were showing him from the newspaper and those who were doing so were stating that in case that person comes to Rwanda , he will state that he used to assist FDLR, it was obvious he could not know him. Q : How do you know he could not know him A : He could not know her actually.

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again, his statement does not respond to the requirements of article 62 of the Law relating to evidence and its production. [154] The Court further finds that though AA does not demonstrate the source that Rwamamara worked for Intelligence Services, his statement is contradicted by the concerned person who proteste dit in his testimony before the Court. It is further contradicted by Musonera Franck, the Director of the Center of Mutobo who, also in his testimony, stated that Rwamamara is one of security official of the center. Their testimonies are confirmed by MINADEF in its certificate. [155] With regard to the men whom Rwamamara might have phoned to come to discuss with Uwumuremyi, the Court finds that though AA does not demonstrate how he knew that those men were phoned by Angelus, especially that the latter was not living in the same house with him, and that they were not co-workers to assume that he could know whom he was phoning in addition to the contradiction in his letter to the High Court which specifies, ''…the house in which I stayed was entered by three men from Kigali on the rendez-vous of Angelus…'' while before the Supreme Court he testified that they were three Rwamamara being the third. [156] The Court finds further that the dates on which Uwumuremyi was assigned the mission by Intelligence Services, apart from speculating that it was in 2009, he does neither

specify the month nor the day all these happened and it is not comprehensible whether what he alleges really happened following his failure to ascertain this or that time of the year(either the beginning or the end of the year) so that it can be identified that Rwamamara and Uwumuremyi whom he alleges to have played a role on that act were at Mutobo at that day or during those times in order conclude whether investigation can be conducted on visitors who came at Mutobo from Kigali in those intervals of times. [157] With respect to 300 000Frw that might have been given to Uwumuremyi as the reward, the Court finds that though he testifies that he was watching when that check issued by Zigama Crédit and Savings Bank (CSS) was given to him and he saw it again when Uwumuremyi showed it to his colleague being down the house, AA can neither manage to specify the holder of the check nor he precise the name of whom it was shown to so that invetigation in that bank can be conducted or to see whether such person to whom Uwumuremyi showed that check may be interrogated. [158] With respect to people who might have heard Uwumuremyi being assigned the mission of accusing Ingabire at one occasion, the Court finds that apart from stating that there other persons about 8 in number in the north room and that some of them heard it while some other got it from those who personally heard, AA cannot

at least name one person among those who heard it for interrogation as to what he heard. [159] The Court finds illogical the manner AA purports that people who were in the north room heard Uwumuremyi being assigned the mission and that the check given to him had been seen by another one person, but states that he does not remember their names when he was interrogated while he replied when he was asked by the Court whether he knew Uwumuremyi,'' how could not I know someone whom we were living in the same compound?'', then it may be wondered why he cannot remember any person among those other persons whom he lived together with in the same compound so that he/she can be interviewed.

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[160] The Court finds further illogocal how people can overtly plot to falsely accuse a person before courts and do it without any worry being heard by unconcerned persons. [161] With regard to the rank of Uwumuremyi, the Court finds that even though AA states that he had no rank of Major at the time he was registered in the books of Mutobo, he does not show how he knew it especially that he was not an employee of the Center in addition to the fact that he did not know the procedure of promotion followed by FDLR so that he can be able to explain that Uwumuremyi was not holding the rank of Major. In addition he does not show the reason of his promotion to the rank of Major as a reward while he was being papared for re-integration in civilian lifestyle. [162] The Court finds further that the information given by AA that those who gave Uwumuremyi the mission simultaneously promoted him being sitting down in the house in which they live is contradicted by both Franck Musonera, the Director of the Center of Mutobo and Rwamamara who confirm that they knew Uwumuremyi as Major since he came to the Center. It was also contradicted by Nditurende who was his senior in the FDLR Army who confirmed that he had been already promoted to Major while they were still in Congo. This matches with the editorial in the Imvaho of the time when Uwumuremyi came back to Rwanda during the ''Operation

Umoja Wetu '' which shows that among those who came back, there was Major Uwumuremyi. [163] The Court finds that the statement of AA that he was watching when Uwumuremyi was promoted to the rank of Major is not a slightest mistake as stated by the counsel for Ingabire and it is not a error because what he alleges tonhave seen or heard har never occured; it is rather misleading the Court. [164] If it analyses the testimony of AA in a general manner, the Court finds that there are questions to which he failed to answer and if things had happened while watching as he claims, he would have clearly and easily answered. Example is when he was asked whether the date on which the men from Kigali were phoned by Angelus is the same day they showed up, he answered that such a question was worthily to be asked to him7 , the question about the precision of the months or the time of the year that sUwumuremyi was assigned the mission, he answered he does not remember, the question about the name on the check issued by CSS to which he answered that he did not take pay attention of observing. His statements that some other things were seen or heard by other people while he failed to list their name so that they may be interviewed for example the name of the person to whom Uwumuremyi showed the check or the person who were in the north room who had heard the assigned mission. [165] When it

matches it with his statments that he had failed to cite the source, for example when he stated that Uwumuremyi had never known Ingabire before or that Rwamamara Angelus worked for Intelligence Services at the time, given his contradiction on the essential points for example his statements that three persons came from Kigali to see Uwumuremyi on one hand while on the other hand he states that they were two, his statements reflecting impossible facts for example his statements that Uwumuremyi was propmoted to the rank of Major being in the 7 Questions asked by counsel Murenzi “ is the day three men were phoned (by Angelus) the same day they showed up? Answer from AA, for that question, he/ she who wants another, the file contained his phone number, he/ she may call him/her.

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house in which he lived, the Court finds that the statements of AA about the meeting that took place inside the house in which he stayed, the mission that was assigned to Uwumuremyi, the reward therfore that was given to Uwumuremyi are not what he saw or personally heard. [166] TThe Court therefore find that AA had deliberately lied to the Court with intention of convincing it that Ingabire was being accused of crimes forged by Intelligence Services. Hence, these invalidate his testimony. [167] In respect to whether he may have been sought to tell lies, the Court finds that even though the report of MTN reveals that AA had several times talked to Alice Muhirwa, the then tresurer of FDU-Inkingi short time before and short time after the date of his letter containing exculpating information for Ingabire to the High Court, which demonstrates that they closed persons on such extent that he cannot fail to know her name cannot constitute the base for the Court to conlude that it is her who urged him to lie to the Court in order to exculpate Ingabire while the Prosecution does not produce other evidence in support. [168] The Court further finds that even though AA is inconsistent in his statement with regard to the reasons why he wanted to give the testimony, whereby on one hand he states that it was because he heard on BBC the news about Ingabire case proceeding while he had

information that may assists the Court and on the other hand, that counsel Gatera Gashabana asked him some information, cannot constitute the base to conclude that he requested him to lie to the Court. Vi. Whether the High Court found Ingabire guilty grounding on contradictory and inconsistent evidence With regard to statements of co-accused [169] Ingabire complained that the High Court disregarded that the statements of her co- accused were characterised by contradiction from time to time. She insisted that those statements and the alleged swapped e-mails incompatible with evidence that has been collected from DRC and Holland. [170] She states that Uwumuremyi had confirmed that even though electronic correspondences on identification code 377 elaborating how Karuta could reach him in Kinshasa on February 17, 2008 at 3 h 15 p.m while the report of ''Compagnie Africaine d‘Aviation, CAA '' on identification code 777 reveals that the passenger called Bantu Biruba had traveled from Kinshasa to Goma on Febraury 24, 2008 which is in contradiction with both the statements of her co-accused and evidence of e-mail that they have as a basis. She added that Karuta testified that he spent only two days at Kinshasa which means that he had to have taken a flight from Kinshasa to Goma on February 19, 2008 while it is inconsistent with the date of February 24, 2008 in the report of

CAA. [171] She stated further that when he was asked as the then senior in the army about whether he had received any report on the money he might have sent to them, he answered that Uwumuremyi did not submit it since they lived in separate places without any contact while he had later explained to the Court that he was together with Uwumuremyi since October till he was captured in the month of September 2009 but failed to demonstrate the amount of money he used to send to them.

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[172] She continued explaining that both Uwumuremyi and Nditurende confirmed that they used to phone each other when she was still in Europ while evidence collected from Holland proved it otherwise. She added that their confirmation that they spent the night in Hotel Cristal in Kinshasa while documents collected from DRC shows they have not spent the night there either in their appropriate names or in the pseudonyms of Muhindo Muhima for Uwumuremyi and Henri Hatali Mulinde for Nditurende as they claimed to had had even if there is no evidence that those pseudonyms are theirs as they purport. [173] She stated further that Habumuremyi confirmed that they had created an armed group called CDF having its own web site while that group unknown in the region and its alleged web has never been encountered nowhere. [174] With regard to the possible trip of Karuta at Kinshasa, the Prosecution replied that there is no contradiction in the statements of the co-accused of Ingabire because the proposal of Uwumuremyi to Ingabire about the dates that Karuta could reach her does not infer that such the rendez-vous was definitely final, it could change following circumstances of availability of the place in the airplane especially that both Karuta and Uwumuremyi explained during the hearing that they were not used to air travels which is the reason why they gave a rendez-vous to Ingabire before

booking the flight ticket. [175] With regard to the answer of Nditurende to the question of the report of the transfer of the money done by Ingabire, the Prosecution replied that it there is no contadiction in his statements because the fact that he stated that he lived far from Uwumuremyi without any contact does not mean they could not meet at all because, during the hearing, it got clear beyond any doubt that Nditurende live in the forests in Congo while Uwumuremyi lived in camp located in the vicinity of Goma. [176] The Prosecutor disputed that it is no surprise that the Hotel at which Uwumuremyi and Nditurende passed the night testified that they have never passed the night there because both Uwumuremyi and Nditurende demonstrated in their statement to the Judicial Police that they have been received by Colonel Zélote who might possibly made a reservation under his names or under other names because people to who it was made were rebels and not tourists. [177] The Prosecution further adduced that the investigation conducted in Congo stressed that both Uwumuremyi and Nditurende have actually taveled to Kinshasa since it showed the dates and the tickets of their travel. Furthermore, the Prosecution added that Ingabire herself has conceded before the Court that during that time she was at Kinshasa and was also received by Colonel Zélote which confirms the statements of the

accused that they met her. [178] On the fact that evidence collected from Holland does not demonstrate that Ingabire had been swapping phone calls with co-accused, the Prosecution responded that the intercepted lines are only those registered home at her residence used by both her children and hasband. The Prosecution insisted that she herself knows that her telephone line was not registered at her home so that it could be intercepted. [179] The Prosecution further stated that neither her nor the accused exposed her telephone line for interception. The Prosecution then insisted that this cannot invalidate the statements of

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the co-accused who conceded that they swapped telephone calls because it is well known that there are manners through which people can talk to each other like talking through the computer network, using the sim cards which are not used by the telephone devices not used by the public (public cab).The Prosecution reiterated that even when the Police had intended intercepting this manner the investigation was to come with no findings because, prior to search against her, none had ordered interception of her phone lines. [180] With regard to the fact that there is no running web site of the armed group CFD, the Prosecution responded that Ingabire deliberately changes the statements of Uwumuremyi having intention of misleading because in his statement before the Judicial Police he specified, ''we conceived about our own web site. One soldiers whom we lived together had a young man friend of him who lived in Chine at that time. They talked about that and that man accepted to have it launched'' This statement does not mean that the web had ever been launched as Ingabire want it to be understood. What happened rather is the discussion about the development of that web site which was followed by the disponibility of the person who was committed to its development. However, it is written nowhere that the web site had ever been developed and launched. [181] With regard to the report of

the money that Ingabire used to transfer,Nditurende testified that the money was transferred to Uwumuremyi in Goma who in return bought the necessaries as them lived in the forests. Therefore, the statements of Ingabire that there was no way he could not be given a report because he lived in Goma for several days is not a truth because he spent there few days due to the duties, as they had no bureaucracy and they had to meet secretely, especially that during that time the '' Operation Umoja Wetu'' composed of a mulititude of soldiers who could capture them started. With regard to e-mails twhich co-accused of Ingabire testified to have swapped with her. [182] Ingabire stated that the High Court left out the defect she identified showing that e-mails that the co-accused allege to have swapped with her are fabricated. She explained that she showed to the High Court at her initial interrogation before the Judicial Police, they had not promptly shown her the original papers of e-mails. Rather, they showed her photocopies on the paper sized A4 and that till then some of them were not shown to them as highlighted on identification code C371 bis, 375 bis, 376 bis, 377 bis and 377 ter. She added that she was interrogated in the month of 2/2010 while e-mail that has been written to Uwumuremyi on 2/2010 on bungucel@yahoo.fr while she got its original on May 2010 at the time of her

trial. [183] She continued contending that it is not comprehensible how e-mail can be printed out in format of A4. She added that analysis of original copy reveals that the manner the dates and hours are appearing is not concordant. Then it may be wondered how they may be having the same source. Those emails are found on identification codes 441-449, 442-450, 445-451-452, 446-448- 448-C451. [184] She adduced further that she had showed that e-mail on identification code 441, it is shown on its superior part that it has been transmitted by yahoo.fr which shows that they were not printed out from the same box.

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[185] She stated that she had been interrogated by the Prosecution on February 2010 about the e-mails that are claimed to have been swapped between her and Nditurende and Uwumuremyi while no interrogation on them had been made yet for because the case file of Nditurende reveals that his initial appearance before the Judicial Police was on April 24, 2010 while for Uwumuremyi it was on October 14, 2010 and the Prosecution does not show the source of those e-mails and the time it found them. [186] She stated further that the Prosecutor General wrote to the Authorities of DRC on March 5, 2010 requesting it to send him the record of western union through which a Rwandese who had impersonated a Congolese withdrew money but later, it was found that it was Uwumuremyi while the latter was arrested on October 14, 2010, six months after. She made an implication that the Prosecution had all related information before his arrest and interrogation. [187] The Prosecutor pleaded that the Court has not left out the verrification of the defect Ingabire had shown to it demonstrating that all the contents of the e-mails are fabricated. Rather, the proceeding reached it closure while none of them either her or her counsels had supported this disatisfaction with evidence by demonstrating how they were forged. He concluded that this has no merit. [188] On the fact that she was not promptly shown the

original copies of the some e-mails after she was arrested but they found them later on, the Prosecution pleaded that, as found by the High Court, this cannot be considered as an issue because investigation was ongoing. The Prosecution added that even Ingabire herself concedes that those originals were later shown to her. It shows she was given time to present her defence thereon. [189] With regard to the fact that she was only shown the copies of the e-mails, the Prosecutor replied that Ingabire behaves like she had never kown it because, as explaned by Uwumuremyi, they had deleted those e-mails being together after they had agreed on that. The Prosecution further adduced that Ingabire had conceded brfore the Court that there are some original e-mails that she was shown and they had no reason to show her original copis of e-mail and omit to show her some others. [190] With regard to the fact that there some e-mails which are on the paper sized A4, the Prosecution defended that it is no surprise that e-mails may be printed out on that A4 paper due to the selection made by those who printed, the manner in which e-mails on identification code 375 bis, 377 bis, 377 ter, 441, 442, 445, 446, 447 and 448 were printed out on A 4 sized paper because they were printed out being selected as such. [191] With regard to dates, hours and writing which are not concordant, according to

Ingabire, and, according to her, it shows those e-mails were not received from the same e-mail box, the Prosecution replied that it is without merit since those e-mails were not printed out on the same day, hour. Some were printed out after selecting the content while other were printed out entirely all through different machines. [192] With regard to the fact that there may be an e-mail which might have been delivered by yahoo.fr, the Prosecution defended that the cencerned e-mail originates from e-mail yahoo.com while its original shows that it originated from yahoo.fr, the Prosecution states that it is not true

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because the e-mail in question emanated from vumuhoza@cs.com and sent at to bungucel@yahoo.fr. It stated that the words above which reads, ‘‘in box of bungucel@yahoo.com‘‘ have been added by the person who printed them out after making the selection. [193] On the issue that Ingabire was interrogated on e-mail that she swapped with Nditurende while the latter had not yet appeared before the Judicial Police, the Prosecution responded that, as it had explained it before the High Court, the information was captured from Nditurende who had been handed to Rwandan Securirity Services on September 22, 2009 and since then he had given different information as he conceded before the High Court while answering questions that had been prepared by counsels for Ingabire. [194] The Prosecution stated that it is the information that had been given by Nditurende which helped it with rogatory commission of March 5, 2010. The information was not for the first time given by Uwumuremyi as Ingabire wants it to be believed even though, during his interrogation, Uwumuremyi himself repeated it. [195] The Prosecution contended that there is no legal obligation prohibiting swapping information encountered during their duties between different Security Services and Intelligence Services be them civilian or military since all of them are in charges of ensuring national security and that the law allocate it

