PROSECUTION v. NIZEYIMANA

# PROSECUTION v. NIZEYIMANA

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2025-01-30 - Case/document no.: RS/REV/RP 00002/2024/CA - Collection: Court of Appeal

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PROSECUTION v. NIZEYIMANA [Rwanda COURT OF APPEAL – RS/REV/RP 00002/2024/CA (Rugabirwa, P.J.,) January 30, 2025] Criminal Procedure – Case review – In order for a case to be reviewed on the basis of the fact that the case under review was decided on the basis of testimony which was later found or declared to be false, it must be established by a court decision that the testimony previously given and relied on in the case was false and that such testimony was the sole basis upon which the conviction of the person seeking the review was founded. Facts: The person named Nizeyimana Aslam was convicted by the courts of the crime of trafficking heroin, which falls under the category of very severe narcotic drugs, and was sentenced to the imprisonment for a term of fifteen (15) years. He later appealed to the Court of Appeal, which declared the appeal unfounded. Nizeyimana Aslam filed an application seeking the case review, stating that the new evidence he relies on for the review of the case RPAA 00267/2022/CA is the testimony of Niyirema Mohamed, made before the Notary, affirming that he never engaged in the trafficking of heroin, which falls under the category of very severe narcotic drugs, but was merely a consumer thereof. He therefore requested that the judgment should be set aside, the conviction for heroin trafficking should be overturned, and that he should be declared not guilty. The Prosecution argues that Nizeyimana Aslam’s application should not be admitted on the ground that the evidence he refers to be new, does not contradict the grounds on which the Court based its decision in the case for which a review is being sought. Held: In order for a case to be reviewed on the basis that the case under review was decided on the basis of the fact that the testimony which was later found or declared to be false, it must be established by a court decision that the testimony previously given and relied on in the case was false and that such testimony was the sole basis upon which the conviction of the person seeking the review was founded. Application for the case review is not admitted. Statutes and statutory instruments referred to: Law Nº 027/2019 of 19/09/2019 relating to the criminal procedure, article 197. Case laws referred to: PROSECUTION v KABURERE GÉRARD, RP 00001/2022/CA, decided by the Court of Appeal, on 6/07/2023. Judgment

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BACKGROUND OF THE CASE [1] In the judgment RPAA 00267/2022/CA rendered on 18/04/2023, this instant Court ruled that the appeal filed by Nizeyimana Aslam was unfounded, and upheld the judgment RPA 00348/2021/HC/KIG rendered by the High Court on 11/04/2022 and as well sustained the sentence of fifteen (15)1 years’ imprisonment imposed on him for the crime of trafficking heroin, which falls under the category of very severe narcotic drugs. [2] On 15/06/2023, Nizeyimana Aslam filed a claim before this Court seeking the review of the above-mentioned judgment. The claim was registered under RS/REV/RP 00002/2024/CA. The case was heard in public on 10/01/2025, Nizeyimana Aslam was assisted by Counsel Mukanzigiye Donatille, while the Prosecution was represented by Ntawangundi Béatrice, National Prosecutor. [3] In their appeal submissions and pleadings, Nizeyimana Aslam and his counsel argue that the new elements of evidence on which he bases his application for the review of case RPAA 00267/2022/CA are the testimony of Niyirema Mohamed, made before the Notary on 29/06/2023, affirming that Nizeyimana Aslam never engaged in the trafficking of heroin, which falls under the category of very severe narcotic drugs, as previously alleged by the same witness under the name Ngabo Ahmed, whose testimony had been relied upon to convict him. However, the new testimony states that Nizeyimana Aslam merely consumed the heroin. They therefore submit that the judgment under review should be set aside and the Court should hold that he did not commit the offence of heroin trafficking and acquit him. [4] The State Attorney submits that Nizeyimana Aslam’s claim should not be admitted on ground that the evidence he claims to be new does not contradict the grounds on which this instant Court based its decision in the judgment for which the review is being sought. [5] Based on those arguments, the Court finds that the issue to be examined in this case is whether the testimony contained in the statement made by Niyirema Mohamed before the Notary on 29/06/2023 constitutes new and conclusive evidence that could warrant the review of the case RPAA 00267/2022/CA. I. ANALYSIS OF THE LEGAL ISSUE a. Whether the testimony contained in the statement made by Niyirema Mohamed before the Notary on 29/06/2023 constitutes new and conclusive evidence that could warrant the review of the case RPAA 00267/2022/CA [6] Nizeyimana Aslam and his counsel argue that, after the judgment RPAA 00267/2022/CA rendered by this instant Court on 18/04/2023, which sentenced him (Nizeyimana Aslam) to the imprisonment for a term of fifteen (15) years for trafficking heroin, based on false testimony given by Ngabo Ahmed, he later obtained new evidence on which he relies to seek the case review. The new evidence consists of a statement made by Niyirema Mohamed before the Notary on

1 In the copy of judgment rendered by the High Court, Nizeyimana Aslam was sentenced to the imprisonment for a term of fifteen (15) years and a fine of 5,000,000Frw.

