PROSECUTION v TWAGIRAYEZU

# PROSECUTION v TWAGIRAYEZU

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2024-07-31 - Case/document no.: RPA/GEN 00001/2024/CA - Collection: Court of Appeal

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PROSECUTION v TWAGIRAYEZU [Rwanda COURT OF APPEAL – RPA/GEN 00001/2024/CA (Rukundakuvuga P.J. Gakwaya and Mukamurenzi J.) July 31, 2024] Evidence – Criminal evidence – Alibi - When the defendant raises the defense of alibi in particular, the Prosecution still has the responsibility to provide undisputed evidence that proves that the accused has committed a crime, whereas the accused who pretends that he was not at the place where the crime was committed at a certain time such that he/she would not be able to commit the crime he/she is accused of, has the responsibility to prove that he/she was not at the place where the crime was committed. Evidence – Criminal evidence – Testimony – Relevance of the testimony –The fact that the witnesses do not state the same thing or may be slightly mistaken, or if the testimony given before the Court does not match what was previously stated, it does not detract the testimony because it may have been caused by a long time elapsed since the time when the crime was committed until the time when the testimony is given before the Court. Criminal procedure – Criminal action – The crime of genocide - The fact that the defendant has not been mentioned in the Gacaca Courts data collection does not mean that he/she cannot be prosecuted for the crime of genocide because the fact that a court does not say anything about a person in the criminal proceedings, does not entail that that he did not participate in the crimes he/she is accused of. Criminal law – Offence – Concurrence of offences – Criminal responsibility – Crime of genocide and crime against humanity – A person may be convicted of the crime of genocide and crime against humanity based on the same acts because the acts of each crime are different, the crime

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of genocide committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group as such, whether in time of peace or in time of war, because of who they are, and the crime against humanity is committed as part of a widespread or systematic attack directed against any civilian population. Criminal law – Genocide – Sentence – Mitigating and aggravating circumstances – Even if the defendant was convicted of serious crimes, and had gravely affected the Rwandan community; the fact that he/she was convicted of these crimes is not enough to amount to aggravating circumstances to increase the sentence while the Prosecution did not prove that he/she committed them with more hatred and cruelty than other criminals in the area where they were committed. Facts: This case started in the High Court, Specialized Chamber with jurisdiction over international crimes and transnational crimes, the Prosecution charged Twagirayezu with murder as the crime of genocide and extermination as a crime against humanity, alleging that the accused committed the acts constituting those crimes in Rubavu District, in the former Rwerere Commune, the Prosecution indicted him based on the evidence comprising the statements of various witnesses and Twagirayezu’s statements when he was questioned in Denmark, which shows that when the crimes he is accused of were committed he was in Rwanda and that he was involved. The defendant contended that he should not be prosecuted for murder as a crime of genocide and the crime of extermination as a crime against humanity because the dates and various areas on which and where the alleged crimes were committed in the former Gisenyi Prefecture, he was not able to be there since he was in the former Zaire, current Democratic Republic of the Congo (DRC). His alibi defense was based on evidence including witnesses alleged by him to have been with him

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or met him in the Congo and the document called petition made by people who claim to have been with him at the time, and the document called the acknowledgment receipt of the money in Zaire currency, received while he was in that country. That Court held that the defendant successfully provided evidence consisting of documents and testimonies that cast doubt on the evidence of the Prosecution that he was in Rwanda from 7 to 9/04/1994. The Court also held that the Prosecution failed to present unequivocal evidence that the accused committed the crimes he was accused of on the dates and in the places mentioned above and based on this analysis, concluded that the accused was not found guilty of the crime of genocide and the crime of extermination as a crime against humanity, ordered that he be released immediately after the judgment was pronounced. One (1) of the three (3) members of the bench that heard the case expressed a dissenting opinion. The Prosecution was dissatisfied with the decision and appealed against it before the Court of Appeal, criticizing the fact that the High Court held that Twagirayezu was not in Rwanda when the crimes he is accused of were committed, ignoring the testimonies, evidence and the law it showed, and acquitted him of the crimes he was prosecuted for. Regarding the defense of alibi, it alleged that the High Court misused the precedent set in the cases decided by the International Criminal Court for Rwanda and in the cases decided in other countries concerning the defense of alibi, which makes it to place on the Prosecution the burden of proof related to an alibi as if it were a standard form of defense, the Prosecution alleges that there was an error in reversing the way the evidence of alibi is provided. It added that it provided evidence that the defendant was in Rwanda when the Tutsis began to be killed on April 6, 1994, including the documents sent by the Danish judicial authorities containing information provided by the

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defendant himself when he sought asylum in Denmark and the Police of that country. The Prosecution also criticizes the fact that the High Court gave undue value to the plea of alibi based on the document called pétition et témoignages, pour l'innocence de Mr. Wenceslas Twagirayezu and the another referred to as décharge. On this ground of appeal, the defendant contended that no error was made regarding the principles governing evidence production on the defense of alibi because in the analysis of the case, the High Court showed the different cases decided by the Court of Appeal and the international criminal courts established the position that a defendant raising the alibi defense must provide concrete evidence that casts doubt on the Prosecution's allegations. The Prosecution also alleged that Twagirayezu was acquitted despite the evidence and the law showing that he committed the crimes he was charged with, that the High Court held that the witnesses against Twagirayezu did not know him, saying that they seriously contradicted each other about what he did, about the role he played in the activities of the political parties or his reputation in general, even on some features of his body, but what they all have in common is the most important thing that deserves attention, is that he was a teacher, worked in the field of education and he admitted it. For this ground of appeal, Twagirayezu contended that the issue raised related to the fact that the Prosecution witnesses who were questioned did not know him, since he was in Denmark, because the way they talk about him was based on his work as a teacher and where he worked, some features of his body, the wealth he had and his role in political parties, shows that the person they are talking about is not him or they do not know him, because if they knew him well, they would not have been mistaken that he taught in a private school at Gacuba II in Gisenyi from September 1993 to July 1994. He says that he agrees with the findings of the High Court which appear in paragraphs

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145 and 146, because the way the witnesses contradict themselves and contradict each other shows that they do not know him. The Prosecution also alleges that the High Court decision is full of contradictions whereby it held that the fact that the accused was not been mentioned in the Gacaca Courts does not prevent him from being prosecuted for the crime of genocide, however concerning Twagirayezu, it alleges that the way witnesses portray him as a person that was popular in the acts and the meetings intended to plan genocide itself, could not have been mentioned in the Gacaca Courts in all the areas where the Prosecution alleges he led the killings. It explained that the analysis is not based on objective criteria, because during the collection of information of the Gacaca Courts, there were many people who participated in the genocide but who were not mentioned because of various reasons. That it is absurd how the High Court found that Twagirayezu was not forgotten in such a way that the person who reveals his role in the genocide against the Tutsis in 1994, this time would not be telling the truth. On this ground of appeal, the defendant contended that as per his arrest warrant, the Prosecution stated that he was a giant, with wealth and many other things, and considering the statements of some of the witnesses of the Prosecution, there is no way that he could not have been during the collection of information of the Gacaca Courts. Held: 1. When the defendant raises an alibi defense in particular, the Prosecution is still responsible for providing unequivocal evidence that confirms that the person being prosecuted committed a crime, whereas the accused who pretends that he was not at the place where the crime was committed at a certain time such that he/she would not be able to commit the crime he/she is accused of, has the responsibility to prove only that he/she was not at the place where the crime was committed.

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2. In order for a document to be considered as proof that a person was in a certain place, it is necessary to show a material proof showing when the document was written and where it was written because in order to defend himself or herself, a person may write a document and lie about where it was written and when it was written. Thus, the document referred to as acknowledgment receipt was not sufficient proof that Twagirayezu was in Congo at the time mentioned because the examination carried out on it did not enable to show when it was written. Regarding the document referred to as petition, written by people who were in Congo who testify that Twagirayezu was with them from April 6 to 9, 1994, the fact that the document contains false kinships, makes it questionable. 3. The fact that the witnesses do not say the same thing or may be slightly mistaken, or if the testimony given before Court does not match what was previously stated, it does not detract the testimony because it may have been caused by a long time elapsed since the time when the crime was committed until the time when the testimony is given before the Court. 4. The fact that the defendant was not mentioned in the Gacaca Courts data collection does not mean that he/she cannot be prosecuted for the crime of genocide because the fact that a court does not say anything about a person in the criminal proceedings, does not entail that that he/she did not participate in the crimes he/she is accused of because what is considered is his/her personal acts and evidence, therefore the High Court contradicted itself because after showing that the fact that a person was not mentioned in the the Gacaca Courts data collection does not mean that he/she was not involved in the crimes he was accused of, and it did not confirm that Twagirayezu (the defendant) should absolutely have been mentioned in Gacaca Courts.

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A person may be found guilty of the crime of genocide and crime against humanity based on the same acts because the acts of each crime are different, the crime of genocide committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group as such, whether in time of peace or in time of war, because of who they are, and the crime against humanity is committed as part of a widespread or systematic attack directed against any civilian population. Thus, a person who commits intentional acts of murder, carried out by attacks targeting people who are members of a certain group based on nationality, ethnicity, skin color or religion, with the intent of destroying in whole or in part people because of who they are, is committed against civilian population in normal times or wartime, is considered to have committed in ideal concurrence of genocide and the crime against humanity. 6. Even though the defendant was convicted of serious crimes, and affected gravely the Rwandan community; the fact that he was convicted of these crimes is not enough to amount to aggravating circumstances to increase the sentence while the Prosecution failed to prove that he/she committed them with more hatred and cruelty than other criminals in the area where they were committed, so the fact that Twagirayezu's crimes do not classify him into the category of organizers or those who led the attacks that killed the Tutsis and that it is the first time for him to be found guilty of an offence, he is sentenced to twenty (20) years in prison. Judgment RP/GEN 00003/2019/HC/HCCIC rendered by the High Court, Specialized Chamber with jurisdiction over international crimes and transnational crimes on 11/01/2024 is overturned. The defendant is guilty of the crime of genocide and extermination as a crime against humanity.

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The Deffendant is sentenced to twenty (20) years in prison Statutes and statutory referred to: Law n° 062/2024 of 20/06/2024 governing evidence , articles 2.53, 87 Law nº 027/2019 of 19/09/2019 relating to the criminal procedure, articles 51 and 183. Law nº68/2018 of 30/08/2018 Law determining offences and penalties in general, articles 91,92,94,335. Law No 47/2013 of 16 June 2013 Relating to transfer of cases to the Republic of Rwanda , article 18. Article 2 of the International Convention of December 9, 1948 on the Prevention and Punishment of the Crime of Genocide ratified by Rwanda through Decree- Law no. 08/75 of February 12, 1975. Organic Law n°04/2012/OL of 15/06/2012 terminating Gacaca Courts and determining mechanisms for solving issues which were under their jurisdiction, article 3. Cases referred to: Prosecution v Sgt. Biziyaremye Jean Baptiste & Cpl. Ngabonziza Faustin, RPAA 0117/07/CS rendered by the Supreme Court on 17/09/2010, Rwanda Law Reports, vol. II, 2011. Prosecution v Bandora Charles, RPA/GEN 0001/15/CS rendered by the Supreme Court on 22/03/2019. Prosecution v Ntamaherezo Iryamukuru, RPAA 00141/2022/CA rendered by the Court of Appeal on 31/05/2023. Prosecution v Sezikeye Franҫois, RPAA 00371/2020/CA rendered by the Court of Appeal on 15/12/2022. Prosecution v Hategikimana Célestin, RPAA 00681/2021/CA rendered by the Court of Appeal on 24/3/2023.

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Prosecution v Ntaganzwa Ladislas, RPA/GEN 00001/2021/CA rendered by the Court of Appeal on 03/03/2023. Prosecution v Birindabagabo Jean Paul, RPAA/GEN 00004/2020/CA rendered by the Court of Appeal on 08/04/2022. Prosecution v Kabilimana Jean Damascène, RPAA/GEN00009/2019/CA rendered by the Court of Appeal on 16/10/2020. Prosecution vs Hategekimana Célestin, RPAA 00681/2021/CA rendered by the Court of Appeal on 24/3/2023. Prosecutor v. Gatete Jean Baptiste, Case no ICTR-2000-61- T, para. 130. Prosecution v. Callixte Kalimanzira, Case No. ICTR-05-88- T, para. 748-752. Prosecution v. Georges Anderson Nderubume Rutaganda, Case no. ICTR-96-3-A, para. 488. Prosecution v. Bilinki Simon, Case no ICTR-01-62 T (2/12/2008), p.12, para. 32. Prosecutor v. Kayishema & Ruzindana, Case, ICTR-95-1- A, para. 106. Prosecution v. Setako Ephrem, Case n° ICTR-04-81-A decided on 28/9/2011. Prosecution v. Musema Alfred, Case n° ICTR-96-13-T decided on 2/25/2014. Simphiwe Raymond Shusha v State (South Africa) rendered by the Supreme Court of South Africa. Prosecutor v. Kamuhanda Jean de Dieu, Case N° ICTR-99- 54 A Prosecution v. Zigiranyirazo Protais, Case N° ICTR-01-73- A Prosecution v. Nahimana et al. (Media case). Case N° ICTR-99-52-A Prosecution v. Nahimana et al. (Media case), Case No. ICTR-99-52-A, para. 417.

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Prosecution v. LUKIĆ & LUKIĆ, case no. IT-98-32/1-A, para. 362. Legal writings: Henri Capitant Association, Legal Vocabulary, 6th edition, Presses Universitaires de France, Paris, 1996, p. 612. Judgment I. BRIEF BACKGROUND OF THE CASE

After Twagirayezu Wenceslas was transferred by Denmark to be tried by the Rwandan Courts for various crimes he was alleged to have committed in 1994, including the killings committed in Rubavu District in the former Rwerere Commune from the 7th to the April 12, 1994, in particular, at Gacamena’s home roadblock, at ISAR- Tamira, at the University of Mudende, at Busasamana Church, at Nyundo, at Saint Fidèle Institute and at the place referred to as Commune Rouge. The Prosecution indicted him to the High Court, Specialized Chamber with jurisdiction over international crimes and transnational crimes (in this case, it is referred to as the High Court), the crime of genocide and extermination as a crime against humanity.

Twagirayezu Wenceslas pleaded not guilty to the charges and alleged that on the 7th, 8th and 9/04/1994 he was in Zaire, currently the Democratic Republic of the Congo (RDC) where he was on Easter holidays since the end of from March 1994 to April 9, 1994, when he arrived home at night. He substantiated his plea based on the defence of alibi by providing that includes witnesses that he pretends to

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have been with or met in the RDC and the document called petition made by people who state that they were with him at the time, and the document called the acknowledgment receipt of zaire currency he received when he was in the DRC. Concerning this plea, the Prosecution also provided evidence including the statements of witnesses and the statements of Twagirayezu Wenceslas when he was questioned in Denmark, which shows that on those dates when the crimes he is charged with were committed, he was in Rwanda and that he was involved in them.

As per the judgment nº RP/GEN 00003/2019/HC/HCCIC rendered on 11/01/2024, High Court, Specialized Chamber with jurisdiction over international crimes and transnational crimes held that that Twagirayezu Wenceslas managed to provide evidence consisting of the documents and the testimonies that cast doubt on evidence of the Prosecution upon which it relies to allege that he was in Rwanda from 7 to 9/04/1994. The High Court also held that the Prosecution failed to provide unequivocal evidence that Twagirayezu Wenceslas committed the crimes he is accused of on the dates and places mentioned above. Based on this analysis, the High Court held that Twagirayezu Wenceslas is not guilty of genocide and extermination as a crime against humanity, ordering that he be released immediately as soon as the judgment is pronounced. One (1) of the three (3) members of the panel that had heard the case expressed a disseting opinion.

The Prosecution was dissatisfied with the decision and appealed against it before the Court of Appeal, the case was registered under case file number RPA/GEN 00001/2024/CA, the hearing was scheduled for 13/05/2024, and the hearing was held from that day until 23/05/2024, Twagirayezu Wenceslas was assisted by Counsel BIKOTWA Bruce and Counsel Gashema Félicien, while the

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Prosecution was represented by Harindintwari Côme and NIYONZIMA Vincent, National Prosecutors.

In short, before the Court of Appeal, the Prosecution criticizes the fact that the High Court held that Twagirayezu Wenceslas was not in Rwanda when the crimes he is accused of were committed, ignoring the testimonies, evidence and the law, and acquitting him of the charges. Twagirayezu Wenceslas alleges that the Prosecution’s allegations are irrelevant because the High Court elucidated the reasons, laws and evidence on which it relied to acquit him.

The Court of Appeal finds that the issues to be considered are as follows: A. Determining whether the High Court erred in holding that it was doubtful that Twagirayezu Wenceslas was in Rwanda when the crimes he is accused of were committed. B. Determining whether Twagirayezu Wenceslas was acquitted despite the evidence and the law proving that he was convicted of the crimes he was accused of. C. Regarding the penalties requested by the Prosecution.

I. ANALYSIS OF LEGAL ISSUES A. Determining whether the High Court erred in holding that it was doubtful that Twagirayezu Wenceslas was in Rwanda when the crimes he is accused of were committed.

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A.1. With regard to the allegations of the Prosecution that in the analysis of the alibi defense, errors were made in imposing on it the responsibility of providing the evidence.

The representatives of the Prosecution allege that while analyzing Twagirayezu’s plea who stated that he was not in Rwanda on the 7th, 8th and 9th of April 1994, starting from paragraph 36 of the appealed judgment, the High Court misused the judicial precedent set in the cases decided by the International Criminal Tribunal for Rwanda and in the cases decided in other countries regarding the alibi defense, making it the responsibility of the Prosecution to provide evidence related to that defense as if it were a common way of defense. They added that there was a mistake in reversing the way the evidence is provided in case of alibi defense, because, as this Court elucidated it in the case n° RPAA/GEN 00009/2019/CA rendered on 16/10/2020, involving Kabirima Jean Damascene, it is up to the defendant raising an alibi defense to provide evidence1, that Twagirayezu Wenceslas is the one who must provide concrete evidence proving where he was when the crimes he is charged with were committed. The Prosecution concludes that when there is a discrepancy between the judicial precedent set by the foreign courts and the one established by the Rwandan courts on a certain issue, the judicial precedent set by the Rwandan courts prevails.

Twagirayezu Wenceslas and his lawyers allege that in the appealed judgment, no error was made regarding the principles governing the production of evidence on alibi defense because in the analysis of the case, the High Court specified different cases decided by this Court2 and by the international criminal courts that they all established that the

1 Paragraph 22 of the judgment 2 Birindabagabo and Hategekimana case and Sergent Biziyaremye Jean Baptiste and Cpl. Ngabonziza Faustin

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defendant raising the alibi defense must provide concrete evidence that casts doubt on the allegations of the Prosecution. They allege that Twagirayezu Wenceslas as the defendant did his duty because he gave evidence that he was not in Rwanda on the 7th, 8th and 9th of April 1994 because at that time he was on Easter holidays in the Democratic Republic of the Congo (DRC). DETERMINATION OF THE COURT

The debated issue is to determine whether the High Court erred in placing the burden of proof on the Prosecution regarding the alibi defense raised by the defendant. In other words, what are the limits of the duty of the defendant to provide evidence, and what are the duties of the Prosecution in case of alibi defense?

Regarding the alibi defense, this Court decided various cases, such as the case n° RPAA/GEN 00004/2020/CA involving the Prosecution and and Birindabagabo Jean-Paul, in which based on the cases decided by the International Criminal Tribunal for Rwanda3,, elucidated that concerning the person who bers the burden of proof in case the defendant uses an alibi plea in particular, the burden of proof still rests on the Prosecution to provife undisputed evidence that confirms that the person being prosecuted has committed a crime, whereas the person being prosecuted for a crime who claims that he/she was not in the place where a crime was committed at a certain time in such a way that he would not be able to commit the crimes he is accused of, has the

3 Those cases are n° ICTR-99-54 A Kamuhanda Jean de Dieu case; n° ICTR- 01-73-A Zigiranyirazo Protais case and ICTR- 99-52-A Nahimana et al. (Media case).

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responsibility to prove that he was not at the place where the crime was committed4.

The responsibilities of both parties in a case where the defendant raised an alibi defense were clearly defined by the Appeals Chamber of the International Criminal Tribunals for Rwanda and the former Yugoslavia5. Indeed, in various cases, the Appeals Chamber in all those courts have faced the problem of defendants who used the alibi defense, in the first instance, the courts showed that the evidence they provided is not enough to justify their alibi, and they appealed alleging that the rules governing the alibi were infringed because they were asked to provide undisputed evidence, and which is otherwise the responsibility of the Prosecution6. The Appeals Chamber often responded that although the Prosecution maintains the responsibility of providing undisputed evidence that the defendant was not in the alleged location, the defendant who raises the alibi defense must also provide evidence that he was not where the crime took place when it was committed to such an extent that the judge admits that he could not have been there7. In short, the judicial precedent set in these cases, is that the defendant raising such an alibi defense, even though he/she is not required to provide undisputed evidence, (beyong reasonable doubt) have reasonable doubt as required from the Prosecution, requiring him for concrete evidence would make the judge question the claims of the Prosecution, not reversing the responsibilities of plaintiff and defendant.

4 This was established in case n° RPAA 00371/2020/CA, Prosecuror v.Sezikeye Franҫois rendered on 15/12/2022 and case n° RPAA 00681/2021/CA, Prosecutor v. Hategikimana Célestin rendered on 24/3/202 5 Prosecutor v. Nahimana et al. (Media case), Case No. ICTR-99-52-A, para. 417. 6 See case decided on appeal Prosecutor v. Lukić & Lukić, case No. IT-98-32/1- A, para. 362. 7 See case decided on appeal Prosecutor v. Georges Anderson Nderubumwe Rutaganda, Case No. ICTR-96-3-A, Para. 488.

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In other words, regarding the case under appeal, the Prosecution had the duty to show beyond reasonable doubt that when the genocide against the Tutsi was carried out in Gisenyi, from April 7 to April 9, 1994, Twagirayezu Wenceslas was in Rwanda, and he had the responsibilities to prove in a way that makes the court agree with him that what the Prosecution says is unfounded because he was abroad as he claims it8. It is also in this context that the court will examine in the following paragraphs whether the High Court misused the responsibilities by reversing the roles of the parties in the presentation of evidence, making it to confirm that Twagirayezu Wenceslas was not probably in Rwanda when the genocide was committed against the Tutsis in Gisenyi, on the dates mentioned9.

Before the High Court, the Prosecution clarified that Twagirayezu Wenceslas was in Rwanda when the said crimes were committed based on his own statement requesting asylum in Denmark, which shows that he was in Rwanda from January to July 1994; regarding the fact that there is no official proof that he has ever crossed the border and as to the the flaws in the document called "pétition et témoignage pour l'innocence de Mr. Twagirayezu Wenceslas'' or another called "décharge". Twagirayezu Wenceslas explained the extent to which he said that he never left Rwanda, showing that when he answered the question of knowing where he was between January and July 1994, he replied that he was in Rwanda because he never considered going to Congo as going abroad; that going there did not require a document issued in the official manner, that he used to go there that way, and that there were witnesses from the Congo who showed in their document called petition et témoignage pour innocence de Twagirayezu Wenceslas, and testified before the court that

8 See case decided on appeal Prosecutor v. Kayishema & Ruzindana, Case, ICTR-95-1-A, para. 106. 9 See paragraph 53 of the appealed judgment.

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at that time they were with him in the Congo, and there is also the document called "décharge" that was written there in the Congo at that time.

The Court of Appeals finds that as indicated in the appealed judgment from paragraph thirty-six (36) to forty (40), the High Court started by stating the principle that applies to the case of alibi defense in providing the evidence corroborating it; it elucidated that the person being prosecuted has the responsibility to provide evidence that confirms that he/she was not in the place where the crime he/she is accused of was committed, while the Prosecution still has the duty to provide undisputable evidence that confirms that the defendant has committed the crime he is accused of, based on the cases decided by the Courts of Rwanda10, also referring to international law and the decisions of the International Criminal Courts11 and those of other countries12.

Based on that, the High Court, in paragraph 53 of the appealed judgment, elucidated that the evidence provided by the defendant Twagirayezu Wenceslas shows that it is possible that on the 7th, 8th and 9th of April 1994, he was in the DRC, in a place different from where the Prosecution alleges that he committed the crimes he is prosecuted for on these dates; and in paragraph 197 of the appealed judgment, the court held that the defendant was able to provide evidence consisting of the documents and the testimony that cast doubt on what the Prosecution alleges that he was in Rwanda from 7 to 9/4/1994, however the

10 Case n° RPAA/GEN 00004/2020/CA involving Birindabagabo Jean-Paul rendered on 8/4/2022 and case n° RPAA 00681/2021/CA involving Hategekimana Célestin rendered on 24/3/2023. 11 See case on appeal Prosecutor v. SETAKO Ephrem, Case n° ICTR-04-81-A rendered on 28/9/2011 and Musema Alfred case, Case n° ICTR-96-13-T rendered on 25/2/2014. 12 Simphiwe Raymond Shusha v. South Africa rendered by the Supreme Court of South Africa

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Prosecution failed to provide unequivocal evidence that the evidence that the defendant relies upon alleging that he was in the DRC on these dates are not authentic.

Concerning the allegations by the Prosecution that the Court previously ignored what was explained in the case n° RPAA/GEN 00009/2019/CA decided on 16/10/2020 by this Court, where it elucidated that the defendant raising the alibi defense is the one who must provide evidence which clearly shows where he/she was when the crimes he was prosecuted for were committed, which means that the judicial precedent is different from the one given in various cases decided by international courts and should be followed, the Court of Appeal finds that it is not true, because that case does not contradict the precedents set in other cases decided by the International Criminal Court for Rwanda. What that case elucidated is that the defendant must provide concrete evidence corroborating his/her alibi defense13, which means that he/she must provide evidence that casts doubt on the evidence provided by the Prosecution proving that he/she was at the scene of the crime.

As mentioned in the previous paragraph, the High Court upheld the existing precedent in the principles governing the production of evidence regarding the responsibility of each party in a case based on the alibi defense, because it maintained the obligation to provide evidence beyond reasonable doubt on the side of the Prosecution while the defendant kept his precedent to provide evidence that shows that he was not present in a way that raises doubt.

The remaining issue to be examined is whether the evidence provided by the Prosecution did not meet the standard of undisputable evidence, or whether the evidence

13See paragraph 22 of the case.

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provided by Twagirayezu Wenceslas was enough to make the High Court doubt the allegations by the Prosecution that Twagirayezu Wenceslas was in Rwanda when the genocide was being committed in Gisenyi from 07 to 09/04/1994. A.2. Regarding the allegations of the Prosecution that the High Court ignored the evidence proving that Twagirayezu Wenceslas was in Rwanda when the crimes he is prosecuted for were committed 1. The documents sent by the Danish judicial institutions containing the statements of Twagirayezu Wenceslas

The representatives of the Prosecuttion allege that they provided evidence that shows that Twagirayezu Wenceslas was in Rwanda when the Tutsis began to be killed on April 6, 1994, including documents sent by the Danish judicial authorities containing information provided by Twagirayezu Wenceslas himself when he applied for asylum in Denmark and before the Police of that country14. They explain that in those documents on page p-09-350, Twagirayezu Wenceslas was asked by the Danish Police where he was from January to July 1994, he replied that he was in Gisenyi in Rwanda, on page p-09-351, he stated that he supported the activities carried out by Interahamwe militia but did not support the acts of murder, when they started committing them, that they found that his statements indicate that Interahamwe started to hunt down and kill Tutsis when he was there, because even those who committed the killings against Tutsis stated that they collaborated with him, that what he alleged that he was not there when these killings were done should not be upheld by the Court because he could not say that he supported the Interahamwe’s activities carried out in his absence.