(the Prosecution) the obligation of leading investigation, gathering evidence be it inculpatory and exculpatory, tracking criminals and their co-perpetrators and their accomplices so as to be prosecuted. The Prosecution added that investigation and evidence collection are conducted in secret except if the Law provides it otherwise, which means, according to the Prosecution, it get information at any time it is deemed needed even prior to case file preparation because such information must be collected first. Regarding collaboration between Ingabire and her co-accused at Kinshasa and Brazzaville [196] Ingabire disputed that the High Court judged that she met with Karuta at Kinshasa based on inconcordant evidence because e-mail on identification code 377 that was submitted by the Prosecution which only provides that ''the person will fly Saturday 1 h 15 pm and will reach Kinshasa at 3 h15 pm '' however the person is not identified by his or her name. [197] She continued stating that though Karuta confirmed that he made a round trip of Goma to Kinshasa, the paper that had been found in DRC, Compagnie Africaine d’Aviation as inclosed in the case file on identification code 777 reveals only that a person called Bantu Biruba flew from Kinshasa to Goma and never shows that he flew from Goma to Kinshasa and no evidence that those names belong to Karuta. [198] She complained further

that grounding on inconsistent evidence, the Court confirmed that she met with Nditurende and Uwumuremyi at Kinshasa and Brazzaville and had a meeting about how to create an armed group under subordimation of FDU/Inkingi. According to her, this is confirmed by the fact that there was no evidence at all indicating that they have ever met, their place of meeting and, though they confirm that they had traveled together from Goma to Kinshasa, the documents issued by Hewa Bora as found on identification code 778 only show

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that there is a person called Mulinde Hatari who took the flight on October 7, 2008 from Goma to Kinshasa. [199] She states further that Nditurende confirms that she phoned him to meet at Kinshasa and she sent him money through Western Union while document from Holland and Western Union did not reveal there are money that she sent to DRC. [200] She maintained that the High Court confirmed that given that Nditurende and Uwumuremyi had information about her trips to DRC and Congo Brazzaville, that they know Colonel Zelote, that they were at Kinshasa while she was there too had been considered as evidence but leaving out that her different trips in different countries intended informing the public that the Political Party she leads was to return to the Country and participate in the elections were not things that had to be taken to sectret because since they were written everywhere on internet since September 2008 when she made public that she was to come back to the Country. She insisted that Nditurende and Uwumuremyi before the Court they conceded that the press conference she held with journalists in both Congos concerned only elections. [201] With regard to Zélote complainjed that the High Court disregarded that during the trail of the case Nditurende was one of those supporting FDLR and, according to her, it is no surprise that he might have given them the information about

his trip. [202] The Prosecution states that the statements of Ingabire have no merite since she leaves out the submitted evidence based on the statements made by her co-accused, e-mails that they swapped, maney transfer record papaers, documents collected from DRC WEHICH indicates that they had teavelled to Kinshasa while she was there too, the statement of Ingabire that she was received by Colonel Zélote whom all of them agree that he received them at Kinshasa. [203] The Prosecution also contended that Ingabire is characherised by exorbitant contradictions because she states before this Court that theere was no secret in the trips that she had made in different countries. However, the Prosecution reiterated, before the High Cout in the the meeting she held with President Kabila of RDC and Sassou Ngueso of Congo Brazzaville was a serious secret on such extent that none could know it. [204] The Prosecution maintained that in their writtings and statements to the High Court, Nditurende and Uwumuremyi confirmed that they had met with Ingabire at Kinshasa and they discussed and told them that she met with those Presidents. It shows then that there is information that was never revealed at all and which Ingabire shared with her co-accused. It stated further that, to the High Court, Ingabire was interrogated on issue but she could not explain how comes that her co-accused knew that

she had had discussions with those Presidents have they not met at Kinshasa for discussion. With regard to the possible Ingabire’s financial support to armed group [205] Ingabire contended that the records of Western Union fron Congo and Holland did not demonstrate that she had ever made any money transfer to DRC and must not be must not be helf accountable of the acts of Turikumana, Dushimimana and Mujawayezu who are identified on the records of Western Union on the mere fact that she knows them as the criminal liability is personal.

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[206] She states further that she had demonstrated to the High Court that people who are abroad with relatives still in the DCR forests send them money regularily to assist them in their daily life and that most of the time such money is sent through FDLR Leaders because the latter can move easily. [207] She states further that Uwumuremyi himself had explained the manner some of the money was transferred to him as intermediary from someone so that he could transfer it to someone else, the person’s relative, and that Rusesabagina had ever sent him monmey to help his relatives who were still in the Congolese forests and she wonders why the money which were sent to Turikumana, Dushimirimana and Mujawayezu cannot be taken to that manner. [208] With regard to the statement made by Mujawayezu before the Judicial Police of Holland that she requested her to send money in Goma, Ingabire replied that it is not a truth because, according to Ingabire, she might have stated so to save the right to citizenship of Holland or to avoid being accused of the same charges. [209] She added that Mujawayezu had personally conceded that his hasband is one of ex-FAR Officer, that they lived in DRC with other ex-FAR members who later sought refuge in Congo and hence, Ingabire finds that the the ststements of both Uwumuremyi and Mujawayezu that they did not know each other were not the findings that the

Court could, without any base, confirm. [210] She maintained that she had never asked any member of FDU-Inkingi to transfer money in DRC and Rwanda. She added that since the time her Political Party overtly communicated to Rwandans that it was going to start operating in Rwanda, those who were committed contributed in supporting those who were to come to Rwanda to have their political part registered and that whoever contributed financially through any of their members in Rwanda had to copy information to her secretary, Christine Numuhoza, as to make the follow-up and coordinate their activities. However, she reiterated, that could be done not upon her order. [211] The Prosecutor pleaded that her statements have no merit because Uwumuremyi has clearly explained how he could get the money without knowing the sender but the secret of withdrawing it was revealed to him by Ingabire as she was the donor. This, according to the Prosecution, is stressed by the statements of Ms Mujawayezu Speciose who, in her interrogation being in Holland, as to identification code 346-363 of the subsequent case file, attested that Ingabire requested her to send money in Congo to someone whom she could not know. She conceded that she was paid the money she had sent. [212] The Prosecution contnded that in in case the e-mail in identification code 268-269 and match it with the statement made by

Uwumuremyi as well as the statements of Mujawayezu Spéciose it shows with no doubt that it Ingabire who sent the money in question. [213] The Prosecution further claimed that it produced evidence of the money transferred twice to Uwumuremyi by Turikumana Jean de Dieu, a member of Executive Commitee of FDU in Belgium, (identification code 1816 and 1818) and Turikumana Jean de Dieu had been used by Ingabire in sending money to the person called Nsabimana Phocas as highlighted on identification code 1844 which is imphasized by e-mail on identification code 405 which

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demonstrates that Turikumana immediately wrote to Nsabimana Phocas in order to let him know transfer number and question test which was to enable him to withdraw 500 $. In addition, on identification code 404, there is an e-mail that Ingabire sent to Nsabiman Phocas informing him that she had sent him 500 $. She informed him also about the transfer number and question test matching exactly with those that Turikumana Jean de Dieu had sent to Nsabimana Phocas and Ingabire clearly explained to Nsabimana Phocas that the sender of money was Turikumana, in Brussels. [214] The Prosecution insisted that the aforementioned statements are emphasized by the statements of Nsabimana Phocas who, at the time of his interrogation before the High Court, attested that Ingabire used to send him money in order to recruit members for FDU-Ingingi and for the preparations of her reception at the time he could have came back to Rwanda, seeking for her the residential house through different persons including Jean de Dieu Turikumana, Lyn Muyizere and her daughter, Raissa Ujeneza. The view of the Court [215] Article 119 of the Law n°15/2004 of 12/06/2004 relating to evidence and its production provides, ''In criminal cases, evidence is based on all grounds, factual or legal provided that parties have been given a chance to be present for cross-examination. The courts rule on the validity of the

prosecution or defence evidence '' [216] Article 104 of the same Law peovides, '' Presumptions are inferences that the law or a court makes from a known fact to discern an unknown fact ''. Article 108 of that Law provides, '' Presumptions that have not been established by the law are left to the discretion and wisdom of the court. The court shall admit only those presumptions if they are important, precise and consistent. '' [217] When it assesses the pleadings of Ingabire from the first instance to the appelLate level, the Court finds that he had no any other ground as defence apart from stating that evidence comprised of statements of her co-accused and e-mails they allege to have swapped with her, have been forged by Intelligence Services and then in her explication intended of emphasizing that ground, she lists examples of the contradiction in that set of evidence or rises inconsistencies of that evidence with that gathered from Holland and DRC. [218] In assessing whether what she alleges reflects the truth, the Court views that the statements of her co-accused, e-mails that are alleged they have swapped and evidence gathered from Congo and Holland must all be examined together. [219] With regard to statements of co-accused of Ingabire, in his statements before the Judicial Police, the Prosecution and the Court, Nditurende attested that in 2007 Uwumuremyi told him that he

had started talking to Ingabire after he got her contacts from the woman, his relative, who lives in Europe. He tested further that he told him that they swap e-mails and that she requested them to give assistance in the formation of armed group under the subordination of FDU-Inkingi. Nditurende testified that all those requests were made when they started talking through the phone in June 2008 being linked by Uwumuremyi. He attested that she advised them that they were not capable of battle with Rwanda Defence Forces but, they may sow insecurity in

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Rwanda through the acts of infiltrators. She urged them so seek people from inside the Country because they were in the forest of the vicinity of Rwanda so that they could sensitize and, those who were sensitized transmit the acquired ideology to others [220] He testified that he told Ingabire that they were still reflecting on that while Uwumuremyi told her to continue with the concept while collecting money for arsenal and for assistence to their families. He witnessed that in February 2008 he deleggated Karuta to Kinshasa to meet with Ingabire since the latter had requested Uwumuremyi the rendez-vous for the meeting but the latter showed too late due to anavailability of the seat in the airplane and they met at the airport but Ingabire immediately took a flight as the airplane was going to take off. He explained that he stayed there with Mberabahizi who, the General Secretary of FDU- Inkingi who had to wait for another airplane, told him to make the list of the needs, then they made it and sent it via e-mail. [221] He testified that Uwumuremyi and him went to Kinshasa on October 2008 upon the invitation of Ingabire because she had to meet with both the President of DR Congo and Brazzaville. He testified further that they first met at Kinshasa and then they joined her at Brazzaville where she explained them about election in Rwanda that she wanted to present her candidacy and

then told them that the armed group that they wanted to start had been studied by the Political Bureau of the Party and found that the Army Commander had to be appointed by Executive Committee. She added that till then she was using her own money because the money of the Party had to be released after the authorization of the entire Committee. [222] On that wish of founding the Military Organization called FDU/CFD (Coalition des Forces Démocratiques) they prayed Ingabire to let things mutatis mutandis because they were still fighting with FOCA which was stronger than them and they believed that working under the subordination of could not enable them convincing FOCA members of not attacking them as they were the same persons. He added that they knew Ingabire, as the President of FDU, was not understanding with Executive Secretary of the Party and that among FDU they knew one of the members collaborated with FOCA in such a way that they could easily know that they were going to attack them. [223] He conceded that at that time he was known under pseudonymes of Hatari Mulinde Henri while Uwumuremyi was known as Muhindo Dieudonné. He testified that using other people, Ingabire sent money to Uwumuremyi in different periods since February 2008 till January 2009 and that money was used to buy different military materials while another portion was used in assistance of their families.

He added that Ingabire had strongly trusted Uwumuremyi. [224] With regard to sowing insecurity, he stated that he had revealed it none among the officers save Karuta and Uwumuremyi. He added that later four a group of four men were brought by Jack Shan Baraka and asked to assist in sensitization and the money used to by a velo-moteur was paid by Uwumuremyi from that which was transferef to them. [225] With regard to the reason why his colleagues and him separated themselves from FOCA, he conceded that they left on May 19,2008 due to the misunderstanding between them and the Commander of Section, Ntawunguka Pacifique alias OMEGA. That misunderstanding arose from alternation of another batalion where they were dispossessed of the region under their

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control which could generate money and when they asked the ratio of that alternation they asked them to keep silence and even tempted their killing, the reason of fleeing to the extent of founding their own armed group. [226] Uwumuremyi as to him, he was in charge of propaganda in Bahama Batallion. He admitted that he was also in charge of buying ammunition from the proceeds of looted property and transport them into the forests. He also testified that he had started swapping messages with people in Europe in 2007 and the woman, a mbember of his family, gave him an e-mail of Ingabire and started swapping messages in January 2008 whereby Ingabire asked him whether he could contact FDLR/FOCA’s amenable combatants so as to found an armed group under the control of FDU. She told him further that if they were not committed, she could prospectively have effectives in June 2008. He conceded that he transmitted such a concept of Ingabire to Nditurende and showed him also the e-mails that they had swapped. He added that they have also talked and talks went on since then and he could tell to Nditurende whatever they could talk about. [227] He stressed further that Ingabire told them that FDLR/FOCA was not strong enough to defeat Rwanda. He testified that she told them that the issential was to sow insecurity to end up in negociation. This was to be done after 200 from every Prefecture

were recruited and equip them. [228] With regard to sowing insecurity, Uwumuremyi testified that it was assigned to someone, Sebukeye Jackson alias Jacky Chan alias Baraka. He revealed that they had agreed to recruit 10 persons from every Prefecture, train them and they go back to Rwanda to train others. He stated that they managed to get only 4 persons who asked them to provide telecommunication equipments as well as transport means. He stated that they bought for them the telephones, and gave them 800 USD to buy a moped for tax whose earning had to be shared.He added that one of them misappropriated the money and the it was not dine as planned. [229] He confirms further that at the end of the Februart 2008 Ingabire requested him to meet at Kinshasa and she sent the money for ticket for flight through Western Union but they have later agreed with Nditurende that they had to delegate Karuta. At the latter’s arrival, he met Ingabire being with Mberabahizi Jean Baptiste who was the Secretary General and the Spokesperson of FDU-Inkingi arranging to go back home as it was late. [230] With regard to talks that they had, he conceded that they requested him to make the list of the needed stuffs so as to confront it with the available amount. He testified that being assisted by two Congoleses including Colonel Zélote, they elaborated that list whose copy he brought it at at their base

at Rutshuru for him and Nditurende to make perfection and after, they sent to Ingabire through e-mail, gpascal05yahoo.com. [231] He confirmed further that in May 2008, he had intention of relocating their batalion but some of them did not want it. He testified that this was followed by the meeting convened by Lt Colonel Nditurende May18, 2008 whereby all caders of the batalion were invited. He articulated that as in charge of political propaganda he was given a speech and explained to all Officers who had attended the meetings that they had to separate themselves from FDLR as it was not making any step. He testified that such thinks later came to the knowledge of the public. He stated that

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after it was known, the Commander of Division ordered his arrest, but he escaped. He added that Lt Colonel Nditurende and other approximate 60 combatants later separated themselves from FOCA and fled to the forest while him statyed at Goma busying himself witrh the purchase of bullets to be sent to them. [232] Another confirmation is that after they had separated themselves from FOCA they told Ingabire to support them as they were fighting with two enemies, FOCA and CNDP who they were normally on fights. He attested that Ingabire promised them that she was going to do the possible and urged them not to enter into hostilities with FOCA as it was not the target, rather the target was inside the country. He attested that she advised them to seek the name to be given to their armed group and they seek another so that they and then see which one was more suitable. He stated that the group was later named Coalition des Forces Démocratiques (CFD). He added that thre was a suggestion of their own web site and one of their soldier later talked about with his young man friend whi lived in China called Olivier who accepted to develop and launch it and subsequently regularly talks to Ingabire till they met in Belgium and even start working together in the context of her political party. He added that the young man even came together with Ingabire when she came to Rwanda. [233] He testified

further that on October 2008 Nditurende and him tavelled to Kinshasa to meet with Ingabire who had to meet with Kabira. He declared that they have been received by Colonel Zélote and another man and went together to Hotel Cristal where they passed the night. He attested that in the morning they did not meet with Ingabire but rather on the following morning. He added that she asked them for ideas and they advised her that she had to convince Kabila that they had to fight on Rwanan territory instead of staying in Congo. He testified that she left them to the Hotel and went to meet with Kabila and after the meeting she gave them a message of joining her to Brazzaville and in the next morning the came back to Kinshasa then to Goma. [234] With regard to the said money that Ingabire sent them, he testified thatn she used to send it in different periods through other people among others Turikumana Jean de Dieu, Dushimirimana Athanase and Mujawayezu Spéciose. [235] With regard to the e-mail address they used to swap the correspondences, he testified that his initial electronic correspondence to Ingabire was sent through e-mail adderss muhima2007@yahoo.fr and uwumvit2008@yahoo.fr. Headded that when he came back to Rwanda and after the training in Rwanda he used gaspardkalimba@yahoo.fr, and at Ingabire’s arrival in Rwanda, he used emmanuel.hirwa@yahoo.fr.

He testified further that Ingabire used to use e-mailaddress vumuhoza@cs.com and gpascal05@yahoo.com.He ended that in their final months of correspondences they used ndindajean@gmail.com. [236] He claimed further that there some e-mails that he had deleted being together with Ingabire because he had started being summoned by Prosecution Services which showed him his correspondences sent through gpascal05@yahoo.fr and, according to him, he saw those correspondences sent through muhima2007@yahoo.fr and they thought that Nditurende who had been already arrested has revealed it for investigation. He stated that immediately she asked him to delete them as she was on alert of being arrested as well and all those correspondences found.

