THE PROSECUTION v TWAGIRAYEZU WENCESLAS

1 PROSECUTION v TWAGIRAYEZU WENCESLAS [RWANDA HIGH COURT/HCCIC-RP/GEN 00003/2019/HC/HCCIC (Kanyegeri, P.J., Ngabire and Nsanzimana J.) 11 January 2024] Laws relating to criminal procedure – The defence of alibi – The defence of alibi is relevant when the doubt brought about by the evidence produced by the accused and which was not invalidated by the evidence adduced by the Prosecution. Evidence Law – Testimony– Although, depending on the length of time that has elapsed, between the time when the witness begins to testify and the time when the facts happened, the contradiction on small details for a witness or between witnesses cannot detract the evidence, however, taking into account the particularities of the case, the manner in which the contradiction on small facts crystallized so many times, for many witnesses, and contradicting themselves in the same way and on the same facts, combined with the extreme contradiction which appears in other parts of the evidence, undermines the validity of their testimonies and their statements. FACTS: This case was decided by the High Court, Specialized Chamber with jurisdiction over international 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 basing on evidence comprising the statements of various witnesses who allegedly knew, witnessed and cooperated with Twagirayezu in the commission of the crimes. The accused contended that he should not have been prosecuted for murder as the crime of genocide and 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 Zaïre, current Democratic Republic of the Congo (DRC), in the areas of Goma and Masisi, on Easter holidays. Concerning the defence of alibi, the Prosecution alleges that it is unfounded, it is rather an excuse to escape from criminal liability because he does not show any document (Passport, Laisser-passer, exit token, ...) proving that he had crossed into the DRC, how he had left Rwanda and entered DRC during that time, or does not show who saw him crossing into DRC during that particular time but only alleges that he was in DRC, but does not show any evidence as to when he left Rwanda. In respect of the actual commission of the crimes, the Prosecution repeatedly pointed out that he was involved in some attacks equipped with a gun as a leader of the killers, alleged that witnesses testified his role in those attacks, that he was spotted in various

2 attacks including those launched at Busasamana Catholic Church, the University of Mudende, at the roadblock near Gacamena’s home, the area referred to as ISAR-TAMIRA, the area referred to as Commune Rouge and its surroundings and in the killings that took place at Nyundo. Twagirayezu contended that the Prosecution arraigned him without sufficient incriminating elements of evidence because the witnesses did not testify his actual role in the genocide against the Tutsis because they cannot prove beyond reasonable doubt that they knew the accused, their testimonies are full of contradictions and dishonesty about the acts constituting the acts of genocide before various authorities that the accused was involved; and that their statements are contradicted by the exculpatory witnesses who were in the DRC and those in Rwanda in the Sectors where the alleged crimes are said to have been committed. HELD: The defence of alibi is relevant when the doubt brought about by the evidence produced by the accused and which was not invalidated by the evidence adduced by the Prosecution; therefore, basing on the analysis of possible evidence, from 7th to 9th April 1994Twagirayezu (accused) was likely in the DRC in areas other than those alleged by the Prosecution where he is accused of having committed the crimes. When the statements and the testimonies of each and every witness are full of

utmost contradictions, and when the various witnesses contradict one another in such a way that even when the accused was spotted in the acts they are prosecuted for and just as to invalidate its relevance, thus, these statements and testimonies cannot be relied upon to hold that Twagirayezu participated in the killings. Although, depending on the length of time that has elapsed, between the time when the witness begins to testify and the time when the facts happened, contradiction on small details for a witness or between witnesses cannot invalidate the evidence, however, taking into account the particularities of the case, the manner in which the contradiction on small details crystallized so many times, for many witnesses, and contradicting themselves in the same way and on the same facts, combined with the extreme contradictions which appears in other parts of the evidence, undermines the validity of their testimonies and their statements. The case has no merit. The accused is not guilty.

3 Laws referred to Law nº 027/2019 of 19/09/2019 relating to the criminal procedure, Article 111 Law no 47/2013 of 16 June 2013 relating to transfer of cases to the Republic of Rwanda, Article 8, paras. 2 and 3 Law no 15/2004 of 12/6/2004 relating to Evidence and its Production, Article 2, 65 and 119 Cases referred to PROSECUTION v. Ngurinzira, RPAA 0118/11/CS, CS decided by the Supreme Court on 13/11/2015, 1(RLR) vol. 2017, PROSECUTION v. Nikomeze Chantal, RPA 0003/15/CS decided by the Supreme Court on 29 December 2017. PROSECUTION v. GATERA Celestin, RPA 0084/10/CS decided by the Supreme Court on 09/05/2014 PROSECUTION v. NTAMAHEREZO IRYAMUKURU, RPAA 00141/2022/CA decided by the Court of Appeal on May 31, 2021 PROSECUTION v. Biziyaremye Jean Baptiste and Cpl. Ngabonziza Faustin, RPAA0117/07/CS, decided by the Supreme Court on 17/09/2010, Rwanda Law Reports, vol. II, 2011. PROSECUTION v. Birindabagabo Jean Paul, RPAA/Gen 00004/2020/CA decided by the Court of Appeal, 08/04/2022 PROSECUTION v. Hategekimana Celestin, RPAA/Gen 00681/2021/CA, decided by the Court of Appeal, 24/03/2023

4 Prosecutor vs. Setako, ICTR, Case No. ICTR-04-81-A (28 September 2011), para.

224. Prosecutor v. Bikindi Simon, ICTR-01- 62 T (2/12/2008), p.12, para 32. Prosecutor v. Popovic et alii, IT-05-88-A, ICTY, Appeals Chamber (30/01/2015), para.132 Prosecutor v. Simba Aloys, Appeals chamber, ICTR- 01-76 – A (27/11/2007), para.

103. Prosecutor v. MUSEMA Alfred, ICTR, Trial Chamber I, Case no ICTR-96- 13-T (25 february 2014), para.108. 27Shusha v S [2011] ZASCA 171 para.

10. Legal writings De Valkneer C, La tromperie dans l’administration de la preuve pénale. Analyse en droit belge et internationale completée par des éléments de droit francais et neerlandais; Ed. Larcier, 2000, p.128.