14 From page p-09-310 to page p-09-371.

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The representatives of the Prosecution criticized the fact that the High Court, in paragraph 48 of the judgment under appeal, held that what Twagirayezu Wenceslas stated when he applied for asylum in Denmark that he was in Rwanda from January to July 1994, does not mean that he stated that he never left during that time, that the relevance of what Twagirayezu Wenceslas’s allegations should be analyzed and contrued considering the circumstances and the reasons why it was stated. They alleged that the court relied on it for no reason, that is is obvious that the defendant's plea was cited as a principle.

Twagirayezu Wenceslas and his lawyers allege that regarding his statement while applying for asylum, the High Court mentioned it in paragraph 48, the first part, of the appealed case, indicated that it does not mean that he never left Rwanda at that time. They added that when he applied for asylum, the Danish immigration authorities asked him where he was between January and July 1994, and he replied that he was in Rwanda, that he had nothing to add because they did not ask him anything else. In respect of what he stated that he supported Interahamwe, regarding what happened in 1997, when the infiltrators attacked the prison where he was detained in Rwerere Commune and released them, he managed to escape to Congo; that what he stated that he was not involved in the killings carried out by Interahamwe after the date of 9/4/1994 when he returned to Rwanda because before that, from the 6th to the 9/4/1994 he was not there.

Twagirayezu Wenceslas and his lawyers also allege that when he applied for asylum it was said that he had committed crimes in Rwanda, he was called upon by Danish immigration authorities and asked him only about applying for asylum, that the fact that in his interview he stated that he was in Rwanda from January to July 1994 was not a lie, because what they needed was to know where he was, that

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it does not mean that he had never been to Congo and that he had never been questioned by the Danish Police regarding the crimes against him, as alleged by the Prosecution, that instead they copied down his statements from Danish Immigration and put them into his file. DETERMINATION OF THE COURT

The debated issue is to determine whether the High Court wrongly analyzed the weight of the defendant's statements when he applied for asylum in Denmark, confirming that he was in Rwanda from January to July 1994, and that even when the crimes he is accused of were committed on Gisenyi in April 1994, he was in Rwanda, and invalidating that evidence without any valid reason.

As stated above, according to the principles governing the production of evidence in case of alibi defense, the Prosecution is required to provide undisputable evidence proving that the defendant was in Rwanda, while the defendant using the alibi defense must provide a valid reason making the judge believe that the defendant’s statements are relevant, such that it casts doubt on the Prosecution’s allegations.

According to the statement by Twagirayezu Wenceslas, dated 28/8/2002 made before the Danish Immigration Service in the context of examining his asylum application, after being informed that the purpose of the interview was to scrutinize the relationship between his political activities, including in particular his interaction with Interahamwe and the reason why he is seeking asylum in general, he explained that as a Hutu, he supported Interahamwe, but he never did any work for them, that he never participated in the military activities carried out by Interahamwe during wartime or what they were doing at the time of the interview. He also explained that he supported

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their ideas to return them to Rwanda, live as normal citizens in their native country, and be able to have the right to express their opinions, and that he helped people flee from Rwanda to the DRC.

In his statement, when asked about his whereabouts between January and July 1994, Twagirayezu Wenceslas explained that he lived in Gisenyi, Rwanda, where he taught Mmathematics at the Gacuba II Baptist College, from 1994 to in 1996, he lived in the Kibumba refugee camp (UNHCR) in the Kivu region.

In paragraph 48, bullet point 1, of the appealed judgment, the High Court elucidated that what Twagirayezu Wenceslas stated when he applied for asylum in Denmark that he was in Rwanda from January to July 1994, does not mean that he never left Rwanda during that period of time, especially because the relevance of his statement when applying for asylum should be analyzed and construed considering the circumstances and reasons for what was stated.

The underlying question is to determine whether this analysis of the High Court gave due value to the explanation he gave regarding his statements: a. having been in Rwanda from January to July 1994 and b. having supported the activities carried out by Interahamwe; was enough to make the judge doubt of the validity of those statements.

Regarding the fact that he stated that he was in Rwanda from January to July 1994, the Court of Appeal finds that the discrediting analysis made by the High Court confirms that the statement is not considered as an

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admission that he was in Rwanda on the 7th, the 8th and that of the 9th of April 1994, because he stated it in response to the questions he was asked in general about his asylum application, it is irrelevant for the following reasons: a. Twagirayezu Wenceslas freely admitted that he was in Rwanda from January to July 1994; which means that even when the genocide was committed against the Tutsi, he was there; b. The fact that what he stated it in the context of seeking asylum, would not be a reason to invalidate what he admitted because it shows that when he admitted it, he was not accused of anything, he has no special interest in it, which shows the quality of his statement as a testimony. He further explained before the Court about what made him say that before the Danish immigration, and he only did it in self-defense where he saw that denying that he was in Rwanda would be in his best interest; c. Concerning the fact that he was asked a question in general, and therefore he had to answer it in general, this Court finds that it is also irrelevant, because being asked a question in general would not have caused him to make a mistake, before an institution in which he was aware that making false statements (as he had another choice) would deprive him of the right to asylum; d. The analysis of the High Court is based on the fact that the defendant was not asked for specific explanations leading to the exact time when the genocide was carried out in Gisenyi, that is what would have made him not say that there was a time when he was not there, this Court also finds it irrelevant, because if this were so done, that would

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have made his testimony lose the quality of neutrality, as it would make him figure out a way to give a solution that would not

Regarding the fact that he stated that he supported the activities of Interahamwe, the Prosecution alleged that he would not have stated that if he were not with them in Rwanda. This Court finds that the High Court did not specifically determined this issue because it was examined conjunction with the testimony presented in the Danish immigration. But as is construed, this Court finds that the narrative of supporting a person or an action, does not require a person to be with a supporter, or a supporter to be at the place where the action takes place. Therefore, the Prosecution’s allegations about the narrative of supporting Interahamwe are irrelevant. 2. Concerning the fact that Twagirayezu Wenceslas did not show any travel document proving that he had crossed into Congo

The representatives of the Prosecution allege that they criticize the High Court's analysis in paragraph 49 because it is arbitrary. For example, the High Court held that the fact that Twagirayezu Wenceslas is unable to show travel documents proving that he went to Congo does not mean that he did not go there. They say that the fact that he used the student's card was not what was shown in the trial; they pray the court to examine it because in showing that he was in Congo, he only brought his relatives and friends from Congo; which is not clear why no other people from Rwanda knew that he went there and the only people who knew it were from Congo. They found that he had to show evidence that he went there, that the Court would not go by what he just said that he went through illegal routes and did not show the reason why that should be accepted.

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Twagirayezu Wenceslas and his lawyers allege that crossing a border is done in different ways, that there are people who cross without travel documents or even have them. They allege that he crossed without going through the border because their Commune is close to the border, between those two places, there is a plain they cross without having to cross the border at Gisenyi. They also explain that even when they crossed the border they only showed their identity cards; that there is no error in the Court's analysis because even the Prosecution does not point out the law that was infringed. They conclude by stating that going to Congo was part of his privacy, that he had no responsibility to say that he was going there; that there was a problem in returning on the 8th and 9/4/1994 because the genocide had started, and the border was guarded by many soldiers. DETERMINATION OF THE COURT

While explaining that Twagirayezu Wenceslas went to Congo without travel documents, it shows that he crossed the border into Congo, rather what is clear is the fact that he stated that he used to cross into Congo without having to pass by the legitimate border post. The question is whether he gave concrete evidence that should trigger the judge’s doubt that made the High Court hold that it is possible that even though there is no evidence that he crossed the border, he was in Congo when the genocide was committed in Gisenyi between 07 and 09 April 1994.

As seen in paragraph 49 of the appealed judgment, the High Court elucidated that the Prosecution's allegations according to which Twagirayezu Wenceslas does not show any travel documents thanks to which he used to cross the border into and from the DRC, or the person he saw crossing the border are not relevant, because the fact that the defendant fails to exhibit an official travel documents of how he crossed does not necessarily mean that he did not go

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to the DRC because he can even live there without them, as the defendant admits that he left the DRC and crossed into Rwanda on 9/4/1994 without passing by the border post.

The Court of Appeal finds that the reasoning of the High Court on this point is insufficient because, in general, the only evidence proving that a person has gone to another country is a travel document. The fact that a person does not have it and asserts that he/she has is not a normal situation on which the Court should rely upon to hold easily that it is possible that someone crossed the border. This Court finds that, in the absence of such evidence, the defendant using the alibi defense, must provide evidence whose standard would make the judge doubt of the Prosecution’s claims that he was in Rwanda when examined together with the evidence presented by the Prosecution. The quality of the testimonies given by the witnesses on this point is what is going to be analyzed in the following paragraphs.

3. Regarding the allegations of the Prosecution according to which the High Court did not uphold the statements of the witnesses who testified that Twagirayezu Wenceslas was in Rwanda when the genocide started.

The representatives of the Prosecution criticize the fact that in paragraph 48 of the appealed judgment, the High Court did not examine together the statements of Pastor Kaberuka Théophile before the Prosecution in 2019 and 2021 and the testimony he gave before the Court, to realize that he contradicts himself and should not be trusted. They allege that Kaberuka Théophile, when questioned by the

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Prosecution, stated that Twagirayezu Wenceslas had never been to Congo, and he had agreed to testify but later came to the court and disculpated him, then he confirmed that he had told him that he would go to Congo during the Easter holidays. They would criticize that the High Court did not say anything about these flaws, but stated on his behalf, that "he was confused about the word abroad"; that he "felt that the RDC was not part of it".

The Prosecution states that if the Court had examined together the statements of Twagirayezu Wenceslas and Kaberuka Théophile during investigation, it would have realized that he had never gone to Congo because as per the defendant’s statements, he confirmed that he left Congo and was received by Kaberuka Théophile, however the concerned person denied having receiving him, that he had not seen him even though Twagirayezu had brought him to the Court to testify that he had gone to Congo, and had accompanied him until he crossed the border. The Prosecution alleges that Kaberuka Théophile when he appeared before the court, stated that they had talked about spending holidays.

[The representatives of the Prosecution also allege that the Court's analysis in paragraph 48, regarding the statements of Nkezabera Paulin, is biased because the witness stated that two (2) days before the Genocide against the Tutsi was committed, Twagirayezu Wenceslas had come and borrowed his guitar but when genocide started, he did not see him again, that the Court mixed up those two days with the end of March, which makes it hold that there is doubt, ignoring that those two days are April 4 and 5, 1994, which shows that the genocide started when Twagirayezu Wenceslas was in Rwanda, not in Congo as he says and that Nkezabera Paulin is a well-informed person who is not likely to confuse a week and two days.

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They also allege that witness Nahimana Emmanuel, who was in charge of religion at the school where Twagirayezu Wenceslas was a teacher, who was questioned by the Prosecution, stated that from April 2 to 6, 1994 and before that in March 1994, Twagirayezu Wenceslas was there and after that until they fled, that he thought that he lived in the school because he was the Prefect of discipline because they found him and left him there and that he behaved like Nkezabera Paulin’s child. They allege that his statements show that they know each other, but in analyzing them, the High Court held that they are not to be relied upon based on the fact that he was there as he already knew where he lived, instead of showing the specific way he saw him at that time. The representatives of the Prosecution find that the analysis made by the Court is different from what Nahimana Emmanuel had stated. They also allege that they criticize the High Court for holding that his statements cannot be relied upon because there is no other evidence given before the Court corroborating them pursuant to Article 8, paragraph 2 and 3 of Law No 47/2013 of 16 June 2013 relating to transfer of cases to the Republic of Rwanda , but not because there are witnesses who committed crimes with Twagirayezu Wenceslas who testified that he was in Rwanda.

Twagirayezu Wenceslas and his lawyers allege that the Prosecution is changing the narrative contained in the interview statements of Kaberuka Théophile because they asked him if Twagirayezu Wenceslas had ever been abroad and he denied it, because in his home village, they don't consider Congo as a foreign country, they believe that if somebody goes abroad, they board a plane. They allege that there is no contradiction in his statements during the investigation and the testimony he gave before the Court, because Kaberuka Théophile stated before the Court that when he was questioned by the Prosecution, he did not understand that Congo was also part of the countries referred

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to as abroad, that is why he answered that he knew that he had gone abroad in 2000 after insecurity brought about by infiltrators. They add that the fact that he came to the Court as a witness for Twagirayezu is not the reason why he is not trusted or his testimony is doubtful, because when the Prosecution submitted a list of witnesses, Kaberuka Théophile was not on it, that there is no evidence that he had agreed to incriminate him, despite what the Prosecution states that he said that when he returned to Rwanda he did not receive him, they did not know where it came from but that they were neighbors in such a way that that he could not reach their home without dropping by.

Regarding the words of Nkezabera Paulin, Twagirayezu Wenceslas and his lawyers allege that he did not reveal the date they last met when he had borrowed his guitar, that instead he doubted and stated "like two days before the genocide". The High Court did not only limit itself to showing that he raises doubt, but also based on the provisions of Article 8 of Law No. 47/2013 of 16/6/2013 that determines the transfer of cases in the Republic of Rwanda, demonstrated that his statements cannot be relied upon because he did not testify before the court. They also state that when he was questioned, where he stated that he received him, he meant that he received him at work when he returned to the Parish because they did not close, that he was not an important person such that Nkezabera Paulin who was in Gisenyi and Kaberuka Théophile who was in Rwerere would both come to welcome him back to Rwanda on 04/09/1994. They state that on the 9th he came at night, in the morning there was a congregation on 10/04/1994, at that time he met Kaberuka Théophile because he was the Pastor, it is possible that Nkezabera Paulin did not see him because there were many people.

Twagirayezu Wenceslas and his lawyers also allege that he collaborated with Nahimana Emmanuel who was an

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accountant, but the latter did not know his daily activities because he was on vacation at the time, and the dates on which he alleged to have seen him were dubious, he did not say where he saw him, and he was not summoned as a witness to appear before the court to testify. In addition, what Nahimana Emmanuel said that he did not know where he was staying, that instead he assumed that he lived in the school because he was the Prefect in charge of discipline, that they found him in the school and left him, should not be upheld because he already knew for sure that he could not stay in the girls' school, as the boys were day scholars; that what he said shows that he did not know exactly where he lived, that he had no information about what happened at that time. DETERMINATION OF THE COURT

The debated issue is to determine whether the statements of these witnesses (Kaberuka Théophile, Nkezabera Paulin and Nahimana Emmanuel) were valid enough to make the High Court doubt of whether Twagirayezu Wenceslas was in Rwanda when the genocide took place in Gisenyi between the 7th and on July 9, 1994.

The Court of Appeals finds that, in light of the statements of Twagirayezu Wenceslas, he admitted that he was in Rwanda from January to July in the Danish immigration Service as elucidated above, and after it was found out that there were no travel documents showing that he had ever crossed border, it is necessary to analyze each statement of these witnesses, to see if there is any quality that would make the High Court doubt of the fact that Twagirayezu Wenceslas may have been in the DRC, at the time mentioned. a) Concerning the testimony of Kaberuka Théophile

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As seen in paragraph forty-eight (48) of the appealed judgment, the High Court elucidated that Kaberuka Théophile's statement in the investigation that the defendant would not go abroad on Easter holidays of 1994 because the school year starts in September and ends in June of the next year, are not considered as evidence that he did not go to DRC, because he explained before the court that the defendant had told him that he would go to spend his holidays in DRC on Easter, this shows that he was confused about the word "abroad", which did not include the DRC.

The case file shows that on 17/12/2018, before the Prosecution, Twagirayezu Wenceslas explained that among the people who know that he arrived in Rwanda on 9/4/1994 there are his mother, Pastor Kaberuka Théophile, his stepmother, Buduye, Niwenshuti Ladislas and Nkezabera Paulin.

The statement of Kaberuka Théophile dated 8/7/2019 before the Prosecution shows that he was asked if before the genocide, Twagirayezu Wenceslas had ever gone abroad or not, he replied that he did not go there, that before 1994 he was in Rwanda because at that time the school year started in September and ended in June, and went on summer holidays, that there was no way to go there before the schools closed. He continued to say that Twagirayezu Wenceslas went abroad in 2000 after the war of infiltrators, that he did not see him during the genocide, that zfter the genocide, he learnt that he had gone to Congo. And in his statement dated 23/11/2021, Kaberuka Théophile explained that Twagirayezu Wenceslas was his neighbor because between their houses, it is about ten (10) minutes’ walk, that he had not seen him since the genocide against the Tutsi started on 6/4 /1994 until the people of their area fled, that he saw him again in 2000 and told him that he was about to go abroad. He also explained that he did not receive him

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from Congo on 9/4/1994, that the last time he received him was in 1993 before the genocide against the Tutsi.

During the hearing of 22/4/2022, when asked by the High Court and the Prosecution about the Easter holidays of 1994 that Twagirayezu Wenceslas alleged to have spent in Congo, KABERUKA Théophile replied that he went to visit him at the end of the year 1993 where he was staying at Kanyarutambi near Gacuba, he told him that he would spend the Easter holidays in Congo, that since he did not see him at home at that time, he learnt that Twagirayezu Wenceslas had gone there.

Apparently, Kaberuka Théophile, in his first interrogation on 8/7/2019 before the Prosecution, confirmed that Twagirayezu Wenceslas never went abroad and began to explain: that Twagirayezu Wenceslas could not go because the school year started in September and ended in June. However, during his interrogation on 23/11/2021, Kaberuka Théophile stated that he last saw him in 1993; in those two interrogations, he also said that he never saw him during the genocide. And in the hearing of 22/4/2022, Kaberuka Théophile explained that he went to visit him at the end of 1993 where he was staying at Kanyarutambi near Gacuba, and told him that he would spend the Easter holidays in Congo, that since he did not see him at home at that time, he learnt that he had gone there. In addition to what Twagirayezu Wenceslas stated that Kaberuka Théophile is among the persons who know that he returned to Rwanda on 09/04/1994 from Congo, in the statement dated 23/11/2021 Kaberuka Théophile denied it.

This Court finds that Kaberuka Théophile's testimony shows that he did not meet Twagirayezu Wenceslas since a long time and the information he imparted about him as to whether he ever left Rwanda during the genocide, is so arbitrary that it should not trigger

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the High Court’s doubt of whether Twagirayezu Wenceslas was in Rwanda compared to the fact that he admitted that he was in Rwanda from January to July 1994, and he did not show documents showing that he crossed the border. b) Concerning the testimony of Nkezabera Paulin

Regarding Nkezabera Paulin, in his statement dated 21/6/2020 before the Prosecution, he explained that Twagirayezu Wenceslas borrowed his guitar about two days before the genocide against the Tutsi started, and they never met again. When asked if the defendant was there at the school when the genocide against the Tutsi took place, he replied that before it happened, he used to live there because he used to come to Nkezabera Paulin’s homeplace, that he came to get the guitar just slightly before the genocide started, he was there at the school.

The High Court elucidated that this statement of his cannot be relied upon to hold that the defendant was in Rwanda because it is doubtful, especially that two (2) days before the genocide he stated that the defendant came to borrow his guitar, very close to the end of March 1994, the date on which the defendant alleges to have left Rwanda. It also elucidated that apart from the fact that Nkezabera Paulin's statement is irrelevant, and cannot be relied upon as long as it is not corroborated with the testimony given before the court, as provided for by Article 8, Paragraph Two (2) and Three (3), of the Law No 47/2013 of 16 June 2013 Relating to transfer of cases to the Republic of Rwanda15.

15 Article 8, Paragraph Two (2) and Three (3), of the Law No 47/2013 of 16 June 2013 Relating to transfer of cases to the Republic of Rwanda provides that the High Court cannot convict a person solely on the basis of written testimony given previously by witnesses who did not testify at the trial. However, the High Court may prosecute an offence based on the value of such written evidence where such evidence is further substantiated.

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This Court finds that, when the High Court found that the statement of Nkezabera Paulin cannot be relied upon as testimony because it was not made before the Court and is not corroborated with other evidence, it is not necessary to analyze its quality to interpret his statement to make it possible that Twagirayezu Wenceslas might have left the country. It also finds that the Prosecution's criticism of the statements analysis of this witness is groundless because that is not an issue. c) In respect of the testimony given by Nahimana Emmanuel

In his statement dated 15/7/2020 before the Prosecution, Nahimana Emmanuel explained that before the genocide against the Tutsis, around the dates 2, 3, 4, 5, 6/4/1994, and before that on Wednesday, before the genocide, Twagirayezu Wenceslas was there working at Collège Baptiste Gacuba II, that even during the genocide he was there until people fled, that President Habyarimana Juvénal's plane crashed on 6/4/1994 he was in Gisenyi and Twagirayezu Wenceslas was there at the school because he behaved like Nkezabera Paulin’s son. When asked how he saw him and where he was, Nahimana Emmanuel replied that he was there because he lived at Collège Baptiste Gacuba II.

In paragraph forty-eight (48) of the appealed judgment, the High Court elucidated that what Nahimana Emmanuel stated that around the dates from April 2 to 6, 1994 and before that, March 1994, the defendant was there, that he also looked like a child of Nkezabera Paulin, cannot be relied upon because he only confirmed it based on the fact that he already knew where he lived, instead of showing the specific way he saw him at that time. It also elucidated that apart from the fact that it is unfounded, it cannot be

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relied upon in this case because it is not corroborated with the testimony given before the Court.

This Court finds, concerning this testimony of Nahimana Emmanuel, when the High Court had already found that his statement cannot be relied upon as testimony because it was stated before the Court and is not corroborated with other evidence as provided for by Article 8, paragraph two (2 ) and the third (3), of the Law No 47/2013 of 16 June 2013 Relating to transfer of cases to the Republic of Rwanda, it was not necessary to analyze its quality in order to interpret his statements to mean that Twagirayezu Wenceslas might have left the country at that time. It also finds that the Prosecution's criticism of the analysis of the statements of this witness is irrelevant because that is not the issue.

In short, this court finds that the High Court did not take notice of the statements of the witnesses who testified that the genocide started when Twagirayezu Wenceslas was in Rwanda, because as explained in the previous paragraphs, the testimony of Kaberuka Théophile shows that he did not meet Twagirayezu Wenceslas since a long time such that he would have something that can make the Court doubt of the fact that Twagirayezu Wenceslas was not probably in Rwanda when the crimes he is accused of were committed. And the testimony of Nkezabera Paulin and Nahimana Emmanuel should not have any benefit in relation to the debate aimed at finding out whether Twagirayezu Wenceslas was in Rwanda, because their testimony was not presented before the court or corroborated with any other evidence as the High Court found it. A.3. Regarding the value of the documents presented by the defendant as alibi evidence.

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The Prosecution criticizes the fact that the High Court has given undue importance to the alibi defense based on the document called pétition et témoignages, pour l'innocence de Mr. Wenceslas Twagirayezu and another so- called décharge. 1. Concerning the document titled petition

The Prosecution alleges that the document titled pétition et témoignages, pour l’innocence de Mr. Wenceslas Twagirayezu should not be validated as evidence in the trial and what the witnesses stated is contradictory in such a way that it should not be relied upon to conclude that Twagirayezu Wenceslas might not have been in Rwanda when the crimes he is being prosecuted for were committed.

a. The fact that the petition should not have been validated as evidence in the trial

The representatives of the Prosecution allege that in paragraph 50 of the appealed case, the High Court gave value to the document called pétition et témoignages, pour l'innocence de Mr. Wenceslas Twagirayezu, and did not elaborate on the flaws they pointed out that made it not to be relied on as evidence, including the fact that the document is a fictional opinion written by one person, namely Pastor Senzoga Bihuri Patrick Ndeze, signed by others; because there are those who have not signed it and who have attested to what they do not know. This shows that it was only intended to protect him and to pressurize the Danish justice system, so regardless of who did it, where it was made and the information it contains, it should not be accepted.

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Regarding the fact that the document was written by the same person, the representatives of the Prosecution allege that it was written by Pastor Senzoga Bihuri Patrick Ndeze, signed by friends of Twagirayezu Wenceslas who live in DRC, the information contained in it has not been written or prepared by those named as they demonstrated it when they appeared before the Court. They also allege that those who signed the petition played no part in its preparation, that they were not present, and that they did not even know what it contained. They allege that they were called upon, asked to sign and some admitted that they signed without reading its content.

The representatives of the Prosecution allege that witnesses such as Madingo Ndabundu Ignace and Lukando Manu alias Pasteur Dusabe signed when it was brought by Kikwindi Kimende Stanislas to confirm that Twagirayezu Wenceslas did not commit genocide, they signed without being aware of its contents; that Bakali Murefu Innocent stated that he was called upon by Pastor Senzoga Bihuri Patrick Ndeze and asked him to sign it and told him that his testimony might be useful, while Maombi Muromba Estella stated that Pastor Manirafasha of CBCA brought her a paper to sign but did not know its content; that is what happened to many others who signed it.

The representatives of the Prosecution also allege that the fact that the document contains the names of thirty- one (31) people, including 5 who have not signed it, and whose identity cards and telephone numbers were not mentioned on that document, shows that even those who prepared it have not been able to reach them to make them sign it.

Regarding the flaws shown by the representatives of the Prosecution, Twagirayezu Wenceslas and his lawyers allege that the petition is an idea of one person who asks

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others to accept it, that they might have been present or not during its preparation, and were only asked to sign it, that what is important is that they agreed to the idea expressed in it. Regarding this case, they say that it would have been a problem if the witnesses who signed the petition came before the Court and denied that they were the ones who signed it or showed that they did not see him between 6 and 9/4/1994, so they signed it because they had any information about Twagirayezu Wenceslas, they admit that they saw him at least on some of those dates. DETERMINATION OF THE COURT

The debated issue is to determine whether the High Court ignored the flaws in the document titled petition, which the Prosecution claims to have shown before the Court, which were likely to invalidate it as evidence, this error was made by that Court and led to the confirmation of the relevance of the alibi defense.

As per the document dated 5/31/2018, whose subject was: ‘’pétition et témoignage pour l’innocence de Mr. Wenceslas Twagirayezu’’, was signed by different people, who wrote to the Minister of Justice of the Kingdom of Denmark, those people explain that they are going to give him information about Twagirayezu Wenceslas showing that he has not involved in what he is accused of. They generally describe his life from 1982 to 2000, but they highlight what he did from the end of March 1994 to 9/4/1994, the day on which he is alleged to have returned to Rwanda. According to this document, they request the Minister of Justice of Denmark to come and investigate at their homes where Twagirayezu Wenceslas was, during the Easter holidays of 1994, when the killings started in Rwanda. Attached to that document is a list of thirty-one (31) people who believe that at that time, they saw Twagirayezu Wenceslas at their homes in Congo.