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[237] Uwumuremyi conceded that his collaboration with Ingabire at her arrival in Rwanda went on after he came back to Rwanda during the operation Umoja Wetu in February 2009. He listed examples like having been requested by Ingabire to go to see whether Sibomana Sylvain of FDU is a person worth of being trusted since they they used to talk but without knowing each other and he told him that he was a person to trust, having prepared, being assisted by other people, the manner of her reception, sought for her a secretary, having signed the lease contract of the house in which she was to live in Kigali, having brought to Kibungo papers of the review of Gacaca Judgment rendered against Joseph Ntawangundi being driven by his driver Abdou. [238] Karuta Jean Marie Vianney, as to his side, Nditurende deleggated hi to Kinshasa in February 2008 so as to meet with Ingabire where he landed in Kinshasa so late about 8 pm. He stated that he was received by Colonel Zélote at the air port. He continued stating that he showed him a seat and short time later come Mberabarashi who was Executive Secretary of FDU-Inking and short time later again Colonel Zélote came back together with Ingabire. However, the later told him that they could not talk as she had immediately to leave. He added that he stayed with Mberabarashi who asked then about the kind of assistance they needed and told him

about communication equipment and medication as had been ordered by Nditurende. He testified that they had also separated immediately as he had to leave as well. He added that they left being together with Colonel Zélote and the later worked on issue the lodge and on the following day he came back to Goma and went to see Nditurende of the report of the assigned mission. [239] He testified that after they separated from FOCA Nditurende told them that he was asked to submit the name that their armed group had to bear. He articulated that they suggested Coalition des Forces Démocratiques (CFD) and they submitted that name through the SMS. He added that they had to discuss it during the meeting but he told them that they had not to waste much time on that because it was not deemed necessary. [240] When it analyses together the statements of Nditurende, Uwumuremyi and Karuta before the Judicial Police, the Propsecution, and those made during the trial of the case, the Court finds that they converge on the following main points: The fact that Uwumuremyi and Nditurende had been in regular telephone calls and message swapping with Ingabire; Ingabire requested them to separate from FDLR/FOCA in order to form their own armed group under controle of FDU-Inkingi; The trip of Karuta to Kinshasa on February 2008 to meet Ingabire for shaping their collaboration whereby Ingabire was about to

board and stay with Mberabahizi who requested him the list of the needed; The fact that during all those trips they had been received by Colonel Zélote; The fact that Ingabire used to send them money through other persons; The fact that Nditurende and Uwumuremyi had traveled to Kinshasa and Brazzaville in October 2008 to for to meet with Ingabire in the context of shaping their collaborations and discussed about formation of an armed group under the control of FDU-Inkingi; The fact that Ingabire intended to sow insecurity targeting forced negociations with Rwandan Government.

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[241] The Court is of the view that it must analyse the content of statements of Ingabire and her co-accused as a whole being assisted by other evidence to assess whether they reflect the material facts. [242] With regard to e-mail that the co-accused of Ingabire alleged to have swapped with Ingabire, those which have been listed as evidence in this case are those which have been used to send or to receive e-mail messages. Those e-mail address are vumuhoza@cs.com, gpascal05@yahoo.fr, muhima2077@yahoo.fr, uwumvit@yahoo.fr and bungucel@yahoo.fr some of those e-mail messages original copies have been provided while some others have not. [243] With regard to e-mail messages whose original copies were provided, on page 367 there is an e-mail address muhima2077@yahoo.fr which was used to write to vumuhoza@cs.com on October 3, 2007 acknowledging the reception her program and that he had shown it to different people who were proponent. He wrote that he had given her address to Lt Colonel because he wanted them to talk and he had given her his number so that they could talk. [244] In the e-mail message of that day on page 367, there is a message which was sent from vumuhoza@cs.com to muhima2077@yahoo.fr whereby the sender specified that he had talked to his Leader and that the latter asked him some questions to which he replied that answers were to be sent to his e-mail address but he

found later that the address was not recorded in his diary and hence asks him to send it again. [245] The E-mail message dated October 5, 2007 on page 369 which was sent from muhima2077@yahoo.fr to vumuhoza@cs.com, the sender was notifying him that Colonel had talked to him and that he was being identified under the names of Henri Menge. He notified him of the new telephone line in use as well. [246] The e-mail message dated October 8, 2007 on page 368/370 vumuhoza@cs.com wrote to muhima2077@yahoo.fr stating that he believes they were ongoing with propaganda to convince people that they had to work to leave the forest to go home and those wish to stay there, stay. He was informing further that she had talked to Lt Colonel informing that they had political and diplomatic strengths and that theirs were missing and that she wishes he told them that their strengths were available so that he can match them with hers and that they had to seek who are willing and able instead of starting from nothing which could delay them. [247] E-mail message of December, 30 on page 375 vumuhoza@cs.com wrote to muhima2077@yahoo.fr telling him about the wrap-up of the meeting of November 25. She was telling him that that they have diplomatic and political strength and that what was missing was their strength which, according to her own view, they waste and that those who wish to continue the route

with them were welcome. He stated further that in six months those strengths must be reached. [248] In the e-mail massage dated March 3, 2008 on page 377 vumuhoza@cs.com wrote to bungucel@ yahoo.fr informing him that he had been at the place at which they were intending to go and that he had been there on Christmas and that he was to come back in those days to prepare for those who wanted to join them. She/he requested them to continue with mobilization and sensitization.

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[249] E-mail massage of February 12, 2008 on page 377 muhima2077@yahoo.fr wrote to vumuhoza@cs.com stating, ''the other person will fly at 1 h 15 pm and he could land at Kinshasa at 3 h15 pm.'' [250] E-mail message dated March 12, 2008 on page 449 vumuhoza@cs.com texted bungucel@ yahoo.fr congratulating him for the acts of heroism of forming an armed groupe to save those who expect a lot from them. He/ she recognized that the matter concerning demplocay or politics was running smoothly and that the rest was their role and, '' there is a person in Kinshasa that your colleague have met with to whom the list of those in charge of supply of the needed was submitted so as to have the cover and that he/she wanted him/her back'' [251] E-mail message of March 6, 2008 on page 451 bungucel@ yahoo.fr wrote to vumuhoza@cs.com telling him/ her that he/ she thanks God as the sent messanger was back safely and he/ she acknowledged the reception of the sent message and that they took action and the rest was their sacrifice. He/she added that the urgent was that '' means '' that Muhima was waiting at Goma as well as they requested money. He/ she was further telling him/ her that with the concern that their messanger who was back at Kinshasa found it not necessary because they came to know that the Colonel who received him at the air port was had a regular telephone contact with other people

whom they do not share the vision of revolution and who were still disciples of principles of FAR. [252] The Court finds that as held by th High Court, it is Ingabire who is the possessor of e- mail address vumuhoza@cs.com because it even appears on his visotors card as it was submitted to the Court in addition to his admission before the Court that she had been using that address in different periods and that she failed to demonstrate that it might have been used by other people without her knowledge. Therefore, it must be accepted that Ingabire is the sender and the recipient of all messages which were sent and received though vumuhoza@cs.com. [253] With regard to e-mail address muhima2077@yahoo.fr and bungucel@yahoo.fr, as held by the High Court, the Court finds that the first is belonging to Uwumuremyi while the second belongs to Nditurende since they conceded that they have used them in their correspondences with Ingabire. Those addresses appear in those among which messages to vumuhoza@cs.com were sent and which Ingabire accepted to be the possessor. Therefore, it must be accepted that all correspondences received and sent to that addresses as highlighted above are relevant to the facts because Ingabire failed to demonstrate that Investigation Services hacked those addresses. [254] The Court finds that the fact that neither the Judicial Police nor the Prosecution did

not immediately show Ingabire the original copies of those e-mail while some of them were shown to her later is not a ground to consider that those e-mails that the co-accused claimed to have swapped with her were forged by Investigation Services because, as explained by the High Court, she conceded that they had finally shown them to her and she had opportunity to present her defence thereon. [255] The Court further finds that the fact that there are some others whose original copies have not yet shown to her is not the implication that those aforementioned were forged as alleged by Ingabire because there is no reason as to why those fraudulent acts of forging original copies would have been done for some e-mails while it was not the case for some others.

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[256] Furthermore, the Court is of the view that the fact that immediately after she was arrested, she was interrogated before the Judicial Police and the Prosecution about the e-mails that she had swapped with her co-accused while the later have not yet appeared before those organs is not the meaning that those e-mails have been forged. It is rather the meaning that the investigation was ongoing and there was no reason to reveal to her on which stage it was. [257] With regard to trips that the co-accused of Ingabire might have done to Kinshasa and Brazzaville to meet with Ingabire, the case file contain the document provided by ''Compagnie Africaine d’Aviation (CAA) '' which shows that the person called Bantu Biruba had traveled by their plane on February 24, 2008 from Ki nshasa to Goma while the document provided by '' Compagnie d’aviation Hewa Bora Airways'' revealed that the person called Henri Hatali Mulinde traveled by their plane on October 7, 2008 from Goma to Kinshasa and the document of ''Compagnie d’Afrique d’Avioation (CAA) '' which reveals that Henri Hatali Mulinde and Muhindo Muhima traveled by their plane on October 10, 2008 from Kinshasa to Goma. [258] In their analysis on the statements done by Karuta, Nditurende and Uwumuremyi their e- mail and the document provided by the aviation companies stated above then matches it with the dates on which Ingabire have

been at Kinshasa, the Court finds that as held by the High Court, the person referred to as Bantu Biruba, Henri Hatali Mulinde and Muhindo Muhima are respectively Karuta, Nditurende and Uwumuremyi. [259] The fact that Karuta had traveled to Kinshasa to meet with Ingabire on February 2008, the Court finds that Karuta himself confirms it and it is also confirmed by Nditurende, his leader, and Uwumuremyi and it matches with the document provided by ''Compagnie Africaine d’Aviation '' which shows that the person called Bantu Biruba traveled by their plane on February 24, 2008 from Kinshasa to Goma. All of these being viewed together is important presice and consistent evidence demonstrating that Karuta traveled to Kinshasa to meet with Ingabire as confirmed by the High Court. [260] With regard to the fact that Nditurende might have traveled to Kinhsasa and Brazzaville to mmet with Ingabire, in October 2008, the Court finds that their admission that they had travelled there matches with the document provided by Compagnie d’aviation Hewa Bora Airways Wwhich reveals that the person called Henri Hatali Mulinde traveled with their plane on October 12, 2008 from Goma to Kinshasa and the document provided by Compagnie Africaine d’Aviation (CAA) which reveals that Henri Hatali Mulinde and Muhindo Muhima traveled with their plane on October 12, 2008 from Kinshasa to Goma. [261] When it

matches further the aforementioned holdings and that Ingabire conceded she was at Kinshasa and Brazzaville in October 2008 and that Nditurende and Uwumuremyi have been received from the air port from by Colonel Zélote, the same person who received Karuta in February 2008, her body guard of Ingabire as the he conceded, that Nditurende and Uwumuremyi conceded that confirmed that they met with Ingabire after the later had met with the President of DRC and of Brazzaville and Ingabire conceded that he hadmet with both Presidents of thise Countries, the Couty finds that the aforementioned findings are important, precise and consistent evidence which demonstrates that Nditurende and Uwumuremyi traveled to Kinshasa and Brazzaville so as to meet in October 2008.

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[262] The Court finds that the fact that the Prosecution failed to demonstrate that Nditurende and Uwumuremyi passed the night in Hotel Cristal nor it demonstrated the place of their meeting does not invalidate set of material facts demonstrating that they had actually traveled to Kinshasa in order to meet with her in the context of shaping their prior dialogues. [263] With regard to the pleading of Ingabire that her co-accused might have known Colonel Zélote who might have given them all information about her trips, the Court finds that based on aforementioned holdings, it has no merit as she does not provide evidence in support. [264] Withg regard to the money that the money that her co-accused claimed to have received from her, evidence collected in Holland includes a statement of investigation conducted by Dutch Invstigative Srvices which shows that on May 20, 2008 Mujawayezu Spéciose had sent 1,514.74 US dollars to Muhindo Spéciose who was interrogated by Duch Security Service about whether she might have transferred money at Goma initially stated that he had sent no money and later on after she was told that investigation revealed that in 2008 she transferred money to the person called Muhindo Dieudonné, then she concedes that she transferred 1000 euro at Goma upon the request of Ingabire and she stated that she could not remember the name of the person to whome the

transfer was made and that she does not know the person called Muhindo Dieudonné. [265] With regard to evidence collected from DRC, there are documents provided by Western Union which shows that between February 6, 2008 and August 23, 2008 money has been sent to Muhima Muhino by defferent persons including Mujawayezu Spéciose, Turikumana Jean de Dieu and Dushimirimana Athanase. [266] With regard to Mujawayezu, the fact that Uwumuremyi and her both confirmed that they do not know each other and one states that it is Ingabire who asked her to send money while other testified that it is Ingabire who sent him money and that it has been confirmed by different people from different places and different periods indicates as held by the High Court that it is Ingabire who sent the money through Mujawayezu. [267] With regard to the money that Uwumuremyi claimed that it was sent to him from Turikumana, the Court states that there is no flaws in the analysis made by the High Court whereby it was held that the e-mails message sent to Nsabimana Phocas by the person called Christine Numuhoza using address cnumuhoza@yahoo.fr and informing him that she had sent to him 500USD with explantion that the sender was Turikumana Jean de Dieu and the testimony of Nsabimana who testified that the person with whom he swapped messages through that address was Ingabire and that she was the sender of the

money indicates that this e-mail address belongs to Ingabire but being used by Turikumana Jean de Dieu in the acts of transferring the money. [268] The Court finds that as confirmed by the High Court, the fact that Ingabire concedes she knows Turikumana as a member of FDU-Inkingi and it is obvious that she had been regularly using him in the transfer of the money, the fact that Uwumuremyi testifies that he does know him but reiterating that the money he used to send to him had Ingabire as the sender on the other side, is the concurrence of material facts demonstrating that Ingabire is the sender of that money to Uwumuremyi through Turikumana.

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[269] With regard to the money that Dushimirimana Athanase sent to Uwumuremyi, the Court finds no flaw as well in the analysis made by the High Court whereby it confirms that the fact that Ingabire confirms that she knows him as a member of FDU-Inkingi while it is evident that she used other persons for the transfer of the money while Uwumuremyi confirmed he did not know him, is further the concurrence of material facts demonstrating that Ingabire is the one who sent that money through Dushimirimana. [270] The analysis of the statements made by Nditurende, Uwumuremyi and Karuta and e- mails messages aforementioned and then matches it with their troips to Kinshasa and Brazzaville as well as vidence of money that has been sent to Uwumuremyi, the Court finds that the statements of both Nditurende and Uwumuremyi that Ingabire urged them to separate themselves from FDLR/FOCA and form an armed group under the control of FDU-Inkingi is the truth. vii. Regarding the fact that the High Court did not demonstrate that she had a particular purpose of forming an armed group under the control of FDU-Inkingi [271] Ingabire states the High Court held she had intention of forming an Armed Group under the control of FDU-Inkingi. She lamented that though the Court had no basis to so confirm, to her view, none must be punished for a wish. [272] She lamented further that in Mushayidi, the High

Court analysed that conspiracy against established government is identified from the intention to overthrow the Government and that it held that such intent was identified from the motto of PDP Imanzi given that its founders admits to the dialogue failure of which the foundation of armed group may be resorted to. [273] She contintinued pleading that, with regard to the party FDU Inkingi of which she was a Leader, there is no evidence which has been prodiced to show that it had manifested any intention of forming an Armed Group purposing to overthrow and that its program reveals that the party believe in election as one process of change within the Country. [274] In his testimony further, he stated that Nsabimana Phocas, the former mbember of FDU- Inkingi, who was summoned by the Prosecutor to give the testimony, testified that the Program of FDU-Inkingi to which he was sensitized was to have the Party registered, nominate a candidate to the presidental election. He denied about having sensitized about taking power through the war or any acts contempting the interior security. Hence, to her view, that testimony of the member of FDU-Inkingi since 2008 recruiting members for the party within the country demonstrates clearly that the program of FDU-Inkingi has nothing to do with harm against established government throughout teroorism and war. [275] She contended that as a a

chairperson of FDU-Inkingi she had no power to take such an action of forming an armed group without the approval of general assembly of the party. She contended further that even Uwumuremyi who is alleged to have entered into conspiracy with m her had no power to form an armed group under the control of FDU-Inkingi so long as he was not its member. [276] She kept on pleading that there is no submitted evidence that she had a particular purpose to form an armed group inending to overthrow the established government and that the High Court had disregarded the series of her speeches delivered at different places demonstrating that