5 Judgment I. BRIEF BACKGROUND OF THE CASE [1] On 11 December 20181 Rwanda received TWAGIRAYEZU Wenceslas, who was sent by Denmark to stand trial for his alleged participation in the 1994 genocide committed againt the Tutsi . Following the completion of investigation, the Prosecution seized the Court of the case on 18 June 20192, and the case was heard on various dates from 18/02/2020 to 20/09/2023, the Prosecution was represented by NIYONZIMA Vincent and Harindintwari Côme, National Prosecutors, while TWAGIRAYEZU Wenceslas was assisted by Counsel Bikotwa Bruce. [2] The Prosecution charged TWAGIRAYEZU Wenceslas with murder as a crime of genocide and extermination as a crime against humanity3, alleging that the accused committed the acts constituting these crimes in Rubavu District in the former Rwerere Commune and in particular, at the roadblock near Gacamena’s home, ISAR- Tamira, Mudende University, Busasamana Church, at Nyundo, Institut Saint Fidèle and the so-called "Commune Rouge" and that they were perpetrated on various dates in April 1994. [3] It alleged that, before 1993, the accused became a primary school teacher in Rwanda and was later employed at the Gacuba II Baptist High School in Gisenyi City. It also alleged that during the multiparty period, TWAGIRAYEZU Wenceslas was active in the activities of the CDR4 and MRND5, especially in Interahamwe activities, until the

genocide committed againt the Tutsi was perpetrated in April 1994. The elements of evidence adduced comprise testimonies by various witnesses who claim to have known, seen and co-operated with TWAGRAYEZU Wenceslas in the acts of which he is accused. [4] TWAGIYEZU Wenceslas, assisted by Counsel Bikotwa Bruce presented his defence of alibi, claiming that the acts constituting the crimes for which he is prosecuted were committed when he was in Zaïre, currentlty the Democratic Republic of Congo (DRC)6 where he was on Easter holiday, from the end of March 1994 to 9 April 1994, when he arrived home at night. 1 The statement of transfer between the National Public Prosecution Authority and Denmark on 11/12/2018; 2 Indictment nº I /75/D11/A/ONPJ/ASB dated 17/06/2019, revised on 03/07/2020 3 Offences provided for in Articles 91 and 94 nº 68/2018 of the Law of 30/08/2018 regulating to offences and penalties in general as amended to date 4 Coalition pour la Défense de la République 5 Mouvement Révolutionnaire National our le Développement. 6 Democratic Republic of Congo.

6 [5] TWAGIRAYEZU Wenceslas alleges that he was never a member or a leader of Interahamwe militia, CDR and MRND, that he was not a teacher of any school in the former Rwerere Commune. He explained that, instead, he went to primary school at Munanira Primary School and then secondary school in DRC, graduated in 1991 and got a job as a Religion teacher for children in the Baptist Church in DRC. He came back to Rwanda in July 1993, and in September of the same year, he started working at the Baptist School in Gacuba II, Rubavu City. He stated that he was not involved in any criminal activity he is accused of. The elements of evidence he relies upon comprise testimonies and documentary evidence proving that he was in the DRC at the time of the alleged acts he is prosecuted for. [6] Before hearing the case on the merits, the Court ruled on a number of objections relating to legal assistance, the rights of the accused7, the extension of the defence to the defendant's capacity to conduct preliminary investigations8, the certification of witnesses9, and the use in the proceedings of documents from the Danish Investigation Services10, as contained in the annexes to the judgment. At the hearing, both the Prosecution and the Court had the opportunity to cross- examine the witnesses presented by the two parties, some of whom were questioned with security protection, and others were

interrogated in public without security protection. [7] In this case, the following issues were analyzed:  To determine whether on April 7, 8 and 9, 1994 TWAGIRAYEZU Wenceslas was not at the place where the acts constituting the alleged crimes were committed ;  To determine whether TWAGIRAYEZU Wenceslas was involved in the acts constituting the crimes he is prosecuted for. II. ANALYSIS OF LEGAL ISSUES 2.1. To determine whether on April 7, 8 and 9, 1994 TWAGIRAYEZU Wenceslas was not at the place where the acts constituting the alleged crimes were committed; 2.1.1. The arguments of the parties 7 Decision of 30/07/2020 8 Decision of 9 March 2021 and 15 December 2021 9 Decision of 11/03/2022 10 Resolution of 24/07/2023

7 2.1.1.1. The defence of Twagirayezu Wenceslas [8] TWAGIRAYEZU Wenceslas assisted by Counsel Bikorwa Bruce contends that he should not have been prosecuted for murder as a genocide and extermination as a crime against humanity because the alleged dates of the commission of the offences and various areas where they were committed in the former Gisenyi Prefecture, he was not there as he was in the former Zaïre, current Democratic Republic of Congo (DRC), in the areas of Goma and Masisi, where he was on Easter holidays. They also allege that after graduating from high school in the DRC in 1991, TWAGIRAYEZU Wenceslas remained there awaiting his graduation, staying with his father, a leader in the Baptist Church, and was hired to teach children religion, a job he did from 1991 to June 1993, and when he returned to Rwanda in July 1993, he got a job at the Collège Baptiste Gacuba II, and started working in September 1993. He first worked as a cashier later in November 1993 and began teaching, and in February 1994 he became the Officer in charge of Discipline until July 1994. They contend that at the end of March 1994, on a day he could hardly remember, he went to the DRC for Easter holidays, and returned to Rwanda on 9 April 1994 to see what was going on because they learnt that there was ongoing war. [9] TWAGIRAYEZU Wenceslas and his Counsel contend that during his journey from the

DRC, the accused spent the night at Mugongozi, and in the morning of 7 April 1994, he headed to Kitshanga, where he learnt that President Habyarimana's plane was downed, he arrived there and realized that the life had deteriorated and in the evening the pastor who was there asked soldiers to help him hitch-hike a car to get to Goma, where he was told that all the borders had been closed, but that as a person who had lived in the DRC, he had thought of how to cross the valley separating his homeplace from the DRC, and on 9 April 1994 he moved to Tshabwato, located opposite Rwerere Sector together with some Rwandans he found there, and upon his arrival in Rwanda, he realized that the killings against the Tutsis had already been perpetrated. [10] TWAGIRAYEZU Wenceslas and his Counsel contend that on April 10, 1994, TWAGIRAYEZU Wenceslas, accompanied by his brother, went to Gisenyi to see if they could start working, where he was asked by the Rev. Nkezabera Paulin to wait for them to start working on April 18, 1994; on this very date, they started working until they fled in July 1994 on the date he can hardly remember. [11] They allege that the elements of evidence they rely on comprise testimonies of his companions who stayed together with him during the Easter holidays in DRC, a "décharge" written by Kikwindi Stanislas that TWAGIRAYEZU Wenceslas received 300 Z on behalf of Pastor Senzoga Ndeze Patrick and a document titled « Pétition et témoignage pour l’innocence de Mr. TWAGIRAYEZU Wenceslas» was written on May 31, 2018 at Kitshanga in DRC.They concluded by