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Particularly, regarding this case, as per that document, they allege that Twagirayezu Wenceslas arrived in Congo at the end of March 1994 during the Easter holidays, he arrived at Luhanga and came to the evangelical congregation (campagne d' evangelization), at the end, on 6/4/1994, Nikuze and Maombi Muromba accompanied him to Bweru-Muhongozi where he spent the night at Chapelle CBK Muhongozi. On 7/4/1994, with the help of Bokalos, he found a car, and continued heading to Goma, where he spent the night at CBK Virunga. On 8/4/1994, Twagirayezu Wenceslas went to Kibati, where he met Kikwindi Kimende Stanislas who gave him the money to send to Pastor Senzoga Bihuri Patrick Ndeze and went back to Goma. On 9/4/1994, after realizing that returning to Rwanda through Petite Barrière was tricky, he went to Kibati, in the evening Bahati and Madingo Ndabundu Ignace escorted him to Cyabwato, he continued in Rwanda to Gabiro Village until he arrived at his home Gacurabwenge-Rubikiro.

During hearing of 19/4/2022 before the High Court, regarding the petition, Witness Maombi Nyiraromba Estella, a.k.a Muromba, explained before the Court that Pastor Manirafasha was the one who brought him a list of people who confirmed that Twagirayezu Wenceslas was in the Congo on the mentioned dates in the petition, that after being asked if he was with Twagirayezu Wenceslas on the dates 3, 4, 5 and 6/4/1994, he confirmed that they were together, signed the list, and agreed that he would testify before the court.

Again during that hearing, the witness Madingo Ndabundu Ignace explained that after they heard that Twagirayezu Wenceslas was imprisoned because he was accused of committing genocide, they signed the list because they knew that he had been at their homes, and he had been there for a long time, that he himself signed

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because he confirmed that at that he had spent at their homes.

During the hearing of 20/4/2022, Witness Lukando Manu explained that the elder Kikwindi Kimende Stanislas was the one who brought him the document, explaining to him the general situation, that Twagirayezu Wenceslas was imprisoned for the genocide against the Tutsi, that because he knew that he last met him on 9/4/1994, he signed the document.

In paragraph fifty (50) of the appealed judgment, the High Court elucidated that the fact that Pastor Senzoga Bihuri Patrick Ndeze was the one who signed the document called petition, is not a defect that would make it not be considered as evidence in this case because among the signatories who were questioned before the Court, they all agreed that they signed it knowing that it was intended to disculpate the defendant; as for those who did not sign it, Pastor Senzoga Bihuri Patrick Ndeze clearly explained that it was not because they did not approve of its content, but because they were not available.

The analysis carried out by the High Court means that the fact that some of the signatories of the document were heard as witnesses before the Court, all of them accepted their signatures, and they also admitted that they knew that it was intended to disculpate the defendant and the fact that others appeared in it were unable to sign it because they were not available, the defects raised by the Prosecution did not detract it as evidence.

The Court of Appeal finds that the Prosecution requests it to invalidate as evidence the petition referred to in this case because it is a document written by one person, asking others to sign it without knowing its content and the

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fact that some of the persons mentioned in it did not sign it, that is five (5) persons out of thirty-one (31) persons.

The Court of Appeal finds that a document called petition cannot be invalidated as evidence on the grounds that it was written by only one person, asking others to sign it, because by its very nature, it is a document drafted by one or more people, and who go for other persons to sign it because they agree on its content, requesting a certain authority to do or approve something16. What is important is that its content is interpreted before the court by those who wrote as stipulated by Article 8, paragraph two, of Law No 47/2013 of 16 June 2013 Relating to transfer of cases to the Republic of Rwanda.

As for the fact that there are those persons mentioned in the document who did not sign it, namely Masika Walire, Kambale Mangolopa, Muhindo Kangero, Rev. Ndakirande Ndayizimye and Kaneza Bitwayiki, the Court of Appeal finds that this is not an issue because the signatories are responsible for its content and are the ones who must confirm it before the Court; and for those who did not sign it, it means that they have nothing to do with the document and they are not libale for it.

Regarding the statement by the Prosecution that the petition is not admissible as evidence because witnesses such as Maombi Nyiraromba Estella, Madingo Ndabundu Ignace and Lukando Manu, signed it without knowing its content, the Court of Appeal finds that their allegations are irrelevant, because, as mentioned above, those witnesses clearly explained before the High Court that after explaining to them that Twagirayezu Wenceslas was

16 More especially, request addressed by an individual or a group of individuals to a public authority, requesting it to exercise his powers in such a way(….), Association Henri Capitant, Vocabulaire juridique, 6e édition, Presses Universitaires de France, Paris, 1996, P. 612.

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imprisoned because he was accused of genocide against the Tutsi in April 1994, they signed the document and testified that they were with him at that time, which means that they knew exactly its content. It also finds that the High Court explained it in paragraph fifty (50) of the appealed judgment, but the Prosecution referred back to their previous allegations at the first instance, without showing any error made by that Court in its interpretation.

In summary, the Court of Appeal finds that the document dated 31/5/2018 referred to as petition in this case, itself cannot be considered as reliable evidence in the case confirming that the accused was in Congo when the acts he is accused of were committed, because such a document is admissible as testimony before the court if the owners who wrote it turned up to testify about it before the court. Therefore, the fact that the High Court used it and summoned those who wrote it to explain its content as seen in paragraph fifty (50) of the appealed judgment, is not a mistake in itself, but what needs to be checked is the quality given to the statements of those witnesses. b. The fact that the witnesses mentioned false kinships with Twagirayezu on the document referred to as petition

The representatives of the Prosecution also allege that before the court, the defense witnesses showed that they have no kinships with Twagirayezu Wenceslas, while in the petition they asserted that they have different kinships. They allege that the witnesses Bakari Murefu Innocent and Lukando Manu alias Pasteur Dusabe testified that that they have no kinships with Twagirayezu Wenceslas, yet in the petition each of them proved that they are his cousins. They criticize the fact that the High Court, in paragraph fifty-one (51) of the appealed judgment, held that the fact that the witnesses who signed the petition came to the Court and

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denied the relationship between them and the defendant is not a flaw that would detract the document as evidence in the trial. They find that it is not true, because the petition is an official document that cannot be written with untruths. They argue that the Court should rather have found that this invalidated the document.

Regarding the witnesses Bakari Murefu Innocent and Lukando Manu who appeared before the High Court and denied their kinships with the accused and in the petition they had shown that they had kinships, Twagirayezu Wenceslas and his lawyers alleged that they agree with the interpretation of the High Court that "the fact that the witnesses denied these kinships are not an issue that would detract their testimony", especially since even now, the Prosecution does not reveal the flaw in the law. DETERMINATION OF THE COURT

In paragraph fifty-one (51) of the appealed judgment, the High Court elucidated that the fact that the signatories of this document heard before the court denied the kinships appearing in this document between themselves and the defendant, should not be considered as a law that would invalidate this document as evidence in this case, because they explained that depending on their culture a person is called a friend or neighbor, father or cousin based on how they interact and respect each other, that is why as per the document referred to as " décharge " that Twagirayezu Wenceslas wrote alleging that that he was sent by his father Pastor Senzoga Bihuri Patrick Ndeze, yet the latter is not his biological father.

The Court of Appeal finds that the fact that the witnesses Bakari Murefu Innocent and Lukando Manu told the Court that they have no kinships with Twagirayezu Wenceslas, however in the document dated 31/5/2018

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(petition) they wrote to the Ministry of Justice of Denmark, each revealing that he or she is the defendant’s cousin, which make the truth of their testimony questionable. Concerning the holding of the High Court that it is common to use expressions that give people respect based on kinships, this Court finds it irrelevant because the document intended for use by a national institution (official document) cannot contain anything and its author knows exactly who it is intended for and what its purpose is.

c. The fact that the witnesses’ statements before the Court are different from their attestations in the petition  Submissions of the Prosecution

The representatives of the Prosecution criticize the High Court for validating the testimony of the people who signed the "petition" yet it appears that what they stated is contrary to what the signatories believe that they know what Twagirayezu Wenceslas did from the 6th to the 9/4/1994 and they were not they were together. They explain as follows: - Before the the High Court, Pastor Senzoga Bihuri Patrick Ndeze stated that he had received Twagirayezu Wenceslas on 1/4/1994, they had departed from eacher other on 6/4/1994 when he returned to Rwanda, that since then they met again two (2) years later. That is contrary to what he attested in the petition because he says that the defendant reached him at the end of March 1994, and he knows what he did up to 9/4/1994.

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- Mvunabandi Kagabo, before the High Court, stated that he had last met Twagirayezu Wenceslas on 7/4/1994 in the morning when they were in Luhanga, and that after he did not get any information about him again. This is different from what is written in the petition that Twagirayezu Wenceslas left Luhanga on 6/4/1994, and he signed that he knew about it until 9/4/1994. - Before the High Court, Maombi Mulomba Estella testified that she had accompanied Twagirayezu Wenceslas when he left Luhanga for a congregation held on 6/4/1994, and brought him to Bweru, that since they departed from each other he has not heard from him again, but in the petition she signed and attested that on 6, 7 and 8/4/1994, she also saw him in Congo. - For these two witnesses, the representatives of the Prosecution added that the analysis made by the Court in paragraph forty-seven (47) of the appealed judgment is contrary to the reality of the facts, because it showed that what Mvunabandi Kagabo says that he had last met Twagirayezu Wenceslas on date 7/4/1994 when they were at Luhanga should not be relied upon, however, it validates the statements of Maombi Mulomba Estella who testified that she accompanied Twagirayezu Wenceslas on 6/4/1994, without relying upon anything. - Madingo Ndabundu Ignace, before the High Court, testified that he had last seen Twagirayezu Wenceslas was on 9/4/1994 in Congo, they went through Kibati, Cyabwato and came to Rwanda, that he did not see him elsewhere except before the court, however as per the petition signed, he confirmed that on 6th, 7th and 8/4/1994, he did not see him in Congo. - Witness Bakali Murefu Innocent testifying before the court confirmed that he had seen Twagirayezu

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Wenceslas coming to collect the money belonging to Pastor Senzoga Bihuri Patrick Ndeze at Kikwindi Kimende Ladislas’ home on 8/4/1994, but in the petition he signed he confirmed that he had also seen him on the 6th, 7th and 9/4/1994. - Witness Lukando Manu before the court testified that that he had been with Twagirayezu Wenceslas on 9/4/1994, that he reached him where he lived on the border to Rwanda when the defendant was coming to Rwanda, but he also confirmed in the petition that he had seen him on the 6th, 7th and 8/4/1994.

The representatives of the Prosecution also say that their other criticism is that the High Court did not establish anything about the fact that some of the witnesses contradicted what Twagirayezu Wenceslas brought them for before the court and testified as follows: - Twagirayezu Wenceslas wanted Madingo Ndabundu Ignatius17 to come before the court to testify that on 8/4/1994 they were with Kikwindi Kimende Stanislas in Congo when he took three hundred (300) zaires. However, Madingo Ndabundu Ignace denied it before the court, because he stated that Twagirayezu Wenceslas had reached him on 9/4/1994 where he was working at the local administrative entity at Kibati. Another thing he stated before the Court is that after Twagirayezu Wenceslas was imprisoned, it was Kikwindi Kimende Stanislas who showed him the acknolwledgment letter that he had done for him, and it was he who brought him the petition to sign while Twagirayezu Wenceslas wanted to convince the Court that

17 Hearing report dated 19/4/2022

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they were together on 8/4/1994 by signing the acknolwledgment letter. - Twagirayezu Wenceslas wanted Witness Bakali Murefu Innocent to testify that when he made the acknowledgment letter of 300 zaires destined for Kikwindi Kimende Stanislas, the defendant was with him. Bakali Murefu Innocent did not state this when he appeared before the Court, but he stated that on 8/4/1994 he had seen Twagirayezu Wenceslas going to Kikwindi Kimende Stanislas’ home to take money belonging to Pastor Senzoga Bihuri Patrick Ndeze.

The representatives of the Prosecution also allege that they pointed out that the testimony of Lukando Manu alias Pasteur Dusabe, who is one of the signatories of the petition, should not be relied upon, but the High Court ignored it. They explain that what Lukando Manu alias Pasteur Dusabe stated that on 9/4/1994, Twagirayezu Wenceslas had reached him around 3:00 or 4:00 where he lived and stated that it was near the border, there were no other houses around him; he accompanied him alone for one hour to the border, while there is another witness named Nirere Ndimukaga Jacqueline who also testified that she has the last house at the border, saying that on 9/4/1994 she accompanied Twagirayezu Wenceslas alone to Rwanda. They explain that it is not clear how they both accompanied him at the same time to the same place but did not see each other.

The representatives of the Prosecution allege that Twagirayezu Wenceslas brought Musuba'o Mangalopa before the Court to confirm that on 31/3/94 he went to Luhanga and spent the night in Goma with Kanyere, the grandmother of Musuba'o Mangalopa, that on 9/ 4/1994, he returned with the Mangalopa from Kisangani, but the High Court did not examine it to establish that Twagirayezu

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Wenceslas’ statements are unfounded. They explain that as follows: - Witness Musuba'o Mangalopa states that he knows Twagirayezu Wenceslas well, but he says that, although he does not remember clearly, on 31/3/1994 he was in Goma, that he was staying at his grandmother Kanyere. The representatives of the Prosecution allege that what this witness states shows that what Twagirayezu Wenceslas says is not true because he says that he was received by Pastor Senzoga Bihuri Patrick Ndeze on 1/4/1994 in Luhanga; which is impossible for him to go from Goma to Luhanga in one day because it is a 3-day journey from Luhanga to Goma. - - Witness Musuba'o Mangalopa also says that on the 5th or 6/4/1994 he left Twagirayezu Wenceslas in Goma on his way to Kisangani, but Twagirayezu Wenceslas in his statement before Rwanda Investigation Bureau on 17/12/2018 stated that on 6/4/1994 he was in Luhanga. The representatives of the Prosecution allege that that this is also impossible. - Again, Witness Musuba'o Mangalopa stated that he had been with Twagirayezu Wenceslas on 8 and 9/4/1994 in Goma and he was in Kisangani while there was a 3-day journey from there to Goma. This shows that what he says that they were together in Goma on those dates is impossible, because he could not have left Kisangani and returned to Goma. Defense submissions of Twagirayezu Wenceslas

Twagirayezu Wenceslas and his lawyers allege that in the testimony of Senzoga Bihuri Patrick Ndeze testified that he had welcomed him that he had received him in Luhanga on 1/4/1994, but as per the petition, he arrived at

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the end of March 1994, which casts no contradiction, because it is the time when he started his holidays, and from Goma to Luhanga it is not a day's journey. They also allege that what the representatives of the Prosecution stated that he had signed a petition confirming that he knows what he did on 7, 8 and 9/4/1994 is not true, because in his testimony, Senzoga Bihuri Patrick Ndeze did not confirm that he saw him on those dates, nstead, he signed confirming that he saw him when he arrived at Luhanga and when they departed from each other on 6/4/1994. As to what happened after that date, he was the one who told him when he returned to Congo after two (2) years, and told him all the information about the trip he made since they separated on 6/4/1994 until he returned to Rwanda.

Twagirayezu Wenceslas and his lawyers continue stating that Witness Mvunabandi Kagabo also does not contradict himself, because, as he explained in his testimony, on 6/4/1994 at 6:00 p.m. they met at Luhanga, and they met again in Muhongozi in the morning of on 7/4/1994 they learnt that President Habyarimana Juvénal's plane had crashed, that he signed the petition with the intent to confirm that, and the fact that it comprises other dates of 8 and 9/04/1994, was due to the fact that the petition it had to be signed by a group of people who confirmed that they had seen him in Congo from 06 to 09/04/1994.

Regarding Maombi Mulomba Estella's testimony, Twagirayezu Wenceslas and his lawyers allege that it does not contradict the content of the petition she signed, because, as he explained, after the evangelical congregation was dismissed on 6/4/1994, upon the request of Pastor Senzoga, he accompanied him when they left Luhanga, brought him to Bweru, and she signed based on the information she knew when they left Congo, but what the Prosecution states that she also signed for the events that

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occurred on the dates of April 7, 8, and 9, 1994, which is not true.

Twagirayezu Wenceslas and his lawyers explain that the testimony of Mvunabandi Kagabo does not contradict that of Maombi Mulomba Estella, because it is the latter who accompanied him from Luhanga on 6/4/1994 to Bweru, after departing from eacher other, he continued her journey and spent the night at Muhongozi, as a throughfare to Kitchanga, that it is at Muhongozi where in the morning of 7/4/1994 he met Mvunabandi Kagabo who was going to market. They allege that in paragraph 47 of the appealed judgment it is written that Twagirayezu Wenceslas met Mvunabandi Kagabo at Luhanga on the 6th and 7/4/1994 which is a misunderstanding of places and their names but also Muhongozi is located at Luhanga. They add that they find that the Court would not detract the testimony of Mvunabandi Kagabo, because what he says does not change the truth that on 6 and 7/4/1994 he was in Congo.

Twagirayezu Wenceslas and his lawyers allege that Madingo Ndabundu Ignace and Lukando Manu signed the petition to confirm only that on 9/4/1994 they met Twagirayezu Wenceslas when he was in Congo.

Regarding the issue of dates raised by the Prosecution, Twagirayezu Wenceslas and his lawyers concluded saying that the fact that the witnesses came to the Court and said that they saw him one day between 06 and 9/4/1994, does not show that they contracted the content of the petition, that it would have been a problem if they had appeared before the Court and denied that they signed or showed that they never saw him in Congo at that time. They also explained that the reason why they signed was because they had information about him, and they admitted that one of those dates they saw him. They added that, as seen in the petition, they asked the Danish Administration that if they

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were not satisfied with the contents of the document, they would conduct an investigation and that they had indeed come to Rwanda to do so. This means that the content of the petition is not fabricated opinions as per the allegations of the representatives of the Prosection.

Regarding the allegations by the representatives of the Prosecution that Madingo Ndabundu Ignace and Bakari Murefu Innocent did not say what they were brought for before Court; concerning Madingo Ndabundu Ignace, Twagirayezu Wenceslas and his lawyers say that they never said that they brought him to confirm that they were with Kikwindi Kimende Stanislas when he gave him the money of Pastor Senzoga Bihuri Patrick Ndeze on 8/4/1994, that instead they wanted him to confirm that on that date he only passed by him and that on 9/4/1994 he accompanied him back to Rwanda. They also allege that there is no statement made by Twagirayezu Wenceslas that he stated that when he wrote an acknowledgment letter, he was with Madingo Ndabundu Ignace, but this witness testified that he knew that he did what Kikwindi Kimende Stanislas told him, and he showed it to him. They add that they pointed out to the High Court the errors that appear in minutes of the hearing regarding the testimony of Madingo Ndabundu Ignace, and they requested that it be corrected, but the Court tells them that they are minor errors.

Regarding the flaw raised by the Prosecution regarding the testimony of Lukando Manu comparing it with that of Nirere Ndimukaga Jacqueline regarding the fact of accompanying her to the border, Twagirayezu Wenceslas and her lawyers say that it is baseless, because on 9/4/1994, Twagirayezu Wenceslas first arrived at Lukando Manu's house, they talked for about an hour, he escorted him past the gate, he took him near Nirere Ndimukaga Jacqueline's neighborhood and he was the one who escorted him to Kibaya. They add that Lukando Manu did not say that he

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brought him to Kibaya, but he prevented him from returning to Rwanda, and when questioned, he showed that he knew him because he used to see him passing through the valley, and said that he agreed to sign the petition because he knew him and knew that wherever he was questioned, he would testify. Regarding the time Lukando Manu and Nirere Ndimukaga Jacqueline accompanied him, Twagirayezu Wenceslas says that he doesn't remember well but it was in the afternoon, that the hour Nirere Ndimukaga Jacqueline mentioned was wrong.

Twagirayezu Wenceslas and his lawyers allege that the fact that the High Court did not rely on the testimony of Musuba'o Mangalopa means that it is not obliged to rely on all the testimony given. They add that the witness was presented as someone who would give information about how they lived at his grandmother's house, but the dates he mentioned were wrong, because he kept doubting that it was evident that he had no knowledge of what he was talking about, especially since it was his grandmother who had told him that he had passed by, except that even while testifying he could not repress his emotions. DETERMINATION OF THE COURT

The debated issue is to determine whether whether the Supreme Court made an error in not realizing that the signatories of the document dated 31/5/2018, admit that they saw Twagirayezu Wenceslas every day from the end of the third month to 9/4 /1994, however, some of those who testified before the Court changed their minds and stated that they had seen him on a certain day. Another thing is to find out whether the fact that some of the witnesses mentioned false kinships on the document referred to as the petition has any effect on the quality of their testimony and to determine whether the High Court ignored the contradictions and flaws shown in the statements of the witnesses, and between

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what was stated by the defendant and some of the witnesses, which would have led the High Court to realize that the content of the document dated 31/5/2018 has no quality that would cast doubt on the confirmation that Twagirayezu Wenceslas was in Congo when the crimes he is prosecuted for were committed.

a. In respect of the fact that the witnesses confirmed certain dates when the document they signed asserts that they knew that Twagirayezu Wenceslas was in Congo from April 6 to 9, 1994

One of the characteristics of a "petition" document is that it is written by one person or a group of people, with the intent to explain or support a certain idea for a certain institution, and then other people are asked to sign it. It is obvious that not all signatories agree with each of its contents to the same extent as those who write it. In this way, everyone has something that he wants to confirm in particular in that general opinion; This is what he can stand up for and explain when asked why he signed it. That is why the summons to the Court is a way to give him or her the opportunity to clearly explain what he wanted to say in the document he or she signed. This is what allows every person can provide explanations that vary from person to person.

According to the document dated 31/5/2018 called "petition and testimony for the innocence of Mr. Wenceslas Twagirayezu'', signed by different people, writing to the Minister of Justice of the Kingdom of Denmark, it appears that the signatories intended to give testimony (information) they have about Twagirayezu Wenceslas that shows that he is innocent. Regarding the dates on which he is suspected of having committed the crimes he is accused of, it shows that

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they believe that Twagirayezu Wenceslas arrived in Luhanga in Congo in the end of March, 1994, that on 6/4/1994 he went to Bweru-Muhongozi, on 7/4/1994 he went on to Goma, on 8/4/1994 he went to Kibati, and returned to Goma where he spent the night. It also shows that they confirmed that on 9/4/1994 he returned to Kibati, passed through Cyabwato, and crossed into Rwanda.

In paragraph forty-four (44) and forty-six (46) of the appealed judgment, the High Court explained that some of the petitioners agreed to the Court that they had signed it and confirmed what they knew about Twagirayezu Wenceslas, as they met him. and the day it happened and what they talked about. By explaining it like that, the High Court wanted to clarify that those who signed the document, did so without wanting to say or show that at that time they saw him every day from the end of the third month to 9/4/1994. In these paragraphs, the Court explained that the statements of the witnesses (Pasteur Senzoga Bihuri Patrick Ndeze, Maombi Malomba Estella, Bakari Murefu Innocent, Nirere Ndimukaga Jacqueline, Madingo Ndabundu Ignace, Lukando Manu) which confirm when Twagirayezu Wenceslas was with them in the RDC between the dates 6 and 9 April 1994.

The Court of Appeal finds that the High Court did not err in understanding what each person wanted to explain in the document. In the following paragraphs, the quality of each person's explanation will be examined in order to see if it was at a level that would make the judge doubt of the Prosecution’s allegations that Twagirayezu Wenceslas was in Rwanda when the crimes against him were committed. 2. Regarding the quality of the testimony of those who believe that they were with Twagirayezu Wenceslas in Congo.

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While analyzing the quality of what the witnesses stated about the movements of Twagirayezu Wenceslas in Congo from the end of March to April 9, 1994, the Court of Appeal takes into account what was stated on each date from when he went to Congo until he returned to Rwanda. On 31/3/1994, as he told the High Court18, Witness Musuba'o Luc Mangalopa, even though he stated that he does not remember well, on that date Twagirayezu Wenceslas met him in Goma at his grandmother Kanyere’s home, when the defendant had just come from Rwanda. However, Pastor Senzoga Bihuri Patrick Ndeze and Maombi Mulomba Estella19 stated that from 1/4/1994 to 06/04/1994 they were with Twagirayezu Wenceslas in Luhanga20. But Musuba'o Luc Mangalopa stated that on the 5th or 6th of April 1994, he headed to Kisangani through Butembo and left the defendant in Goma at his grandmother's home, then when he returned, he met him again in Goma on 8/4/1994 at his grandmother's home on his way from Masisi to Rwanda. During the hearing of the case before the High Court, Witness Mvunabandi Kagabo stated that on 6/4/1994 he was with Twagirayezu Wenceslas in Luhanga at 06:00 P.M, and they met again on 7/4/1994 in the morning at 06:30 A.M, when they learnt from the radio that President Habyarimana Juvénal's plane had crashed. The fact that they were together on those dates was confirmed by the lawyer of Twagirayezu Wenceslas when he explained why he was brought as a witness in the trial21. Witness Maombi Mulomba Estella says that Twagirayezu Wenceslas left Luhanga on 6/4/1994, that she accompanied him along with someone named

18 See the hearing report dated 21/4/2022. 19 MAOMBI MULOMBA Estella stated that they were together on 03/4/1994 after church service. 20 See hearing report dated 19/4/2022. 21 See hearing report dated 19/4/2022.