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29/06/2023, stating that Nizeyimana Aslam never engaged in the trafficking of heroin but instead consumed it, as others used it. [7] They further state that the reason why Niyirema Mohamed used the name Ngabo Ahmed and incriminated Nizeyimana Aslam of trafficking heroin was that the security officers had promised him that, if he disclosed the names of such drug traffickers, he would be released. However, they did not release him, instead, he was taken to IWAWA. They explain that this evidence is new because Nizeyimana Aslam only obtained it late on 29/06/2023, since Niyirema Mohamed was at IWAWA, and he had never appeared in the case for which a review is being sought. [8] The State Attorney argues that the claim brought by Nizeyimana Aslam is inadmissible because the evidence he refers to as new, does not meet the requirements stipulated in article 197, paragraph 3° of the Law Nº 027/2019 of 19/09/2019 relating to the criminal procedure, for it to be considered new evidence which could warrant the review of the case RPAA 00267/2022/CA because, at the Investigation Bureau, Ngabo Ahmed incriminated him of trafficking heroin, and at the time the case was adjudicated, he was present. The fact that he later changed his name to Niyirema Mohamed and contradicted himself by saying that Nizeyimana Aslam never trafficked the cannabis, cannot be taken into account, considering the probative value of the testimony he had given before in which he incriminated him of trafficking heroin. [9] The State Attorney further states that the evidence which Nizeyimana Aslam refers to as new, consisting of the testimony given by Niyirema Mohamed on 29/06/2023, does not contradict the other elements of evidence on which his conviction for trafficking heroin was based as Nizeyimana Aslam was not convicted solely based on the testimony of Ngabo Ahmed, but also on the testimony of Mushinzimana Hassan made before the Investigation Bureau, in which he explained that the five (5) pellets found in Nizeyimana Aslam’s possession were intended for sale, since he stated that the heroin found with Nizeyimana Aslam was the one he himself had supplied to him. DETERMINATION OF THE COURT [10] Article 197, subparagraph 4° of Law Nº 027/2019 of 19/09/2019 relating to the criminal procedure provides that “a case can be reviewed due to one of the following grounds: (…) 4° “if the judgment was rendered on the basis of documents, testimonies or oaths which later turn out to be or are subsequently declared false by the court after the judgment”. [11] In the judgment RP 00001/2022/CA rendered on 06/07/2023, wherein the parties were Prosecution v. Kaburere Gérard, the Court of Appeal explained that the evidence consisting of a document drawn by Nizigiyimana Aline on 16/09/2022 upon which Kaburere Gérard relies in seeking the review of the case RPA 00035/2020/CA, could not serve as a basis for the admissibility of his claim for the case review. This is because what he was required to present, would be a court decision declaring that the testimonies previously given by Nizigiyimana Aline were false, as required under article 197, subparagraph 4° of the above-mentioned Law nº 27/2019. [12] The Court of Appeal finds that, in other words, the above-mentioned court decision indicates that, in order for a case to be reviewed on the basis that the case under review was decided

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on the basis of testimony which was later found or declared to be false, it must be established by a court decision that the testimony previously given and relied on in the case was false and that such testimony was the sole basis upon which the conviction of the person seeking the review was founded. [13] The Court of Appeal finds that the evidence Nizeyimana Aslam refers to as new, which he relies upon in requesting the review of case RPAA 00267/2022/CA decided by this instant Court on 18/04/2023, is the testimony contained in the statement made before the Notary by Niyirema Mohamed on 29/06/2023 in which, Niyirema Mohamed affirmed that Nizeyimana Aslam never engaged in the trafficking of heroin, but only consumed it, as the others used it. Nizeyimana Aslam argues that this testimony constitutes a new evidence since he obtained it after the judgment in which the case review is being sought had already been rendered, as Niyirema Mohamed was at IWAWA at that time, and it is a conclusive evidence because it contradicts the false testimony made before the Investigation Bureau when he was known in the name Ngabo Ahmed, who falsely accused him of trafficking heroin, which was not true. He maintains that the reason for such false accusation was that the security officers had promised to Ngabo Ahmed a release if he revealed those engaged in drug trafficking. [14] Based on Article 197, paragraph 4°, of the above-mentioned Law Nº 027/2019 of 19/09/2019, and the court decision made by this instant Court in the judgment RP 00001/2022/CA rendered on 06/07/2023 mentioned above, since Nizeyimana Aslam did not present a court decision indicating that the testimony previously made before the Investigation Bureau by Ngabo Ahmed, also known as Niyirema Mohamed, in which he accused Nizeyimana Aslam of trafficking heroin, was false, as provided under the paragraph 4° of that article, the Court of Appeal finds that the application for the review of the case RPAA 00267/2022/CA, decided by this instant Court on 18/04/2023, filed by Nizeyimana Aslam, should not be admitted for examination since it does not meet the requirements provided under the Law. III. DECISION OF THE COURT [15] Declares that the application filed by Nizeyimana Aslam seeking the review of the case RPAA 00267/2022/CA, decided by the Court of Appeal on 18/04/2023, is not admitted for examination, as it was lodged in a manner not compliant with the law. [16] Holds that the judgment RPAA 00267/2022/CA rendered by the Court of Appeal on 18/04/2023, is sustained, and the sentence of imprisonment for a term of fifteen (15) years imposed on Nizeyimana Aslam is maintained2. [17] Orders that the court fee is borne to the Public Treasury.

2 The Court of Appeal upheld the judgment RPA 00348/2021/HC/KIG rendered by the High Court on 11/04/2022. In that case, the High Court sentenced Nizeyimana Aslam to the imprisonment for a term of fifteen (15) years and a fine of 5,000,000 Frw.