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she believes in election and biding for power through election. She added that the fact that she come back within the country on January 16, 2010 and starts the program of hiving the party registered is far different from intention of forcing the government to enter into negociation through terrorism and wars [277] The prosecution rejected that the statments of Ingabire that she was punished of having a wish has no merit since the High Court ruled that her wish resulted into conspiracy for which she had been punished. With regard to the contention that there is no evidence imputing to FDU- Inkingi the purpose of of forming an armed group in order to sow insecurity in Rwanda, the Prosecution replied she intends to mislead the Court because she is aware she had been personally prosecuted since criminal liability is personal and that she had been personally found guilty. [278] With regard to the lamenations of Ingabire that there documents and speeches delivered at different places demonstrating that her methodology is of peace and that she believes in in election as the sole way of bidding, the Prosecutor replied that this did not stop her on the other side from having delivered speeches in a hidden place purposing the formation of an armed group aiming at taking power through war and terrorism. To the Prosecution, it shows rather she has two approaches, the writing based

approach, when it is intended to be public and hidden based approach, the activities intending the violation of internal State security. [279] With regard to the testimony given by Nsabimana Phocas, the Prosecution stated that Ingabire stresses only a part of the statements made by that witness that she believes are advantagious to him and leaves out some others parts of the testimony while they strongly stress evidence produced the Prosecutor for example like having testified that Ingabire used to send him money through other persons for the preparation of all the activities of the party, which demonstrates that the statements of Uwumuremyi and Mujawayezu about the money that Ingabire used to send in Congo through other persons are true, the fact that Ingabire used to alternate e-mail addresses in the context of misleading people. This also stresses the statements of the co-accused that they used to swap e-mails messages through different addresses. The view of the Court [280] The Court is of the view that she had not been punished of having a wish of forming an armed group under the control of FDU-Inkingi as she alleges. She had been rather punished for the consipracy between her and Uwumuremyi about the formation of armed group under the control of FDU-Inkingi. [281] With regard to aforementioned conspiracy, the High Court demonstrated the manner in which Ingabire urged

Nditurende and Uwumuremyi to separate themselves from FDLR/FOCA and form their own armed group under the control of FDU-Inkingi, the e-mail messages that she regularly sent to them, the meeting they held at Brazzaville and Kinshasa, the money she transferred to them whose one have been used to procure military equipment, according to their testimonywhile another part was used to assist their families. [282] With regard to the declaration that the High Court failed to demonstrate that FDU-Inking had never had intention of formation of armed group with intention withintention of sowiing

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insecurity in Rwanda, which is the decision that she was no able to take being alone, the Court finds that the intended result in this case is examination of the role of Ingabire about the accusations against her and not whether she acted upon the request of the party she chaired or whether it was the way of her way of management as the chairperson or her ability or inability to do it. [283] With regard to the the claims that Uwumuremyi had no capacity to form a MIitary organazation under the control of FDU-Inkingi because he was not a member of that party, the Court is of the view that, as aforementioned, Ingabire requested him to find from FDLR/FOCA amenable soldiers so as to form their own Military Organazation. His role is therefore that such agreement was reached between him and Ingabire and even collaborate in order to inculcate it into Nditurende and the latter, as the Commander of Bahama Batalion, had a superior power over him. It is to be reminded that Nditurende had later separated himself from FDLR/FOCA and him and co-leaders formed another Military Organization. [284] Based further on the contents of the messages that Uwumuremyi and Ingabire swapped and the statments of Nditurende before the Judicial Police that Uwumuremyi was a highly trusted person of Ingabire, when you match all of these with the fact that after his returning to Rwanda during ''Operation Umoja

Wetu'' his close collaboration with Ingabire was ongoing, the Court finds it is no surprise that Ingabire sought assistence from him in the acts of forming a Military Organization under the control of FDU/Inkingi of which she was the Chair. [285] With regard to the statements of Nsabimana that he was not aware of the intention of FDU-Inkingi to take power through war or acts of threat to the internal Security of the State and the speeches delivered at different places demonstrating that she believes in the approach of peace in bidding for power throughout election, the Court finds that it cannot invalidate produced rebutting evidence. [286] In conclusion regarding conspiracy against established government and attemp contempt against the constitution, though terrorism, war or whatever force, the Court finds that the pleadings of Ingabire from the first instance about the forged charges by Investigation Organs based on all the grounds that have been shown. She is guilty of the alleged crime as alleged by the High Court.

3. Concerning genocide minimization i. Whether the High Court committed any error while reclassifying the alleged crime genocide igeology to genoside minimization [287] Ingabire lamented the her indictment conatins the crime of genocide ideology based on article 2-4 of the Law N°18/2008 OF 23/07/2008 Relating to the punishment of the crime of genocide ideology. She explained during the hearing that based on objection of non retroactivity of criminal law raised by his defence counsel, that Law could not have been applicable because evidence based on by the Prosecution for to indict her occured prior to the publication of that Law.

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[288] She added that after it was found that the raised objection had merit, the Prosecution requested the Court to use Law nº 33bis/2003 of 06/09/2003 article 4 because the crime of genoside minimization was normally punished since 2003. [289] He complained further that instead of considering her defence, the Court found her rather guilty of genocide minimization based on irrelevant law to the one referred to by the Prosecution at the time of the submission of indictment against her to the Court whereby the Court explained why it did not base on it reference to Legal Scholars Henri Bossly and Damien Vandermeersch being made. [290] The Prosecution condended that the pleading of Ingabire is not substantiated because, as it explained, this crime was punishable since 2003. It added that there is no reason as to why the judge may nor reclassify an offence and change the applicable Law since it is the criminal acts which are referred to the judge and in deciding the case match them with the suitable qualification. The view of the Court [291] Pursuant to the aforementioned holdings regarding the power of the Court to change the the qualification of the crime8, the acts in indictment against Ingabire are those of misleading with intention of denying the occured genocide or its minimization and those acts did not change. Rather, what the Court did is giving those acts a suitable

qualification and matches them with the provisions of article 4 of the law nº 33 bis/2003 of 06/09/2003 which punished those acts prior to the coming into force of Law nº 18/2008 of 23/07/2008 which came to emphasize it. [292] Therefore, the fact that the qualification of the crime and the applicale law has been changing as the case progressed through different judicial organs while the alleged acts remained intact till the Court gave the last suitable qualification, it does not infringe any law. Therefore, the appelate Court finds no defect in the judgment rendered by the High Court when it changed the qualification of an offence. ii. Whether Ingabire was found guilty of the minimization of the crime of genocide while the Law punishing it was not clear and in contradiction with International Law that Rwanda ratified Whether the law on counter genocide is not clear [293] Ingabire declared that during the time of the hearing on the first instance, she had demonstrated to judges the flaws in the Law punishing genocide ideology or genocide minimization and she was replied that they could change anything because the Court replied that he referred her worry about the inconstitutionality of article 4 of nº 33 bis/2003 to the Supreme Court and the latter decided that the challenged law was already repealed. [294] She stated that even though that Law was repealed, the Court did not hesitate to convict her of genocide minimization based on the same Law because it is the one which was into effect at the time when she expressed her opinions about woes that the country went through. 8 Look at the holdings aforementioned about the conspracy against established government and attempt to the constitution.

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[295] She statd that in the determination of the applicable penalty on the crime of genocide minimization, the Court followed the provisions of article 116 of the new penal code which is still embodying the contents of the challenged provisions of article 4 of the Law nº 33 bis/2003. Those flaws are among others, the law is not clear, does not define what the crime must be and does not demonstrate what must be based on to confirm that the intention is aiming at the commission of genocide minimization. In consequence, she prays not to base on neither article 4 of Law nº33bis/2003 nor article 116 of Organic Law nº1/2012 to decide on the crime genocide minimization that the Court found her guilty. [296] The Prosecution adduced that the ground of appeal of Ingabile has no merit because the Supreme Court has aleady taken decision on the issue while she wants it again to make examination thereupon and taking decision while it would be inconsistent with the provisions of article 1 of Organic Law nº 03/2012/OL of 13/06/2012 relating to Organization, functioning and jurisdiction of the Supreme Court. The view of the Court [297] With regard to the crime of minimization of genocide, the debates were closed but prior to the verdict delivery, the Parliament enacted Law nº 84/2013 of 11/09/2013 relating to genocide ideology and other related crimes which came into force on October 28,

2013. [298] That Law in its article 5 provides that Negation of genocide shall be any deliberate act, committed in public aiming at: 1o Stating or explaining that genocide is not genocide 2o. Deliberately misconstruing the facts about genocide for the purpose of misleading the public; 3° supporting a double genocide theory for Rwanda; 4° stating or explaining that genocide committed against the Tutsi was not planned. [299] That article goes on specifying that any person who commits an act provided for by the preceding paragraph commits an offence of negation of genocide [300] Article 6 of the same Law provides minimizationof genocideprovides, ''Minimization of genocide shall be any deliberate act, committed in public, aiming at: 1o downplaying the gravity or consequences of genocide; 2° downplaying the methods through which genocide was committed Any person who commits an act provided for by the preceding paragraph commits an offence of minimization genocide. [301] It is obvious that the new Law aims giving further explanations concerning the existing crimes especially the crime of genocide minimization and other qualified as heving relationship with them including genocide dinyial, genocide minimization so as to make things comprehensible and more clear. However penalties on both crimes were kept the same.

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[302] The copy of the appealed judgmentm reveals that in indicting Ingabire, the Prosecutor based, for the crime of minimization of genocide, on opinions containing genocide ideology and misleading the public with intention minimizing the existing genocide using different manner including the media. The main opinion is aimed at demonstrating the theory of double genocide, the one committed against Tutsi and the one committed against Hutu. [303] The fact that that the acts of theory of double genocide in Rwanda was was penalized as the crime of genocide minimization by virtue of Law nº 33 bis/2003 of 06/09/2003 in its article 4 while in the new Law that crime is punished as denial of genocide, lead the court to the conclusion that it makes the Law and the provisions based on by the High Court change since they were applicable at the time when the alleged crimes were committed though, as earlier stated the allged acts remain intact taking intom account the provisions of article nº 84/2013 of 11/09/2013. [304] The Cour t finds that though the qualification of the crime has changed, the nature of the crime is still the same the same as the crime whereby the punished crime was genocide minimization which iwas considered as its denial Whether the condamnation of Ingabire by the High Court for genocide minimization infringed article 19 of ICCPR9 and other international

principles. [305] Ingabire alongside Ian Eduards, her counsel states that the High Court found Ingabire guilty of genocide minimization leaving out the right to freedom of expression which is provided for by article 19 Internartional Covenant on Civil and Political Rights and also provided for article 9 (2) African Convention on Human and Peoples Rights as well as article 34 of the Constitution of the Republic of Rwanda. [306] They continued pleading that as long as Rwanda signed the Convention related to civil and political rights, it is bound by international principles and that, though they know that the right to freedom of expression is not absolute, based on the provisions item 3 article 19 and 20 of the aforementioned convention, that rights must be subjected to limitation in case it is deemed necessary. [307] They pleaded further that this ground was not examined by the Court because the crime that Ingabire is accused of is provided for by article 4 of the Law nº 33 bis of 06/09/2003 which punishes the crime of genocide, crimes against humanity and war crimes while they extend the interpretation of that article to the crime of genocide minimization in a too general ma nner which infringe the provisions of article 19 (3) as cited above which provides that the limitation must not be general and and that enjoyment of that right is onlyrestricted whther

deemed necessary. [308] The Prosecutor responded that the statments that the High Court did not respect the provisions of article 19 of International Covenant on Civil and Political Rights have no merits because Ingebire herself conceded that item three of that article allows States to enact laws limiting whoever is enjoying the rights to freedom of expression to go beyond. In addition, the Prosecutor added, Ingabire and her defence conceded that the conventions imposed the 9 International Covenant on Civil and Political Rights, Adobted by the UN General Assembly on December 16, 1966 and ratified by Rwanda on March 23, 1977

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limitations and that the provisions of article 19 (3) are matching with the provisions of article paragraph 2 article 34 of the Constitution of Rwanda. [309] The Prosecutor finds further that the fact that counsel for Ingabire believes that the limitation to freedom of expression must be imposed where necessary but without providing explanations in support apart only from invoking it, makes his statements invalid. In addition, he did not show that the High Court had extensively interpreted the Law punishing the crime of genocide as he alleges. Hence this ground of appeal has no merit. The view of the Court [310] Article 19 of International Covenant on Civil and Political Rights provides for the rights to freedom of expression. However, in its item 3, it specifies that this rights is attached to special obligations and hence may be subjected to limitations imposed by the law in case it is deemed necessary. [311] The Court is satisfied without any doubt that article 19 as cited above, article 9(2) of African Charter of Human and Peoples Rights and articles 33(1) and 34(1) of the Constitution of Rwanda stress on the freedom of expression. Nonetheless, as confirmed by Ingabire and her counsel, item 3 of article 19 as referred to above as well as article 33, 2º and 4, 2º of the Constitution of the Republic of Rwanda provides for the limitation to those rights. [312] Therefore, based

on aforesaid articles, though the freedom of expresion is principle recognized by International Law as well as African Chaerter that Rwanda ratified, the law provides for limitation to that rights because, even if he/she is entitled to the right to freedom of expression, he/s he is not entitled to express whatever opinion and iny whatever manner especially when that rights are abused i n such a way that it results in negative impacts for example causing harm to the values shared by the mankind, harm to good social relations, harm to public order. [313] Moreover, based on article 13 paragraph 2 of the Constitution of the Republic of Rwanda which states, ''denial and minimization of genocide shall punished by the law'', it indicates that the Constitution has duly criminalized the minimization of genocide. [314] Further, as it has been specified in the judgment RS/INCONST/PEN 0002/12/C10 punishing the crime of genocide minimization is not a speciality of Rwanda only because different countries worldwide inacted special laws to repress the crime of genocide perpetrated agains Jews or genocide as such and some cases have been tried. Therefore, as the Country in which Genocide against Tutsi was perpetrated and which is still facing its effects, Rwanda did not go beyond the borders by inacting a special law punishing genocide minimization and containing limitation clause for whoever

wants to abuse the rights intitled to them by the Law and minimize the genocide. 10 Rendered by the Supreme Court on October 18, 2012 after petition submitted by Ingabire requesting the repealing ofarticles 2 to 9 of Law nº 18/2008 of 23/07/2008 punishing the crime of genocide, crimes against humanity and war crimes as being in contradiction with articles 20, 33, and 34 of the Constitution of the Republic of Rwanda of 4 June 2003 as amended todate

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[315] The Court finds further that the essential is that in case the law provides for the limitation to the right of freedom of expression as provided for in item 3 of article 9 as cited above, those limitation must be explicit within the law and necessary based on its raison d'être which concerns, as explained, with the deterrence of those who go beyong and abuse the rights of freedom of expression as entitled to them by the law. [316] Another point that must be understood with regard to the crime of genocide is that the legal Scholars who analysed it, teach that the acts of minimizing genocide is one of the different strategies used by those who negate genocide. They teach further that negating or minimizing genocide always follow the committed genocide and mostly happen in the same context with that genocide and it is an indication of an other possible genocide. They explained further that those acts are prepared prior to the commission of genocide and they are ongoing during the genocide and after it. They explain further that the aim at this is time is doing the possible so that the perpetrators cannot be brought to justice or not to avoid any effects coonected to the committed crime. [317] They explain it as follow : "There are several forms of negation: the rationalization, trivialization and relativization (...) Relativization is a corollary of the rationalization

process.. Relativization denial paves the way for the comparative trivialization11 ... '' ‘‘Denial is the eighth stage that always follows a genocide. It is among the surest indicators of further genocidal massacres (…) they deny that they committed any crimes, and often blame what happened on the victims. They block investigations of the crimes, and continue to govern until driven from power by force, when they flee into exile. There they remain with impunity… ’’.12 ‘‘ The denial of genocide occurs during and following the perpetration of the act (…) when scholars and others refer to the denial of genocide, they generally mean that perpetrators, their descendants, successor governmens, and/or individuals who sense an affiliation with the perpetrators, all deny that a genocide was ever perpetrated in the first place ’’.13 [318] In the same sens with the aforesaid explantions, the analysist of the crime of genocide, especially the Holocaust, teach as follow, '' Denial is not a perverse version of the history of Nazism; it is the Nazism itself, always active (...). Holocaust denial is a chapter in the history of the Holocaust. To be treated as such. To be understood as such. It is not a question of 'reply' to piece by piece that mastered ideological delirium, but to hear its political 11For more clarifications, look Brabara Lefebvre, « Réflexion sur le négationnisme du Génocide des Tutsis au Rwanda » in : Dossier Controverses, nº6, Novembre 2007, p.30. 12Gregory H.Stanton, “The Eight Stages of Genocide” in Samuel Totten & Paul R. Bartrop (ed.), “The Genocide Studies Reader”, New York: Routledge, 2009, pp. 127-129. Kureba kandi www.genocidewatch.org/aboutgenocide/8stagesofgenocide.html, last checked on 16/09/2013. 13Samuel Totten & Paul R. Bartrop (ed.), op.cit., p.517.