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Nikuze to Bweru where he could get a car to take him to Kitchanga, upon the request of Pastor Senzoga Bihuri Patrick Ndeze. On 08/04/1994, as he told the High Court, Witness Bakali Mulefu Innocent22 restified that on that date around 11:00 A.M, he saw Twagirayezu Wenceslas going to Kikwindi Kimende Stanislas to collect the money for the trees that Pastor Senzoga Bihuri Patrick Ndeze had sold, and wrote "an acknowledgment letter". This Court reminds that Musuba'o Luc Mangalopa stated that on that date he met him in Goma while the witness was on his way from Kisangani. On 09/04/1994, as he stated it before the High Court, Witness Madingo Ndabundu Ignace said that he met Twagirayezu Wenceslas on that date at around 9:00 A.M when he met him at the local administration headquarters referred to as groupement, and told him that he wanted to cross through Kibati, and he directed him to Cyabwato, Twagirayezu Wenceslas continued his journey. Witness Lukando Manu also confirmed that on that date he met Twagirayezu Wenceslas in the evening around 3:00 p.m. or 4:00 p.m. from Goma-Cyabwato, that they spent about an hour, and he told him that he was going to Rwanda to see his mother, and crossed Kinyanja. Witness Nirere Ndimukaga Jacqueline also told the High Court that she was with Twagirayezu Wenceslas on 9/4/1994 at Kinyanja, and explained that the defendant reached her at home at around 8:00 A.M from Cyabwato, and talked for about thirty (30) minutes and she accompanied him for about two (2) hours, but she did not reach the farthest border, she did a U-turn, and he continued his journey to Rwanda. As per paragraph 44 of the appealed judgment, the High Court analyzed the testimony of all these witnesses but

22 The document titled petition shows that Bakali Murefu lives at Kibati, 8 kms away from Goma.

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did not say anything about the testimony of Musuba'o Luc Mangalopa to show why it did not say anything about him, yet as it appears his testimony contradicts others, especially about where Twagirayezu Wenceslas was when he was in Congo, Goma or Luhanga. What the Prosecution saw as a serious flaw, while Twagirayezu Wenceslas found that the Court did not pay attention to what he stated, that he seemed to have a problem in explaining what he stated, and that the Court is not obliged to rely on the statements of all the witnesses. The Court finds that the Court is not obliged to show every time why it does not rely on a given testimony. But when it appears that a certain testimony clearly contradicts that of others, the Court should have something to say about it. The fact that she did not say anything about it is a serious flaw as it makes her decision seem one-sided. This Court finds, however, that the witnesses disagree on the dates and times is a small flaw that does not make the testimony lose its quality, considering the time elapsed since what they testify about had happened. 3. Regarding the acknowledgment receipt The representatives of the Prosecution criticized the fact that in paragraph fifty-two(52) and fifty-three (53) of the appealed case, the High Court relied on a document called a acknowledgment receipt, confirming that it is a proof showing that Twagirayezu Wenceslas was in Congo when that document was written. They argue that this is wrong for the following reasons: - it is not clear why Twagirayezu Wenceslas would have given Kikwindi Kimende Stanislas an acknowledgment receipt when he received the money intended for Pastor Senzoga Bihuri Patrick Ndeze, but he did not receive any acknowledgment

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receipt from Muhindo Kandiro to give the money to Pastor Senzoga Bihuri Patrick Ndeze; - the witnesses who spoke about the acknowledgment receipt, the Prosecution had shown that they are not reliable witnesses based on their statements full of contradictions regarding their interpretations of what they wrote in the petition, but the court ignored it and validated it; - the fact that the forensic expertise conducted about the acknowledgment receipt in Denmark showed that there was no indication of when it was carried out. Twagirayezu Wenceslas and his lawyers allege that the Prosecution’s allegations are irrelevant for the following reasons: - concerning the fact that he wrote an acknowledgment receipt for Kikwindi Kimende Stanislas but he did not receive it when he gave Muhindo Kandiro the money to hand over to Pastor Senzoga Bihuri Patrick Ndeze, they allege that is not an issue as Muhindo Kandiro had no responsibility to do it because all he needed to get was the money to be handed over to Pastor Senzoga Bihuri Patrick Ndeze, although he did it in order to protect himself; - what the representatives of the Prosecution allege by linking the petition to the acknowledgment receipt is trying to confuse the Court; - an expert report was made confirming that the signature belongs to Twagirayezu Wenceslas, that what remains unknown is the time when it was written but the date of writing of 8/4/1994 is obvious, that it is up to the Prosecution that

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criticizes that date should provide evidence that refutes it. DETERMINATION OF THE COURT The debated issue is to determine whether the High Court made errors in confirming that the document called the acknowledgment receipt is a proof confirming that Twagirayezu Wenceslas was in Congo during the period of time when he is alleged to have the crimes he is accused of, ignoring the flaws it showed such that it should not be upheld. For a document to be considered as evidence that a person was in a certain place when the document was made, it is possible to show a physical sign that shows when the document was written and where it was written. This is important because as a defense, a person might write a document and lie about where and when it was written. Giving a document as evidence that you were in a certain place at a certain time, which you rely on, does not in itself prove that it was done at the time or place, when it is not corroborated with physical evidence23. In paragraph forty-five (45) of the appealed judgment, the High Court explained that the the acknowledgment receipt written by Twagirayezu Wenceslas on 8/4/1994 receiving money from Pastor Senzoga Bihuri Patrick Ndeze is confirmed by the testimony of Bakari Murefu Innocent who explained that he was at Kikwindi Kimende Stanislas’ home when Twagirayezu Wenceslas wrote it, and the testimony of Madingo Ntabuntu Ignace who testified that when they found out that Twagirayezu Wenceslas was imprisoned and accused of committing

23See the appeal judgment, Prosecutor v. Georges Anderson Nderubumwe Rutaganda, Case no. ICTR-96-3-A, para. 488.

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genocide, Kikwindi Kimende Stanislas showed him the document he signed at his home on 8/4/1994. In paragraph 52 of the appealed judgment, the High Court explained that the allegations of the Prosecution that the acknowledgment receipt was forged in order to collect evidence against Twagirayezu Wenceslas are not relevant because there is no flaw based on its form or content, shown by the Prosecution, which would cause its rejection other than simply alleging that it was fabricated. As seen in paragraph 28 of the appealed judgment, the Prosecution criticizes the document called the acknowledgment letter, saying that relying on the document dated 8/4/1994 to hold that Twagirayezu Wenceslas was not in Rwanda on this date is arbitrary, because there is nothing that can bar a person from being in Goma on that date and also going back to Rwanda, especially since there is no conclusive evidence proving that the acknowledgment receipt was written, as long as Twagirayezu Wenceslas does not show any document written by the money receiver and the reasons that sparked Kikwindi Kimende Stanislas to accept to give it to him. As also seen in the indictment dated 31/5/2022 on the alibi defense of Twagirayezu Wenceslas, the Prosecution criticized the acknowledgment letter for not being original, that it is rather a copy. As per that indictment, the Prosecution also stated that there is no conclusive evidence that the acknowledgment receipt was written because it is not clear why while receiving the money, Twagirayezu Wenceslas wrote the acknowledgment receipt, however he was not able to show the acknowledgment receipt he got from the person, namely Muhindo Kangero, who received it.

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The case file contains a document titled "Transcript from the record of judgments of the Eastern High Court" which refers to the experts from Denmark (The National Forensic Center) who examined the document called the acknowledgment receipt dated 8/4/1994, to ascertain whether the signature found on the document is really that of Twagirayezu Wenceslas and concluded that the handwriting was really his, and did not manage to find out when the ink of the pen used to sign, was manufactured24. The case file also contains the document from the National Enhed for Saerlig Kriminalitet (Police Special Crimes Unit) dated 21/5/2024 which shows that on 4/6/2018, experts reviewed the original document dated 8/4/1994 (the acknowledgment receipt), they found that the existing signature belongs to Twagirayezu Wenceslas, but it is not possible to know when the ink of the pen was used to sign the document was manufactured25. Regarding the first and second reasons that the Prosecution raises to criticize the appealed judgment in respect of the acknowledgment receipt, the Court of Appeal finds that what the Prosecution relies on to criticize the document called the acknowledgment receipt is not an issue but the issue lies in its quality as evidence that shows the whereabouts of Twagirayezu Wenceslas at that time because, as shown in the previous paragraphs, the expert evidence that was provided cannot make it possible to know

24 The National Forensic Center has conducted an examination of whether the signature on the receipt document produced during the proceedings, which indicates that it was issued in Goma on 8 April 1994, has been subscribed by Wenceslas Twagirayezu. In a statement dated 4 June 2018 it is concluded that "There is a probability bordering on certainty that the contested signature 'Wenceslas Twagirayezu' on KTI was subscribed by Wenceslas Twagirayezu." In addition, it has been stated about the examination that it is not possible to date the ballpoint pen pasta used for the contested signature’’. 25 The 4th of june 2018 NKC stated that appendix X-02-01-001: - The original KT1 was examined.- It was no possible to date the ink used for signature. - There was a probality bordering on certainty that the signature was that of WT (Wenceslas Twagirayezu).

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the exact time when the document was written and where it was written. Therefore, since there is no physical evidence that shows when the document was made, the Court of Appeal finds that the acknowledgment receipt cannot be reliable evidence proving that it was written on the alleged date. In general, as explained above, this Court finds that that the allegations of the Prosecution that the High Court made an error of rejecting the testimony of Nkezabera Paulin and Nahimana Emmanuel confirming that Twagirayezu Wenceslas was in Rwanda during the Easter holidays in 1994, are irrelevant because the testimony was not debated before the court; and with regard to Kaberuka Théophile's testimony, this Court finds that the High Court made an error in upholding it, yet he proved that he had not met Twagirayezu Wenceslas recently. The Court of Appeal also found that Twagirayezu Wenceslas admitted that from January to July 1994 he was in Rwanda, there is no travel document showing that he crossed the border, and the document called the acknowledgment receipt is not enough to prove that Twagirayezu Wenceslas was in Congo at the time mentioned because the examination carried out did not reveal when it was written. Regarding the document called the petition written by the people who were in Congo who testify that Twagirayezu Wenceslas was with them from April 6 to 9, 1994, this Court finds that there are false kinships, such that it becomes questionable. The Court of Appeal also found that the allegations of the Prosecution that the document called the petition should be rejected, are not relevant because what is important is that its content be debated before the Court. It also found that the fact that the witnesses before the court, because each of them testified the opposite of what they

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stated in the document they had signed, because everyone confirmed the date on which they saw Twagirayezu Wenceslas at the time mentioned, is also irrelevant because in such a document, everyone defends what they believe, which is what he/she should explain when interrogated. After examining the quality of what each of them explained about what they had signed in the document, this Court finds that there were witnesses who disagreed on the hours and dates, but finds that these are minor facts that alone do not invalidate their testimony. This in itself is not proof that it is possible that Twagirayezu Wenceslas was in Congo as the High Court held26, as long as re has been no investigation yet on what he is accused of for his role in the genocide, compared to the other flaws shown in the previous paragraphs. B. Determining whether Twagirayezu Wenceslas was acquitted despite the evidence and the laws demonstrating that he was guilty of the crimes he was accused of. B.1 Determining whether there was an error made by the High Court in holding that the Prosecution witnesses did not know Twagirayezu Wenceslas.  Submissions of the Prosecution The representatives of the Prosecution criticize the fact that in paragraph 145 and 146 of the appealed judgment, the High Court held that the witnesses incriminating Twagirayezu Wenceslas did not know him and held that they contradicted each other severely about his career, his position in the activities of political parties or his fame in general, even on some of his body features, yet what they all

26 See paragraph 53 of the appealed judgment.

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agree on is the most important thing that deserves attention, is that he was a teacher, working in the education sector, what he admitted. They continue explaining that, as the Prosecution had showed in the defence submissions and as one of the judges emphasized it in his dissenting opinion, the fact that the witnesses do not agree on the place where Twagirayezu Wenceslas worked and the period of time when he worked there, is not a serious flaw that would make it possible to confirm that they did not know him and they showed how they know him, they know his family, where he studied and some of his neighbors. They emphasize the fact that given the time elapsed since the Genocide against the Tutsi in 1994 was perpetrated, and paying attention to the difficult times that the perpetrators of the genocide and its victims were in and the lives they went through until now, the fact that every witness in his/her own way stated what he/she remembers, but they disagreed on small details, should not detract their testimony. The prosecution explained that the witnesses showed that they knew Twagirayezu Wenceslas in the following way: - Nsengiyumva Kanyamishoro Innocent testified before the court that he knew Twagirayezu Wenceslas because the witness used to graze cows near his (the defendant’s) home, that he used to see him carrying books; - When questioned before the Danish Investigation Service, DTC stated that Twagirayezu Wenceslas is a man with dark brown skin tone, round-headed, and while testifying before the court, he confirmed that he knew him; - Before the Danish Investigation Service, Biryamo Joseph stated that Twagirayezu Wenceslas was the

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Inspector of all schools in Rwerere since 1986, that he knows him but they have never been friends. When question before Rwanda Investigation Bureau, he stated that he was a substitute Teacher at Munanira Primary School. Although he was confused about his name, he sometimes stated that his name is Nsengiyumva Wellars, when he was questioned again he said his name was Twagirayezu Wenceslas, he testified before the court that he was a substitute teacher at Munanira school. The representatives of the Prosecution argue that the High Court took Biryamo Joseph's testimony wrongly, holding that before the Danish Investigation Service, he stated that Twagirayezu Wenceslas was a school Inspector in Rwerere, but he did not confirm it but stated that it was what he thought, that it is clear that Biryamo Joseph wherever he was interrogated, he continued to emphasizing that Twagirayezu Wenceslas worked in the education sector. - Witness Habinshuti Ruzibiza Jean, when interrogated by the Danish Investigation Service, stated that Twagirayezu Wenceslas was a teacher at Munanira. Before Rwanda Investigation Bureau, he stated that the accused was the Head Teacher of Munanira School, while testifying before the court, he stated that he was a substitute teacher at Munanira School. The representatives of the Prosecution argue that although there are some places where he changes the wording, he also shows that he worked in the education sector at Munanira school, that the explanation he gave before the court shows that he already knew him because he stated that he was from Gacurabwenge, that he came to know him because he passed by his home to visit Pastor Munyankindi Seth.

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- Witness Shyengo Joseph told the Court that later on he found out that he was a substitute teacher, which shows that he tried to find out some information, which made him impart reliable information. - Witness Munana Tatien, when questioned on 18/12/2013 before Rwanda Investigation Bureau, stated: "The conduct before the genocide, what I know of him is that in 1993, I don't remember the exact month but it was between July and August, we went together to the meeting which took place in Ruhengeri at the stadium and was chaired by Bucyana who was the President of CDR at the national level and Barayagwiza, we were invited within the framework of Gisenyi and Ruhengeri political parties (...), (...) what they told us in that political rally, they were mobilizing us to fight any Tutsi, then called a cockroach”.  Concerning the profession of Twagirayezu Wenceslas The representatives of the Prosecution say that the witnesses were not mistaken about Twagirayezu Wenceslas’ profession because in the course of investigation they used to say that he was a teacher, they did not agree upon the school where he taught and the leadership position he had in the education sector, they testified before Court stating that he was a substitute teacher at the primary school of Munanira. They add that, although Twagirayezu Wenceslas was a permanent employee at Collège Baptiste in Gisenyi Town since 1993 when he left school, they do not criticize the statements of the witnesses who confirmed that before the genocide he was a substitute teacher at Munanira Primary School27.

27 The witnesses who appeared before the court and stated that Twagirayezu Wenceslas was a substitute teacher are: Habinshuti Ruzibiza Jean, Shyengo

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The representatives of the Prosecution criticized the fact that while emphasizing that the Prosecution witnesses did not know Twagirayezu Wenceslas, the High Court relied upon the affidavits before the National Public Prosecution Authority made by Kabera Samuel, Kanyabugoyi Théoneste and Nzabarankize Obed, that although their affidavits are on record, while filing the case, the Prosecution did not include them as its witnesses to be later heard during the trial, yet the Court considers them as if it were the Prosecution which presented them, and their expressions are used in a way that does not match what was being determined. They say that in case the Court felt that it should rely on the statements of people who did not testify before the Court, it should have also referred to the statements of Munana Tatien who asserted that he went with Twagirayezu Wenceslas to the CDR meeting in Ruhengeri, Maniragaba Théodomir, Ntaganda Claude and Gasasira Patrick, the Prosecution had listed the witnesses who would come to the Court but they did not come because they were not in the country, since their statements contain important information that corroborates the testimony given before the Court.  Regarding the physical appearance of Twagirayezu The representatives of the Prosecution allege that the analysis of the testimony of Twagirayezu Wenceslas was biased, because the Court combined the testimonies of the prosecution witnesses, holding that that they did not know him, but their statements show that even before the genocide, they already knew him, and what they say is consistent with the statements of the witnesses given by Twagirayezu Wenceslas himself. They explain that, for

Joseph, Habingoma Théobald, Biryamo Joseph, DTA, DTB. Nsengiyumva Kanyamishoro Innocent, before the court, stated that they used to believe that whoever was carrying books was a teacher.

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instance, the witness DTA who was questioned by the Danish Investigation Service, stated that he had protruding teeth, his arm was crooked because he had fallen from a tree when he was a child, he had a straight head, but relied on the statement of the witness Kaberuka Théophile, who is disculpating him, yet they refer to him in the same way. They continue alleging that the other witnesses who portrayed Twagirayezu Wenceslas include Shyengo Joseph, who said that he knew him as a middle-sized young man, not fat, with a prominent head28, Witness DTC states that he is a 45-year-old man, 1m75 tall, strong, with prominent forehead, round-headed, that he doesn't remember anything else because he last saw him a long time ago29, and before the court, he states that he knows him. They conclude by saying that the Prosecution presented witnesses who know the accused well, that they do not understand how the Court would hold that they do not know him, without showing in detail where what they say differs from others who claim to know him.  In respect of the fame of Twagirayezu Wenceslas The representatives of the Prosecution criticize the fact that in paragraph 146, the High Court validated what Twagirayezu Wenceslas and his lawyer state that he is being accused by witnesses who do not know him, based on the fact that the witnesses of the Prosecution show him as a prominent rich person who was known in his area, who was well paid by the government and had a large land, was often with Bunani Jean who was the Inspector of the School Sector, who represented the Interahamwe in the meetings that prepared the genocide, or who was the head of the MRND and CDR at the Commune or Sector levels, who

28 Statement dated 03/12/2013 before Rwanda Investigation Bureau. 29 Witness question by the Danish Police, P-09-217

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traveled with Munyagishari Bernard was the leader of the Interahamwe in the former Gisenyi Prefecture and Ntamaherezo who was the leader of the Interahamwe in Gacurabwenge, as well as Bikindi Simon who was well- known in the genocide. The representatives of the Prosecution criticize the fact that the High Court held that before July 1991, Twagirayezu Wenceslas was a high school student in the DRC and that is where he lived, he sometimes came home during the holidays, and he continued to live in the RDC after he finished his studies until he returned to Rwanda in June 1993. The representatives of the Prosecution also contend that the court's analysis ignored what Twagirayezu Wenceslas stated in the document sent by Denmark, especially regarding the Immigration Police on page P-09- 328-P-09-329, where he described the tasks he carried out, that he became a teacher and director of discipline at Gacuba II Baptist High School, Prefet of discipline from 1993 to 1994, director of Christian youth from 1991 to 1994 in the district branch of AEBR, Gisenyi, a member of the committee responsible for coordinating the activities of the church and non-governmental organizations fighting for human rights from 1993 to 1994 in Gisenyi. They also contend that Twagirayezu Wenceslas, in his statement dated 17/12/2018 before Rwanda Investigation Bureau, stated that from 1991 to 1994 and after that he was not a member of any political party, because he was at the service of God in the Baptist Church of Rwanda in the AEBR Kageshi Parish, Gabiro Sector, Rwerere Commune where he worked as a church clerk, and also became a youth leader in the AEBR Gisenyi Province. The representatives of the Prosecution contend that these proofs clearly show that the Court misrepresented the facts, considering the defense of Twagirayezu Wenceslas as the the undisputable truth, deliberately ignoring the

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evidence contradicting his defense and showing that from 1991 to 1994, Twagirayezu Wenceslas was found in Rwanda where he was where he lives, working with the AEBR church, being also in its structures, leading the youth of AEBR in Gisenyi, that is why Twagirayezu Wenceslas was considered a great leader, an opinion leader, because he led the youth, because they called him the leader of Interahamwe without realizing any fault in it, and that he admitted that he was supporting Interahamwe, and most of the Interahamwe were young people who belonged to the political parties that were dominant in that area. They also contend that the fact that there is a witness who states that he was a member of the MRND party, and another who says that he was a member of the CDR, is not a flaw that would allow to conclude that they did not know him. The representatives of the Prosecution conclude that the analysis made by the High Court is not correct, because the fame mentioned is related to who he was after graduating from high secondary school; because at that time, a high school graduate was powerful.  Defense submission of Twagirayezu Wenceslas - Concerning his profession Twagirayezu Wenceslas and his lawyers allege that the defendant raised the issue related to the fact that the Prosecution witnesses questioned did not know him since he was in Denmark, because the way they talk about him was based on his work as a teacher and where he worked, his physical appearance, his wealth and his position in the political parties, it shows that the person they talk about is not him or they do not know him, because if they knew him well, they would not have been mistaken that he taught in a private school at Gacuba II in Gisenyi from September 1993 to July 1994. They allege that they agree with the conclusion of the High Court which appears in paragraphs 145 and 146,

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because the way the witnesses contradict each other shows that they do not know him. Twagirayezu Wenceslas and his lawyers continue alleging that the allegations by the Prosecution that the High Court is biased in favour of the statements of the disculpating witnesses, yet they state the same thing as the incriminating witnesse, are unfounded because the statements of the incriminating witnesses are characterized by self-contradictions and intercontradictions. First, when question before the Danish Investigation Service and Rwanda Investigation Bureau or before the National Public Prosecution Authority, they asserted that they know him well, but when it comes to showing his profession, some stated that he was a teacher at Munanira Primary school, while others stated that he was a teacher at Busasamana or a teacher at CERAI school, there are also those who say that he was the Head Teacher or Inspector of Munanira primary school. Second, when they testified before the Court, all those witnesses changed their narrative agreeing to say that he was a substitute teacher at the Munanira school, which was not the case either. Twagirayezu Wenceslas and his lawyers also allege that when witness Shyengo Joseph was asked why he changed his narrative, he stated that he later asked and happened to know that he was a substitute teacher, and the fact that witness Habimana Moïse stated that he was a teacher in Gisenyi, this would not benefit the court because his statements were unclear. They added that the fact that the High Court relied on the statements of the witnesses Mpahatanye Mathieu and Kaberuka Théophile is only because they showed that they know him well; Mpahatanye Mathieu asserted that he was aware that he had been a teacher at Munanira primary school because he became the school head teacher, which he agreed on with Kaberuka Théophile.

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Twagirayezu Wenceslas and his lawyers also allege that regarding the witnesses Kabera Samuel, Kanyabugoyi Théoneste and Nzabarankize Obed, the Prosecution alleges that their statements were relied upon even though they were not presented by the Prosecution as its witnesses, and they find that they were in case the file and there is no reason why the High Court would not rely on them while examining them and finding out that there is a connection with the case, especially that in the trial of the case at first instance, the Prosecution did not say that they were proofs that should be relied on, in addition to the fact that it would be a breach of its duties, which include incriminating and disculpating the defendant. They also allege that what the Prosecution alleges that the High Court did not examine the testimony of the witnesses Munana Tatien, Maniragaba Théodomir, Ntaganda Claude and Gasasira Patrick who were on the list of their witnesses who were not present in the Court because they were abroad, is irrelevant because the Prosecution did not substantiate the fact that they were abroad. They also say that the fact that the High Court has not relied upon their statements means that it did not uphold them, that instead what the Prosecution should have criticized is that they were not relied upon, yet they are in line with the testimony given before the court as provided for by 8 of Law No 47/2013 of 16 June 2013 Relating to transfer of cases to the Republic of Rwanda, otherwise there is no reason based on the laws they substantiate that would make them be relied upon. - Concerning the physical appearance of Twagirayezu Wenceslas Twagirayezu Wenceslas and his lawyers also allege that what the Prosecution states that the High Court ignored that the witnesses know him well because they have shown how they know him because they were neighbors, they know

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his family and his physical appearance is also irrelevant, because what they stated matches his physical appearance, his posture, his look and his age, shows that he is not who they are talking about. They emphasize that the way the witnesses have been contradicting themselves while showing that they know him is the reason based on by the Danish authorities to grant him citizenship, because if they had found that what they say is true, he would not have been granted citizenship. They explain that, for instance, Witness DTA interrogated by the Danish Investigation Service asserted that he knows Twagirayezu Wenceslas very well, but said that he has protruding teeth, the head back is prominent, and his right arm was crooked due to a fall from a tree. What he said was not true because even though his arm was not in good shape, it was not caused by falling from a tree, but it fractured when the defendant was riding a wooden bicycle. They also allege that Witness Shyengo Joseph also testified that he knows the defendant well, that he is a forty-eight (48)-year-old man, he was twenty-one (21) years old in 1994; he also said that he is one meter seventy-five (1.75 M) tall, a man of strength, while he is skinny. Regarding Biryamo Joseph, Twagirayezu Wenceslas and his lawyers allege that he said that he is a fifty (50) year old man, one meter and fifty (1.50 M) tall, strong, big, big-bellied, round-deaded, prominent head back, his head was straight, protruding teeth, a crooked hand, and he said that he would know him if he saw him. They say that the witness Maniragaba Théodomir said that he knows him, he is a strong African, one meter seventy-five (1.75 M) tall, with protruding teeth and long-nosed, while the witness Nsabimana Léonidas said that he is a strong man aged forty- five (45), long-faced, but that he does not remember him when he saw him, that he does not recognize him even in the photo. They continue to say that the witness Habinshuti Jean

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Ruzibiza also stated that he is a black man, African, who is eighty one meters (1.80 M) tall, and testified that he saw him and did not remember him; that the witness DTB said that he was a black African man aged between 27 and 30 years, one seventy one meters (1.70) tall, he said that he saw him and showed him, but they did not use him because it was only done to Nsengiyumva Kanyamishoro Innocent who stated that he knew him , but they showed him ten (10) photos including Twagirayezu Wenceslas and he chose the wrong one. - In respect of the fame of Twagirayezu Wenceslas Regarding his position in political parties, Twagirayezu Wenceslas and his lawyers allege that the Prosecution witnesses testified that he was the President of CDR or MRND, however, he showed to the Court that he never belonged to any political party, because he spent his whole life in Congo in High school, that if he had been a leader of a political party, he would have used it as a ground to apply for political asylum. They also allege that what is stated by the Prosecution that he was a powerful person, is irrelevant because they were middle-class people, not rich people who own land, and he did not go to study in Congo because he liked it, that he went there as a person belonging to the low class (son of a destitute father) because even those who graduated from such schools, it was not easy for him to get a job, that the private Baptist school was the only one that gave him a job. DETERMINATION OF THE COURT The debated issue is to determine whether the High Court made an error while holding that the witnesses are contradicting themselves or are contradicting one another

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about Twagirayezu Wenceslas’ profession before and during the genocide, his position in political parties, wealth and his physicial appearance, which indicates that they do not know him well. Article 18 of Law no 47/2013 of 16 June 2013 Relating to transfer of cases to the Republic of Rwanda provides that both the Prosecution and the accused have the right to appeal against any decision taken by the High Court upon one or all of the following grounds: 1° an error on a question of law invalidating the decision; 2° an error of fact which has occasioned a miscarriage of justice. Article 183, paragraphs 5° and 6° of Law nº 027/2019 of 19/09/2019 relating to the criminal procedure provides that an appeal is filed in the form of a written submission instituting a claim which lists the defects of the case that are requested to be corrected and other issues that must be examined and the explanations for each defect or for each issue that reveals the mistakes made and how they should be corrected based on the law and the evidence and the request of the court. Article 2 of Law n° 062/2024 of 20/06/2024 governing evidence, in its part (i), (i), provides that " testimonial evidence” is an oral or written statement an individual makes before a competent organ30 regarding what he or she personally saw or heard, that is relevant to the matter in dispute; and Article 53 of that Law provides that the competent organ assesses the admissibility or

30 Article 2 of Law n° 062/2024 of 20/06/2024 governing evidence explains that a competent organ means a court or any other decision- making body which receive a query which is within the ambit of its jurisdiction or making a decion on it, based on evidence.