8 stating that TWAGIRAYEZU Wenceslas should not be held responsible for the crimes against humanity committed in Rwand in his absence. 2.1.1.2 The Prosecution’s allegations [12] The Prosecution alleges that the defence of alibi raised by TWAGIRAYEZU Wenceslas is not true, it is rather an excuse to escape from criminal liability because he does not show any document (Passport, Laisser-passer, exit token, ...) proving that he had crossed into the DRC, how he had left Rwanda and entered DRC during that time, or does not show who saw him crossing into DRC during that particular time but only alleges that he was in the DRC, but does not show any evidence as to when he left Rwanda. [13] It also alleges that it is unclear how TRAGIRAYEZU Wenceslas secretly left Rwanda without the knowledge of anyone, not even his family or co-workers, and that was known only to his friends from the DRC. It concludes that the witnesses he is presenting are bribed to exculpate him, that their statements are not true, especially since his defence of alibi contradicts the witnesses’ statements based on the story made to cover TWAGIRAYEZU Wenceslas. [14] It also states that although TWAGIRAYEZU Wenceslas opted for the defence of alibi, in a written statement at the Danish Immigration Service requesting asylum, he said that from January to July 1994 he was living at Gisenyi in Rwanda. The evidence that the

Prosecution relies on comprises the statements of witnesses who testified that TWAGIRAYEZU Wenceslas never left Rwanda while he claimed to have been in the DRC and the witnesses testifying that they had seen him or co-operated with in in killings of April 7, 8 and 9, 1994. 2.1.1.3. The testimonies regarding the location of TWAGIRAYEZU Wenceslas from the beginning of April 1994 to 09 April 1994 2.1.1.3.1. The witnesses adduced by TWAGIRAYEZU Wenceslas [15] The testimony heard pertains to the fact that TWAGIRAYEZU Wenceslas was in the DRC since early April 1994, Witness Pastor Senzoga BIHURI Patrick Ndeze testified that he had received TWAGIRAYEZU Wenceslas in his home in the DRC on 01 April 1994, that they were together before Easter on 03/04/1994, that he can remember that TWAGIRAYEZU Wenceslas was a photographer at these assemblies, that on 06/04/1994, when TWAGIRAYEZU Wenceslas returned to Goma, the Pastor sent him to collect three hundred zaïrian francs (300 Z) from Kikwindi and deposit such amount in the office of their Church, and that he wrote a “décharge”, an aknowledgment letter after receiving that amount on 08/04/1994, and the Pastor received that money from Muhindo Kandiro when he reached the office of the

9 General Secretariat of their Church, and that for more information, the Court can question the worshippers of the Baptist Church from Goma11. [16] Witness MVUNABANDI KAGABO testified that he knew TWAGIRAYEZU Wenceslas when he came to their home together with Pastor Senzoga Ndeze, and TWAGIRAYEZU Wenceslas was later appointed as a high school teacher, that it was then about 1993; that on 06 and 07 April 1994, when they were together, they heard the news that Habyarimana's plane had been downed, that it was the last time they met because he did not get any information about him, that after being told that TWAGIRAYEZU Wenceslas had been accused of genocide, he signed a document confirming that TWAGIRAYEZU Wenceslas was at their home12. [17] MAOMBI MUROMBA Estella testified that on April 3, 1994, they began a crusade which ended on Easter and TWAGIRAYEZU Wenceslas was part of it because he stayed at Pastor Senzoga Ndeze’s home ; that on April 6, 1994 at around ten o’clock, he and Nikuze were asked by the Pastor to accompany him to Bwelu where he could hitch-hike a car to Kitshanga, they departed at around three o'clock that day and TWAGIRAYEZU Wenceslas headed to Kitshanga. He testified that when they wrote a letter confirming that TWAGIRAYEZU Wenceslas is innocent, they asked her if they were together and she attested to it 13. [18] BAKALI MUREFU Innocent testified that he knew

TWAGIRAYEZU Wenceslas when he was a student at Heri High School, that on 08 April 1994 at eleven o’clock, he saw TWAGIRAYEZU Wenceslas coming to Kikwindi’s home to collect money got from the sale of trees done by Pastor Senzoga Ndeze, he also wrote a “décharge”, an aknowledgment letter, that the money should be sent to the owner through the post office of their “CBCA” 14. He also testified that he signed a document exculpating TWAGIRAYEZU Wenceslas attesting to the fact that they were togther at that particular time15. [19] MADINGO NTABUNDU Ignace testified that he knew TWAGIRAYEZU Wenceslas when he was schooling with the children from his locality Northern Goma at Byahi School, that on 09 April 1994, he saw TWAGIRAYEZU Wenceslas reaching him saying that he wanted to cross to Goma but was lost, and opted for going though their home at Kibati because he knew their ways, he helped him cross the boarder through Tshabwato-Bukanda and headed to Kanyanja, because there 11 Hearing report of 19/04/2022 12 Hearing report of 19/04/2022 13 Hearing report of 19/04/2022 14 Community Baptist Church or Centre of Africa. 15 Hearing report of 19/04/2022

10 was a way leading to their home, that they departed at 1 :00. He also testified that he knew TWAGIRAYEZU Wenceslas when the latter received money from Late Kikwindi Stanislas who informed the witness and showed him the acknowledgment letter written by TWAGIRAYEZU Wenceslas after having been told that he was detained, and since then, he later saw him before the court. He testified that he had signed a document confirming that Wenceslas had gone through his home after learning that he had been imprisoned16. [20] LUKANDO MANU testified that he knew TWAGIRAYEZU Wenceslas since 1992 because he used to pass by their home while going to school, that on April 9, 1994, after Habyarimana's plane crashed, at about 3 or 4 o'clock TWAGIRAYEZU Wenceslas passed by their home at Kanyanzi and told him that he wanted to cross the border to go and see his mother, that he tried to prevent him from crossing telling him that he could not cross because it was not safe; and that he still refused and let him go. He testified that he had written a document confirming that TWAGIRAYEZU Wenceslas did not commit genocide because they last met at that time17. [21] In addition to the statements of witnesses claiming to have seen TWAGIRAYEZU Wenceslas participating in the killings or co-offending examined in the part related to his involvement in the crimes of which he is accused, the Prosecution contends