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foundations and murderous designs. It is not history that this is, but the continuation of genocide by relegitimation, as expected, of anti-Semitism ''14 [319] Schoars explain that many of these who minimize the genocide do it through different tricks because they pretend to demonstrate their truth different from what is normally recognized about what transpired or that they aim at assisting humanity to think deep on the real history about the genocide with full knowledge about their deceit with intention of misrepresenting history through the denial of the of the genocide committed. [320] Pursuant to the aforesaid explanations elaborating on the manner used by those who negate and minimize genocide and their intention, the Court is of the view that, especially with regard to the crime of minimization of genocide in the Country as Rwanda which faced genocide committed against Tutsi as recognised by the international community, grounding further on the provisions of article 13 paragraph 2 of the constitution of the Republic of Rwanda, it was duly necessary to legislate the Law punishing those who minimize it. [321] Therefore, the fact that the High Court had based on that Law and after it examined evidence and after the defence of the accused theron, the Court finds that the elements of the crime of genocide denial are not in contradiction with article 19 of International

Covenant on Civil and Political Rights or other applicable law as above mentioned. [322] Furthermore, as explained above, Ingabire and counsel Iain Edwards failed to demonstrate that the Law punishing the crime of genocide minimization may be containing unnecessary limitations vis-à-vis freedom of expression or else that the Court had extensively interpreted those llimitations. iii. Whether evidence relied upon by the High Court in finding Ingabire guilty of genocide minimization must not be considered. [323] Ingabire and counsel Iain Edwards pleaded that the High Court found her guilt of genocide minimization without deep analysis because it has confirmed that stating that there are two genocides which occurred in Rwanda constitute the crime of genocide minimization. They challenged further two set of evidence that the Court based on to find her guilty of that crime. They are namely: the content of article 5 of the constitution of FDU-Inking and the content of the speech that she delivered at Gisozi Memorial Site of genocide committed against Tutsi on January 16, 2010 and the content of her leter to the Newspaper ‘‘the New Times’’. [324] With regard to analysis made by the High Court about the theory of double genocide, counsel for Ingabire, stated that he challenges the assessement of the Court about genocide minimization whereby it researched on the web side of ‘‘ wikipedia

’’ while, according him the latter is not a tool fro research though some search on it and because some of its documents are published by impermanent and uknown vulunteers and therefore must not be trusted. He added that most of the time that web site warns its visitors that they must pay attention with its 14 Revue de l’histoire de la Shoah, le monde juif, “Négationnisme : Le génocide continué ”, nº 166, Mai-Aout 1999, Centre de Documentation Juive Contemporaine, p.5. Kureba kandi www.genocidewatch.org/aboutgenocide/8stagesofgenocide.html, last checked on 16/09/2013.

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publication as most of its documents do not reflect the truth, that they may be incomplete or biased. [325] He states further that the High Court committed another error when it failed to notify Ingabire of the document that it was to use so as to prepare her difence. He added that the Document of the scholar called Yves Ternon, ‘‘La problématique du négationnisme ’’ must not be trusted because he is not a lawyer or an expert so that he can give an opinion on a given legal issue. [326] Iain Edwards, counsel for Ingabire states further that the document of Yves Ternon does neither diplay her field of study nor the source of what he wrote so as to be assessed. He added that there is another web site, www.impresriptible.fr/parutions/guerres_genocide , which showed that he conducted a research on war crimes and genocide committed against Jews, Armenians and Rwandans. He pleaded further that there is no evidence that the writings of Yves Ternon have ever been assessed by legal scholars prior to their publication and, though he is a history scholar, what he wrote must be considered as his personal convictions. [327] Ingabire and his counsels added that, with regard to the crime of genocide minimization, they challenge the decision of the High Court which found her guilty of that crime based on the provisions of article 5 of constitution of FDU-Inkingi, since it had wrongly analysed

because, to his view, that party recognize the genocide committed against Tutsi and even condemns it. They adduced that the fact that in that article it is stupilated, '' Rwandan Genocide committed by both belligerant since 1990 '' may be interpreted differently because the document of this kind must be written in short as it embodies fundamentl principles about the conviction and ethics of members and their leaders, the structures and their respective duties. [328] They explaintherefore that those who are in need of further explantions about the provisions of that memorandum, they get them during the meeting. They insisted that as Ingabire explained it to the High Court, article 5 cited above means the Genocide Committed against Tutsi in Rwanda and that committed against Hutu in Congo. [329] Iain Edwards, the defence lawyer, finds that the fact that in article 5 of the memorandum of FDU-Inkingi there is ‘‘ Génocide rwandais ’’ must not be considered as minimizing genocide because that genocide was recognized like that as it is identified in the Constitution of the Republic of Rwanda at that time. He states that based on the explanations given by his client and him, Ingabire must not be found hguyilty of genocide minimization. [330] He added further that, in alterantive, the content of article 5 of the Charter of FDU- Inkingi was drafter in April 2006 was based on the

information in circulation at that time like that published in Report of UN Security Council. He continued pleading that he does not agree on the positionj of the High Court that the Report‘‘ Gersony ’’ must not be based on as evidence because it was not officially published because its contents were known since March 1999 because he was cited in the book written by Alison Desforges titled ‘‘Leave None to Tell the Story’’. [331] He stated further that he does not agree with the Court which held that the reports that Ingabire has been using only stated that there are Tutsis who killed Hutu or who committed

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against them crimes against humanity but without confirming that there was no genocide committed against Hutu being committed by Tutsi or that it happened in Congo since those who wrote them conceded that there is genocide which might have also been committed against Hutu.Ingabire added that there is a parper which she submitted to the High Court and written by “Centre International des droits de la personne et du développement démocratique – Droits et Démocratie” which specifies that the atrocities committed against Hutus refugees in Congo is genocide but the Court held silence. [332] Iain Edwards, the defence counsel, continued stating that either in the statements made by Ingabire or in in the memorandum of FDU-Inkingi, there is no evidence that Tusis who losts their paersons during the genocide are the ones who committed genocide against Hutus, rather , the ongoing ascertainment is that Rwandan Patriotic Front (RPF) as apolitical party committed against Hutu refugees in Congo crimes against humanity and war crimes. [333] Iain Edwards, the defence counsel, further requested this Court that in case it would be found that the memorandum of FDU-Inkingi contains directly the conviction that two genocides have been committed in Rwanda, then it isworth to declare that it does not manisfest the intention to minimize genocide since the principles in that memorandum only advocates

for peace, security democracy and state led by the rule of law without any discrimination in Rwanda. [334] Further Ingabire and his defence counsel dontended further that they challenge the decision of the High Court which failed to analyse the speech he delivered at Gisozi Memorial Site which is really understandable and whose video is available and have been heard by the Court. He lamented that the Court found her guilty after considering that speech in its parts not in its intirety because she had neither prepared her speech nor written.it. [335] They added that Ingabire was dissatisfied of the decision of the Court which based on the missive to the newspaper, News Times, gainsaying its editorial about her speech delivered at Gisozi and, they added, she had never mentioned in her words that there is another genocide which had been committed against Hutus who are not remembered at Gisozi Memorial Site for genocide committed against Tutsi. They emphasized that what Ingabire had stressed is that they have been commission of crimes against humanity against Hutus who are not remembered. [336] Iain Edwards, the defence counsel, continued pleading that even when she might have erred in that missive and wrote words which do not reflect her speech at Gisozi; it must be understood because she does not know English very well. Hence, he concluded, based on all explanations that they had

provided, they prayed the Court to acquit Ingabire of all of which she had been condemned. [337] The Prosecutor responded that the fact that the first instance judge used the writings of scholars at the time of the assessment about the minimization of genocide, she committed no error because there is no legal provision which prohibit the use of writings of scholars or the judgment delivered by foreign jurisdiction. [338] He added further that Iain Edwards, the defence counsel, who challenged the decision of the High Court for having used the writings of Yves Ternon which are known as ‘‘ La problématique du négationnisme ’’ published by Wikipedia is intending to mislead the Court

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because he deliberately leaves out informing the Court that though those writings are published by that web site, they have been initially published in other recognized writings in 2003 as in Revue de l’Arche and www.imprescriptible.fr as Wikipedia cited it. [339] He disputed further that the writings that the Court had based on was truly written by ya Yves Ternon in 2003 after the research he conducted on three genocides committed against Armenians, Jews, and Tutsi and that even though Iain Edwards, the defence counsel for Ingabire, in his submissions he states that he does not know Yves Ternon, he finaly recognizes and explain his field of studies, his career because he even concedes that he has a doctorate of history and that he had conducted research on genocide committed against Romanians; hence it is evidence that he contradict himself. [340] With regard ro the counsel for Ingabire who expressed his disatisfaction that the High Court did not notify his client of the writings of the scholar that it referred to in this case, the Prosecutor responded that the Court infringed no law and that it is provided no where in the law that when the Court closes the hearing for the deliberation and uses the a given law or writing of so as to shed much light on the outcome of the debate or laws applicable to the case at issue, it has first of all to inform parties about that. [341] He

stated that those writings are not new evidence wich may re-open the hearing and that in that context and that, in this context, after the hearing of the case during the deliberation by the Supreme Court, the law does not impose an obligation of informing the parties about the foreign case laws and writings of schloras that it will use because it may not know those authorities. [342] He added that with regard to the memorandum of FDU-Inkingi, the worry to the Prosecution was not terming the genocide committed against Tutsi Rwandan Genocide ‘‘ Génocide rwandais ’’ or negation of that genocide or it condemnation, since the memorandum recognizes it and that none can minimize the genocide which had never committed. [343] He added that the existing issue and constituent element of the crime is words which minimise the genocide committed against Tutsi as contained in that memorandum which Ingabire conceded she acknowledges and she has made them her own ones. Those declarations show that, infered, though the members of her party and her pretent that they recognize the genocide committed against Tutsi, also advovate that in Rwanda the genocide was committed by both belligerants into histilities since 1990 and it well known that since 1990, the hostilities existed between FAR and RPF [344] The Prosecutor added that believing that genocde was consamated does not stop her from minimizing

it especially that Ingabire and his defence counsel do not explicitly explain the manner in which FAR committed genocide and against whom it was committed and the same how RPF committed it and agsint who it was committed so that those genocides and the belligerents in hostilities can be more clearer. [345] He continued contending that in the decided case, the High Court had clearly explained the reasons why it was convinced that the words that Ingabire believes in and makes them hers about the declaration two genocides have been committed in Rwanda, reveal without any doubt

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the the commission of the crime of genocide minimization of which Ingabire was found guilty and the Prosecution finds that those explantions are convincing. [346] With regard to the explantions given by Ian Eduards concerning the origin of the contents of the memorandum of FDU-Inkingi, counsel for Ingabire, the Prosecution replied that they have no basisi as well since himself identified the flaws which might have invalidated the conviction of his client that there is genocide committed against Hutu because he states that those who had spread such information only state that there is a possible genocide committed agsinst Hutu which shows that his declarations are full of doubt or that it has not been declared by the competent organ. [347] The Prosecution contended also that after the memorandum of FDU admits that after the memorandum was drafted in 2006, the concerns of that so called genocide were still ambigious, and that that the writing that she submitted to the Court was not the real report of Gersony but rather its summary and admits that though the report was widespread have not however been officially published indicate that the content of that memorandum must not be considered because of the flaws therein. [348] He continued stating that when the counsel for Ingabire dares stating that there transpired genocide against Hutus, then he wanted to mean that it was

committed by RPF as a political party, it is also an intention to mislead the Court since he knows very well that in different speeches that Ingabire delivered and in her different writings, she admitted that RPF combatants committed genocide and still are comitting it, that they comitted crimes agaist humanity and war crimes and that those combatants are Tutsis as it is identified in her own words on identification code 1669, 1671, 1677 and 1680 to the High Court. Therefore the statements of Ingabire that there is genocide committed against Hutu by Tusti has no merit. [349] The Prosecutor further noted that the speech of Ingabire at Genocide Memorial Site at Gisozi and her missive to the newspaper ‘‘the New Times’’ whereby she was giving the details about her speech at memorial site, she specified, '' the memorial site is only limited to the genocide against tutsi, there is also massacre committed against Hutu '' or '' Hutus are not remembered here at Gisozi '', it is obvious that the speech delivered by Ingabire at Gisozi are not different from her missive to the newspaper '' the New Times'' and all of those messages constitute the acts of genocide minimization because when the crime of genocide and crimes against humanity and war crimes are weighed the same and even consider their gravity to the same scale while they different crimes in their nature with different magnitude,

it shows that nothing else is committed save genocide minimization. [350] He states that as explained by the Prosecution at the first instance, the fact that Ingabire requested that the victims of other massacres apart from genocide be remembered at the same place as that of the victims of genocide, to her, she means that they are also the victims of genocide which shows that she is convinced that there are two genocides, the one committed against Tutsis who, according to her are remembered, and that one committed against Hutus who, according to her, are not remembered at Gisozi, though she misleads people with intention of minimizing the genocide believing that it would not be found stating that Hutus who are not remembered are victims of war crimes and crimes against humanity while she knows very well that those other crime are committed regardless of the ethnicity.

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[351] The Prosecutor added further that stating that the Court considered only the parts of the speech of Ingabire instead of the speech in its entirety and its intention have no merit because the length of the charming speech done not erase the few worst words interposed in her/ his sentences and that even when one words constituting the crime is interposed in his/her sentences it engages the prosecution and in case the author is found guilty, then she/ he is punished for that. [352] Furthermore, he finds that the High Court committed no error when it examined some of the words of Ingabire to which she had been given time to present the defence because they have been assessed by the Court and the latter found they constitute the crime. He deduced that what would be an issue is the case where the judge might have invented words and impute them to Ingabire and it was not the case. He added that Ingabire had conceded that those words as assessed by the Court and which she had presented the defence are hers. [353] He claimed that the fact that Ingabire might have delivered that speech that she had not prepared as pleaded by his counsel, does no exonerate her from being prosecuted for her criminal speech especially that her counsel and her conceded that she pronounced them, instead, the issue that counsel for Ingabire or that he deliberately leaves out are the following : Why does

Ingabire comes to the Tutsis Genocide Memorial Site and delivers speeches about crimes against humanity that she purports to have been committed against Hutus? Why does she put on the same scale the crime of genocide and crimes against humanity that she purports they have been committed against Hutus while she knows very well that those crimes have different magnitude? The view of the Court: Regarding the analysis made by the High Court as regard to the theory of double genocide. [354] The Court notes that the fact that the High Court had used the web site of Wikipedia with regard to the writings of Yves Ternon is not a flaw itself which may occasion the invalidity of its publications because, as it is highlighted in the judgment rendered by the High Court on page 106, that web site has cited the source its publication. Hence, the particular defects that counsel for Ingabire had demonstrated claiming that it is not worth of being trusted have no merit with regard to that writings because its has a trusted source. [355] Furthermore, in elaborating more on the theory of double genocide, the High Court based on the writing of Yves Ternon which shows the crime of genocide denial is grounded on the deceit and self-defence and it is done though trickeries and criminal intention. He expressed it in these words, ‘‘le négationnisme est un mensonge et un mécanisme de défense(…)

le négationnisme est un mensonge ; il ne se fonde ni sur un doute légitime, ni sur une interprétation des textes permettant de réviser une vérité établie, mais sur une manipulation perverse malveillante’’. [356] The Court finds that the High Court committed no error which can invalidate its decision especially that the writings of Yves Ternon is real and even the counsel for Ingabire concedes in his submissions that though the profile of Yves Ternon and the research he conducted is not

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available on Wikipedia, that author is an expert on history and he concedes that he had conducted research on crimes against humanity and the crimes of genocide comiitted against Jews, Armenians and Rwandans as it available on www.impresriptible.fr/parutions/guerres_ that Wikipedia cited. [357] Based on the holdings above holdings, the point that counsel for Ingabire might have raised is the the shortcomings about the knowledge of Yves Ternon on such extent that he cannot make an analysis on the issue of genocide minimization imphasizing that his writings are no in conformity with the reality so as the Court to have the basis its examination. Therefore, the fact that he failed raising those defacts is an important ground not to consider his explantions. [358] Furthermore, what must be understood is that analysis if the crime of genocide or the genocide minimization id not an exlusive domain of lawyers. In this context further, Yves Ternon is not the mere expert who is not a lawyer who made analysis of that issue because there are many other scholars who agree with his analysis and they stress on it and give trusted explantions.15 [359] The is of the view that the fact that Ingabire and her defence counsels were not noptified by the Court of the First instance of the writing of learned lawyers in aadgudication of the case must not be considered as a ground of appeal because the

essential is that Ingabire, as an accused, had been given an opportunity to present her defence vis a vis evidence tendered constituting the alleged crimes and thereafter the Court get the time for the assessement of the accusations and and the manner in which she had presenred her defence, then match all of that with the provisions of the law as well as the analysis made byscholars and then comes up with the conclusion. [360] The Court is of the view that the manner in which the High Court adjudicated the case on the first instance is not detrimental to the interests of the the accused. Rather, this approach is the one used in deliberation of the cases whereby Courts cite writings or testimonies of different scholars with regard to special knowlesge they have. With regard to evidence for the crime of genocide minimization The contents of article 5 of the Charter of FDU-Inkingi [361] In its article 5, the Charter of FDU-Inkingi, it is embodied that whoever want to be a member of the aprty must express his conviction to the parties’ principles. One of those principles reads, '' Recognition and unequivocal condemnation of the Rwandan genocide committed by both belligerants since 1990 ''. 15 Look at the following examples: Kureba zimwe mu ngero zikurikira: - Josias Semujanga na Jean-Luc Galabert, “Faire face au négationnisme du génocide des Tutsi”, Saint-Jean, éd. Izuba, 2013, p.