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inadmissibility and probative value of testimonial evidence. It is not bound by the number of witnesses. Instead, it mainly considers their knowledge of facts and sincerity of their declarations. Article 87 of Law No. 062/2024 of 20/06/2024 states that " in criminal matters, evidence is established by any means of fact or law, provided that parties are given time for cross- In paragraphs 132 and 136 of the appealed judgment, the High Court recalled the precedent set by the Supreme Court in the judgment in Prosecution v Ngurinzira case, where it elucidated that while assessing the quality of testimony, the court relies on the knowledge of those who give it and how they interpret what they see or hear, and compare it to other evidence31. The High Court also recalled the precedent arising in Prosecution v Nikomeze Chantal case, where the Supreme Court established that the testimony could not be relied upon when it was characterized by contradictions in the different levels where the person who gave it was questioned32 and the one presented in Prosecution v Gatera Célestin case, where the Supreme Court established that the extreme contradictions of the witnesses cast doubt on their testimony33. And in paragraph 134 of the appealed judgment, the High Court pointed out POPOVIĆ et al. case that was decided by the International Criminal Tribunal for the former Yugoslavia, which elucidated that while using its discretion in the analysis of the statements of the witnesses, the Court relies upon different factors considering the

31 Judgment no RPAA 0118/11/CS rendered on 13/11/2015, in Prosecution v Ngurinzira 32 Judgment no RPA 0003/15/CS rendered on 29/12/2017 in Prosecution v Nikomeze Chantal 33 Judgment no RPA 0084/10/CS rendered on 09/05/2014 in Prosecution v Gatera Céléstin.

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specificity of each case, including the behavior of the witness before the court, the role he had in the events about which he is testifying, whether what he says is plausible and clear, whether there are contradictions or distortions in his questioning or between his testimony and other evidence, whether there are reasons why he/she would lie, how he/she answered the questions asked by the defendant's side in court, and the positive or negative effect of relying on these facts on the testimony, varies according to the specific circumstances of each case34. The High Court also referred back to the case of Simba Aloys and the Prosecution decided by the International Criminal Court for Rwanda where in that case it was established that the court has the authority to examine any contradiction of the witness, to examine whether the evidence, as it is, can be trusted and being considered true, it also has the power to accept or reject the main points that make it up35. As seen in paragraphs 145 and 146, the High Court found that Twagirayezu Wenceslas’ allegations that he is incriminated by the people who do not know him well are relevant for the following reasons : - - the fact that the witnesses who incriminate him assert that they know him well, they contradict each other very much about what his profession was because at the investigation level some witnesses state that he was a regular teacher, others say that he was a substitute teacher, others say that he was a leader (head teacher, inspector), others say that he was a teacher at primary school or taught at CERAI, but when they appeared before the court, they stated that they came to know

34 See appeal judgment, Prosecutor v. POPOVIC Vujadin et al., Case no IT- 05-88-A, ICTY, para.132. 35 See appeal judgment, Prosecutor v. Simba Aloys, Case no ICTR- 01-76 – A (27/11/2007), para. 103.

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that he was a substitute teacher, contrary to what Gasenge Etienne states that Twagirayezu Wenceslas used to substitute teachers when he was a student in primary schools because he was very smart; - The fact that the witnesses are contradicting one another about the position of the defendant in the activities of political parties, where some state that he was the leader of MRND, CDR and the Interahamwe at the sector or commune levels, while others say that he was only a member of MRND; - the fact that they portray him as a powerful and rich person who was known in his area, who was well paid by the government and who had a large land, who was often with Bunani Jean who was the Inspector of Schools, Munyagishari Bernard who was the leader of the Interahamwe at the level of the former Gisenyi Prefecture and Ntamaherezo who was the leader of the Interahamwe at Gacurabwenge, as well as Bikindi Simon who was famous in the genocide, but it is obvios that before July 1991 Twagirayezu Wenceslas was a high school student in the DRC and he was the one who sometimes came to their home on vacation, and continued to stay in the DRC after he finished his studies until he returned to Rwanda in June 1993. The Court of Appeal finds that about the physical appearance of Twagirayezu Wenceslas, which is not among the reasons that the High Court relied upon to hold that the Prosecution witnesses did not know him well. Therefore, based on the provisions of Article 18 of Law No. 47/2013 of 16/06/2013, which is referred to in Article 183, part 5˚ and Article 6˚ of Law No. 027/ 2019 dated 19/09/2019 referred to above, this Court finds that it should not be analyzed in this case. In the following paragraphs, this Court is going to consider only the reasons relied upon by the High Court which are stated above.

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1. Determining whether the High Court ignored the fact that the witnesses were mistaken about the teaching profession of Twagirayezu Wenceslas As seen in paragraph 145 of the appealed judgment, the High Court found that the Prosecution witnesses contradicted one another severely about the professional background of Twagirayezu Wenceslas, because at the investigation level, some state that he was an ordinary teacher, others state that he was a substitute teacher, and others state that that he was a leader (Head Teacher, Inspector), others state that he was a teacher at Primary school, others that he taught at CERAI, but when they appeared before the Court, they all agreed that he was a substitute teacher, these statements are contrary to what Gasenge Etienne states that Twagirayezu Wenceslas used to replace teachers when he was a student in Primary school because of his smartness. On this ground related to the professional background of Twagirayezu Wenceslas at the Munanira school and the leadership position he held, the Court of Appeal concurs with the High Court's analysis on the fact that the Prosecution witnesses were contradicting one another about the position he held in the field of education and where he worked, but this Court finds that the fact that the Prosecution witnesses were characterized by inconsistency on that, it would not be a reason why the High Court irrevocably confirms that they do not know him, because the error about the professional background and where he worked is a tiny detail36. 2. Deterining whether the Court ignored the fact that the witnesses stated that hey knew him

36 See Prosecutor v. BIKINDI Simon, Case no ICTR-01- 62 T (2/12/2008), p.12, para. 32.

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because they interacted in the activities of political parties. The High Court held that the witnesses incriminating Twagirayezu Wenceslas did not know him based on the fact that they contradict one another about the position he held in the activities of political parties, where some say that he was the leader of MRND, CDR and Interahamwe at the sector or commune level, while others state that he was only a member of MRND, the fact that he was portrayed as a powerful and rich person who was known in his area, who used to hang out with with people who were famous for the killings and who were leading the Interahamwe in Gisenyi, but before July 1991, Twagirayezu Wenceslas was a student in high school in the DRC and that's where he lived, he used to come home sometimes during the holidays, and he continued to be there after he finished his studies and returned to Rwanda in June 199337. Some of the Prosecution witnesses testifying before the High Court revealed that Twagirayezu Wenceslas was a member of MRND. For instance, While testifying, Gasenge Etienne stated that Twagirayezu Wenceslas was a member of MRND, that during the multi-party period in 1991 and 1992 they used to meet in political rallies at Mutura and Busasamana, DTC testified that he was a member of CDR and MRND, because it was like there was one political party, Nsengiyumva Kanyamishoro Innocent testified that Twagirayezu Wenceslas and Ntamaherezo were among the people who came to mobilize them in the meeting and gave them MRND cards before the genocide started, Shyengo Joseph stated that he knew Twagirayezu Wenceslas when the was about to beat him when he left the political rally.

37 See paragraph 146.

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The High Court found that before the Danish Prosecution, DTC and Shyengo Joseph stated that that he was the leader of Interahamwe at Gacurabwenge, and was in charge of all the roadblocks, while Ndagijimana Théoneste stated that the accused was the leader of Interahamwe at Rwerere. Before Rwanda Investigation Bureau, Habingoma Tonny Théobald stated that Twagirayezu Wenceslas was the leader of Interahamwe at Rwerere, while Nsengiyumva Kanyamishoro Innocent stated that he represented MRND at the commune level, Shyengo Joseph and Gasenge Etienne stated that he was only a member of MRND, Rwasibo Alphonse stated that Twagirayezu was the leader of the CDR in Gacurabwenge Sector38. The Court of Appeal finds that, even though it is obvious that the Prosecution witnesses are characterized by inconsistency in showing who Twagirayezu Wenceslas was in the activities of political parties, they did not agree on the position he held in the parties, and there was no conclusive evidence PROVING that he was a member of MRND or CDR, or he was the leader of Interahamwe, is not a reason for concluding that the witnesses did not know him. In general, regarding this ground of appeal, the Court of Appeal finds that the High Court made an error in confirming that the Prosecution witnesses did not know Twagirayezu Wenceslas because it confirmed this based on small details and that is not a reason to detract the testimony as elucidated above. B.2. Determining whether there was an error made by the High Court in declaring that Twagirayezu Wenceslas did not commit the crimes he is accused of

38 See paragraph 141.

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Submissions of the prosecution The Prosecution alleges that the High Court's analysis in paragraphs 175, 177 and 179 of the appealed judgment contains serious contradictions regarding the statements of the witnesses. They explain that the High Court contradicted itself, because after showing that the contradictions of the witnesses on small details in the case do not invalidate the quality of their testimony, it ignored that precedent, and invalidated the testimony of the Prosecution witnesses based on the fact that there were contradictions on the details and that happened many times, for many witnesses, they are contradicting themselves in the same way and on similar things, as well as the fact that there are extreme contradictions on other parts of their testimony. They say that they find that this is not a reason that should invalidate the testimony given, because the inconsistency on the dates and hours of the attacks, the weapons used or possessed by Twagirayezu Wenceslas and the people who were killed, does not say that these attacks did not happen or that the defendant was not involved. - The inconsistence of the witnesses on the dates and hours of the attacks The representatives of the Prosecution criticized the fact that in analyzing the testimony given, the High Court focused on showing that the incriminating witnesses do not agree on the dates of the attacks in different areas, ignoring the fact that they agree with the defense witnesses on the mentioned dates they state, and did not examine in the same way the testimony given by the witnesses of both parties, because it did not hold anything about the inconsistencies seen in the testimony of the witnesses presented by the defendant.

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Regarding the dates of the killings, the representatives of the Prosecution say that the witness Bufono Silas who was a security guard at the University of Mudende presented by Twagirayezu Wencenslas testified before the High Court that the attack on the University of Mudende took place on 06/04/1994 around midnight, that on 04/07/1994, many Interahamwe militiamen came, the white people who were there, gathered in one house, they stayed there for about two weeks, and he could see what was going on. As for the witness Ugwaneza Christophe who was also presented by Twagirayezu Wenceslas, he says that the killings took place from 07 to 12/04/1994. The representatives of the Prosecution say that their testimony is in the same line as that of Habingoma Théobald and Biryamo Joseph and they also state that the killings at the University of Mudende as well as at Busasamana did not happen in one day, that it started on 04/07/1994 and continued on 8 , 10 and 12/04/1994, that they do not see what the High Court relied upon to hold that the Prosecution witnesses contradict each other, that they find that the High Court focused only on the defendant's allegations, ignoring those of the Prosecution. The fact that the Prosecution witnesses appeared before the Court and agreed that the killings started on 08/04/1994, should not invalidate their testimony, because the difference in dates does not eliminate the killings committed there. The representatives of the Prosecution also criticized the analysis of the High Court about the time when Twagirayezu Wenceslas appeared in the killings of Busasamana, where it showed that the DTC before the Danish Prosecution stated that on 04/07/1994 in the morning, after that at Gacamena’s home roadblock, where 2 Tutsi women and one man were killed, and they continued heading to Busasamana; and states that he saw Twagirayezu Wenceslas at 13:00 at the roadblock, but before the Court he states that the killings at Busasamana Church took place on

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08/04/1994 at 4:00 in the morning (10:00). They allege that the reality is that there is no doubt that there were killings at the Gacamena’s home roadblock and Busasamana Church Building and that it happened before noon, but the fact that the witness was confused about the days or hours, is not a defect that should make the Court invalidate his/her testimony if he/she did not change anything or distort the truth of the killings that took place. - Regarding the persons who were killed and where they were killed The representatives of the Prosecution alege that they see an error in the analysis of the case in paragraph 174 of the appealed case, where among the reasons it relied upon to invalidate the testimony given, which was also based on the fact that the witnesses contradicted themselves about the people who were killed and where they were killed; that they do not see what the persons killed do in that analysis. They explain that during the Genocide against the Tutsi there were attacks on Tutsis in different places that killed almost all of them, that Twagirayezu Wenceslas is accused of being involved in various attacks on the University of Mudende, Busasamana Catholic Church, Commune Rouge and Nyundo, as well as the fact that he manned the roadblock and elsewhere, that they find that the most important thing is to demonstrate that he was he was involved in the attacks and that people were killed, and to show that some of the victims succumbed to them and for whom he should liable together with other They continue alleging that the Prosecution revealed some of the names of the Tutsis who were killed in those attacks in which Twagirayezu Wenceslas was involved. They showed that at the University of Mudende, the family of Mucyahangungu and his three children, the family of Segafura consisting of more than twenty (20)

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persons, the family of Barinda, Ngarara and his wife, Munyakabara, Mukamurenzi, Kabogi, Hanyurwimfura Emmanuel and many others who remain unkown; At Busasamana Church Building, the Tutsis including the family of Abakwejo, the family of Mazeze, Rwamidende, Kanyarutoki Mathias, Mudahuga, Buyayiya, Agnès, and Rupiya were also killed in the attack in which Twagirayezu Wenceslas was involved. The representatives of the Prosecution allege that Twagirayezu Wenceslas' involvement in the crime of genocide is based on the fact that he was part of a joint criminal enterprise with his co-offenders(joint criminal entreprise), which means that even if it is not proven that he himself killed someone, it does not exempt him from criminal responsibility because each of those involved in the criminal entreprise, is considered to have collaborated with others to commit the crime even if the actual actions to commit it were only done by some of them; that this has been elucidated in various cases decided by the International Criminal Tribunal for Rwanda and and the International Ctiminal Tribunal for the Former Yugoslavia39 even by legal experts. - Regarding the weapons used by Twagirayezu Wenceslas The representatives of the Prosecution allege that in paragraphs 165 and 166 of the appealed judgment, the High Court invalidated the testimony given based on the fact that the witnesses did not agree on the weapons that Twagirayezu Wenceslas had and those used to kill the Tutsis at the roadblock, it refers back to witness DTC, who said that on 04/07/1994, at Gacamena’s home roadblock where 2 women and one man were killed, that Twagirayezu did

39 See judgment in Prosecution v Nizeyimana Ildephonse, Case no ICTR-2000- 55C-T, ICTR, p. 406, para. 1455.

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nothing, that at that roadblock, he was with 5 young men with a kalachinikov, and elsewhere he mentioned an R4 rifle, that they find that the fact on one hand DTC mentions the Kalachinikov rifle, and elsewhere mention the R4 rifle is not the problem, as while testifiying before the court40 he explained that he erred, remembering that R4 guns were issued in the communes, so the High Court had to find that the mistake about the type of gun, which is understandable because because he was not a weapons expert. - Defence submission of Twagirayezu Wenceslas Twagirayezu Wenceslas and his lawyers allege that the statement by the representatives of the Prosecution that the analysis of the case contained contradictions, which made the High Court invalidate the statements of the witnesses based on the fact that they contradict themselves on small details is irrelevant, that instead they misinterpreted the decision of the Court. They explain that in paragraphs 175 and 177 of the appealed case, the High Court pointed out that contradictions on small details do not invalidate the quality of the testimony, but it says that the prosecution witnesses have been contradicting themselves on small details and often, linking it to the fact that they have been contradicting themselves on serious things, which made their testimony worthless. Twagirayezu Wenceslas and his lawyers also allege that the allegations of representatives of the Prosecution that the High Court did not differentiate between minor and major issues that the witnesses have been arguing about is not true, but what is evident is that they show some things and leave out others. They allege that in paragraph 165 and 166 of the appealed judgment, the High Court showed the instances where the witnesses contradicted themselves on

40 Hearing report dated 18/04/2022 before the High Court.

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major issues, such as Nsengiyumva Kanyamishoro Innocent, Gasenge Etienne, DTB, DTA and DTC, finding their testimonies are full of contradictions on major issues as follows: - Nsengiyumva Kanyamishoro Innocent stated that at the Gacamena’s home roadblock, two men and a girl were killed, when questioned again he testified that Twagirayezu Wenceslas dislodged the Tutsis and killed them with guns; - When questioned for the first time, Gasenge Etienne stated that he did not learn that any Tutsis were killed at the Gacamena’s roadblock, elsewhere he states that a woman and a child were killed by Bunani Jean, and Twagirayezu Wenceslas was there; - DTC stated that he did not join Twagirayezu Wenceslas in the attacks, but later stated that he killed 16 persons. They allege that this all appears in the reasoning of the High Court and it is not about contradictions on small details, that the court invalidated their testimonies after realizing these witnesses contradicted one another in a serious way on small details and on major issues many times. - The divergence of witnesses on the dates and hours when the attacks were launched Twagirayezu Wenceslas and his lawyers also allege that the testimony given about the attacks on the University of Mudende, at Busasamana Church Building, Commune rouge and the Gacamena’s home roadblock, shows that the Prosecution witnesses diverge on the dates of the attacks and the actions carried out, that a person who was there was interrogated and stated that on 7/04/1994, the killings of the

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Tutsis were perpetrated from the University of Mudende and continued to the Busasamana Church Building, but on that day some witnesses state that he was at the University of Mudende, others state that he was at Busasamana Church Building. They also say that the allegations of the representatives of the Prosecution that there was a lack of equal treatment of the Prosecution and defense witnesses, are also irrelevant, because the witnesses Ugwaneza Christophe and Bufono Silas disculpating him, they unanimously testified that the killings started on 07/04/1994, while The High Court pointed out that the Prosecution witnesses contradict one another because, for instance BIRYAMO Joseph’s statement does not converge with those of others. They add that after the genocide there was an information gathering session, which was an opportunity to recal the dates of the attacks, the killings that took place and those who participated in them, so it would be incomprehensible how the Prosecution would state that forgetting the dates of the attacks is a normal thing. DETERMINATION OF THE COURT The debated issue is to determine whether the High Court ignored the witnesses' inter contradictions regarding the dates of the attacks, the weapons that Twagirayezu Wenceslas had and the ones he used to kill people and the people who were killed in the attacks are small details that should not invalidate the testimony they gave about the acts constituting the crimes Twagirayezu Wenceslas is accused of. Article 2 of Law n° 062/2024 of 20/06/2024 governing evidence, in its part (i), (i), provides that “testimonial evidence” is an oral or written statement an

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individual makes before a competent organ41 regarding what he or she personally saw or heard, that is relevant to the matter in dispute; and Article 53 of that Law provides that the competent organ assesses the admissibility or inadmissibility and probative value of testimonial evidence. It is not bound by the number of witnesses. Instead, it mainly considers their knowledge of facts and sincerity of their declarations. Article 87 of Law No. 062/2024 of 20/06/2024 above mentioned provides that " in criminal matters, evidence is established by any means of fact or law, provided that parties are given time for cross-examination ". The Court of Appeal finds that in paragraph 176 of the appealed case, the Supreme Court recalled the precedent set in the cases decided by the Courts of Rwanda and in the cases decided by the International Criminal Courts which are consistent with the fact that self-contradictions on small details do not invalidate the quality of the testimony. In the case of the Prosecution v Sgt. Biziyaremye Jean Baptiste and Cpl. Ngabonziza Faustin, the Supreme Court found that in relation to the testimony given, the contradiction is not only based on the words the witness uses, or the lack of proper language in explaining the course of what he/she testifies about, that what is important is that the quality (substance) of what he/she states does not change42. In the case of the Prosecution v Ntamaherezo Iryamukuru, the Court of Appeal elucidated that the contradictions of the witnesses on minor issues in the case do not invalidate the quality of their

41 Article 2 of Law n° 062/2024 of 20/06/2024 governing evidence explains that a “competent organ” means a court or or an organ which addresses a query that is within its jurisdiction or makes a decision, based on evidence. 42 Judgment no RPAA 0117/07/CS rendere by the Supreme Court on 17/09/2010, Prosecution v Sgt. Biziyaremye Jean Baptiste and Cpl. Ngabonziza Faustin, Rwanda Law Report, vol. II, 2011, n0 9, Page 60, Paragraph 14

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testimony43. Although the precedent was respected in various cases decided by the International Criminal Court for Rwanda, such as in the case of Bikindi Simon, the Court found that due to a long time elapsed between the time when the witness started testifying and the time when the facts testified about were committed, self-contradictions on small details and inter contradictions among the witnesses cannot invalidate the testimony44. The Court of Appeal reminds that this precedent which was set in the cases decided by the International Criminal Tribunal for Rwanda which was followed by this Court in the case of the Prosecution v. Ntaganzwa Ladislas45, the Prosecution v Birindabagabo Jean-Paul46 and that of the Prosecution v Kabilima Jean Damascène47. In these cases, the Court of Appeal also found that the selfcontradictions or inter contradictions of the witnesses regarding the dates, hours, clothing, where the person was standing or if the testimony the witness gave before the Court is not consistent with what he/she stated before should, not be considered as a serious flaw that would invalidate the testimony, that instead, given the long time that elapsed between the time of the killings and the time the testimony was given, these are minor flaws that do not invalidate its quality because it is possible that the witness does not remember exactly what he/she testifies about. As seen in paragraph 175 of the appealed case, the High Court found that, apart from the gross contradictions

43 Judgment no RPAA 00141/2022/CA rendered by the Court of Appeal on 31/05/2023, Prosecution v Ntamaherezo Iryamukuru, Paragraph 33. 44 Prosecutor v. Bikindi Simon, Case no ICTR-01- 62 T, (2/12/2008), p.12, para 32. 45 See paragraph 27 of judgment Nº RPA/GEN 00001/2021/CA rendered on 03/03/2023, Prosecutor v. Ntaganzwa Ladislas 46 See paragraph 125 of judgment Nº RPAA/GEN 00004/2020/CA rendered on 08/04/2022, Prosecution v Birindabagabo Jean Paul. 47 See paragraph 71 of judgment No RPAA/GEN00009/2019/CA rendered on 16/10/2020, Prosecution v Kabilimana Jean Damascène.

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that appeared in the statements of the Prosecution witnesses, there were also contradictions that appeared on small details such as mistakes on the date or time, on the weapons used or were owned by Twagirayezu Wenceslas, where some witnesses state that the gun he used is a Kalachinikov, while others state others state it is an R4, or say that he had a gun and a club, others say that he had a gun only, or a gun and grenades, or mistakenly stating that the person killed was a woman or a man. And in paragraph 177 of the appealed case, the High Court found that, given the particularity of this case, the way in which the contradictions about small details happened many times, for many witnesses, and they are contradicting in the same way and on similar things, and are connected with gross contradictions seen on other parts of the testimony, undermines the quality of the testimony and their statements. This was seen by the High Court in the statements and testimony of some of the witnesses such as Habingoma Théobald who stated before the Danish Investigation Service that the killings of Busasamana and Mudende took place between 8 and 12 April 1994, before Danish Prosecution and the National Public Prosecution Authority Biryamo Joseph stated that it took place on 7/4/1994; DTC stated that it happened on 7/04/1994, but everyone who came to the Court stated that these killings were perpetrated on 8/4/1994. While verifying whether the High Court contradicted itself as it held that the Prosecution witnesses contradicted themselves on minor details, but then relied upon them to invalidate the testimony saying that they had contradicted themselves on small details many times and in an extreme manner. The Court of Appeals is to examine the testimony given regarding the alleged

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a. The attack on the University of Mudende and Busasamana Church As seen in paragraphs 153 and 154 of the appealed case, the High Court decided that the selfcontradictions and extreme inter contradictions in the testimony of Nsengiyumva Kanyamishoro Innocent, Habingoma Théobald, Habinshuti Ruzibiza Jean, Biryamo Joseph, undermine its quality because it cannot be relied upon as conclusive evidence proving the involvement of Twagirayezu Wenceslas in the killings that assailed the University of Mudende for the following reasons: - the statements and testimony starts from confirming that Twagirayezu Wenceslas did not play any part in the acts he is accused of, goes on suspecting that it did exist, and ends with the witness asserting that he witnessed the accused committing a serious crime based on changing the narrative and self- contradictions that make it unreliable as evidence of the reality of facts; - testimony fluctuating on the important point that the attacks that the witness states that he was involved in with the accused, considering how he is contradicting himself about where it started, where it continued and where it ended and where they have been meeting each other, make these statements and testimony not reveal the reality of facts. As also seen in paragraphs 159 and 160 of the appealed judgment, the High Court confirmed that the self- contradictions in the statements and testimonies of Shyengo Joseph, Habingoma Théobald, DTC and Biryamo Joseph, both for each individual witness and between them are contradictory regarding the way and time the defendant was

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spotted in the activities of the crimes he is being prosecuted for that were committed in the Parish of Busasamana in such a way as to undermine its quality; therefore, their statements and testimony cannot be relied upon to declare that Twagirayezu Wenceslas was involved in the killings that took place at Busasamana Church. 1. Nsengiyumva Kanyamishoro Innocent Regarding the testimony given by Nsengiyumva Kanyamishoro Innocent, the analysis of the High Court showed that he first stated that he did not know Twagirayezu Wenceslas in killings, but when he was questioned again he changed and said that they were together in the killings. Nsengiyumva Kanyamishoro Innocent, when questioned by the Danish Police, stated in one instance that he did not see Twagirayezu Wenceslas on the University of Mudende, at another he statess that he may have been there, he also stated that he did not know if he participated in the genocide, but after further interrogation, he changed his statement and states that he knows Twagirayezu Wenceslas that he was the leader of Gacurabwenge roadblock, that he was also involved in the killing of Tutsis at the Busasamana and at the University of Mudende, he also stated that he did not want to say it because he is his wife's uncle48. When questioned by Rwanda Investigation Bureau, he stated that he participated in the attacks together with Ntamaherezo, and both of them were always at the forefront carrying guns and others armed with clubs49. While testifying before the court, Nsengiyumva Kanyamishoro Innocent stated that during the killings at the

48 P-09-263. 49 Interrogation statement dated 11/12/2013.

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University of Mudende, he was with Twagirayezu Wenceslas who brought Ntamaherezo and many others, those two were at the forefront and many people were killed, that Twagirayezu Wenceslas shot and threw a grenade, that these killings happened before those at the Gacamena’s home roadblock, that these two attacks were the only ones in which they collaborated50. The Court of Appeal finds that the High Court made an error in confirming that the testimony of Nsengiyumva Kanyamishoro Innocent is grossly contradictory, confirming it after examining together what he stated during the investigation conducted by the Danish Police and what he stated before Rwanda Investigation Bureau and before the Court where he testified. However, the High Court did not have to rely on what he told the Danish Police because he stated it without taking an oath, and the person who was interpreting for him had not taken an oath before starting his work, and the witness was not asked to sign the document. Therefore, the document containing his statements before the Danish Police does not meet the requirements to be valid as admissible evidence in Court51; and should not have been relied upon52. The Court of Appeal, looking at the statement made on 11/12/2013 before the Prosecution and his statement before the court, finds no self-contradiction in the statements of Nsengiyumva Kanyamishoro Innocent because he stated before Rwanda Investigation Bureau that he had a gun when he accompanied Twagirayezu Wenceslas in the attack, the fact that before the court, he added that in the attack on the University of Mudende, Twagirayezu

50 Paragraph 89 of the appealed judgment. 51 Article 51 of Law nº 027/2019 of 19/09/2019 relating to the criminal procedure 52 Despite the fact that this statement was not signed by the interrogated person, he/she was not given an opportunity to explain what he/she stated about them.