that TWAGIYEZU Wenceslas was in Rwanda on 7, 8 and 9 April 1994 on the basis of his statement to the Danish Immigration Service, when he applied for asylum18, where he stated that between January and July 1994 he was living in Gisenyi in Rwanda, that since 1993 he had been a teacher at the Baptist School at Gacuba II, that he had been a Christian youth leader in the Regional Branch of Gisenyi, and was a member of the Committee in charge of co- ordinating Church activities and those of non-governmental organizations in charge of human rights in Gisenyi. [22] It also relies on the statements of KABERUKA Theophile who stated that before the genocide, TWAGIRAYEZU Wenceslas was in Rwanda because he was a teacher and the school year began in September and ended in June and it was the beginning of the holidays, and that there was no way that TWAGIRAYEZU Wenceslas would have gone abroad before the schools closed, that he had gone abroad in 2000 after the genocide, and that after the genocide he knew that he had gone to the DRC, and then that he had gone to Denmark with his brothers-in-law19. [23] The Prosecution also relies upon the statement made by NAHIMANA Emmanuel, a school chaplain at Collège Gacuba II in 1993-1994, who stated that before the genocide, from 2 to 6 April 1994 and earlier in March 1994, 16 Hearing report of 19/04/2022 17 Hearing report of 19/04/2022 18 Investigation Statement at Danish Security and Intelligence Service from reference number P-09-328 to P-09-350. 19 Investigative statement dated July 8, 2019

11 TWAGIRAYEZU Wenceslas was there, working for the Baptist College until the people fled, and on 6 April 1994 TWAGIRAYEZU Wenceslas was there because he considered himself to be a child of Nkezabera Paulin20. [24] It also relies on the statements made by NKEZABERA Paulin, AEBR's Secretary General21, who stated that about two days before the genocide, TWAGIRAYEZU Wenceslas borrowed his guitar and after genocide, they did not meet any longer22. 2.1.1.4. The arguments of the parties on the testimonies 2.1.1.4.1. The arguments of TWAGIRAYEZU Wenceslas and his lawyer on the statements made by the Prosecution's witnesses [25] TWAGIRAYEZU Wenceslas and his lawyer argue that the Prosecution's allegations on the accused’s statements before the Danish Immigration Service seeking asylum could not be corelated to the charges against him, and the allegations made by Nkezabera Paulin and Nahimana Emmanuel are not to be relied upon as evidence because they were never heard before the Court. [26] They state that the information TWAGIRAYEZU Wenceslas submitted for asylum application should be kept confidential and not communicated to the authorities in the country of origin of the asylum seeker, and they allege that the Prosecution is using this document in an unlawful manner, because although he allegedly worked in the Church, at that time he often went up on weekends, and therefore they did

not have to dismiss him because he was still in the area, especially since he is still a member of the Baptist Church in Denmark; they find that this evidence is irrelevant before the Court. [27] The Prosecution alleges that there are various flaws which lead the Court to invalidate the statements of witnesses presented by TWAGIRAYEZU Wenceslas who claim that from 1 April 1994 to 9 April 1994 he was in the DRC, according to what Pastor Senzoga Bihuri Patrick Ndeze told to the Court that after his separation from TWAGIRAYEZU Wenceslas on 06/04/1994 they met once again two (2) years later, and in the meantime he did not get any information from him, it is irrelevant how he claims that on 08/04/1994 TWAGIRAYEZU Wenceslas was still in Zaïre/DRC. It also states that basing on “décharge” , the acknowledgment letter of April 8, 1994 to assert that TWAGIRAYEZU Wenceslas 20 Investigation statement dated July 15, 2020 21 Association of Baptist Churches of Rwanda 22 Statement before the Prosecution dated June 21, 2020

12 was not in Rwanda on this date is arbitrary because nothing precludes a person from being in Goma and comes back to Rwanda as there is no conclusive evidence as to the fact that the “décharge” , acknowledgment letter, was written as long as TWAGIRAYEZU Wenceslas does not show the written document from the money receiver and the reason that leads Kikwindi Kimende Stanislas to give him the money. [28] It states that Pastor Senzoga Bihuri Patrick Ndeze is not to be trusted because he is giving different answers to the same questions, because in the courtroom he stated that there is no relationship betwen him and TWAGIRAYEZU Wenceslas whereas in the document titled “pétition” dated May 31, 2018, he is referred to as "Père adoptif" ( adoptive father) of TWAGIRAYEZU Wenceslas and there are witnesses questioned before the Court who stated that Pastor Senzoga got them sign the document without knowing its contents, suggesting that its content is not true. It also argues that Pastor Senzoga changes dates from time to time, because he stated that he welcomed TWAGIRAYEZU Wenceslas to his home on 31 March 1994, and somewhere else stated that TWAGIRAYEZU Wenceslas arrived at his home at the end of March 1994. [29] The Prosecution further alleges that in his statements, Mvunabandi Kagabo stated that in the morning of 07/04/1994 he was with TWAGIRAYEZU Wenceslas at 6:40 am when they heard

the news of the shootdown of Habyarimana's plane, contrary to what TWAGIRAYEZU Wenceslas said that he departed from Luhanga on 06/04/1994 before the Habyarimana plane was downed; and that after 07/04/1994 he was no longer aware of the defendant's information, but in the pétition of 31/05/2018 he signed attesting to the fact TWAGIRAYEZU Wenseslas was in Zaïre/DRC until 09/04/1994, which indicates that he was asked to state what he was not aware of, which was not true. [30] The Prosecution also argues that regarding the testimony given by Maombi Muromba Estella who stated that she had last met TWAGIRAYEZU Wenceslas on 6 April 1994 and that she did not get any information about him any longer, it is obvious that she signed attesting to the fact that on 8 April 1994 TWAGIRAYEZU Wenceslas had not yet arrived in Rwanda, thus she signed unknowingly the document which was brought to her by Manirafasha from CBCA. [31] As far as Madingo Ntabundu Ignatius’ statements are concerned, the Prosecution argues that he was asked to testify about what he was not aware of because the accused stated that he signed the acknowledgement letter in the presence of Madingo, while the witness presented by the accused stated that he had been told by Kikwende Stanislas that Twagirayezu Wenceslas had just been jailed. It further alleges that Madingo Ntabundu Ignatius’ testimony is not true due to the fact that Madingo told to the Court that he was the only one who had accompanied the accused to Tshabwabo, while in the signed statement he had said that he and Bahati had accompanied him. Furter, as per the document titled “pétition”,