415. - Pierre Vidal-Naquet, “Les assassins de la mémoire. Un Eichmann de papier et autres essais sur le révisionnime”, - Marie Fierens,”Le négationnisme du génocide des Tutsi au Rwanda”, Villeurbanne cedex, Editions Golias, 2009, p.195. Editions La Découverte, 1987, p.226. - Institut de Recherche et de Dialogue pour la Paix (IRDP), “Le négationnisme du Génocide des Tutsi: Evolution, Expressions, Mécanismes de lutte”, Kigali, Décembre 2008, 105p. - Samuel Totten & Paul R. Bartrop (ed.), “The Genocide Studies Reader”, New York, Routledge, 1st ed., 2009, p.552

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[362] The High Court analysed the Contents of that article and found out that they infer that there is a genocide committed by the government of at the then time and other committed by RPF combatants and that what they want the public to know is that there is two different genocides in Rwanda while it is well known that there in one genocide committed gainst Tutsi. [363] The Court found that the statements of Ingabire thatthe reports she bases on had confirmed that there is genocide committed against Hutus have no merit because since those reports only says crimes against humanity have been committed against Hutu which differs from the genocide and those which talk about the genocide committed against Hutu clearly demonstrated that it questionable. [364] The Court finds that analyisis done by the High Court had no flaws because it is clear that article 5 of the Chaerter of FDU-Inkingi which was drafter by its members including Ingabire and personally declares that she accepts even though she gives it other meaning, demonstrates in the comprehensible manner that the members show that one of its principles is to accept that in Rwanda there is genocide committed by both belligerentts which were in hostilities since 1990 and it is well known that one part was ex-FAR and other armed groups which supported it16 while on the other one there was combatants of RPF. It means therefore

that as found by the High Court, two ngenocide have been committed in Rwanda while only one which was committed by Tutsi and was committed by the then army and those who helped them. [365] The Court finds that the defence of Ingabire that the content of article 5 of the Charter of aforementioned means genocide committed agisnt Tutsi and another committed against Hutus in Congo has no merit because because, even if her statements does not meet with the contents of that article as explained by the High Court, it means rather that genocide was committed by both belligerents which was in hostilities in 1990 which means that the other second genocide transpired mon Rwandan territory. [366] Further, Ingabire failed to demonstrate that there is jenocide committed against Hutu which had really happened. Hence, his defence that the charter of FDU-Inkingi is dreafter in as principles, not detailed, has no merit because the contents of those principles must be understood as aforementioned. [367] The Court further finds that even the report that Ingabire based on which cinfirms that there is a denocide committed against Hutu, though her counsel stated that hep leads them as subsidiaries, which means that he does not present those reports as conclusive evidence to prove existance of double genocide, those reports per se are not really the base to prove the existence of genocide committed

against Hutu in case there is no measurements to to justify that they are in conformity with the definition of genocide as embodied in article 2 Convention on the Prevention and Punishment of the Crime of Genocide.17 16 Look at case nº ICTR-97-23-S rwo kuwa 4/09/1998: Prosecutor v. Kambanda Jean: In his guilty plea, Kambanga explained that genocide was perpetrated by Ex-FAR in conjunction with Interahamwe and CDR militiamen. 17 Convention on the Prevention and Punishment of the Crime of Genocide. Adopted by the General Assembly of the United Nations on 9 December 1948, article 2. Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group

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[368] Further, as explaned by scholars who analysed the crime of genocde, most of the time people try to compare the crime of genocide to other crimes which take the lives of many while they are not the same and they do it mostly in the perspective of having the crime of genocide lose its weight and particularity.18 [369] Therefore, the fact that Ingabire and mebmbers of the party FDU-Inkingi confirms in the charter of the party that there are two genocides in Rwanda since 1990, demonstrates nothing apart from diluting about the recognized genocide committed against Tutsi. The result of anyone who analyses article 5 of that charter is that the drafter aimed at diluting the gravity of genocide committed against Tutsi because they demonstrate that the perpetrators also were victimized in the same way around and as explained by the analysts of the crime of genocide and the acts of its minimization,19 the person who confirms that the perpetrators of genocide have been victimized also the same way around, intends to mislead people so as to downsize the real weight of genocide and its effects or on the other side ignores it as a whole following his/her conviction that there is another party of people who was victimized. [370] Bsed on the explanations above, public proclamation of the contants of article 5 of the cherter of FDU-Inkingi constitutes the crime of genocide minimization

which is punished by article 4 of Law nº 33 bis/2003 cited above as decided by the High Court. [371] The speech delivered by Ingabire at Gisozi and the content of her missive in her correspondence to the newspaper in ''New Times'' [372] With regard to the speech of Ingabire Tutsi Genocide Memorial Site at Gisozi, after hearing its vedeo, the Court founds that it countain the following words : it is obvious that the way to reconciliation is still long, it is really long because when one takes into consideration a number f people in this country, it is not actually something which is to take the end in these decades (…). For example, this memorial site is only limited ethinical massacres committed against Tutsi. There is another step about the massacres committed against Hutus since they are distressed, they have their people who got killed, they lament, when will our turn come? Therefore, to reach reconciliation it is deemed necessary to take care of everyone’s tribulation. It is necessary that Tutsi who lost their people and Hutu involved in the massacre understand it and accept that they must be punished, it is necessary that people who killed Hutu understand it and accept to be punished for that. [373] After that speech in the mssive of Ingabire to the newspaper ‘‘the New Times ’’ requesting it to make the rectifications of its editorial about the speech she delivered at

Tutsi Gisozi Genocide Memorial Site, she states that her statements are the following: as we are here at this merial site paying tribute to Tutsi victims of genocide, there are also Hutu victims of crimes against humanity who are not remembered here. Hutu also suffered and they are wondering when time will come for them to pay tribute to their people as well.20 18 Look infra for details. 19 Idem 20 The original of that missive in English is tiltled Subject: Right of rectification and reply to libels published in Sunday Times on 17th January 2010 and The New Times of 18th January 2010. Ingabire specified that she wrote the following statements, “…For example, we are here honouring at this Memorial the Tutsi victims of Genocide; there are also Hutu who were victims of crimes against humanity and war

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[374] The Court finds that the statement in the video that Ingabire requested the Court to hear, to are not entirely matching with her missive to the newspaper ‘‘the New Times’’. Her general ascertainment is that the process for reconciliation is still far away from being achieved in Rwanda and that amid the grounds emphasising of her statements is that at Gisozi Memorial, only Tutsi victim of genocide are remembered and honoured and from there she demonstrate the pain that Hutus also are experiencing due to the crimes against humanity committed against them and, unfortunately, they are not remembered and honoured at the same memorial. [375] In respect to the crime of genocide minimization, the provisions of the law on that crime must be assessed, the contents of her speech in the video that Ingabire had recognised as author and the statements her last missive to the newspaper ‘‘the New Times’’. [376] Grounding to article 2 of Convention on the Prevention and Punishment of the Crime of Genocide as cited above, the particularity of that crime is the specific intent to destry in a whole or in a part as decided different tribunals which tried the crime of genocide and as anaysed by various scholars whereby they had stressed that the particularity of genocide is the one which which differentiates its from other crimes which take the lives of many people especially crimes against

humanity and war crimes while genocide is aimed at (specific intent/dolus specialis) is to destroy the members of protected group on national, etnical, racial groups or religious ground. [377] They define it in the following words: “The form of intent that is a necessary element of the crime (of genocide) that of intending to destroy a group marks it out from all other international crimes. This explains why genocide is regarded as having a particular seriousness, and has been referred to as the ‘crime of crimes’ ” (ICTR Kambanda case, Ch.4.9.1998 para.16).21 [378] The holding above matches exactly with the analysis of other scholars who also explain that that the particularity of genocide is comitted with intention of destroying and extinction of a group of people the reason why it is qualified as ‘‘crime of crimes ’’ As explained, it is different from crimes against humanity because, though people are exterminated due to their group, those who commit those other crimes do not intend to exterminate the entirety of the whole group. They explained it in the following words: “Whereas for genocide the scope of the intent of the perpetrator includes the destruction of the group, for prosecution as a crime against humanity, the perpetrator selects his victim because they belong to a specific community, but does not seek to destroy the community as such. Thus, the victim is chosen

not because of his individual identity, but rather on account of his membership of a national, ethnical, racial or religious group. The victim of the act is therefore a member of a group, chosen as such, which means that the victim of the crime of genocide is the group itself and not only individual.”22 crimes, not remembered or honoured here. Hutu are also suffering. They are wondering when their time will come to remember their people”. 21Robert Cryer et al., “An Introduction to International Criminal Law and Procedure”, Cambridge University Press, 2nd ed., 2010, p.203. 22 Anne-Marie L.M. de Brouwer, “Supranational Criminal Prosecution of sexual Violence-The ICC and the Practice of ICTY and the ICTR”, Intersentia, School of Human Rights Research Series, Volume 20, p.72: ICTY, Case nº IT - 95-10: Prosecutor v. Jelsic, Ch.19.12.1999 par.

79. Anavuga kandi imanza zikurikira: Prosecutor v. Akayesu (Case nº ICTR-96-4-T : 2 September 1998), par.720-732; Prosecutor v. Kayishema & Ruzindana (Case º ICTR -95-1: par.

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The drafters of the crime of genocide wanted to emphasize the particular gravity of targeting members of specific group, with a view to their intentional physical or biological extermination. Emphasis is therefore on the destruction of the group, whereas the victimisation of the group members in their individual capacities takes second place (...).The ICTR in the Akayesu case authoritatively determined that genocide against Tutsi did, in fact take place in Rwanda in 1994. The Judicial assessment of the dolus specialis by ad hoc tribunals begins by first examining the existence of a genocidal intent of the accused, which is distinct but yet interrelated to that of the underying plan(…).The Jelisic judgement opined that genocidal intent may manisfest itself through a desire to extermine a very large number of the group members, or by killing a more limited of persons selected for the impact their disappearance or extermination will have upon the survival of the group as such” (par. 82).23 [379] Further, the nalysts of the crime of genocide demonstrate that those who deny and minimize it use different strategies amid palcing on the same scale genocide and other crimes which take lives of many people esecially those committed during war time. They explain further that the denial and the minimization are done through sophisticated manner that anyone cannot find out that their

intention is denial and minimization of genocide with the purpose of deliberate misconstructing facts to mislead people about genocide which occured with intention of make people believe that genocide has no long its seriousness because there are other people who suffered genocide. [380] With due respect to the above analysis, in his analysis, Israel Charny exlplains it in these words: “…Over time the intellectual argumentation employed by deniers has become more and more sophisticated. The deniers attempt to employ various devices of rationalization and deconstruction of meaning that seek to avoid placing the deniers themselves in obviously bad lights as intellectual hooligans or bigots (…). What is common to all laborated redefinitions is that (…) a generic classification of genocide is presented which treats all cases of mass murder as genocide (…) so that differences between cases are not at all lost, but at the same time all cases of mass murder are honored as belonging to an overarching world of genocidal events…”24 [381] Those explanations also match with elaborations of the analysts genocide committed against Tutsi in Rwanda whereby they specify that with regard to the genocide minimization, 531-533); 23 Look Hassan B.Jallow, ‘’The contribution of the UNICTR to the development of international Criminal Law” in Phil Clark and Zachary D.Kaufman (eds), “After

Genocide-Transitional Justice, Post-Conflict Reconstruction and Reconciliation in Rwanda and Beyond”, Hurst & Company, London, 2008, p,271 :” …As a result of the judgement of 2 september 1998 (Akayesu Case), the ICTY looked afresh at what had occurred within its jurisdiction, and in 2001 convicted Radislav Kristic (The prosecutor v. Radislav Krstic, IT-98-33, par.598) of genocide, conluding that the intent to kill all Bosnian Muslim men of military age in Srebrenica constituted an intent to destroy in part the Bosnian Muslim group and therefore qualified as act of genocide. 24 Israel Charny (1994) in Samuel Totten & Paul R. Bartrop (ed.), op.cit., p.531. - Kureba kandi Valérie Igounet, “Une tradition extremiste: le négationnisme”, in Revue d’Histoire de la Shoah, op.cit, p. 9: “D’emblée, l’inversion discursive caractérise le négationnisme: invesrsion des responsabilités (…) et inversion victimaire”.

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those who advocate for the theory of double genocide use the latter as a weapon of achieving reconciliation but that approach is characterized by the deceit and, on the contrary, their attitude demonstrates their intention of downsizing the seriousness of the genocide committed against Tutsi as they try to show that either belligerent among those on battle field committed genocide in the context of covering their role in the commission of the crimes and downsizing the gravity of genocide by comparing it to other massacres. [382] In this context, J-P Chrétien explained it in these words: "... The recognition of a double genocide, sometimes presented as a pledge of 'reconciliation' is therefore a misleading picture, linked to a desire to dilute the Tutsi genocide in undifferentiated massacres25". [383] Barbara Lefebvre, as to her, strategy which those who deny use, amidst its minimization. She demonstrates that in general on the periods of war during which also genocide was committed where they consider that all who died during the war are victims of genocide while it false. She continued explaining that the fact of not distinguishing those who died during the war from the victims of genocide makes the later lose its particularity while its speciality which differentiates it from other crimes is the fact of its preparation and that the intent of the perpetrators is the

destruction of a group of people. She precises: "... The genocidal policy is seen primarily in the context of war, the victims of war are then compared to genocide victims. The singularity of the crime of genocide is erased in favor of a global perspective on the horrors committed in wartime including all struck civilians, not a particular group (...). This process is a founder of negation since it intends to deny the singularity namely the intention and planning the extermination of a group.26" [384] In the same contaxt with the hodings above, Josias Semujanga and Jean-Luc Galabert explain that the denial of genocide is mostly grounded on the deceipt and misconstruction of history. They explain further that those who deny genocide characterized by taking all crimes especially those committed during wartime on the same scale as genocide so as to arase the particularity of genocide and that they are characterized by denial of the truth based on facts, challenging analysis of expert in history, downsizing effective of the victims of genocide, imputing the crime to others, false interpretation of facts and so many other approaches. [385] They explain it in these words : '' ... Referrence being made to the word genocide, the decisive word is wanting to win the battle of the vocabulary of war; describing a war in terms of genocide is removing its meaning deprive victims of genocide

of their right to speak; and if all the crimes considered to be genocide, their equalization removes the singularity (...). The analyst of genocide denial enters the country 'disconcerting lie', a populous country of counterfeiters, manipulators (...) this lie is negation of truth. As he hides under the veil of a legitimate version of 25 Israel Charny (1994) in Samuel Totten & Paul R. Bartrop (ed.), op.cit., p.531. - Kureba kandi Valérie Igounet, “Une tradition extremiste: le négationnisme”, in Revue d’Histoire de la Shoah, op.cit, p. 9: “D’emblée, l’inversion discursive caractérise le négationnisme: invesrsion des responsabilités (…) et inversion victimaire”. 26 The writing Inyandiko ya Jean-Pierre Chrétien: Le Génocide du Rwanda-un négationnisme structurel : available at http//www.ldh.toulon.net/spip.php/article 398.