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Wenceslas shot and threw a grenade, but he was asked specifically what weapon Twagirayezu Wenceslas used in that attack. 2. Habingoma Théobald alias Simpamanuka As seen in paragraph 153 and 159 of the appealed judgment, the High Court invalidated Habingoma Théobald's testimony saying that he was confused in recounting how the killings were perpetrated, because he once stated that the in which the defendant was spotted started at Busasamana and continued at Mudende, and when questioned again, he changed his statement and said that they started at Mudende and continued at Busasamana, that in one instance he says that when they were in the attack on Busasamana Church, Twagirayezu Wenceslas joined them while in other places he states that he left the attack on the University of Mudende with Twagirayezu Wenceslas and headed to the attack on the Busasamana Parish. Witness Habingoma Theobald, who was interviewed by the Danish Police then called Simpamanuka Théobald, stated that the genocide started between 07-12/04/1994, he was sent with other soldiers to Busasamana in Rwerere Commune, where he met Twagirayezu Wenceslas and many Interahamwe, that when they went they had orders to kill about a thousand (1,000) Tutsis who had fled, that at about two o'clock, Twagirayezu Wenceslas was the one who led the group of Interahamwe at the Sector level, consisting of about 600 men, most of them had traditional weapons, few have guns, Twagirayezu Wenceslas has three grenades and a gun, that they talked because they already knew each other, they entered the church building together that they were still there and received information from other soldiers that there were still Tutsi refugees who were hiding at the University

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of Mudende , they immediately went there with Twagirayezu Wenceslas53. When he was questioned by Rwanda Investigation Bureau on 13/12/2013, Habingoma Théobald said that between 8 and 12/04/1994, he was with Twagirayezu Wenceslas in the attack that killed Tutsis who had fled to the Busasamana Church, and he was the leader of Interahamwe in Rwerere Commune had also has a R4 rifle and a grenade, that the other attack that both were involved was the one that took place at the University of Mudende, that that day they left the Busasamana Church and went to kill the Tutsis who had fled to the Mudende dispensary when they arrived at half past one( 1:30 p.m.). Witness Habingoma Théobald testifying before the High Court stated that he was with Twagirayezu Wenceslas in the attacks with a R4 gun, that on 08/04/1994 the attack started at the University of Mudende where he attackers killed the Tutsis who had taken refuge there, and then they went to kill those who fled to the Busasamana Parish. The Court of Appeal finds, for the reasons stated above, that the High Court should not have relied upon Habingoma Théobald's statements before the Danish Police. The Court of Appeal also finds that the fact that the witness had stated that between 8 and 12/04/1994 he was with Twagirayezu Wenceslas in the attack that started at Busasamana Church which later went to the University of Mudende, and before the Court, the witness stated that on 08/04/1994 he accompanied Twagirayezu Wenceslas in the attack that started at the University of Mudende and continued at the Busasamana church, these are small details and considering how long ago the witnessed actions took

53 Page P-09-160-164.

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place, it is not surprising that the witness does not remember the exact date and place the attack began. 3. Habinshuti Ruzibiza Jean As seen in paragraph 153 of the appealed judgment, the High Court rejected the testimony of Habinshuti Ruzibiza Jean, who states that at the University of Mudende, when it was attacked on 08/04/1994, he concealed himself and left a few days later to Busasamana Church, where he met Interahamwe comprising among other members Twagirayezu Wenceslas, however, when questioned again, he stated that he had seen him on 04/08/1994, the day on which the University of Mudende was attacked. Habinshuti Ruzibiza Jean, interrogated by the Danish Police, stated that amongst the attackers who assailed the University of Mudende on 8/04/1994, he recognized Twagirayezu Wenceslas, he also stated that on Rwagare Hill, he met 30 Interahamwe, and saw Twagirayezu Wenceslas carrying a gun and a grenade, that he also saw him shooting down a girl. He even stated that he had left the University of Mudende and fled to Busasamana church after changing his narrative because the investigator had told him that others said that in the morning of April 8, 1994, Twagirayezu Wenceslas might have been at Busasamana Church, and he immediately said that it is possible that he was not involved in the second attack on the University of Mudende, he also stated that he had tried to run from Mudende University to Busasamana Church and wanted to go to Congo, that on the way, he met about thirty (30) Interahamwe militiamen on a hill called Rwagare54. When questioned by Rwanda Investigation Bureau, he stated he saw Twagirayezu Wenceslas on 8/4/1994 during the attack on the University of Mudende that when

54 P- 09-222

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he fled he also saw him at Gacurabwenge roadblock where he was used to carrying a gun. Witness Habinshuti Ruzibiza Jean testifying before the High Court, stated that on 7/4/1994, they fled to the University of Mudende, on 8/4/1994, they came an attack from Rwagare at Rwerere, TWAGIRAYEZU Wenceslas was part of it with a gun and a studded club called nta mponano y’umwanzi. He stated that they had arrived in the Congo, Shyengo Joseph told him that even at Busasamana Church, Wenceslas had set foot. The Court of Appeal finds, for the reasons stated above, that the High Court should not have relied upon Habinshuti Ruzibiza Jean's statement before the Danish Police and compare it with his statement before the investigative authorities and the High Court. The Court of Appeal also finds that there is no contradiction in what Habinshuti Ruzibiza Jean stated before Rwanda Investigation Bureau and the High Court because he confirmed that the Mudende University was attacked on 8/4/1994 and that Twagirayezu Wenceslas was involved in the attack with a gun. Therefore, the High Court erred in confirming that Habinshuti Ruzibiza Jean had contradicted himself in a radical manner. 4. Biryamo Joseph As seen again in paragraph 153 and 159 of the appealed judgment, Biryamo Joseph's testimony was discredited because he stated that after the attacks on the University of Mudende and Busasamana Church on 8/4/1994, they went to Rwerere Commune with Twagirayezu Wenceslas, while Habingoma Théobald states that after the Mudende and Busasamana killings, they went to Saint Fidèle School, "Commune rouge" and Nyundo with Twagirayezu Wenceslas, although DTC states that the killings of Busasamana took place on 8/4/1994, which continued at Duwani Kabuhanga instead of Kinyogo. It was

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discredited because somewhere he stated that in the attack in Busasamana on 7/4/1994, Twagirayezu Wenceslas, who was carrying a machete, killed three (3) women and two (2) children and beheaded them while his DTC stated that in the attack of Busasamana on 7/4/1994, Twagirayezu Wenceslas used a gun to kill those inside the Busasamana church. Biryamo Joseph, interrogated by the Danish Police, stated that on 7/4/1994, he saw Twagirayezu Wenceslas in the attack on Busasamana church, leading a mob of Interahamwe militiamen that included Bikindi Simon and DTC with pistols and other guns, but Twagirayezu Wenceslas carrying a machete he also used it to butcher three (3) women and (2) children. When questioned by Rwanda Investigation Bureau, Biryamo Joseph stated that the attack on the University of Mudende took place on 12/4/1994 after which, they went to the Busasamana school where they found Twagirayezu Wenceslas. While testifying before the High Court, Biryamo Joseph stated that on 8/4/1994 at eight o'clock they were with the Interahamwe, the Bourgmestre and the soldiers led by Nguyeneza who went to kill at Mudende when they arrived there, they found Inspector Bunani Jean and Twagirayezu Wenceslas who had a gun, there was a group of many people including the Conseiller, leaders at cell level, the soldiers and the police, that they finished killing at noon (12:00) and headed to Busasamana, and that in all those places, Twagirayezu Wenceslas had a gun which he used in killing Gasanduku and Kanyarutoki who were among the refugees who were at Busasamana Church Building.

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The Court of Appeals finds, for the reasons stated above55, the High Court should not have relied upon Biryamo Joseph's statement made before the Danish Police and compare it with his statement before the investigative organs and before the High Court, and that it should not have compared it with what DTC also stated in that context. Regarding his testimony whereby Biryamo Joseph states that on 8/4/1994, after the attacks on the University of Mudende and Busasamana Church Building, they went to Rwerere Commune, accompagnied by Twagirayezu Wenceslas to quench their thirst and eat, while Habingoma Théobald stated that that on 8/4/1994 after the killings they continued to the school of Saint Fidèle, "Commune rouge" and Nyundo with Twagirayezu Wenceslas, while DTC stated that after the killings at Busasamana church on 8/4/1994, they went to the customs office of Kabuhanga, the place called Kinyogo, the Court of Appeal finds that they did not agree on what they did after the attacks, which is not surprising considering the time elapsed as elucidated in the case of Bikindi Simon, decided by the International Criminal Court for Rwanda and in the cases decided by this Court mentioned above, because the most important thing is that all the witnesses agree that they were with Twagirayezu Wenceslas in the attacks on the University of Mudende and those on the Busasamana church. 5. Shyengo Joseph As seen in paragraph 159 of the appealed judgment, the High Court invalidated Shyengo Joseph's testimony because in some instances, he states that he was told about the role of Twagirayezu Wenceslas in the Busasamana killings by DTC, yet he was questioned again and stated that he had witnessed it himself in the attack.

55 See paragraph 184 of this judgment.

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When questioned by the Danish police, Witness Shyengo Joseph stated that the DTC told him that Twagirayezu Wenceslas was involved in the murder that took place at the Busasamana church, and that he himself had never heard of him being mentioned in any other killings. When questioned by Rwanda Investigation Bureau, Shyengo Joseph stated that on 8/4/1994 in the morning at around (9:00), when he had fled to Busasamana Church, he saw Twagirayezu Wenceslas in an attack with a gun, the Interahamwe were borrowing his gun to shoot. They shot him, calling him a teacher, but he did not know the persons he personally killed. Witness Shyengo Joseph testifying before the court, stated that on 8/4/1994 he had fled to Busasamana Parish, that he saw Twagirayezu Wenceslas with a gun but did not see him shooting, he also stated that he first fled to the University of Mudende, the attack came as four o’clock in the morning, he ran away and fled to Busasamana Church, where he arrived at around forty past eight. The Court of Appeal finds that, for the reasons stated above56, the High Court should not have relied on Shyengo Joseph's statement made before the Danish Police and compare it with what he stated before Rwanda Investigation Bureau and before the Court. The Court of Appeal, having considered is testimony before the Court, finds that it is consistent with his statements before the Prosecution because he confirmed that on 8/4/1994 he witnessed Twagirayezu Wenceslas in the attack on Busasamana church with a gun. Thus, the High Court erred in finding that his statements were grossly contradictory.

56 See paragraph 184 of this judgment.

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6. Witness DTC As seen again in paragraph 159 of the appealed judgment, the High Court rejected the testimony of DTC because he stated that on 7/4/1994 between (9:00) and (2:00), he got involved in the attack on Busasamana when he was driving a car transporting Twagirayezu Wenceslas; elsewhere, he stated that on this date around 1:00 p.m., he was at the roadblock and saw Twagirayezu Wenceslas coming to attack Busasamana on an ONATRACOM bus. Another reason was that he stated that the killings in Busasamana took place on 8/4/1994, which continued to Kabuhanga customs house called Kinyogo; while Biryamo Joseph says that after the attack on 8/4/1994 in Busasamana and Mudende they continued to Rwerere Commune to reward themselves, while Habingoma Théobald states that on 8/4/1994 after the attacks of Mudende and Busasamana, they went to Saint Fidèle, to Nyundo and to the "Commune rouge" with Twagirayezu Wenceslas. When questioned by the Danish Police, Witness DTC stated that on 7/4/1994 they went to Busasamana church and he was driving a car transporting Twagirayezu Wenceslas, on the way they met 10 soldiers and more than 100 Interahamwe, the Interahamwe broke into the church Building and killed between 200 ans 300 persons who were inside, that in the killings at the church, Twagorayezu Wenceslas participated with his gun. When questioned before Rwanda Investigation Bureau, he/she stated that The interrogators in the Police said on 7/4/1994, at noon or around two o’clock, he saw him on the ONATRACOM bus from Gacurabwenge with many people from different sectors, they met him at the existing roadblock with others, they came for the attack on Busasamana where they killed more than 200 Tutsis, Twagirayezu Wenceslas had a gun. While testifying before

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the High Court, he stated that on 8/4/1994 at ten o'clock (10:00) during the killings in Busasamana, he was with Twagirayezu Wenceslas, who had a R4 gun, and then they continued to Kabuhanga Customs Office at a place called Kinyogo at around two o’clock, and on 9/4/1994 they went to the Mudende killings and Twagirayezu Wenceslas was carrying a gun. The Court of Appeal finds that, for the reasons stated above, the High Court should not have relied on the statements made by DTC before the Danish Police and compare them to those he made before Rwanda Investigation Bureau and before the court. The Court of Appeal finds that, apart from the discrepancy in the dates of the attack on Busasamana Church, because before the Prosecution he had stated that on 7/4/1994, and before the Court he stated that it happened on 8/4/1994, this should invalidate his testimony for the reason that there are contradictions regarding the dates of the attacks because, as explained, they are small details considering how long ago what he is testifying about happened. The Court of Appeal finds that, as explained above, the fact that he stated that on 8/4/1994 they had left Busasamana and continued to Kabuhanga customs office at Kinyogo, unlike where Biryamo Joseph states that after the attack on Busasamana and that on the University of Mudende, they continued to Rwerere Commune to reward themselves, while Habingoma Théobald stated that they continued to Saint Fidèle School, Nyundo and the "Commune Rouge", where they were with Twagirayezu Wenceslas, is not a sufficient reason to invalidate his testimony, because the most important thing they all have in common is that they were together in the attack on the

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Busasamana church and the one on the University of Mudende. The Court of Appeal, having considered that the actions they are testifying about took place in April 1994, and they testified about them before the Court in April 2022, 28 years after it happened, it is clear that there are things that they may not remember exactly when it happened, how it followed or they forget or do not say the same how things went. The most important thing, as explained in the previous paragraphs, is that the Prosecution witnesses agree that they were with Twagirayezu Wenceslas in the attacks on the University of Mudende and on Busasamana Church that killed the Tutsis who had fled, and there is no contradiction there. The Court finds that the High Court erred in confirming that Twagirayezu Wenceslas did not participate in the attack on the University of Mudende and the one on Busasamana Church based on the fact that the testimony against him is contradictory, because this Court found that what they do not agree on are small details that should not undermine the relevance of their testimony. b. Gacamena’s home roadblock [215] As seen in paragraph 166 of the appealed judgment, the High Court pointed out that the analysis of the statements made about the role of Twagirayezu Wenceslas at roadblock referred to as Gacamena’s home roadblock shows self contradictions and inter contradictions as follows: - Nsengiyumva Kanyamishoro Innocent, first stated that on 9/4/1994 he found two (2) men and one (1) girl killed at the Gacamena’ home roadblock, but he did not know who killed them, however, when questioned

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again, he stated that on this date, Twagirayezu Wenceslas dislodged the Tutsis and shot them dead; - - Gasenge Etienne, on one hand hand states that he never learnt that there were the Tutsis who were killed at Gacamena’s home roadblock, on the other hand when questioned again, he states that there was a woman carrying a child on her back who was killed at this roadblock by Bunani Jean, Twagirayezu Wenceslas was also there; - DTB first stated that he could not say that Twagirayezu Wenceslas killed a given person because he was not involved in any attack, elsewhere he stated that he participated in the attacks in various places, that on 8/4/1994, at Gacamena’s home roadblock, sixteen (16) persons were killed, Twagirayezu Wenceslas was there, with a traditional weapon called no concession to the enemy; - Regarding the three (3) Tutsis killed at the roadblock, Kanyamishoro Nsengiyumva Innocent says that they are two (2) men and one (1) woman; DTA states that they are two (2) women and a young man, and elsewhere he/she states that it is a woman, a man and a child; DTC states that he is two (2) women and one (1) man; - Regarding how the three (3) Tutsis were killed, Nsengiyumva Kanyamishoro Innocent states that he does not know who killed them, and elsewhere he states that they were shot dead; DTA and DTC state that they were clubbed to death;

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The Court of Appeal finds that while invalidating the testimony given about the role of Twagirayezu Wenceslas at the Gacamena’s home roadblock, the High Court compared the testimony given before the Court, the statements of the witnesses before the Prosecution, before Rwanda Investigation Bureau and what they stated when they were interrogated by the Danish Police, what they state about the people killed, their number, whether they were women or men or children, the role of Twagirayezu Wenceslas in the killings against them, the weapons used, and the dates of the events. In the following paragraphs, the Court of Appeal examines the statements of the Prosecution witnesses about what happened at Gacamanena’s home roadblock. 1. Nsengiyumva Kanyamishoro Innocent The High Court invalidated the testimony of Nsengiyumva Kanyamishoro Innocent, holding that when he was questioned by the Danish Police, he first stated that on 9/4/1994 he found two (2) men and one (1) girl killed at the Gacamena’s home roadblock but did not know who killed them, but when testifying before the High Court, he states that on that date Twagirayezu Wenceslas dislodged the Tutsis and shot them dead. The case file shows that Nsengiyumva Kanyamishoro Innocent, when questioned by the Danish Police, initially stated that he did not know the role of Twagirayezu Wenceslas, but later he changed his mind and said that he committed crimes in the genocide but he did not want to say it because Twagirayezu Wenceslas is his wife's uncle. He went on to state that Twagirayezu Wenceslas was the leader at Gacurabwenge roadblock, and he also stated that he had gone to the roadblock several times to the house of a businessman named Gacamena on 9/4/1994, which was

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manned by a number of persons ranging from 20 and 30 with machetes, clubs and other traditional weapons, he had his gun. He also said that he recognized Twagirayezu Wenceslas, because he was leader at that roadblock; that he arrived around noon and saw three bodies of two men and one 18-year-old girl lying on the ground about 20 meters from the roadblock, that he did not know who killed them, but he heard that they were killed by people who were manning the roadblock. This witness who was interrogated Rwanda Investigation Bureau stated that he accompanied Twagirayezu Wenceslas to kill, that in April 1994 on Thursday, there were three (3) people including one girl and two men who were shot dead at the Gacurabwenge roadblock. Witness Nsengiyumva Kanyamishoro Innocent, while testifying before the court, stated that on 9/4/1994 at two o'clock (2:00 p.m.), Twagirayezu Wenceslas "dislodged" the Tutsis, the other place where they “dislodged” the Tutsis at Rwagare also called at Gacamena’s home and chased them, Twagirayezu Wenceslas shot them down with a black gun whose brand remains unknown to him, that a large number of Tutsis succumbed at that roadblock. Regarding the information he imparted before the Danish Police where he stated that he saw the bodies of three (3) persons, but that he did not know who killed them, the Court of Appeal finds that the information should not be relied upon because it is flawed as it has been repeated in relation to the fact that the documents contained in it were not signed by the witness, even the witness and interpreters were not sworn. Therefore, the High Court should not have relied on it in invalidating the testimony that he gave, and even explained it before the Court.

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The Court of Appeal finds that, in his testimony before the Court and Rwanda Investigation Bureau, Nsengiyumva Kanyamishoro Innocent revealed that there were persons that Twagirayezu Wenceslas shot dwn at Gacamena’s home roadblock, which should have been valued even though he said that he was at the Gacamena’s home roadblock on 9/4/1994, elsewhere he mentions Gacurabwenge roadblock in April 1994, but he does not remember the date. As explained for other witnesses, not remembering the dates or speaking in different ways where actions were carried out is not a serious flaw that would make the testimony lose its quality, because the most important thing is that Nsengiyumva Kanyamishoro Innocent confirmed that there were persons that Twagirayezu Wenceslas killed at Gacamena’s home roadblock at Gacurabwenge, and even before the High Court, he clearly explained the date of occurrence57. 2. Gasenge Etienne The High Court found that Gasenge Etienne, in some instances stated that he had never learnt that any Tutsis were killed at Gacamena’s home roadblock, when questioned again, he stated that there was a woman carrying a baby on her back who was killed at this roadblock by Bunani Jean, Twagirayezu Wenceslas was also there. Gasenge Etienne, when questioned before the Danish Police, stated that he knew that there was a roadblock at Gacurabwenge, but that he had never heard of the killings against the Tutsis at that roadblock; questioned by the Prosecution on 22/5/2020, he stated that he did not know the role of Twagirayezu Wenceslas after the death of President Habyarimana in 1994, that at Gacamena’s home roadblock, Bunani Jean had a dog that hunted down Tutsis,

57 See hearing report dated 18/04/2022.

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that he did not know if Twagirayezu Wenceslas was there, but he was questioned again before the Prosecution on 23/11/2021, and stated that at Gacamena’s home roadblock, Bunani Jean shot down a woman and cut off her breast and gave it to a dog, Twagirayezu Wenceslas was there. While testifying before the High Court, Gasenge Etienne stated that Twagirayezu Wenceslas and the Inspector of Schools called Bunani Jean lived at Gacamena’s home roadblock, that on 8/4/1994 he saw him standing as a leader talking to Bunani Jean, but he did not hear what they were talking about, he also stated that among the killers he remembers who were at that roadblock were Bunani Jean who used a dog to hunt down people, Munyarwerere and Twagirayezu Wenceslas, that even Bunani Jean killed a woman, cut off her breast and gave it to a dog. As can be seen in his statements, Gasenge Etienne, when questioned by the Prosecution, stated that he did not know the role of Twagirayezu Wenceslas, when questioned again, he stated that at Gacamena’s home roadblock, Bunani Jean shot down a woman and cut off her breast and gave it to a dog, Twagirayezu Wenceslas was there, although he testified before the court stating that among the killers he remembers who were at Gacamena’s home roadblock were Bunani Jean who used dogs to hunt down people, Munyarwerere and Twagirayezu Wenceslas. When questioned by the Prosecution, Witness Gasenge Etienne did not say anything about work, but he stated that he knows Twagirayezu Wenceslas, that he is the son of Semugeshi Naason and his mother's name is Ntawukazi Rose, his parents lived in Rwerere Commune58. To the question of whether he knows Twagirayezu

58 Interrogation statement of Gasenge Etienne before National Public Prosecution Authority dated 23/11/2021.

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Wenceslas, he replied that he knows him because he was a teacher at Munanira and he also went to study in Zaire, after which he went to teach at the Baptist College at Gacuba II, stated that they knew each other, and as way of evidence, he showed the Prosecution or justice Twagirayezu Wenceslas’ photo59. During his interrogation, he showed Twagirayezu Wenceslas’ photo stating that it was given to him by their son who lived with his mother in Congo, when they were inducing him to discupalte the defendant, he asked them for a photo lying them that he no longer remembers him and they gave it to him, but that he asked for it so that he could show it to justice as someone he already knew. This Court finds that Witness Gasenge Etienne should not be trusted because both before the High Court and before the Prosecution, he was questioned with a photo of Twagirayezu Wenceslas, stating that it is a sign that he knows him and that it was given to him by his family members to disculpate him. This Court finds that the fact of holding of the accused’s photo shows that he does not know him well because he used it to remind him of the person he is talking about and to convince his audience that he knows him. 3. DTA When questioned before the Danish Police, this witness stated that between 10 and 12/4/1994, at the roadblock located opposite Gacamena’s shop, there were many people with traditional weapons, he managed to identify Twagirayezu Wenceslas, Rukara and Claver, they arrested a man, a woman and a child, Twagirayezu Wenceslas asked them for their identity cards, and approached Bunani Jean who was the leader of the roadblock and told him that those people were Tutsis,

59 See statement dated 22/05/2020, question number 13.

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Bunani Jean immediately gave orders to kill them all three, they took them away from the roadblock under a tree and they clubbed them to death. When asked by Rwanda Investigation Bureau, DTA stated that between 9 and 15/4/1994, around 10:00 or 1:00, he saw Twagirayezu Wenceslas at the Gacamena’s home roadblock with Bunani Jean, Ntamfura and Claver arresting two Tutsi women and a young man aged between 14 and 17, they took them to Munyazogeye Alphonse who was a journalist about 60 meters away from the roadblock, clubbed them to death and buried them under an avocado tree. While testifying before the court, Witness DTA stated that Twagirayezu Wenceslas was involved in the killing of two Tutsis women and a young man when they arrived at Gacamena’s home roadblock with the intent to cross the border into the DRC, he stopped them and asked them for their identification documents, they did not show them and started beating them, he joined others in killing them and buried them under Munyazogeye's avocado tree, that he hardly remembers that these killings were perpetrated on 10/4/1994. He also explained that they were beaten to death, and that they join efforts to kill them, that they shot down the one who was running away; he added that Twagirayezu did not use the R4 gun he had, that he used clubs. The Court of Appeal finds that, as stated for other witnesses, that DTA's statements before the Danish Police should not have been relied upon to invalidate DTA's testimony before the court and before Rwanda Investigation Bureau due to the flaws mentioned. Although what he or she stated before Rwanda Investigation Bureau and before the Court, it obvious that there is no contradiction because both before Court and Rwanda Investigation Bureau, he/she testified that Twagirayezu Wenceslas was involved in the

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killings against two Tutsi women and one young man at the Gacamena’s home roadblock using a club between the date of 9 and 15/04/1994. 4. DTB The High Court rejected DTB's testimony based on the fact that he/she first stated that he could not assert that Twagirayezu Wenceslas killed a given person because he never accompagnied him in any attack, elsewhere he/she stated that he/she participated in various attacks, and that on 8/4/1994, at Gacamena’s home roadblock, (16) persons were killed, Twagirayezu Wenceslas was there, with a traditional weapon called no concession to the enemy. When questioned before the Danish Police, DTB stated that that during the genocide there was a roadblock near Gacamena’s home, that he/she visited it three (3) times, and that in all those times he/she saw Twagirayezu Wenceslas, that one day he saw ten (10) or twelve (12) corpses near that roadblock there were several young men including Twagirayezu Wenceslas. This witness, when questioned by Rwanda Investigation Bureau stated that Twagirayezu Wenceslas was manning the roadblock which was set opposite Gacamena's house, near his sister's house called Ukwitegetes Léoncie where he/she went for an overnight stay, that he/she usually carried a club, a traditional weapon referred to as no concession to the enemy, that the roadblock was established from 1992 to 1994 by the leadership of Gacurabwenge Sector in order to hunt down the Tutsis and their accomplices, that he/she could not say that Twagirayezu Wenceslas killed a given person because they were never involved together in an attack, that all he knows is that he was manning that roadblock.