13 Madingo Ntabuntu Ignace claimed that he had kinship with TWAGIRAYEZU Wenceslas (TWAGIRAYEZU Wenceslas’ uncle), whereas, before the court he stated that there is no blood relation betweeen him and the accused [32] It also criticizes the statements made by Bakari Murefu Innocent, who, like other witnesses, signed the document that had been prepared by others in a bid to exculpate TWAGIRAYEZU Wenceslas in order to prove that he had met TWAGIRAYEZU Wenceslas on April 8, 1994, but the document he signed contains the various activities carried out by TWAGIRAYEZU Wenceslas. Another defect that makes the testimony unreliable is the fact that before the Court, he denied the kinship between him and the accused but, as per the « pétition », he claimed to be his cousin. [33] In respect of the testimony given by Lukando Manu, alias Pastor Gasore, the Prosecution alleges that the testimony was characterized by lack of consistency because he stated that he often saw the accused over the weekend passing by their home and that there is a distance of about 200 kilometers between his work station and Goma, which means that what he said was impossible. He also stated that he was called up to sign a "pétition" with Kikwindi and it was mentioned that he was TWAGIRAYEZU Wenceslas’ cousin, while before the Court he stated that he had no kinship with the accused. [34] The Prosecution concluded that

the statements of the witnesses presented by TWAGIRAYEZU Wenceslas are contadictory, and this is the reason why their testimony should not be relied upon because if they had known what they were testifying about without having been told, they would not have given any information about it, especially since they had been preparing to testify long time ago. 1.1.2. DETERMINATION OF THE COURT [35] The issue debated is to determine whether TWAGIRAYEZU Wenceslas was not in Rwanda on 7, 8 and 9 April 1994. The debate on this issue is based on whether or not TWAGIRAYEZU Wenceslas, who was not present in Rwanda on the 7th, 8th and 9th of April 1994. In considering this issue, the notion of the defence of alibi as it has been interpreted in cases decided by Rwandan courts, international criminal courts and tribunals in other countries, in particular as regards the nature of this defence, the purpose of the exception and the person responsible for providing evidence; then it examines whether the defence of alibi raised by TWAGIRAYEZU Wenceslas is relevant. [36] There is no specific provision related to the defence of alibi under Rwandan Law. But the Rwandan courts have been interpreting it in the light of international law and the rulings of international and international courts and other domestic courts. In that regard, in Prosecution v Jean Paul, the Court of Appeal elucidated that when the accused puts forward the defence of alibi, they intend to show that they would not be able to commit the crime they are accused of bacause they

14 were not at the place where it was committed, that as regards the person who has the burden of proof, the accused has only the burden of proving that he was not present at that place, while the Prosecution retains the burden of proof to demonstrate that the accused has committed the crime23. In the case Prosecution v Hategekimana, the Court elucidated that even though the accused is unable to produce evidence substantiating the defence of alibi, it does not mean absolutely that they committed the crime24. [37] In Setako Ephrem case, the International Criminal Tribunal for Rwanda clarified that the accused has no obligation to provide unquestionable evidence proving the alibi, but is only required to provide evidence that casts doubt on the prosecution's allegations, that if the alibi is properly put forward, the Prosecution must show that, although the defence of alibi must be admissible, the charges against them are real. While in Musema Alfred case, the Court elucidated that the accused putting forward the defence of alibi, in addition to denying that they had not committed the crime, they also asserted that at the time the crime was committed he was in a different place from the place where it was perpetrated; that while rebutting the defence of alibi, the Prosecution should provide evidence that the accused was there and had committed the offences they are accused of25.

[38] In Simphiwe Raymond Shusha v The State, the High Court of Appeal of South Africa clarified that for the court to convict the accused, their version of alibi must be false beyond reasonable doubt26. [39] The analysis of these cases demonstrates that the alibi is relevant when the doubt brought about by the evidence produced by the accused and which was not invalidated by the evidence adduced by the Prosecution. [40] Article 2 of Law no 15/2004 of 12/6/2004 relating to Evidence and its Production provides that “Evidence is the demonstration of the truth of a fact”, and Article 119 of this law provides that in criminal cases, evidence is based on all grounds, factual or legal provided that parties have been given an opportunity to be present for cross-examination. 23 Prosecution v. Birindabagabo Jean Paul, Court of Appeal, RPAA/GEN 00004/2020/CA (08/04/2022), para.45. 24 Prosecution v Birindabagabo Jean Paul, Court of Appeal, RPAA/GEN 00004/2020/CA (08/04/2022), para.45. 25 Prosecutor v. MUSEMA Alfred, ICTR, Trial Chamber I, Case no ICTR-96- 13-T (25 February 2014), para. 108. (“Raising the defence of alibi, the accused not only denies that he committed the crimes for which he is charged but also asserts that he was elsewhere than at the scene of these crimes when they were committed. The onus is on the Prosecution to prove beyond reasonable doubt the guilt of the accused. In establishing its case, when an alibi defence is introduced, the Prosecution must prove beyond any reasonable doubt that the accused person was present and committed charges for which he is charged and therefore discredits the alibi defense”) 26 Shusha v S [2011] ZASCA 171 para. 10. ( “For the court to convict the accused, their version or alibi must be false beyond reasonable doubt”).

15 [41] The interpretation of these provisions indicates that evidence may take the form of documents, testimonies, etc. As far as testimony is concerned, legal scholars define a witness as any person who has personally witnessed the event or act on which they give the testimony; their responsibility is to recount what they have seen, heard or been told, not how they perceive or analyse the seriousness of what they have witnessed or the liability of the offender27. [42] Finds that in light of his defence28, TWAGIRAYEZU Wenceslas stated that he had not been involved in the crimes he is accused of , committed on 7, 8 and 9 April 1994 because he was on Easter holidays in various areas of North Kivu such as Kitshanga in Masisi Zone and Goma. Finds that the evidence on which he relies upon claiming that he was not in Rwanda from the beginning of April 1994 to 9 April 1994 is a document entitled "Pétition et témoignage pour l’innocence de Mr. TWAGIRAYEZU Wenceslas”was written in Kitshanga/DRC on 31 May 2018 by relatives and friends of TWAGIRAYEZU Wenceslas, and addressed to the Minister of Justice of the Kingdom of Denmark in order to inform him that TWAGIYEZU Wenceslas is innocent and the document titled « décharge » written by TWAGIRAYEZU Wenceslas on 08/04/1994, upon his arrival in the City of Goma from Luhanga to Rwanda, which attesting to the fact he received from Stany Gikwindi