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this truth (...) the purpose of this lie is genocide. The structuring of this lie is called denial (...). These strategies are limited to: refusal to accept the evidence and critics of historians work, downsizing of victims, reversal of the charge; construction of a falsified version of events ... 27''. [386] The aforementioned analysis from different scholars in genocide is exactly the same as the position of the Law nº 84/2013 of 11/09/2013 relating to genocide ideology and other related crimes which was entered into force on October 28, 2013 where it has been legislated that the acts of genocide denial and minimization and other enumerated in that law have been classified as crimes related to genocide ideology. [387] With respect to Rwanda, based on explanations provided above, as the analysts of the crime of genocide explained it, those who advocate for the theory of double genocides always intend to demonstrate that no ethin was harmed than other and that such a confirmation is, on the contrary, intention of denial and minimization of the recognised genocide committed against Tutsi since they have been killed as such and that those who killed them intended to exterminate them which is not the case for Hutu who got killed under the commission of the other crimes. [388] With regard to the speech that Ingabire had delivered at memorial site of the genocide commiitted against

Tutsi at Gisozi as recognized, sich a memorial like all others worldwide, their objectives is to keep alive the memories of history of genocide in the context of paying tribute to the victims and so that those who visit them can get opportunity to reflect on the viciousness and effects of genocide as the crime of the crimes 28 committed against the mankind in order to help to prevent and fight it. Mostly, it is the bodies of Tutis victims of genocide who are entombed in Gisozi genocide memorial and they were killed only on the ground that they were Tutsi. [389] The Court finds that the fact that a person like Ingabire, apolitician and the chairperson of FDU-Inkingi which advocate the theory of double genocide as earlier explained, trip to the the memorial of genocide committed against Tutsi knowing that there are the bodies of the victims of genocide committed against Tutsi entombed there and deliver speech as that earier invoked and even imphasises that in her missive to the news paper, New Times, precising that Hutus victims of extermination are not remembered or honoured at the same memorial indicates that he put on the same scale genocide committed against Tutsi and the other crimes she alleges to have been committed against Hutu while she knows better that those crimes differs from the crime of genocide in nature and seriousness. [390] The Court further finds that the fact

that in her speech to that memorial, he conceded that the genocide committed against Tutsi was committed by Hutu while she laments that Hutu are not remembered at the memorial of the genocide committed against Tutsi shows that her trip to the memorial is not only aimed at reflecting only on Tutsi victms of genocide but also to get the opportunity to pass the nessage that reconciliation is impossible in case the crimes against humanity have been committed against Hutu who are not remembered together with Tutsi victims of genocide. 27 Josias Semujanga et Jean-Luc Galabert, op.cit, pp.20, 107-114. 28 Look Case nº ICTR-97-23-S rwo kuwa 4/09/1998: Prosecutor v. Kambanda Jean: ICTR yemeje ko Jenoside ari “crime of crimes

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[391] The Court is of the view that the public proclamation of Ingabire that Hutu victims of crimes against humanity and crimes against humanity are not remembered at the same memorial of genocide committed against Tutsi while in her speech she conceded that Tutsi have been killed by Hutu may be considered in the same contaxt as the theory of double genocide as fopund by the High Court. [392] The Court therefore finds that the defence of Ingabire that she ha never denied genocide committed against Tutsi in her speech but she stated that Hutu victims of crims against humanity are not remembered, though it does not match with her missive to the ''New Times '' it does not exonerate her from criminal libility as held above. Her statements further are contradicted by both her pleading and submissions whereby she explains that the members of FDU-Inking and her recognise the theory of double genocide ; the one committed against Tutis and the one committed against Hutu refugees in Cingo. This statement reflects the theory of double genocide as found by the High Court. [393] The Court notes that the defence of Ingabire that she had not prepared her speech changes nothing about the gravity of the crime especially that as demonstrated by the video that the High Court watched and heard to, her speech was addressed to journalists while aware that it had to be broadcasted to different

people. It demonstrate therefore that she was aware of the message she wanted to pass on. [394] Furthermore, after her speech at memorial the memorial at Gisozi, the fact that in her missive to the ''New Times '' which she wanted also to be in editorial, Ingabire laments that Hutus are nor remembered at that memorial while she confirms that they are victims of crimes against humanity which is different from genocide as aforesaid is evidence that she put on the same scale those crimes while they are different. This constitutes itself the crime of genocide minimization as held by the High Court based on Law nº 33 bis of 06/09/2003 which was into effect at the time Ingabire delivered the alleged speech. [395] Based on the aforementioned holdings, the Court is convinced that Ingabire is guilty of genocide minimasation for which she has to be punished. B. WITH RESPECT TO APPEAL LAUNCHED BY THE PROSECUTION 1. Whether all of the accused are guilty of formation of military organization [396] With regard to Lt Col. Habiyaremye, the Prosecution contended that he had relationships with Paul Rusesabagina who was the Chairperson of PDR-Ihumure which runs its activities out of Rwanda and chich claims itself in opposition. The Prosecution stated that Paul Rusesabagina requested him to urge combatants of FDLR to separate from it in order to form a military organization called PDR-Ihumure which

intention of leading an attak against Rwanda. The Prosecution contended that Habiyaremye accepted that suggestion and immediately started encouraging some of its colleagues in Senior Officials in the Army but he failed to achieve his goal because he was arrested prior to the formation of the allged military organization and he was caught red handed in the activities of its formation and arrangement for its functioning. [397] With regard to Ingabire, Lt Col. Nditurende, Major Uwumuremyi and Captain Karuta, the Prosecution disputed that they formed a military organization called Coalition des Forces

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Démocratiques (CFD) under the control of FDU-Inkingi with intention of sowing insecurity in the country so as to force the established Government into negociation. [398] Based on those acts, the Prosecution charged them with formation of military organazation with intention of leading an attack, the crime provided and punished by article 163 of Decree-law n°21/77 of 18/8/1977 Instituting the penal code. Hewever the High Court had ruled that the alleged acts do not reflect the provisions of article 163 as cited because it is in the class of crimes of attempt to external State security which is the crime wich is, when committed, surrender the country to the foreign state while the alleged acts were not so intended. [399] The Court further explained that the purpose of the penal code demonstrated it because it provides that the military organization referred to in that article is the one known as mercenaries while the alleged acts are totally different from recruitment of mercenaries. [400] The High Court noted that the acts imputed to the accused of formation of military organization may be assessed based on articles 164, 165 and 169 of the aforesaid penal code which provides for attempt gainst external State security which punishes the crime of conspiracy agsint established Government and attempt against the Constitution through serious terrorism, war or any other

force. [401] In its appeal, the Prosecution conceded that the acts in the indictment against Ingabire Nditurende, Karuta, Uwumuremyi and Habiyaremye constitute actually the crime of conspiracy against established government though terrorism and war but nuanced that it does not concede those acts constitute the crime of formation of military organization which is provided for or punished by article 163 of the law mentioned above and, to its view, the High Court had wrongly interpreted that article. [402] The Prosecution contded further that the High Court attributed another meaning to article 163 where he held that the article is in the class of the crimes committed to attempt to external State suecurity, which means that they are crimes intended to surrender Rwanda to the foreigners while it is not the crime that it punishes because the holdings of the jusge are rather embodied in article 151 of the said law and it is not the same article that the Prosecution grounded on to initiate its action. To it, there is no cause to attribute the provisions of article 151 to any other article while every article clearly define the acts punished, the crime and its appropriate penalty [403] The Prosecution contended further that the penal code neither in its title one, chapter one nor section one of the penal code book two which was into effect when provides that crimes seton article 163

must be punished on condition that Rwanda is sueerendered to the foreigners power. [404] The Prosecution further contended that the word mercenary provided in objective does not contradict the provisions of article 163 because mercenaries are normally members of irregular military organization. [405] The Prosecution ended disputing that the judge makes recourse to the doctrine, case laws or raison d’etre in case the provions of law are note clear but doe mean that what is not regulated by article 163 are clear enough.

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[406] Ingabire alongside her counsels pleaded that in Mushayidi case the High Court decided that it could not assess the the alleged acts of formation of military organization based on article 163 as mentioned and as regarding attempt to external State security and the Prosecution did not appeal. It means that it was satisfied of the ruling on that ground. They added that suh a decision became final because in the appeal before the Supreme Court on that ground, became final and the Supreme Court confirmed the decision of the High Court. [407] Counsels for Nditurende, Uwumuremyi, Habiyaremye and Karuta stated that the judge of the first instance has clearly explained the reason as to why th alleged acts do not match with the provisions of article 163. [408] The Court is of the view that the concerns about the manner in which the High Court interpreted article 163 in Mushayidi case, was not assessed by the Supreme Court as on appeal since it has not been raised by neither party and there is no reason as to why this Court may not assess it and takes decision thereon. [409] Article 163 as referred to is on section one of the crimes against the State. On that section, crimes of attempt to external State security are set while in section two there are attempt to internal State security. [410] The crimes in both sections are different. Crimes against external State security indend the

threat of independence and national sovereignity and ndermining its vital interests while crimes against internal State security are intended to threaten internal security attempt to public institutions [411] The Court is of the view that, as decided by the High Court the acts constituting the crimes of formation of irregular military organization in indictment against the accused with intent to sow insecurity inside the country are not crimes against external State security, they are rather against public intitutions with intention of forcebly taking power or forcing the State into negociations. Therefore appeal of the Prosecution seeking to demonstrate that the High Court had wrongly interpreted article 163 as cited has no merit. [412] On whether the acts in indictment against Habiyaremye, Ingabire and co-accused based on article 163 may be assessed at appeal based on articles 164, 165 and 169 of that Law,the Court notes tha one one side the Prosecution conceded that the acts in indictment constitute the crime of conspiracy against against established government though the terrorism and war ( though they do not accept that it does not constitute the crime of formation of military organization which is provided for or punished by article 163). Hwever, on the other side the Prosecution accepts that it couls not launh an appeal so as to found them guilty of conspiracy given that

this was not included in the indictment on the first instance. The Prosecution further adduced that the Supreme Court may confirm the real qualification as done by the High Court so that to confirm conspiracy against established Government, attempt of the crime as such. [413] The Court is of the view that if the High Court acquitted ko Habiyaremye, Nditurende and Karuta of the crime of conspiracy against established Government because they have not accept the suggestion of formation of military organization that was brought to them for consideration and that the Prosecution did not appeal while it was entitled to, the Supreme Court

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would have no basis to assess whether the High Court had wrongly interpreted submitted evidence with regard to the accusations against them of formation of military organization based on article 164, 165 and 169 of the law above mentioned.

2. Whether Ingabire was acquitted of spreading rumours with intent of inciting the public against the established Government leaving out laws and evidence submitted by the Prosecution. [414] The Prosecution contended that during different periods shah ad written and delivered different statements to different persons though different meands of communication. The Prosecution adduced that those her writtings and speeches are full of rumours intending to incite the population against established Governmnet which, according to the Prosecution, was enough for Rwandan to beexcited against themselves and alarming Rwanadeses with intention of causing trouble in Rwanda. [415] The Prosecution indicted her for that crime based on following evidence : The writing titled ''Résolutions du 3ème congrès ordinaire du Rassemblement pour le retour des réfugiés et la démocratie au Rwanda'' published on August 19, 2000 ' '' The writing titled ''Umurage w’amateka '' published on July 2000 The writing titled 'la Justice internationale face à la crise rwandaise : une justice équitable est la seule base d’une réconciliation effective'' published on 2000 Her speech at Bruxuels on September 26, 2009 on the anniverasary of ''Kamarampaka'' Her speech at Kanombe International Air Port on January 16, 2010 Her interview with Radion Voice of Africa on January 21, 2010 Her interview with a journalist being at

her residence The interview with a journalist at Serena Her speech to members of FDU-Inking for the wishing them Happy New Year 2008. [416] Based on article 83 regarding real concurrence of Organic Law N° 01/2012/OL of 02/05/2012 instituting the penal code, the High Court decided that and every statement and writing in indictment against Ingabire for knowingly spreading rumours constitute a separate acts, committed in different periods and hence constitute different crimes which must be assessed differently. [417] Based on these holdings, the High Court held that the interview that Ingabire held with Voice of Africa, the interview she held with a journalist at her residence and the one she held with a journalist at Serena are new accusations because they were submitted by the Prosecution for the first before the Court during the hearing of September 19, 2011. Hence, they must not be assessed based on article 119 of the Law relating to the code of criminal procedure which demonstrates that the Court is seized after the transmission of the case file by the Prosecution. [418] With regard to other interviews or writings, the High Court had analysed every acts one at time and on some, it held that there was prescription of criminal action while other, the Court decided that they contain rumours and that it put in disrepute the reputation of the Government

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but that the Prosecution was not proving the aim of Ingabire was exciting the population against establsihed Government or causing trouble in the citizens to excite them against themselves. It acquitted her. [419] In its appeal, the Prosecution lamented that the Highj Court had wrongly interpreted the Law confirming that interviews and writings which constitute the base of its charges against Ingabire consitute different acts which must be assessed differently. The Prosecution disputed further that the High Court had wrongly interpreted writings and interviews that were submitted to it. It conluded that it was such issues that must be assessed. i. Whether the Court made a wrong interpretation of the law [420] The prosecution declared that it could not agree with the High Court its approach of considering sporadicly every speech and every document as acts constituting different crimes and consequently analaysed them as different crimes. [421] The prosecution kept on explaining that they have indictd Ingabire for spreading rumours with with intent of exciting the citiszens against established Government, writings and document that it submitted to the Court which are evidence (elements of the crime) demonstrating her role in the commission of one of the crimes and are connected by purposing the commission of the same crime. This rises the question to the Prosecution about the base

of the High Court to confirm that the writings that Ingabire had published and the speeches that she had delivered during different periods could give rise to crimes which are not connected where the Court decided that the Prosecution must have conducted interrogation during the preliminary investigation in a different manner without considering them as connected. [422] The Prosecution lamented that the manner in which the High Court interpreted article 83 of the new penal code and then match it with the acts that Ingabire is alleged to have committed constituting the crime of knowingly spreading rumour with intent of exciting the population against established Government, that it confused real concurrence with collective delict. [423] They ended praying the Supreme Court to re-examin evidence in the case file on the crime of spreading rumours with intent to excite the citizens against established Government and hence correct the error committed by the first instance court which left out evidence regarding interview Ingabire held with Voice of Africa, the one she held with a journalist at her residence and the interview she held at Serena Hotel. [424] Counsel Gatera Gashabana states that the decision of the the High Court that the alleged acts committed by Ingire are comprised of different acts constitute no error. The view of the Court: [425] The Court is of the view that the crime of deliberate spreading of rumours with intent of of inciting the citizens against established Government in indictment against Ingabire consist of acts grounding in her different speeches delivered and writing published in different manner and periods.

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[426] The Court notes that though those acts may be linked by the same purpose, it does not mean that it must be brought to the Court for consideration in the manner wich jibes with the Law incimplience with the provisions of article 119 of Law Nº 13/2004 of17/05/2004 Relating to the code of criminal procedure which was into effect at the time the case was tried in the High Court. This article specifies that the Court is seized after the Prosecution transmits to it the complete file. [427] Article 119 as mentioned above has ben replaced by article 124, 1° of Law N°30/2013 of 24/05/2013 relating to the code of criminal procedure. This article aims at bring the accused before the Court being aware of the alleged acts and the qualicication of the alleged crime. (though it may be changed in order to match it with the facts) [428] Since this right must be respected without any derogation, the Court finds that the request of the Prosecution about the examination of interview that Ingabire held with Voice of Africa, the one she had at her domicile and the one she had with a journalist at Serena Hotel has no merit because, as found by the High Court, Ingabire had never been interrogated on that neither before Judicial Police nor the Prosecution and they are not included in the indictment. These accusations were for the firdt time raised before this Court. Hence, the must not be

prosecuted for the acts which the Court was not seized for. ii. Whether the Court had wrongly analysed the documents and interviews as submitted to it [429] With regard to the writing titled ''Une justice équitable est la seule base d’une réconciliation effective'' the Prosecution contended that it containsrumours undermining the public institutions which Ingabire declared with intention of alarming people and inciting them against established Government and causing troubles ti excite them against each other. These srtatements are the following. : Some of Rwandeses are considered as second class; In Rwanda there is a group of people which have the pwer in their hands, amends the constitution and other laws in its own interests, that judges judges no longer rules cases based on laws, rather based on the instructions shaped imposed by high ranking military officials of APR the secret power around President Général Kagame and his tools DMI and the militia Local Defence That this power has both executive and the judiciaty in their hands Abduction, inforced disapearance and extra judicial killing beyond imagination That Gacaca Court which were conceived to try the perperators of genocide in Rwanda are fully supervised by RPF cader and terrorists groups of RPF, that it would be no surprise that the judge qualified as lay judges would be subjected to severe penalties including dismissal, imprisonment or abduction in case they would rule on cases differently from instructions imposed by RPF. [430] With regard to the writing of Ingabire that she made officialin Bruxuels on September 26, 2009 at the day of cerebration of 48 of anniversary of the referandum, the Prosecution

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reponded that it contains the following criminal statement : '' (…) therefore, citizens who are killed day to day, starved, kept illiterate, subjcted to TIG, who are kept detained and in the forest without advocacy, why are they suffering? '' [431] With regard to he speech at Kanombe Air port, on January 16, 2010, the Prisecution contended that she had made the follwing statements which constitute the alleged crimes : the injustice that I come to combat is the following : mostly fear, poverty, hanger, dictatorship, feodalism, the tradiction of corruption, impartial Gacaca, injustice, TIG, and the denial of returning home where the child no longer knows parents and which destry the family, social inequality, siscrimination, displacement, wondering, kubundabunda, kugenda bubitse umutwe ndetse n’akandoyi’’ she continues stating that those whom she left in the Country are the one to know the severety of Ingoyi and that she knows they suffering. [432] The Prosecution kept on pleading that the first instnce Court had itself found out that in those writings and those statements are rumours which downsise the crdibility of the Goverment but, unfortunately held that she is not guilty based on incompleteness of elements of the crime of knowingly spreading rumours with intention of inciting the citizens against established Government and the failure to demonstrate the intention to incite

her audience against established Government. [433] With regard to the decision of the High Court that the elements of the crime are not complete, the Prosecution reponded that it has merit because Ingabire : Committed the crime of spreading rumours as conceded by the judge herself(materlial element); Those declareation were made willingly without any coercion but with premeditation well knowing that it was rumours. [434] The Prosecution adduced that the request of the High Court that it must establish that the intention of Ingabire was to incite Rwandans against established Government, exciting them against each other or alarming people with intention of causing troubles in Rwanda has no merit because both articles 166 and 434 of the penal code which was into effect at the time which is into effect respectvely do not provide for that. [435] The Prosecution explained that on this crime, the fact that he/ she did not achieve his/ her target does not mean that the crime of spreading rumours is not consumated since this article punishes even whoever attempts only.The Prosecution added that the declaration of rumours that Ingabire do not even require deep analysis to find that they aim at inciting people against established Government. [436] Ingabire disputed that there is no reason as to why the Prosecution is to re-introduce the statement that the Prosecution is accusing her to

have made that there are Rwandans who are classified at second order because they are not in her writing ''Une justice équitable est la seule base d’une réconciliation effective '' and the statements that there is a group of Tutsi from Uganda which had power as their own since it is written no where in that writing. [437] She stated further that the Prosecution failed establish the guilty mind that the elements of the crime of inciting people against established Governent can be complete as judges in their