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When testifying before the court, witness DTB stated that Gacamena’s home roadblock was established in 1992 during the saga of accomplices, that in 1994 there was an old man named Rusesa who was beaten there and Twagirayezu Wenceslas was there, he was spared by the local residents but brought him to the former commune to detain him, that Twagirayezu Wenceslas manned the roadblock until the time of the genocide where he got involved in the killings like others, because he/she saw him on 8/4/1994, and that that day in the morning he participated in the killings against sixteen (16) persons who were killed, that while there were two (2) guns at that barrier, Twagirayezu Wenceslas had a traditional weapon called no concession to the enemy. The Court of Appeal finds that, as was mentioned for other witnesses, the statements made by DTB before the Danish Police should not have been relied upon to invalidate the testimony given before the Court and Rwanda Investigation Bureau due to the flaws mentioned. The Court of Appeal finds that the testimony DTB gave before the Court and his/her statements before Rwanda Investigation Bureau are consistent with the fact that Twagirayezu Wenceslas manned Gacamena’s home roadblock, having a club, and before the court he/she clearly explained that on 8/4/1994, sixteen (16) persons were killed in the presence of Twagirayezu Wenceslas. The Court of Appeal finds that this witness does not contradict him/herself, because, although when questioned before Rwanda Investigation Bureau, he/she stated that he/she did not testify that Twagirayezu Wenceslas killed a given person because there was no attack, he emphasized that he manned the Gacamena’s home roadblock with a traditional weapon. This does not contradict what he confirmed before the Court that on 8/4/1994 in the morning

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at Gacamena’s home roadblocks, sixteen (16 people) were killed, because the most important thing is that he/she showed that Twagirayezu Wenceslas was manning that roadblock where a number of persons were killed. 5. DTC As seen in paragraph 166 of the appealed judgment, DTC's testimony about the Gacamena’s home roadblock was invalidated due to its comparison with Nsengiyumva Kanyamishoro Innocent’s and DTA's testimony contradicting each other regarding the gender of the persons killed and the weapons used. When questioned by the Danish Police, this witness stated that on 7/4/1994, they killed 3 women and one man following orders of Twagirayezu Wenceslas, but he did not kill anyone, that after killing those persons, the witness dropped off Twagirayezu Wenceslas at Busasamana church. He also stated that he was the leader of all the roadblocks in the Gacurabwenge Sector. When questioned by Rwanda Investigation Bureau, DTC stated that between 7 and 9/4/1994 at four o'clock, when he was going to load vegetables in Kinogo, he saw Twagirayezu Wenceslas at Gacamena’s home roadblock with a Kalashnikov, along with about five young men including KAMERE, son of Gacamena, he saw at that roadblock that they had killed 3 persons including 2 women and one man. While testifying before the court, witness DTC confirmed that he was with Twagirayezu Wenceslas in the killings that were perpetrated with a R4 gun at Gacamena’s home roadblock in the early morning. This Court finds that his testimony is consistent with the fact that Twagirayezu Wenceslas was manning

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Gacamena’s home roadblock with a gun, and people were killed. Although the fact that when he was questioned by the Prosecution stated that people were killed at that roadblock between 7 and 9/4/1994, before the High Court he testified that it happened on 8/4/1994, it would not invalidate his testimony considering what was explained above and that considering the time that has elapsed, it is easy to err on the date, apart from the fact that the date of 8/4/1994 he mentioned is in the middle of the dates he mentioned. Even if he stated that he had a Kalashnikov rifle elsewhere and stated R4 rifle elsewhere, that would not invalidate his testimony invalid, because apart from the fact that he explained to the High Court what he meant, it is not surprising to confuse the two types of these guns for a special citizen who normally does not use them. In general, regarding the killings that took palce at Gacamena’s home roadblock, this Court finds that, apart from what was stated by Gasenge Etienne, the Court found that it should not be taken into account, other witnesses presented by the Prosecution agree that Twagirayezu Wenceslas manned Gacamena’s home roadblock; that a number of persons were killed at that roadblock and that Twagirayezu Wenceslas was armed. What they do not agree on is the dates of the killings, their number and gender, their age and the weapons used. However, the court finds, as explained in the preceding paragraphs, that these are minor details that would not invalidate their testimony. Indeed, considering the last time when the killings were perpetrated at Gacamena’s home roadblock, it is not surprising that they do not agree on the persons killed considering their sex, the dates on which they were killed, the fact that they can get mistaken about the weapons used, especially since there are those who say that at that roadblock, there were people with guns, others with traditional weapons. This Court therefore finds

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that the High Court erred in confirming that no killings were perpetrated at Gacamena’s home roadblock, and that Twagirayezu Wenceslas was not involved in them. c. Concerning the ISAR-Tamira killings Article 183, paragraphs 5° and 6°, of the Law relating to the criminal procedure and Article 18 of Law No 47/2013 of 16 June 2013 Relating to transfer of cases to the Republic of Rwanda mean that an appeal is filed in the form of submissions lodging a complaint, which shows a list of flaws in the case that are requested to be corrected and other issues that must be examined and explanations for each defect or for each issue that shows the mistakes made and the way that they must be corrected based on on the law and the evidence and the request of the court. In other words, the person who criticizes the decision of the appealed judgment must point out its flaws, and show how he would like it to be corrected. According to paragraph 168 of the appealed judgment, the High Court found that concerning the role of Twagirayezu Wenceslas in the ISAR-TAMIRA attack was stated by the witness Rwasibo Alphonse who was questioned by Rwanda Investigation Bureau. Rwasibo Alphonse stated that on 7/4/1994, Twagirayezu Wenceslas had visited him after his wife had given birth, and at ten o’clock A.M, two soldiers arrived, including Lieutenant Nguyeneza Evariste, together with the military commander of ISAR-TAMIRA military camp, checking the whereabouts of the Tutsis, they were directed to Nyirinkwaya Alfred who lived near the hospital. He stated that those soldiers asked them to arrest Nyirinkwaya Alfred and his wife who was carrying a child on her back, and take them to the military position of ISAR-TAMIRA. He stated that on ther way, they came across an old woman named Barinkumi, who refused to be arrested and the soldiers

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ordered them to kill her. Twagirayezu Wenceslas snatched Mababariye’s club and clubbed her on the head to death, they moved ahead and killed Nyirinkwaya Alfred and his wife, and finally went back home together to drink alcohol. And in paragraph 169 of the appealed judgment, the High Court finds that regarding ISAR-TAMIRA attack, Twagirayezu Wenceslas is incriminated by Rwasibo Alphonse who was not questioned by the Court, and based on the provisions of article 8, paragraphs 2 and 3 , of Law No 47/2013 of 16 June 2013 Relating to transfer of cases to the Republic of Rwanda prohibiting relying on written testimony which is not corroborated by any other testimony given before the court, held that the statements of RWASIBO Alphonse cannot be relied upon because they are not corroborated by any other evidence. Since the Prosecution did not point out the errors made in the reasoning of the High Court for not relying on the statements of Rwasibo Alphonse because his testimony was not explained before the High Court, the Court of Appeal finds that the allegations of the Prosecution are irrelevant. d. Regarding the killings that took place at Commune Rouge, at Saint Fidèle School and at Nyundo Paragraph 174 of the appealed judgment shows that the High Court found serious contradictions especially regarding how the attacks were waged at "Commune rouge" and its suburbs, as well as Nyundo where they were carried out, both in terms of where they came from, both in terms of how they were carried out, and in terms of those who were killed and where they were killed, invalidating this testimony, in such a way that it cannot be relied upon to confirm that Twagirayezu Wenceslas participated in the

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acts constituting the crimes he is accused of, alleged to have been committed at Commune Rouge and its suburbs , and at Nyundo. As seen in paragraph 173 of the appealed judgment, as per the analysis of these attacks, the High Court compared the testimony of Habingomba Théobald, of DTC and that of Biryamo Joseph, and found that it contains serious contradictions. Regarding Habingoma Théobald's testimony, the High Court found that it is flawed such that in all the institutions before which he testified, he kept contradicting himself about where the attacks started and where they were carried on. The case file shows that Habingoma Théobald, who was questioned by the Danish Police, stated that between April 7 and 12, 1994, he was with Twagirayezu Wenceslas, after the killings at Busasamana Church and continued at the University of Mudende until seven o'clock P.M, they went to attack "Petite barrière" where they met the Interahamwe who captured about two hundred (200) Tutsis, they went to kill them at "Commune rouge", they continued to Nyundo Church where they loaded about five hundred (500) Tutsis into trucks and went to kill them at "Commune rouge". Before Rwanda Investigation Bureau, Habingoma Théobald states that between 8 and 12/4/1994, after Mudende killings, they continued to the “Institut Saint Fidèle. He says that they arrived at about 4:00 p.m, they took the students and their workers into two (2) minibuses and took them to Nyundo at about 8:00 pm and killed them, the soldiers who were part of the attack went to spend the night at Gisenyi Military Camp. Before the court, Habingoma Théobald stated tha the killings took place on 8/4/1994, where they started killing at the University of Mudende, continued to Busasamana

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Parish, from there they went to the "Institut Saint Fidèle", when they arrived there, they arrested people and told them that they would take them to Nyundo for rescue, when they got there, they took some of them and went to kill them at "Commune Rouge", and he stated that in all those places, Twagirayezu Wenceslas was there, he saw him. This witness was asked why he had previously stated that they had left Nyundo and returned to Gisenyi Military Camp and now he changed it, he replied that they went to the camp after finishing everything, after shooting at Commune Rouge. As per DTC's testimony, he/she stated that the killings that took place near the Baptists at Commune Rouge took place on 11 or 12/4/1994 because they heard about them when they had just left Goma to onload guns. He also stated that when they arrived at Pentecostal Centre, they heard a noise and told them that it was Twagirayezu Wenceslas who threw the grenade. He states that this story was told by a Pastor named Rukara. The Court of Appeals finds that, as explained above, concerning the next targets of the attacks, the dates of their occurrence, the number of people killed, their gender, the weapons used are minor details that do not invalidate the testimony given by the Prosecution witnesses regarding what happened at Commune rouge, at the school of Saint Fidèle and at Nyundo. This Court also declared that the testimony given before the Danish Police should not be relied upon to invalidated the other testimony given before the Court on similar issues because the testimony given before the Danish Police does not show that the witness and their interpreters signed it as explained above. Therefore, the Court of Appeal finds that the High Court erred in finding that the testimony of Habingoma Théobald and that of the DTC were so contradictory that it could not be relied upon.

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B.3 Regarding the allegations of the Prosecution that the High Court contradicted itself by acquitting Twagirayezu based on the fact that he was not mentioned in Gacaca Courts  Submissions of the Prosecution The representatives of the Prosecution allege that in paragraph 195 of the appealed judgment, the High Court contradicted itself and confirmed that the fact that the accused was not mentioned in the Gacaca Courts does not prevent him from being prosecuted for the crime of genocide, however in respect of Twagirayezu Wenceslas, it held that the way the Prosecution witnesses portray him as somebody who was famous for the activities and the meetings for genocide preparation, as well as the actual genocidal activities, there is no way that he could not have been mentioned in all the areas where the Prosecution alleges that he led the killings. They explain that the analysis is not based on objective criteria, because during the collection of information of the Gacaca Courts there were many people who participated in the genocide who were not mentioned because of various reasons. They allege that it is not clear how the High Court found how Twagirayezu Wenceslas could not be forgotten in such a way that someone who revealed his role in the genocide against the Tutsis in 1994, this time would not be telling the truth; apart from the fact that there is no evidence to show that all the information related to the genocide was mentioned or given in the Gacaca information collection.  The defense of Twagirayezu Wenceslas Twagirayezu Wenceslas and his lawyers contend that as per the arrest warrant, the Prosecution alleged that the accused was a famous person, wealthy and well off, which affected him when he was detained in Denmark

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because they considered him to be an army general based on what was aired on radios and published in the documents they received from the Prosecution. They explain that an important person in the church because the one he was part of was among referred to as revival churches in rural areas; and he was an unpaid volunteer, that they should not take church affairs to connect them with politics, as they were asked to provide evidence showing that he was the president of CDR and they failed to do so. They add that considering what was stated by Witness Gasenge Etienne who stated that he had seen him as a leader at the roadblock, Nsengiyumva Kanyamishoro Innocent stated that he was the leader of the roadblocks or the leader of the attacks, and they say that he had moral authority(autorité morale), there is no way that he shoukd not have been mentioned in the information collection of Gacaca, and the fact that he often accompanied Bunani Jean is the main reason for mentioning him, that the manner in which he was referred should have made him be mentioned in Gacaca Courts. DETERMINATION OF THE COURT In paragraph 195 of the appealed judgment, the High Court found that the fact that Twagirayezu Wenceslas was not mentioned in the Gacaca Court information collection does not mean that he is not to be prosecuted for the crime of genocide, as the International Criminal Court for Rwanda confirmed in the case of Gatete Jean-Baptiste, whereby it held that the fact that Gatete Jean-Baptiste is not mentioned in the cases decided by the Gacaca Courts does not benefit the Court, because the fact that one Court does not mention a person in the cases tried by it does not mean that he was not involved in the crimes he is accused of, for what is being

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considered is his personal actions and evidence60. The High Court found that Twagirayezu Wenceslas, whom the Prosecution witnesses portray as a prominent figure in the activities and meetings of the genocide preparation and actual genocide, could not have been mentioned in Gacaca Courts in all the areas alleged by the Prosecution that Twagirayezu Wenceslas committed or led the killings. The Court of Appeal finds that the High Court contradicted itself because after showing that the fact that a person has not been mentioned in the Gacaca information collection does not mean that he had no role in the crimes he is accused of, and it should not have confirmed that Twagirayezu Wenceslas should definitely be mentioned in the Gacaca because the Prosecution identified him as a famous person in the activities of genocide planning meetings because the precedent set in the case of Gatete Jean-Baptiste case emphasizes that what is considered is his personal actions and evidence. B.4 Regarding the allegations of the Prosecution that the defense witnesses presented by Twagirayezu Wenceslas do not disculpate him The representatives of the Prosecution say that from paragraph 182 to 192 of the appealed judgment, the High Court analyzed the statements of the witnesses presented by Twagirayezu Wenceslas, and while making a decision, it confirmed that the witnesses of the Prosecution did not know him, but that what the defense witness stated is true, yet what they state confirms what the Prosecution witness state to incriminate him. They keep on explaining that that the defence witnesses presented by Twagirayezu Wenceslas state that he

60 See Prosecutor v. Gatete Jean-Baptiste, Case no ICTR-2000-61-T, para. 130.

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was not involved in the crimes he is accused of, and are divided into four categories: - those who believe that they did not see Twagirayezu Wenceslas in the killings because they were not there, such as Bazege Ntahondi Léa, Mpahatanye Mathieu, Nyirabariyanga Ancille, Kaberuka Théophile and Akimanimpaye Théoneste; - those who believe that they did not know him, for example, Ugwaneza Christophe; - those who state that they did not see him due to their location, the distance that separated them from the crime scene such as Bufono Silas and Nyiramizi Immaculée; - and those who state that when genocide started, they were not present for instance Serukiko Théoneste. The representatives of the Prosecution explain that the testimony they gave should not have been relied on for the following reasons: - Witness Sebashyitsi Appolinaire, mentioned in paragraph 182 of the appealed judgment, the High Court validated his testimony according to which at Gacamena’s home roadblock, no one was arrested, no one was killed and no one was injured and he never saw Twagirayezu Wenceslas. They allege that they find that the High Court ignored the fact that Sebashyitsi Appolinaire, who confirmed that he went to the roadblock once, so he did not confirm and did not know exactly what was done there, and those who went to the roadblock all the time he did not know and when there are other witnesses who testify that there were people killed at the roadblock people, namely Bazege Ntahondi Léa, DTC and DTB.

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- Witness Nyirabariyanga Ancille, whose home was located near Gacamena’s home roadblock, mentioned in paragraph 183 of the appealed judgment, the High Court validated his testimony because he said that he did not see Twagirayezu Wenceslas at that roadblock and what he said that no people were killed there. They allege that the flaw is that the High Court ignored that he was being hunted down, that he stated that since President Habyarimana's plane crashed on 06/04/1994, he started hiding in the mountains and caves, that this shows that he could not go on the road, because he also stated that she knew those who ware manning the roadblock they were chanting slogans and proclaiming their names. - In paragraph 184 of the appealed judgment, the High Court validated the testimony of Serukiko Théoneste who stated that he stood trial at the site of Gacurabwenge and was sentenced by the Gacaca Court, that he had never heard of Twagirayezu Wenceslas being mentioned in the acts of genocide. The representatives of the Prosecution allege that they find that the fact that he did not hear of him does not mean that he did not commit genocide, especially since the genocide started when he was not there, because he told the Court that he was at Nyamirambo, that he arrived at Rwerere two weeks after the killings had ended. - In paragraph 185 of the appealed judgment, the High Court validated the testimony of the witness Bufono Silas where he testifies that in the attack on Mudende on 04/07/1994 he did not see Twagirayezu Wenceslas, that thse he recognized were Sisiro and three other young men. The representatives of the Prosecution say that even though he was there, he could not identify all the killers who came, because the witness Bufono Silas confirms that he spent the

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night in the wheat field on the night of 04/06/1994 and left on the morning of 04/07/1994, they locked them in the house for two weeks. The witness also said that there were many killers, but he said that he recognized SISIRO and three other young men, which shows that he could not recognize all the killers who came. - In paragraph 187 of the appealed judgment, the High Court also validated the testimony of Akimanimpaye Théoneste where he stated that he did not see Twagirayezu Wenceslas again until the month of 03/1994 because the students did not study and that he never heard of him in the Gacaca Courts. They allege that the fact that he did not hear his name in the Gacaca information collection of Rouge commune and in the suburbs of the Baptist College is not enough to explain that he did not commit a crime, because there is no principle that sets out that a person is prosecuted for genocide only if he/she was mentioned in the Gacaca information collection especially since Twagirayezu Wenceslas went to the attack but was not a local resident. - In paragraph 188 of the appealed judgment, the High Court relied on the testimony of Mpahatanye Mathieu who testifies that he last met Twagirayezu Wenceslas in 1990 when he was a student in DRC, and stated that during Gacaca information collection, the leaders of the killing against the Tutsis were mentioned, including Karema Faustin and Karimunda. The representatives of the Prosecution allege that the flaw they see is that he was presented to disculpate Twagirayezu Wenceslas for the genocide committed at Busasamana Church; but while testifying before the High Court, he stated that on 8/04/1994 he did not arrive at Busasamana Parish, that he learned about the killings that happened there and heard it from

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conversations with others. They also allege that the fact that he had last seen in 1990 shows that he could not know what he did and that he spoke about those who led the killings, which does not exclude the role of others. - In paragraph 189 of the appealed judgment, the High Court relied on the testimony of Sindambiwe Emmanuel who states that he has been in the Gacaca Courts information collection for a long time, that he never heard of the role of Twagirayezu Wenceslas, that he does not know anyone who was killed at Gacamena’s home roadblock. The representatives of the Prosecution allege that the fact that he knows no one who was killed at Gacamena’s home roadblock does not mean that no one was killed, because there are witnesses DTC and DTB who confirm that some people were killed there. They also allege that even what he says that about three hundred meters (300m) from the roadblock, there were people who were killed by Bunani Jean, which matches the statement of the witness Kaberuka Théophile who was also presented by the defendant. Although he testified that he did not go to that roadblock, he confirmed that at the Gacamena’s home roadblock, he heard that people were shot down by Inspector Bunani Jean. They also allege that the witness did not know about what happened at Busasamana Parish because he did not arrive there, that it is clear that he had no information about Twagirayezu Wenceslas because he last saw him in 1990, which means that he did not know that while he was studying in Congo he did not stop coming back on holidays, even that he was in charge of AEBR church services in Kageshi Parish, and he is in charge of AEBR youth in Gisenyi District, and that during the genocide he was home but he testifies that they live in the same cell.

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- In paragraph 190 of the appealed judgment, the High Court validated the testimony of Ugwaneza Christophe who states that he never heard of the name of Twagirayezu Wenceslas among those who participated in the killings at the University of Mudende, that those he remembers who were involved in them were Biryamo, BIGARE and David. The representatives of the Prosecution say that Ugwaneza Christophe was brought to court by Twagirayezu Wenceslas who stated that he has enough information about the perpetrators of the genocide at the University of Mudende, but he says that he only remembers three persons including Biryamo Joseph and he testifies without doubt that he was with Twagirayezu Wenceslas in the killings at the University of Mudende. They also allege that another proof that what he states is baseless is that he states that among the killers there were soldiers, but he has not been able to mention any of them, so his testimony cannot show the truth of what happened. Moreover, he assured me that he did not know Twagirayezu Wenceslas before, that he saw him for the first time in the courtroom. - In paragraph 191 of the appealed judgment, the High Court relied on the testimony of Sebudahe Xavier where he testifies that he participated in the genocide against the Tutsis at Gacurabwenge, but that at that time he did not see Twagirayezu Wenceslas, that if ever he had participated in the genocide, he would probably have been used to committing it in other areas. They allege that this witness was not questioned by the Court even though his statementis in the file of the Prosecution, that the error made by the High Court was that it considered one part of his testimony, because he also stated that he did not go to the attacks. They allege that the High Court should

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not have found he did not shout without participating in the attacks, that it is not clear how he took part in the attacks and did not see Twagirayezu Wenceslas proven to have been involved in various attacks. Another thing they allege is that if Sebudahe Xavier had not gone to the attacks, he would not have known the role of Twagirayezu Wenceslas in them; except that the Court misinterpreted his statements as he stated that the place where he did not see him was where he committed the crimes. - Witness Bazege Ntahondi Léa testifies that she last met Twagirayezu Wenceslas in 1992, that he did not reach Busasamana when the killings were committed because he went there on 04/09/1994 to work at Busasamana Parish, and realized that atrocities were committed at Gacamena’s home roadblock. The representatives of the Prosecution allege that these are the defense witnesses, on which the High Court relied, holding that they are the ones who have reliable information about Twagirayezu Wenceslas, that there are others who were heard but did not say anything about it. They allege that if the Court had examined their statements, it would have found that their testimony was not reliable and therefore, would have changed its decision. They conclude on this point alleging that the decision of the High Court found in paragraphs 192 and 193 of the appealed judgment, has nothing to do with what the Prosecution pointed out about the statements of the defense witnesses that match the statements of the incriminating witnesses. They allege that the High Court should not have invalidated the testimony they gave about his participation in the crimes he is accused of.  The defense of Twagirayezu Wenceslas

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Twagirayezu Wenceslas and his lawyers explain that what the Prosecution criticizes about the testimony of Sebashyitsi Appolinaire, who stated that at Gacamena’s home roadblock no one was arrested, no one was killed, and no one was injured, and that he never saw Twagirayezu Wenceslas pretending to have said that he went to that roadblock once, is unfounded. They rely in this based on the fact that the High Court did not rely only on the fact that he spent the night at the roadblock set up at Gacamena’s home, but also based on the fact that the witness testified that he knew the accused, where he said that he was an acolyte at the Parish, studied primary school at Munanira primary school, and went to study in DRC. They also allege that the Court validated his testimony based on the fact that he was the leader of Kanyabijumba where the Gacamena’s home roadblock was located since 1990 until they fled the country; that he also explained that he and Mbonyubwabo were the ones who were responsible for arranging the persons to man the roadblock overnight and were also given a report every morning61, that this shows that he knew what was happening at that roadblock. Regarding the witness Bazege Ntahondi Léa who was brought by Twagirayezu Wenceslas to show the Court that she knew him and to impart the information she has about the perpetrators of the crimes of killing the Tutsis at Busasamana, the Prosecution alleges that he did not disculpate him because it found that she could not tell about what happened because she said that she arrived at Busasamana Parish on 9/04/1994, there were no killings taking place, but when she went there, she arrived at the Gacamena’s home roadblock and realized that the atrocities were being committed. Twagirayezu Wenceslas and his lawyers say that the Prosecution's claim that she did not disculpate him from the attacks on Busasamana, is

61 Hearing report dated 22/04/2022, pp. 7-9.

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irrelevant, because apart from the fact that he was not mentioned among those who participated in the attacks on Busasamana, they did not even hear him among those who participated in the killings that took place there and which were mentioned during Gacaca data collection. They contend that those she mentioned as having committed the killings in this area were Interahamwe militiamen namely Twagirayezu Mabuye, Suwedi, Benoît and Bunani Jean, and that the place he said he did not reach was at Gacamena’s home roadblock. They contend hat the reason why Bazege Ntahondi Léa sated that Twagirayezu Wenceslas did not arrive at Gacamena’s home roadblock is that he had not been to Busasamana recently, that she last met him in Sepetember 1993 when he came to teach at Gacuba. Twagirayezu Wenceslas and his lawyers allege that the Prosecution’s allegations that the High Court should not have relied upon the testimony of Mpahatanye Mathieu because he never reached Busasamana Church are irrelevant. They allege that he was brought to the Court to testify that he knows the accused well, where he comes from, that he last saw him in 1990 and that he was a teacher at the Munanira school, that he had to say whether he participated in the genocide against the Tutsi at Busasamana. They explain that before the High Court he showed that he knew him, they were neighbors, he showed that he had never been a teacher at the Munanira school, and explained that he should not have ignored him because he was a Headteacher at Munanira school, that this shows that those who stated that he was a teacher at Munanira had told lies. They also allege that the witness Mpahatanye Mathieu also mentioned the names of those who led the killings against the Tutsis in Busasamana, and emphasized that Twagirayezu Wenceslas was not among them, because he knew that he had gone to study in Congo, and he did not say anything to incriminate him.

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They also allege that what the Prosecution states that the High Court relied on the testimony of Nyirabariyanga Ancille and ignored that she could not know what was happening at the Gacamena’s home roadblock that was placed at the gate of her house, because the cave she was hiding in was far away from the roadblock is irrelevant, because Nyirabariyanga Ancille showed the Court that no one was killed at that roadblock due to the fact that she knew all what was happening there at four hundred meters (400m) away from it, that those she knew were those who were killed above it in the former Mutura Commune. They also allege that his statement shows that if there were people who were killed at the roadblock, she would have known about it as long as she revealed that she happened to know the people from Mutura far away from where he lives. They add that the statements made by the Prosecution witnesses regarding his role at the roadblock are full of serious self contradictions and inter contradictions such that they cannot contradict the statements of Nyirabariyanga Ancille, since no name of the killed person was disclosed by the Prosecution. Twagirayezu Wenceslas and his lawyers allege that what the representatives of the Prosecution state that the witness is not trustworthy because the cave she was hiding in was four hundred meters (400m) away from the crime scene is not true, because what she showed was that no one was killed at Gacamena’s home roadblock, her statements were also corroborated by other witnesses, so what the Prosecution allege that there is a so long distance that she did not see what happened, is arbitrary, besides, she can also say what she heard. They add that Nyirabariyanga Ancille survived the Genocide against the Tutsi, she had no interest in covering him as long as there are others that she revealed for having participated in the Genocide against the Tutsi in this area.