Kimende29 the amount of three hundred zaïrian francs (300 Z) for his parent Pastor Senzoga Bihuri and the testimony given by some of the signatories of the above mentioned petition. [43] Having analyzed the testimony given30 on 7, 8 and 9 April 1994, as well as the comments of both parties, the Court finds that there are the witnesses who testified about how they had lived together, met and communicated with TWARAYEZU Wenceslas in the DRC, each mentioning the date on which the facts they witnessed took place as follows:  Pastor Senzoga Patrick Ndeze states that on April 1, 1994, TWAGIRAYEZU Wenceslas was at his home in Luhanga; that on April 3, 1994, that he was with TWAGIRAYEZU Wenceslas which he photographed at a church congregation, and then sent him to collect three hundred zaïrian francs (300 Z) from Kikwindi Stany; 27De Valkneer C, La tromperie dans l’administration de la preuve pénale. Analyse en droit belge et internationale complétée par des éléments de droit français et néerlandais; Ed. Larcier, 2000, p.128. (“ [un témoin] , il s’agit de toute personne qui a constaté personnellement un évenement ou un fait. Son rȏle est d’exposer ce qu’il a vu, entendu ou appris mais pas d’exprimer sa propre opinion ou un jugement de valeur par rapport à la gravité des faits ou la responsabilité de leur auteur”). 28 Investigation statement dated 17/12/2018, the statement before the

Prosecution dated 20/12/2018, and hearing report 26/10/2021. 29 The text is written in Kiswahili with the words: ““Mimi Twagirayezu Wenceslas nimepokea pesa zenye mwanainchi Stani Gikwindi Kimende alinepa 300 Z (300 zaires) ambayo baba yangu Pasiteri Senzoga Bihuri amenituma nimleteye, na sasa ivi hana deni yengine tena. Mimi Twagirayezu Wenceslas.” The document is signed. 30 Hearing report dated 19/04/2022 about Maombi Estella, Mvunabandi Kagabo, Bakari Murefu Innocent, Madingo Ntabundu Ignace and Pasiteri Senzoga Patrick Ndeze, and another one dated 20/04/2022 about Lukando Manu and Nirere Ndimukaga Jacqueline.

16 • Maombi states that on April 6, 1994, at 10 :00, he and Nikuze accompanied TWAGIRAYEZU Wenceslas helping him to carry a suitcase up to Bweru, and TWAGIRAYEZU Wenceslas headed to Kitschanga. • Bakali Mulefu Innocent states that on April 8, 1994, at about eleven o'clock, TWAGIRAYEZU was signing a letter of acknowledgment according to which he received the money of Pastor Senzoga. • Nirere Ndimukaga Jacqueline states that on April 9, 1994 at 8 o'clock, TWAGIRAYEZU Wenceslas passed by her from Tshabwabo to Kanyanja, while Madingo Ntabundu Ignatius stated that TWAGIRAYEZU Wenceslas passed by their home to Kanyanja, and they departed at 5 o'clock and Lukando Manu stated that TWAGIRAYEZU Wenceslas passed by their home to cross the border through Kanyanja and stated that he would go to see his mother in Rwanda. [44] Finds that the document titled "décharge" written by TWAGIRAYEZU Wenceslas on April 8, 1994, acknowledging reception of the money from Pastor Ndize Senzoga, is confirmed by the testimony given by Bakari Murefu who explained that he was at Kikwindi’s home when TWAGIRAYEZU Wenceslas wrote it31 and the testimony given by Madingo Ntabundu Ignatius who testified that after they had learnt that TWAGIRAYEZU Wenceslas had been imprisoned for committing genocide, Kikwindi Kimende Stanislas showed him the document the accused signed at Kikwindi Kimende Stanislas’ home on April 8,

199432. [45] Finds that in addition to these testimonies of the witnesses testifying about the period of time when TWAGIRAYEZU Wenceslas was with them in the DRC, the document titled “Décharge” written by TWAGIRAYEZU Wenceslas while in Goma in the DRC on April 8, 1994 and the “Pétition” whereby some of its signatories admitted before the Court that they had signed it to confirm what they knew about TWARAYEZU Wenceslas, there is also the testimony given by Pastor Kaberuka Théophile who testified that in the end of 1993, he had visited TWAGIRAYEZU Wenceslas on Gacuba II in Gisenyi City, where he worked from, the accused told him that he was going on holiday in the DRC and the Pastor happened to know that the accused went there because he was not at home on holidays33, and this is evidence that TWAGIRAYEZU Wenceslas was likely in the DRC on 7, 8 and 9 April 1994. [46] Finds that the testimony according to which Mvunabandi Kagabo testified that he was with TWAGIRAYEZU Wenceslas on April6 at 6 :30 and on April 7, 1994 in the morning when they heard that Habyarimana’s plane crashed, is baseless because it is contradicted by the testimonies given by TWAGIRAYEZU Wenceslas, Ndeze Patrick Senzoga and 31 Hearing report dated April 19, 2018. 32 Hearing report dated April 19, 2018. 33 Hearing report dated 22/04/2023.

17 Maombi Malomba Estella who explained how TWAGIRAYEZU Wenceslas travelled from Luhanga on April 6, 1994 to Bwelu and Kitshanga, and returned to Rwanda. [47] Finds that the evidence adduced by the Prosecution to prove that the defence of alibi put forward by TWAGIRAYEZU Wenceslas is unfounded, is irrelevant for the following reasons : • TWAGIRAYEZU Wenceslas’ statements while applying for asylum according to which he was in Rwanda from January to July 1994 do not mean that he never left Rwanda during that period of time, as the relevance of his statemens are to analyzed and construed in light of the circumstances as to when and why those statements were made; • KABERUKA Theophile’s statements according to which TWAGIRAYEZU Wenceslas did not go abroad because the school year begins in September (9) and ends in June (6) of the next year in such a way that the accused had not gone yet on holidays abroad34, cannot be relied upon as evidence proving that he did not go to the DRC, because before the Court he clarified that TWAGIRAYEZU Wenceslas had told him that he would spend his Easter holidays in the DRC, indicating that he was confused about the word abroad, feeling that the DRC is not included; • NKEZABERA Paulin's statements according to which two days before the genocide, the accused had borrowed his guitar is so doubtful that it cannot be relied upon to assert that the

accused was in Rwanda, because two days before genocide he is referring to, are so close to the end of March 1994 when TWAGIRAYEZU Wenceslas had departed from Rwanda. • Nahimana Emmanuel’s statement according to which between the dates of 2 to 6 April 1994 and earlier in March 1994, TWAGIRAYEZU Wenceslas was present, and that he considered himself to be Nkezabera Paulin’s son, cannot be relied upon as evidence because he based his statemenets on the only fact that he knew his palce of residence, rather than showing TWAGIRAYEZU Wenceslas’ behaviour at that time. Apart from the fact that the statements of Nkezabera Paulin and Nahimana Emmanuel are irrelevant, they will not be upheld in this case as long as they are not 34 The statement before the National Public Prosecution Authority dated 8 July 2019.