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discretion found that it failed to demonstrate that she had knowingly spread rumours with intention of inciting people against established Government. [438] She declared further that the documents submitted by the Prosecution to the Courts were made by the administrative authority in opposition and they were basically based on issues raised by citizens or proved by different reports which the Prosecytion failed to rebut in order to show that the intent was to incite population against established Government. [439] Her defence counsels as to them, the acts based on by Prosecution lack material and moral elements as provided for by article 166 of the penal code which was into force which is the reason why the High Court acquitted her on this charge and that those writings and speeches reveal her views as a politician on different issues and that, in case a politician demonstrates her views based on article 33 and 34 of the Constitution, then it has not to be qualified as a crime. [440] Iain Edwards, the defence counsel, in particular explains that Ingabire came back to Rwanda with intention of attending the presidential election of 2010 and running it as a nominee of the FDU-Inking she chairs. He added that she had had intention of solving different issues that she though the Country had including the absence of democracy and non-respect of human right and that she intended to

peacefully solving those issues without shedding blood and that to her as an person in opposition against the Government she wanted citizen to challenge it based on her views which, according to him this was not problem. The view of the Court [441] Article 166 of the penal code which was into effect at the time of the speeches and writings that Ingabire is accused were made public provides : Whoever, either by making speeches at meetings or public places or by writings, printed matter, image or emblem, displayed, distributed, sold, offered for sale or exposed to public view, or by knowingly spreading rumours will excited or tried to excite the people against the established powers either incited or tried to incite citizens against each other, or alarms the public and thus sought to cause dtroubles in the territory of the Republic, will be punished with imprisonment from two to ten years and a fine of 2000 to 100,000 francs or one of these penalties, without prejudice to more severe penalties under other provisions of this code. [442] With regard to freedom of expression, the Court is of the view that, as aforesaid is provided for and protected by article 19 of Interbnational Covenant on Civil and Political Right as well as the Constitution in its articles 33 and 34. However, those articles further list values that must not be invaded and it concerns everyone in general

including politicians and this is in the decision of the Supreme Court in case RPA 0298/10/CS of Mushayidi Deogratias. [443] Based on these explanations the Court must assess whether the allegations against Ingabire are her views as a politician in opposition or whether her writings or statements constitute an offence willingly spreading rumours intending to incite people against established Government. [444] After the examination of the writing and speeches that Ingabire had regularly made and published, in different periods, it come clear that she confirms that there is a part of Rwandan

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who are considered as forming the second class , there is in Rwanda a group of persons who believe to be above the law, who have power in their personal possession and amend the Constitution and other Laws in their private interests, which corrupted the judiciary to the extent that impunity became a tradition, judges no longer rules cases based on laws, rather based on the instructions issued by high ranking military officials of APR, the secret power around President Kagame and his tools especially the group badly known under the DMI, a group of militia which replaced the the Government, persons go missing and killed beyong imagination. [445] She confirms further that Gacaca Courts which were conceived to try the perpetrators of genocide in Rwanda try cases being fully supervised by RPF caders and groups of terrorsts o RPF and that it would be no surprise as it happended some years back that the persons of integrity whom she calles lay jusges who will decide cases contrary to instructions imposed by RPF will face approapriate punishment including dismissal, imprisonment or abduction( read her writing titled ''La justice internationale face à la crise rwandaise : une justice équitable est la seule base d’une réconciliation effective''). [446] She confirms further that people are killed day to day, starved,are kept illiterate, being held in the forests and in the prison( her

speech at the on the commemoration of 48 of the referandum). Further, though she does not show evidence which she based on in confirming that Rwandan is a ingoyi , intimidated, povrty, hanger, dictatorship, wondering and others…(her speech at Kanombe Airport on January 16, 2010 ) [447] The Court finds that the statements above listed does not come in the frame of the vies of the politician aiming at peaceful co-existence of Rwandans and challenging the politics of the existing Government as pleaded by Ingabire defence counsel. Rather it is aimed at making the audience or readers lose their mind and defamation. [448] The Court finds that the fact that the speech of Ingabire of her writing are not proved for the debate or or rebutted while she is rather characterized by making her reader or audience lose their mind and defamation then they cannot be qualified otherwise apart from how it was qualified by the High Court. [449] With regard to the intention of Ingabire, the Court finds that the statement to the population as aforementioned she aimed at nothing else apart from exciting people against the established Government which is likely to cause trouble amongst the population and then excite them against each other. Therefore, the crime of knowingly spreading rumours alarming or attempting of attempting to alarm the population with intention to excite the population against established Government.

3. Whether Ingabire benefited undeserved reduction of the penalty [450] After she was found guilty of conspiracy against established Government and attempt against the Constitution and the crime of genocide minimization, the High Court sentenced Ingabire to eight years of imprisonment after its reduction based on the long time she passed abroad and hence she had no siffcient reliable information about the country. [451] The Court further based on the letter submitted to it by the Prosecution that Ingabire had addressed to the President of the Republic on November 6, 2011 giving explantions about her

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writings and her speeches apologyzing for people who might have harmed by her speeches or statements. [452] The Prosecution lamented that there was no cause to why Inganbire might have benefited the reduction of the penalties since in her pleading she had never asked pardon to be the base for the Court. Apart from that, the prosecution added, the guilty plea that is admiitted by the Court is the one made before the Courtand the Court might have not based on that correspondence. [453] The Prosecution further contended that the fact she had no sought forgiveness for the whole of her case is not the meaning that she is innocent, it is rather lack of truthfullness which is the reason why it brought before the High Court the aforementioned letter which revealed her self incrimination for the alleged creimes where she seeks forgiveness and requests her release. [454] The Prosecution added that, apart from that, the gravity of the crimes of which she was found guilty by the first instance Court cannot allow the reduction f the penalties especially the crime of conspiracy against established Government which has fatal effects especially that all of those who were prosecuted for the same crime before and who committed it in the same manner as Mushayidi Deogratias were severely punished and there is no reason as to why Ingabire may be sentenced to the different sentence. [455] With

regard to penalties, the Prosecution requested the penalty of 10 years of imprisonment and a fine of 100 000 Frw on the crime of knowingly spreading rumours with intention of alarming and inciting the Government against the established Government, the penalty of 25 years for the crime of conspiracy against establsiged Government though war or any other force and 9 years of imprisonment for the crime of genocide minimization. The [456] Prosecution requested the Court to base on articles 83 and 84 of Organic Law N° 01/2012/OL of 02/05/2012 instituting the penal code and sentences her to 25 years of imprisonment in case it would be establishd that the crimes of which Ingabire would be fuind guilty constitute real concurrence. [457] With regard to the letter of Ingabire to the President of the Republic, Iain Edwards, counsel for Ingabire responded that Ingabire had no opportunity to give explantions thereto before the High Court because the the Prosecution decided to present it as evidence while he had decided to disqualify himself from the case proceeding. [458] He continued pleading that his client had not writen it in the context of being shown lenience, but rather she was giving explantions about her speeches and writings in the past which resulted into her prosection because she had realized they were considered in the manner which do not jibe with the truth which is not

conspiring against the Government, exciting people against themselves or inciting them against established Government and she was apologyzing for whoever might have been harmed and that her wish when she came back to the country was to have her party registered and working together with other Rwandans in the development of the Country and democracy strenthening. [459] He states further that there is no reason for the Prsecution to spend much time on that letter because it not evidence of guilty plea as the Prosecution wants it to be understood, and it

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was not addressed to the Court though nothing can stop the Court to base on it in case it can assist the can in decision taking. [460] With regard to the requests of the Prosecution that Ingabire would be sentenced to bthe same sentences as Mushayidi Deogratias, Iain Edwards, the counsel fir Ingabire replied the wto cases are quite different because they concern different persons, on special crimes and the objectives of the accused were also different because Mushayidi was intending to start war within the Country without taking care of the effects while Ingabire intended to put pressure on the Government in order to recognize the opposistion to participate in the politics and in the governance of the nation but this had to be done in case all other procedures could not work. [461] Iain Edwards states further that he is surprised of appeal 0fmthe Prosecution against the penalty imposed to Ingabire while it did not appeal against the penalties imposed to the co- accused espececially Uwumuremyi while there is a crime to which they are co-perpetrators and of which they convicts and that if Prosecution requested that Ingabire be sentenced to the same sentence as Mushayidi, it had also to mage the same request for Uwumuremyi. He added that if he court imposes different penalties, then they would not be extremenly different. [462] He continued confirming that to his view Ingabire is

not guilty of all charges but in any case the Court would find that she is guilty, the Court would not enrease the penalty as requested by the Prosecution because there is no ground for that but rather it would visit the case of Uwimana Nkusi and Mukakibibi Saïdati in the reducing the penalty and take into consideration the following mitigating circumstance: The fact that he is detained far from her family and in special conditions The fact that he spent a lot of years in the foreign and did not foresee that she could make statements which could har anyone. The fact that she had not prepared in appropriate witing the speech she delivered at Gisozi Memorial, in a word, it was a spontanious speech. The fact that she had no intention inhumnaizing the survivors of the genocide or the violation of whoever rights; The view of the Court [463] Article 765 paragraph 2 of Organicl Law Nº 01/2012/OL of 02/05/2012 instituting the penal code provides that an offence committed prior to the publication of this Law shall be punishable under the original law unless this Organic Law provides for lesser penalties. [464] As held in the previous paragraphs Ingabire is guilty of crimes of conspiracy against established Government and attempt gainst the Constitution, the crime of knowingly spreading rumours with intention of alarming population against the established Government and the crimes of genocide minimization. [465] The crime of conspiracy against established Government is provided for by article 165 paragraph 1 of Decree Law nº 21/77 of 18/08/1977 instituting the penal code in Rwanda which was into effect at the time of the commission of that crime and it was punished by life

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imprisonment. However, with regard to appropriate penalty, article 462, paragraph 1 of Organic Law Nº 01/2012/OL of 02/05/2012 instituting the penal code must be applied because it is the one which provides for the lesser penalty ranking from 20 to 25 years. [466] The crime of knowingly spreading rumours with intention of exciting the population against established Government is provided for by article 166 of Decree Law nº 21/77 of 18/08/1977 instituting the penal code in which was into force at the time of the alleged crime. It is even the one to enlight the determination of the penalty as it provides for lesser penalties ranking from two years to 10 years of imprisonment and a fine of 100 000 Frw or one of these penalties compared to article 463 of of Organic Law Nº 01/2012/OL of 02/05/2012 instituting the penal code which provides for penalties rankning from 10 to 15 years of imprisonment. [467] The crime of genocide minimization is provided for article 4 of Law No. 33n bis/2003 of 2003 Repressing the Crime of Genocide, Crimes against Humanity and War Crimes which was into force at the time of the commission of the alleged crime. However in the determination of the penalty, article 12 of Law N° 84/2013 of 11/09/2013 on the crime of genocide ideology and other related offences which provides that penalties are determined in accordance with the new Organic Law Nº 01/2012 of

02/05/2012 instituting the Penal Code. [468] With regard to this case therefore, article 116 of that new penal code must be applied because it provides for the lesser penalties of imprisonment ranking from 5 to 9 years compared to article 4 of Law Law No. 33n bis/2003 of 2003 Repressing the Crime of Genocide, Crimes against Humanity and War Crimes which provides for the penalty of imprisonment ranking from 10 to 20 years. [469] Grounding on article 83 of Organic Law Nº 01/2012 of 02/05/2012 instituting the Penal Code which provides that real concurrence occurs when acts which are separate have followed one after the other and are regarded as independent offences, the Court finds out that the crime that Ingabire is found guilty constitute real concurrence because they are separate crimes which have been committed in different periods. [470] Article 84 of that Organic Law in its paragraph one provides, '' if an offender would receive several penalties of imprisonment or fine as a result of one or several acts, the judge shall apply the most severe penalty and increase its duration or the amount depending on the circumstances of the offences, but not exceeding half (1/2) in addition to the maximum of the most severe penalty ''. [471] With regard to the ground that the judge must take into consideration in determining the penalty, article 71 of Organic Law Nº 01/2012 of

02/05/2012OL instituting the Penal Code provides, '' The judge shall determine a penalty according to the gravity of the offence taking into account offender s motives, history and background, circumstances surrounding the commission ‟ of the offence and individual circumstances '' [472] As it held it in Mushayidi Deogratias case RPA 0298/10/CS delivered on February 24, 2012, the crime of conspiracy against established Government has serious effects either on the country or the citizens. Hence in punishing it, this must be taken into consideration without prejudice to the possible available mitigating circumstances.

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[473] With regard to the fact that in punishing the crime of conspiracy against established government Ingabire must not be punished in the different manner to the great extent from that of Uwumuremyi for the crime to which they are co-perpetrators, the Court notes that though they are all guilty of the crime, their roles are quite different, because, as already mentioned it is Ingabire who transmitted the plan to Uwumuremyi. Furthermore, as explained by the High Court, Uwumuremyi pleaded guilty for the alleged crime since his arrest, then sought forgiveness, and cooperated with the Court while Ingabire did not plead guilty and seeks forgiveness. [474] With regard to the letter of Ingabire to the President of the Republic as aforementioned which served as the ground to the High Court in reducing her penalties and which the Court believes would favor Ingabire, the Court notes that she does not consider it in this case and that it must not be considered as evidence of her guilty plea to the alleged crime. Hence, it must not be grounded on. [475] With regard to the mitigating circumstances based on the time that Ingabire had spent abroad and which put her in the situation which could not anable her to have reliable information about the Country and that she had not prepared the speech she delivered at Gisozi memorial, and that she had intention of defaming genocide survivors nor

she intended to violating the rights of anyone, the Court finds that Ingabire herself in her speech conceded that it is the first place she had planned to visit, which shows that she had enough information and the purpose of the visit. Further, she delivered her speech as a chair of FDU-Inkingi she had the different important addressees including journalists who had to broadcast it, and it shows that it is a speech that she had spontaniously delivered, she had rather prepared it with full knowledge of the message she wanted to pass on. [476] With regard to whether Ingabire may benefit the reduction of the penalties, because she is jailed far from her family, based on the provisions of article 76 of Organic Law Nº 01/2012 of 02/05/2012OL instituting the Penal Code which provides that, ''the judge may consider the appropriateness of mitigating circumstances which preceded, accompanied or followed an offence '', the court finds that thisstatement may be considered because it makes it more difficult for someonewho is serving the penalty. [477] The Court further finds that though the crimes that Ingabire committed are serious, among the objectives of the penalty there is the correction of the convict as well as redress to the victims but without prejudice to the opportunity which may be granted to the convict for the re- integration into the society as held by the High

Court. [478] The Court finds further that the fact that Ingabire is the first offender, must be considered as held by the High Court, hence it must mitigate her offences. [479] With regard to the penalties therefore, grounding on article 71, 77, 82, 83 and 84 of Orgnic Law Law Nº 01/2012 of 02/05/2012OL 2012OL instituting the Penal Code as cited above, Ingabire must be sentenced to 15 years on the crime of conspiracy against established Government and attempt against the Constitution , 9 years of imprisonment for the crime of genocide minimization, 3 years for the crime of knowingly spreading rumours with intention of inciting the population against established Government. Nonetheless, the fact that those crimes

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constitute the real concurrence of the crime, that there is the concurrence of mitigating circumstances and aggravating circumstances as detailed above, she is sentenced to 15 years for all crimes of which she is found guilty. C. WITH REGARD TO APPEAL LAUNCHED BY UWUMUREMYI VITAL. [480] Uwumuremyi stated that his appeal intended the reduction of the penalties since he had unequivocally pleaded guilty before all organs and sought forgiveness and it was considered by the Court. He lamented however that he was not satisfied with the penalties imposed to him which, to him, are more severe than those imposed to co-accused and therefore, hep ray the Court to show more leniency and reduces, suspend those penalties in order to re-integrate in normal life. [481] The Prosecution disputed that the request of Uwumuremyi were already granted by the High Court grounding on the mitigating circumstances that it detailed and that the suspension of the penalty was granted bcause he was sentenced to 4 years and six months whose three years and six months must be served in prison while the remaining one year was suspended in a period of 2 years. [482] The Court notes that the request of Uwumuremyi to be sentenced to the same penalties as Nditurende, Habiyaremye and Karuta have no merit because, apart from the crimes of which all of the have been found guilty, Uwumuremyi have been exclusively found

guilty of conspiracy based on the formation of military organization under control of FDU-Inkingi. [483] The Court is of the view that the High Court reduced the penalty for Uwumuremyi grounding on the presence of mitigating circumstances and sentenced him to 4 years and six months of imprisonment. Hence he benefited sufficient reduction of the penalty and there is no any other ground for another reduction. [484] The Court further finds that the suspension of the penalty has been also granted by the High Court. Thus, his request has no merit. III. THE DECISION OF THE COURT [485] Decides that appeal filed by the Prosecution has merit; [486] Decides that appeal launched by Ingabire Victoire Umuhoza has merit only with regard to evidence lebeled A, D and E which had not to be considered in the case as collected from Holland; [487] Sets aside appeal filed by Uwumuremyi Vital; [488] Finds Ingabire guilty of conspiracy against the established Government and attempt against the Constitution through terrorism and war and any other forces, genoce minimization,

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knowingly sprading rumours with intention of exciting the population against established Government. [489] Sentences her to 15 years of imprisonment; [490] Upholds the judgment rendered by the High Court with respect to the crimes which Nditurende Tharcisse, Habiyaremye Noel, Uwumuremyi Vitaland and Karuta Jean Marie Vianney were found guilty and their appropriate penalties as imposed.