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They keep on alleging that the other witnesses who testified that at Gacamena’s home roadblock, no Tutsis were killed there, those witnesses are Sebashyitsi Appolinaire, Sindambiwe Emmanuel who was the cell leader who stated that he received reports, and Kaberuka Théophile. They also allege that what the representatives of the Prosecution state that Kaberuka Théophile also said that he once heard that there were people killed at the Gacamena’s home roadblock is not true, because it does not indicate where he stated it, but what appears in his statement of 22/04/2022, is that he heard them saying that no one was killed at the Gacamena’s home roadblock, that allegations according to which he heard that Bunani Jean was shooting down is due to the fact that kept questioning him, but both statements are confusing. They also allege that what they wanted Théophile to testify about before the court is that he knows the defendant, and to confirm that they were neighbors, that he was not in Gisenyi, Gacuba II during the Easter holidays. In his testimony, he stated that he knew him and that he had told him that he would go to Congo during the Easter holidays, and he testified that he had not seen him again. He also stated that Twagirayezu Wenceslas was never mentioned during Gacaca information collection. Among other things he had to talk about, there is the person called Pastor Rukara who was said to be from AEBR and who did not exist, because the Prosecution witnesses stated that he was the one who confirmed what he did in Gacuba. They also allege that the Prosecution's criticism according to which he was firt the Prosecution witness and later become a defense witness is not a flaw because the High Court relied on his testimony and acquitted him, which is not an error. Twagirayezu Wenceslas and his lawyers also allege that the statement by the representative sof the Prosecution that witness Sindambiwe Emmanuel is disculpating him

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instead of incriminating him, is irrelevant because they presented him in the context of the allegations of the Prosecution about what happened at Gacamena’s home roadblock to prove that he knows him. In his testimony, he stated that he lives in Nyarusozi, that he led Rubikiro, and said that he never saw Twagirayezu Wenceslas at Gacamena’s home roadblock and that he received reports of what was happening at that roadblock, but his testimony shows that he is innocent. Regarding the Prosecution’s allegations that witness Bufono Silas’ statements incriminate Twagirayezu Wenceslas, yet the High Court based on it to acquit the accused, is irrelevant, because this witness was brought to the Court to testify if he saw him among the people who attacked the University of Mudende during the night from 06 to 07/04/1994. In his testimony, he stated that he did not see him, that even though he went to hide, the attackers came to see him, that as a person who already knew well, he was not surprised that they said that he was the one who led the attack, so what the prosecution alleges that that he could not see all the people, is unfounded. The fact that the High Court also relied on that witness to acquit him from charges related to what happened at the University of Mudende is not an error at all because in his testimony he stated that he knew him well because they were neighbors, that he saw the attackers coming, he recognized a man called SISIRO who lived in Mutura and other young men that if Twagirayezu Wenceslas had been involved in the attack, he would have recognized him. They also allege that the testimony of Ugwaneza Christophe does not incriminate him as the Prosecution so alleges, the High Court did not make any error in relying on it, because the fact that he did not already know him is not a flaw that would prevent him from giving thet testimony disculpating him, because the fact that he was born and

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raised in the area where the crimes he is accused of were committed, he was also part of Inyangamugayo of the Gacaca Courts and a Protector of friendship pact who rescued some persons who were hunted down during the genocide should have known or heard that Twagirayezu Wenceslas as the person who is alleged by the Prosecution to have led the attacks was involved in the killings that took place there, even he himself said that he should have learnt it. They allege that they presented him as someone who has enough information about the killings that took place at the University of Mudende and in the area, and the fact that he incriminates Biryamo Joseph, who also incriminates the accused, does not mean that what Biryamo Joseph states is true, because as established by the the High Court, he keeps contradicting himself in his statements. They also allege that the testimony of Akimanimpaye Théoneste has nothing to do with that of the prosecution witnesses, and there is no reason they show to make it unreliable. They explain that this witness was brought to the Court to prove that when the crimes Twagirayezu Wenceslas is accused of were committed, there were no students at the Baptist college, and to prove whether he actually went to that school at that time. He pointed out that no student was killed at that school, that he had not seen Twagirayezu Wenceslas; which shows that he had gone to Congo, because if he was there he would have seen him. They add that Akimanimpaye Théoneste was an accountant, who later was dismissed, and the accused replaced him, that if he was involved in the genocide, the witness would have incriminated him as the person who had replaced him. Regarding the allegations by the Prosecution that he does not provide complete information because there is a child that Nkezabera Paulin says that he had hidden and who was killed later in the Baptist College, Twagirayezu Wenceslas and his lawyers allege that it should be explained

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if the child was killed at the school because it was not a place where he lived. They also allege that for the witness Serukiko Théoneste, the Prosecution alleges that he did not know what the accused did because he said that when President Habyarimana's plane crashed, he was in Kigali, that he came after 2 weeks and found that there were no longer killings is irrelevant, because what this witness testifies about is that he was accused of the Gacurabwenge killings, and was sentenced by the Gacaca Court, but that he had never heard of Twagirayezu Wenceslas being mentioned in the acts of genocide. They say that what this witness stated is what he heard and it is his truth; and he has information about what he says, thus the High Court did not make any error by relying oh his testimony. Regarding Witness Sebudahe Xavier, Twagirayezu Wenceslas and his lawyers allege that they were not the ones who presented him, that he gave the testimony before Rwanda Investigation Bureau, that what the Prosecution alleges that the High Court did not consider all the testimony is not true, but what is obvious is that the analysis concluded that he is disculpating him. They add that Sebudahe Xavier stated that he knows Twagirayezu Wenceslas, that he had never seen him in the Gacurabwenge killings, that if he had been there he would have recognized him. They conclude that his testimony should have been used by the Prosecution to accuse him because it is also its responsibility. DETERMINATION OF THE COURT The debated issue is to determine whether the High Court erred in validating the testimony of the defense witnesses even though they do not actually disculpate him, but instead showed that they have no knowledge of the facts

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he is accused of, and what they state confirms the prosecution witnesses. The court finds that in paragraph 193 of the appealed case, the High Court confirmed that the testimony of the defense witnesses is valid and should be accepted because it was given by people who were neighbors with Twagirayezu Wenceslas' family since his childhood, his former classmates in primary schools, teachers from their home area, leaders at the local levels of Nyumbakumi and cells and some of those who participated in the genocide in this area, the court finds that they have sufficient knowledge about what they testify about. a. Regarding the attack on the University of Mudende and on Busasamana Church The Court of Appeal finds that what the witnesses presented by Twagirayezu Wenceslas have in common that they had not seen him since a long timetime, that they did not hear him being mentioned in Gacaca Courts. Those who were at the scene of the attack, such as Bufono Silas, who was at the University of Mudende when the attack took place, claimed that he did not see him, he said that the attack came and he went to hide. The fact that Bufono Silas did not find him in a mass attack that killed people with weapons that included bullets, which he says, is not reliable evidence that Twagirayezu Wenceslas did not reach the University of Mudende. Another person who was at the scene of the attacks was Umugwaneza Christophe, whose testimony cannot be a disculpating evidence because he could not know if he was there or not because he did not already know him. Therefore, as seen in paragraph 185 and 190 of the appealed judgment, the High Court made a mistake in relying on them, confirming that their testimony is valid for

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the lack of involvement of Twagirayezu Wenceslas in the attack on the University of Mudende62. The Court of Appeal finds that concerning the testimony of Bazege Ntahondi Léa, Banangira Tharcisse, Serukiko Théoneste and Mpahatanye Mathieu, although the High Court did not rely on them regarding the role of Twagirayezu Wenceslas in what happened at the University of Mudende and Busasamana Church, is also not proof that he was not involved in those attacks, because Bazege Ntahondi Léa arrived at the parish after the attack had happened in the night, others stated that they do not know anything about what happened at the Busasamana Church Building because they did not arrive there. The Court of Appeal finds that these witnesses agree that Twagirayezu Wenceslas was not mentioned among the infamous killers of this area, he was not mentioned in the Gacaca Courts information collection, which is also not a proof that he did not reach the University of Mudende and Busasamana Church because there is no evidence that during the data collection, all those involved in the attacks were mentioned because there were various reasons that could have prevented them from being mentioned or went forgotten. This Court therefore finds that the testimony of the defense witnesses does not contradict the testimony given by the witnesses who assert that they were together in the attacks of Mudende and Busasamana. The Court of Appeal analyzed the testimony of both sides regarding the attacks on Mudende University and Busasamana Parish, and found that the Prosecution witnesses agreed that Twagirayezu Wenceslas was in those attacks with a gun, and that people were killed. What they don't agree on or contradict when comparing their first

62 See paragraph 185 and 190 of the appealed judgment.

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statements is the testimony they gave before the court about the date of the attacks, the hours at which they were launched, where the killers continued the attacks and whether Twagirayezu used the gun he had during the attacks.

b. The roadblock at Gacamena’s home In general, the witnesses presented by Twagirayezu Wenceslas showed that there were no killings at Gacamena’s home roadblock, and that they had never heard his name being mentioned in the Gacaca Courts. They explain as follows: - Witness Bazege Ntahondi Léa while testifying before the High Court, stated that during the genocide, when they were working in the Parish at night, they saw atrocities at many roadblocks like the one at Gacamena’s home roadblock. She also stated that he never saw Twagirayezu Wenceslas, that instead there was a strong militiaman called Twagirayezu Mabuye and other Interahamwe. - - Witness Barangirana Tharcisse stated that he saw the Gacamena’s home roadblock being manned by the persons to whon the Sector leader had given guns to protect the roadblocks called guards, that those he remembers were the cell leader Mbonyubwabo and Nyumbakumi, who was called Sebashyitsi Appolinaire, but no persons he knows were killed. - Nyumbakumi at Kanyabijumba where the Gacamena’s home roadblock was located, that although he does not remember when the roadblock was established, it was set up by the Sector leaders, the cell leaders and the Bourgmestres and it was removed after they had fled to the DRC. He

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explained that it was managed by anybody, that cell leader was the one who ordered those who went there, that he himself had manned it overnight once, that no one was arrested, no one was killed, and no one was injured, that he had never seen Twagirayezu Wenceslas. - Nyirabarianga Ancille who says she was Gacamena's wife. She confirms that there was a roadblock at Gacamena's place since President Habyarimana's plane crashed, but that she never saw Twagirayezu Wenceslas, because even though she could not go to the street, she knew the people who were there because they could chant their slogans and proclaim their names, that no persons were killed, that the people she knows who were killed were those who were killed above her home at Mutura. - Serukiko Théoneste stated that he was tried before Gacaca Court at the site of Gacurabwenge and was sentenced to a penalty, but that he had never heard of Twagirayezu Wenceslas. In short, he testifies that he never heard of Twagirayezu Wenceslas among those who participated in the killings at Gacamena’s home roadblock. - - Pastor Kaberuka Théophile stated that when President Habyarimana's plane crashed, he was at Gacurabwenge, the genocide started when he was at home, that he did not know those who led the Interahamwe at Gacurabwenge, that he heard that the Gacamena’s home roadblock was there but he did not reach it, he said that no people were killed there, elsewhere he said that he heard that Bunani Jean shot down people at that roadblock. He also said that during information collection, he was there and he had not heard the name of Twagirayezu

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Wenceslas being mentioned, that those he remembered were Bunani Jean, Kanyamihanda and Barangirana and the prisoners such as Sebudari, Obed and Karema. - Mpahatanye Mathieu stated that during information collection session, those detained such as Karema Faustin and Karimunda, who were found to be leading the killings against the Tutsis that he even heard of Gacamena’s home roadblock but did not see it and that no one he knew was killed at it. - - Sindambiwe Emmanuel stated that he was the cell leader and had been Twagirayezu Wenceslas’s former classmate, he stated that Gacamena’s home roadblock was established shortly before the genocide, and was removed when the RPF took over the country. He also stated that he did not know anyone who was killed because the person in charge was Bunani Jean, who was the Inspector of schools, who was very infamous during the genocide. He also stated that the information collection session took a long time, but he did not hear that Twagirayezu Wenceslas was involved in the genocide, that there was another person named Twagirayezu alias Ndabanyurahe Mabuye who lived near Bourgmestre Butsingiri Kantwari’home at Gasiza who died in the DRC in 1995. he was an uneducated lay person. He added that people were killed by Bunani Jean and Nkunduwenda near Gacamena’s home roadblock about three hundred (300) meters away and that those people were not identified because they had come from Mudende. The Court of Appeal finds that among the defense witnesses, there are those who state that people were killed at the Gacamena’s home roadblock. They are Sindambiwe Emmanuel, Bazege Ntahondi Léa and Kaberuka Théophile.

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There are others who state that nobody was killed there, such as Nyirabariyanga Ancille, Sebasitani Appolinaire, Mpahatanye Mathieu and Barangirana Tharcisse. Those who claim that there are those who were killed agree with the Prosecution witnesses; which shows that the witnesses stating that there were no killings are not telling the truth. The witnesses who state that there had been killings, they confirm that they did not see Twagirayezu Wenceslas. But that does not contradict the witnesses who saw him. Among those who state that there were killings and did not see TWAGIRAYEZU Wenceslas, are Kaberuka Théophile who says that he did not reach the roadblock, that he was told about the killings; which is obvious that he could not identify all those involved. The witness like Bazege Ntahondi Léa who states that she witnessed it, she says that she saw the crimes being committed overnight, which is understandable that she could not know all those involved. Even though Sindambiwe Emmanuel testifies that he saw people being killed but that he did not see Twagirayezu Wenceslas, the relevance of his testimony is still disputed as will be explained in the following paragraphs. The Court of Appeal finds that the witnesses of both sides agree that at Gacurabwenge, there was a roadblock at Gacamena’s home that was established before April 1994, because for instance DTB states that the barrier was established from 1992-1994 by the administration of the Gacurabwenge Sector in order for them to go hunting down the Tutsis and those who were called their accomplices, his statement is confirmed by Sindambiwe Emmanuel who was the cell leader, who states that it was set up shortly before the genocide and Sebashyitsi Appolinaire, who was the leader of ten households’ entity where the roadblock was located, and Barangirana Tharcisse, while testifying, stated that he saw Gacamena’s home roadblock manned by the persons designated by the Sector, to who he had given guns

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to protect that roadblock.This suggests that the roadblock was there and that the people there had guns. In paragraph 192 of the appealed judgment, the High Court held that no one was killed at the Gacamena’s home roadblock, based on the testimonies of witnesses such as Sebashyitsi Appolinaire, Nyirabariyanga Ancille, Sindambiwe Emmanuel. However, the surprising thing is that Sebashyitsi Appolinaire testifies that no one was arrested at the Gacamena’s home roadblock, no one was killed, and no one was injured, while other witnesses, apart from those presented by the Prosecution above, there are also witnesses presented by Twagirayezu Wenceslas who testify that there were the people who were killed at that roadblock, the High Court did not say anything about their testimonies. Those are among others Bazage Ntahondi Léa who confirmed that atrocities were committed; Kabera Théophile who stated that he heard that Bunani Jean shot people dead and Sindambiwe Emmanuel who stated that there were people Bunani Jean shot down three hundred meters (300m) away from the roadblock. What the witnesses state is in line with what was stated by the Prosecution's witnesses who state that there were people at the roadblock, as well as the DTA interviewed by the Police who stated that two women and a young man were arrested and went to kill them about sixty meters (60m) away from the roadblock, and before the High Court, he states that they first deprived them of their identity documents. Another thing that shows that Sebashyitsi Appolinaire could not be a reliable witness is that he states that he spent the night at the roadblock for one day, however the witness Barangirana Tharcisse who was also presented by Twagirayezu Wenceslas confirms that Sebashyitsi Appolinaire was among the people guarding the roadblock and was given a gun by the Sector leader. The Court of Appeal finds that Twagirayezu Wenceslas' statement that the proof that Sebashyitsii

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Appolinaire has reliable information is that he and Mbonyubwabo, the cell leader were responsible for arranging the guards at the roadblock and they were also given a report every morning, is irrelevant, because his testimony was characterized with inconstistency as on , states that it was up to the cell leader to arrange the guards, that it was manned by anybody, and elsewhere he said that he spent one night there, that at other times he would go to see the young men he had arranged. His statements according to which there was no one in charge of the roadblock is also different from Sindambiwe Emmanuel’s statements that the roadblock was manned by Bunani Jean who was an Inspector of schools who was very famous during the genocide, and that he was also given a report. The Court of Appeal finds that the testimony of Nyirabariyanga Ancille and that of Sindambiwe Emmanuel also has a serious flaw in such a way that it could not be relied upon. For instance, according to her testimony, Nyirabariyanga Ancille, states that no people were killed at the Gacamena’s home roadblock, but the roadblock was located opposite her house, and there are other witnesses who state that people were killed, including those presented by Twagirayezu Wenceslas himself, such as Bazege Ntahondi Léa, Kaberuka Théophile and Sindambiwe Emmanuel. This Sindambiwe Emmanuel's testimony should not be reliable because it also has the flaw in the sense thag the cell leader confirms that there was no killing at that roadblock while, as mentioned, there are others who confirm that there had been killings. Also in his testimony, he states that some people were killed at three hundred meters (300 m), this Court found that they were killed at the roadblock because they were killed by Bunani Jean who was in charge of it. This Court finds the statements of Twagirayezu Wenceslas that if there were people killed at that roadblock,

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Nyirabariyanga Ancille would not have failed to know about it because she knew everything that happened, and that as a survivor she had no interest in covering him, is also irrelevant, because the witness states that she could not go to the streets , that since President Habyarimana's plane crashed, the situation got worse and she and her children went to hide in a cave some distance away from their home, elsewhere she states that the reason why she could not ignore it, the wrongdoers used to reveal it bacuse they believd that they were committing no crime, and she said that they might have mentioned it elsewhere. This shows that he did not have enough information about what was happening at the Gacamena’s home roadblock. The Court of Appeal also finds that in confirming that there was no killings at the Gacamena’s home roadblock, the High Court did not say anything about the testimony of Bazege Ntahondi Léa who confirmed that she saw the atrocities being committed at the roadblock and what Pastor Kaberuka Théophile stated when he testified that he heard that Bunani was shooting down people. This is consistent with Sindambiwe Emmanuel’s statements according to which there were the people that Bunani Jean killed about three hundred meters (300m) away from that roasblock. The court finds that among the witnesses that Twagirayezu Wenceslas presented, there are many who have given testimony that contains serious flaws that should make it unreliable because what they stated is in fact impossible. Apart from those mentioned in the previous paragraphs, there is also Barangirana Tharcisse who stated that no people were killed at the Gacamena’s home roadblock, yet he lived there, he knew the people in charge of the roadblock, while as explained there were other witnesses presented by both sides in this case who state that people were killed there. This also applies to Mpahatanye

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Mathieu who stated that he only heard about Gacamena’s home roadblock and yet he was a resident because he lived at Gacurabwenge where the barrier was located, and according to many people, it had been there for a long time63. This Court finds, therefore, that the High Court erred in confirming that there were no killings at the Gacamena’s home roadblock, that Twagirayezu Wenceslas was not involved in them. GENERAL CONCLUSION Article 2 of the International Convention of December 9, 1948 on the Prevention and Punishment of the Crime of Genocide ratified by Rwanda through Decree- Law No. 08/75 of February 12, 1975[64], as well as article 91, bullet point 1˚ of Nº68/2018 of 30/08/2018 Law determining offences and penalties in general, provide that the crime of genocide is one of the following acts, committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group as such, whether in time of peace or in time of war: 1º killing members of the group; (…). Article 94 of that Law provides that a crime against humanity is any of the following acts committed as part of a widespread or systematic attack directed against any civilian population: 1º murder; 2º extermination(..). In Nahimana Ferdinand et al. case, the International Criminal Court for Rwanda established that a person may be convicted of the crime of genocide and the crime against humanity based on the same acts because the acts that make up each crime are different, the crime of genocide is committed with the intent to destroy in whole or in part, a

63 DTB states that the roadblock was set up since 1992-1994.

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national, ethnic, racial or religious group as such, because of who they are while the crime against humanity is committed in general or indiscriminate attacks against the civilian population64. In other words, a person who is among those who committed acts of murder, committed by attacks against a given group of people who are members of a certain group based on nationality, race, skin color or religion, with the intent to destroy in whole or in part because of who they are, committed against civilian population, in time of peace or in time of war, is considered to be a perpetrator of both the crime of genocide and a crime against humanity at the same time. As elucidated in the previous paragraphs, this Court finds that the High Court erred in the analysis of the statements of the witnesses, which led to the acquittal of Twagirayezu Wenceslas based on the fact that the Prosecution witnesses extremely contradicted themselves. However, as elucidated, what they do not have in common in their testimonies are small details that should not detract the quality of their testimonies. This Court also finds that the testimony of the witnesses presented by Twagirayezu Wenceslas does not disculpate him from the acts constituting the crimes he is accused of because it has been shown that they do not have enough knowledge about what he is accused of, and they should not be trusted because they indulge in the false statements in a way that is evident to anyone who would analyze their statements and to coordinate their statements, where they were and when it was done. However, as it was also seen, the analysis of the statements of all the witnesses does not show without doubt that Twagirayezu Wenceslas is one of the leaders of the said attacks as the Prosecution wants to make it clear.

64 See appeal case Prosecutor v. Nahimana Ferdinand et al. (Media Case), Case no ICTR -99-52-A, para. 1029.

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After examining the evidence presented by the Prosecution consisting of the testimony of Prosecution witnesses and finding that the testimony of the accused is irrelevant, the Court of Appeal finds that Twagirayezu Wenceslas participated in the attacks that killed Tutsis at the University of Mudende, Busasamana Church, Saint Fidèle School, at Nyundo, at the Commune rouge and at Gacamena’s home roadblock because it has been demonstrated beyond any doubt that he was there. The Court of Appeal, based on that, and the fact that Twagirayezu Wenceslas admitted that he was in Rwanda from January to July 1994, that there was no document showing that he crossed the border, and that the document called “décharge” is flawed in that it is not confirmed that it was made on the attributed date of 08/04/1994, finding that the High Court erred in confirming that he was not in Rwanda from the 7th to the 09/04/1994 when the acts constituting the crimes he is accused of were carried out. In other words, the testimony given by the witnesses who wrote a the document confirming that Twagirayezu Wenceslas was in Congo when the crimes alleged against him were committed should not be accepted as being true. Based on what has already been explained, the Court of Appeal finds that the fact that Twagirayezu Wenceslas was involved in the attacks that killed many Tutsis who had taken refuge at the University of Mudende and Busasamana Church, and was also involved in the attack that took Tutsis including students and staff from the Saint Fidèle school to Nyundo, after they were told that it was a way of rescuing them, and somme of them were killed there upon their arrival, others were taken to Commune Rouge to be killed there, and the fact that when he was with others at Gacamena’s home roadblock, he barricaded the Tutsis who were trying to flee to the DRC, and killed them, which shows undoubtedly that they had no other intention than to destroy the Tutsis, and thus he is convicted of the crime of

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genocide. This Court also finds that as he committed these crimes in attacks aimed at systematically destroying civilians, he also committed the crime of extermination as a crime against humanity. C. Regarding the penalties requested by the Prosecution  Submissions of the prosecution The representatives of the Prosecution pray the Court of Appeals to declare admissible the appeal of the Prosecution and to declare that it has merit, to overturn the appealed judgment and to declare that Twagirayezu Wenceslas is convicted of the crime of killing as a crime of genocide and the crime of extermination as a crime against humanity. They explain that due to the seriousness of the crimes he committed and the serious consequences these crimes entailed including a large number of Tutsis killed, thse who were physically and mentally impaired and countless orphans, the (Court of Appeal) finds that he should be sentenced to life imprisonment. They also say that he should not be sentenced to a reduced sentence because of the seriousness of the crime of genocide he committed and the role he played in the attacks in his home area as a learned person because he was a teacher. They also say that the seriousness of the crime that does not allows the convict to be sentenced to a reduced sentence is elucidated in various cases decided by this Court, such as in the case RPAA/GEN 00009/2019/CA involving the Prosecution and Kabilima Jean Damascène decided on 16/10/2020 in paragraph 109 and 110, as well as in paragraph 125 of the Kambanda Jean case decided by the International Criminal Court for Rwanda, therefore Twagirayezu Wenceslas should not be sentenced to a reduced sentence.

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 The allegations of Twagirayezu Wenceslas Twagirayezu Wenceslas and his lawyers allege that the prayer of the Prosecution to overturn the decision rendered by the High Court is groundless, because he provided evidence that he was not in Rwanda from 6 to 9/04/1994 when the acts of the alleged crimes were carried out, the Prosecution failed to show contradictory evidence and conclusive evidence that he committed the alleged crimes. They say that as the High Court has established, the Prosecution witnesses are characterized by contradictions on small details and important things, which shows that they have no knowledge of the crimes he is being prosecuted for, because they say what they did not witness and what they did not hear. They conclude by asking the Court to rely on Articles 107 and 111 of the Law relating to the Criminal Procedures, and declare that the appel lodged by the Prosecution has no merit and to declare that the appealed judgment remains unchanged. DETERMINATION OF THE COURT Article 3 of the Organic Law n°04/2012/OL of 15/06/2012 terminating Gacaca Courts and determining mechanisms for solving issues which were under their jurisdiction provides the following: “The prosecution and punishment of acts constituting the crime of genocide perpetrated against Tutsi and other crimes against humanity which were committed between October 1, 1990 and December 31, 1994 in the jurisdiction of Gacaca Courts shall be exercised by competent organs according to laws in force applicable in these matters”. Article 335 of Law nº68/2018 of 30/08/2018 Law determining offences and penalties in general provides for the following: " This Law comes into force on the date of its publication in the Official Gazette of the Republic of

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Rwanda. However, the genocide crimes and other crimes against humanity committed between October 1, 1990 and December 31, 1994 is punishable in accordance with penalties provided for under this Law unless legal provisions otherwise provide”. As elucidated above, the Court of Appeal found TWAGIRAYEZU Wenceslas guilty of the crime of genocide and the crime of extermination as a crime against humanity, for his role in the attacks on the University of Mudende, at Busasamana Church and killed the Tutsis who had taken refuge there and who was also involved in the killing of Tutsis who were trying to flee to the DRC, they were killed at Gacamena’s home roadblock at Gacurabwenge, which he was also guarding and at Commune Rouge, Saint Fidèle school and Nyundo. Article 92 of Law nº68/2018 of 30/08/2018 determining offences and penalties in general as amended to date65 provides the following: " Any person who commits any of the acts referred to under Article 91 of this Law commits an offense. Upon conviction, he/she is liable to the penalty of life imprisonment. If he is convicted by the court, he will be sentenced to life imprisonment. Article 95 of Law nº68/2018 of 30/08/2018 mentioned above provides that any person convicted of one of the acts referred to in items 1°, 2°, 3°, 6°, 7°, 9° and 11° of Article 94 of this Law is liable to the penalty of life imprisonment. While Article 60 of that Law as amended to date66 provides that if the judge approves the mitigating circumstances, he can reduce the sentence, life imprisonment will be reduced to a minimum of 15 years imprisonment. In the case RPA/GEN 0001/15/CS involving the Prosecution and Bandora Charles decided by the Supreme

65 Article 5 of Law no 059/23 of 04/12/2023. 66 Article 2 of Law no 059/23 of 04/12/2023.

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Court on 22/03/2019, it (the Court) explained the issue of sentencing in the case of mitigating circumstancess and aggravating circumstances. In that case, the Supreme Court confirmed that the mitigating circumstances are determined by the Court in its discretion, but the aggravating circumstances are determined by the law, or the Prosecution provides evidence that proves beyond doubt why the person convicted of the crime should receive a greater punishment. In that case, the Supreme Court held that although Bandora Charles was convicted of serious crimes, which had affected the Rwandan community ; the fact that he was convicted of these crimes is not enough to be a reason to increase the punishment while the Prosecution did not provide evidence that he acted with more hatred and cruelty than other criminals in the area where they were committed. What the Supreme Court established was also confirmed by the International Criminal Court for Rwanda in Kalimanzira Callixte case. 67 The Court of Appeal, having considered the crimes that Twagirayezu Wenceslas is convicted of, their impact on the Rwandan community, how they were committed, where the attacks found the Tutsis where they fled hoping to survive ; in the killings against them, according to the witnesses, bullets and traditional weapons were used, finds that the crimes he committed very serious. This Court, however, based on the fact that the crimes he committed did not place him in the category of those who planned or led the attacks that killed Tutsis in the aforementioned areasnand that he was convicted for the first time, finds that he should be sentenced to twenty (20) years in prison. II. DECISION OF THE COURT

67 See Prosecutor v. Callixte Kalimanzira, Case No. ICTR-05-88-T, para. 748- 752.

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Declares that the appeal lodged by the Prosecution has merit; Declares that the judgment no.RP/GEN 00003/2019/HC/HCCIC rendered on 11/01/2024 by High Court, Specialized Chamber with jurisdiction over international crimes and transnational crimes is hereby overturned ; Declares that Twagirayezu Wenceslas is convicted of the crime of genocide and the crime of extermination as a crime against humanity ; Sentences Twagirayezu Wenceslas to twenty (20) years in prison ; Declares that the the court fees are borne by the Public Treasury.