18 corroborated by evidence presented before the Court in accordance with Article 8 (2) and (3) of Law No 47/2013 of 16 June 2013 relating to transfer of cases to the Republic of Rwanda35. [48] Finds that the Prosecution's allegations that TWAGIRAYEZU Wenceslas did not present the papers authorizing him to cross into the DRC and to return, or the person who saw him crossing the border, is irrelevant, since the fact that the accused cannot produce a valid administrative document of how he crossed does not mean that he did not go to the DRC because he may be there without any documents, as the accused admits that he crossed into Rwanda from the DRC on 9 April 1994 and did not cross the authorized border crossing point. [49] Finds that the fact that Pastor Senzoga Bihuri Patrick Ndeze made his companions sign the document titled Pétition is also not a flaw that could lead to its rejection as evidence because all its signatories interrogated before the Court confirmed that they signed it knowingly for the purpose of exculpating the accused; but as for those whose names are mentioned on it but did not sign it, Pastor Senzoga Bihuri Patrick Ndeze clearly explained that it was not because they did not believe in its contents, but because they were not available. [50] Finds that regarding the fact that the signatories of the document heard by the Court denied the fact that they had

kinship with the accused as per the document should not be considered a defect leading to invalidating it as evidence in this case at hand, because they explained that because of their culture a person is called a friend or neighbor, father or cousin (Father, Cousin...) because of their harmonious cohabitation and mutual respect, which is why in the" décharge" TWAGIRAYEZU Wenceslas wrote that he was sent by his father Pastor Senzoga Bihuri Patrick Ndeze and it is known that he is not the biological father. [51] Finds that the Prosecution's allegations according to which the letter of acknowledgment was forged in order to obtain evidence that exculpates TWAGIRAYEZU Wenceslas is irrelevant because the Prosecution highlighted no defect whatsoever related to its form or substance, which would justify its dismissal, other than the allegation that it was forged. [52] Finds that, having analyzed the evidence stated above, indicates that from the 7-9 April 1994 TWAGIRAYEZU Wenceslas was likely in the DRC in various areas and at the crime scenes alleged by the Prosecution, on those dates. Therefore, in the following part, the Court must determine whether the evidence presented by the Prosecution against the accused TWAGIRAYEZU Wenceslas clearly shows that he was involved in the crime beyod reasonable doubt. 35 Article 8 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.

19 2.2. To determine whether TWAGIRAYEZU Wenceslas was involved in the acts constituting the offences he is accused of [53] TWAGIRAYEZU Wenceslas is accused of being directly involved in acts of genocide and crimes against humanity committed at Mudende University, Busasamana Church, the roadblock near Gacamena’s home near ISAR-TAMIRA, also referred to as “Commune rouge”, in Gisenyi Sector, at Nyundo and at Saint Fidèle”, currently all those places are located in Rubavu District, Western Province. 2.2.1. The arguments of the parties 2.2.1.1. The arguments of the Prosecution [54] The Prosecution argues that on 08/04/1994, the local residents and security forces used various weapons including traditional ones and weapons owned by security forces and some of the civilians who had received them, attacked the Tutsis who had taken refuge at Busasamana Catholic Church in order to exterminate them; they first stoned them and then the attackers armed with traditional weapons went in and when they found it difficult to kill them, they call upon the soldiers, who broke into using guns and killed more than 200 Tutsis. [55] It states that TWAGIRAYEZU Wenceslas was spotted in this attack armed with a gun, and was leading the killers from Busasamana and Rwerere, because they had called them upon saying that it had been difficult to confront the Tutsis who were at Busasamana. It also argues

that during that attack, TWAGIRAYEZU Wenceslas shot down a teacher called Kanyarutoki, shot down Gasandugu while the latter was running away in the beans plantation belonging to Kanyamasuka. It said that the attack and the role of TWAGIRAGEZU in it were testified by various witnesses including Habingoma Theobald, Maniragaba Theodomir, DTC, Nsengiyumva Kanyamishoro Innocent, Biryamo Joseph, Ntaganda and Habyarimana Jean de Dieu. [56] Concerning the killings at the University of Mudende, the Prosecution argues that on 07/04/1994, at the University near the football playground, the Tutsi students and staff were killed; and on 08/04/1994, in the early hours of the afternoon, the attack involving TWAGIRAYEZU Wenceslas with a gun killed several Tutsis including Mukamurenzi and her children, Ngarara and his wife, Munyakabera, Kagoyi, Hanyurwimfura Emmanuel and Baseme. It submitted that the attack and the role of TWAGIRAYEZU Wenceslas were reported by witnesses including Maniragaba Theodomir, Habingoma Theobald and Gasasira Patrick. [57] In respect of the killings that took place at Gacamena’s roadblock, the Prosecution argues that it was set up by Gacurabwenge Sector authorities in the years 1992-1994, that TWAGIRAYEZU Wenceslas often manned it, that he was

20 responsible for the killing of three (3) persons, including two (2) Tutsi women and one (1) young man, who were apprehended on their way to the DRC, and that sixteen (16) members of the Rupiya’s family were killed there. It also argues that the killing and the role of TWAGIRAYEZU Wenceslas were testified by several witnesses, including Rwasibo Alphonse. [58] Concerning the killings that took place near the place referred to as ISAR-TAMIRA, the Prosecution argues that on 7 April 1994, the attack involving TWAGIRAYEZU Wenceslas, Rwasibo Alphonse, and other local residents was led by soldiers including Lt. Nguyeneza Evariste and S/Lt. Ufitikirezi killed Nyirinkwaya Alfred and his wife Bonifirida near ISAR-Tamira, after having killed an old woman called Barinkumi with a club used by TWAGIRAYEZU Wenceslas who had taken it from Mbabanye, his companion in the attack. [59] Regarding the killings that occurred in Commune Rouge and its surroundings, the Prosecution argues that after the killings at Busasamana, TWAGIRAYEZU Wenceslas and his companions went down to the City of Gisenyi, at the place referred to as Commune Rouge due to its bloodshed history whereby many persons from its surroundings and those taken from Gacuba, were gathered and were killed, that TWAGIRAYEZU Wenceslas had killed eight (8) persons as testified by DTC. [60] Regarding the killings at Nyundo, the Prosecution

argues that after the killings of the Tutsis in Busasamana, TWAGIRAYEZU Wenceslas and his companions under the leadership of Manyagishari Bernard, who was the President of Interahamwe in the former Gisenyi Prefecture and Thomas who was the Vice President of the Interahamwe in the Gisenyi Prefecture, went down to Gisenyi and assaulted the School referred to as “Institut Saint Fidèle, made the students get into the car and took them to Nyundo, where they killed them in the night. Habingoma Theobald is among the witnesses who testified about killings and the role of TWAGIRAYEZU Wenceslas. 2.2.1.2. The defence of TWAGIRAYEZU Wenceslas [61] With regard to the killings that took place at Mudende, TWAGIRAYEZU Wenceslas and his lawyer argue that the Prosecution witnesses do not agree on a single statement regarding the killings in general and the role of the accused in particular, that this is reflected in the dates of the killings, whereby Gasasira Patrick states that he does not remember exactly when the killings took place but that he assumes that it took place between 08-10/04/1994, Maniragaba Theodomir argues that Mudende killings took place on 08/04/1994, whereas Habingoma Théobald testifies that the killings took place on 07/04/1994 and the students and school staff were killed on 08/04/1994, those who had taken refuge there were also killed; therefore, these inconsistencies relating to the dates prove that these statements are not true.

21 [62] It also argues that the statements about Mudende killings do not corroborate Biryamo Joseph’s statements according to which the Tutsis who had taken refuge at the Univeristy of Mudende were about one thousand eight hundred (1,800) and were killed on 12 April 1994 by the attack in which he was involved in collaboration with Nzamutuma Aliel who was the Rector of the University of Mudende, Munyambonera who was in charge of discipline, Bucyeye Jean Berchmans who was the Bourgmestre of Mutura Commune and the gendarmes coming from the City of Gisenyi and that after they had killed the Tutsis at the University, they had crossed over from Busasamana to the Catholic Church and found TWAGIRAYEZU Wenceslas and many others with guns and about three thousand (300) Tutsis who had taken refuge there were killed. [63] Concerning the killings that took place at Busasamana Church, TWAGIRAYEZU Wenceslas and his lawyer argue that the witnesses’ statements are not true because their statements do not corroborate as to the date when the Tutsis were killed in that Church, as Bisengimana Innocent testified that the killings took place on 08 April 1994 while Habingoma Theobald assumes that the killings took palce between 08-12 April 1994, indicating that the witnesses are unaware of what happened at the Busasamana Church. They also submit that the Prosecution relies upon Biryamo Joseph’s

statements which are not true because he avers that after having killed the Tutsis who had taken refuge at the University of Mudende, they immediately went down to Busasamana and found TWAGIRAYEZU Wenceslas standing at the Church with a gun and dogs while the residents who were supposed to possess guns were known as substantiated by exculpatory testimonies. [64] Concerning the killings that took place at the roadblock near Gacamena’s home, TWAGIRAYEZU Wenceslas and his lawyer argue that the Prosecution's allegations should not be taken seriously, as they are based on irrational and untrue witnesses’statements because they state that people killed at the roadblock near Gacamena’s home are unknown, wondering what the Prosecution relies upon by indicating that they are Tutsis while the testimony does not identify them; while there are also those who claim that nobody was killed at the roadblock near Gacamena’s home as testified by various exculpatory witnesses including former Gacamena’s wife, there are also some witnesses who state that TWAGIRAYEZU Wenceslas was not seen there. [65] Regarding the killings that took place near Tamira, TWAGIRAYEZU Wenceslas and his lawyer argue that a witness who claims that on 07/04/1994, near Tamira, TWAGIRAYEZU Wenceslas collaborated with Munyagishari Bernard’s companions to kill the Tutsis, which is not true because in the case nº RP/GEN

0012/13/HCCI pronounced on 20/04/2017 by this Chamber, as well as in the case nº RPA/GEN 00004/2019/CA pronounced on 07/05/2021 by the Court of Appeal in which Munyagishari Bernard was accused, TWAGIRAYEZU Wenceslas was not mentioned. [66] Concerning the killings that occurred at the place referred to as Commune Rouge and its surroundings, TWAGIRAYEZU Wenceslas and his lawyer argue that the witness DTC who incriminates him, remains unkown to him,

22 and does not tell the truth because they testify that they do not know the father and the mother of the accused, that they do not know the cell where the accused comes from, testifies that TWAGIRAYEZU Wenceslas has been a teacher at Munanira Primary School, which is not true, instead TWAGIRAYEZU Wenceslas went to this school before attending secondary school in DRC. They also argue that the testimony according to which the witness was told by Pastor Rukara that the dead bodies of the Tutsis found at Gacuba II Baptist College were the persons who were killed with a grenade launched by TWAGIRAYEZU Wenceslas, which is not true because Pastor Rukara had never been a member of the Baptist Church at Gacuba. [67] As to Busasamana killings, TWAGIRAYEZU Wenceslas and his lawyer contend that he was not involved because there is conclusive evidence based on the testimony of various persons from Busasamana including genocide survivors of 1994 Genocide committed againt the Tutsi, the members of the Tutsi group, including survivors of the 1994 Genocide committed againt the Tutsi, former local leaders during the genocide, Inyangamugayo of the Gacaca Courts and the Protectors of friendship pact, who all are of the same opinion that TWAGIYEZU Wenceslas was not at Busasamana during the 1994 Genocide committed againt the Tutsi . [68] TWAGIRAYEZU Wenceslas and his lawyer contend that in general

that the Prosecution accused TWAGIRAYEZU Wenceslas without sufficient elements of evidence substantiating the charges against him because the witnesses incriminating him do not indicate clearly the role of the accused in the genocide committed againt the Tutsi since they are unable to prove beyond reasonable doubt that they know the accused; their statements are full of contradictions and lack of truthfulness about the acts of genocide involving the accusd that they had previously been stating before various authorities; and that their statements were also contradicted by the exculpatory witnesses who were in the DRC and in Rwanda in the sectors referred to by the Prosecution as crimes scenes of the alleged offences. 2.2.1.3. The witnesses heard before the Court 2.2.1.3.1. The witnesses presented by the Prosecution [69] Several Prosecution witnesses have been heard by the Court alleging that they witnessed or collaborated with TWAGIRAYEZU Wenceslas in the acts of killing the Tutsis in the areas mentioned above. Witness Gasenge Etienne testifies that he knows of TWAGIRAYEZU Wenceslas, that he remembers him at his home in Gacurabwenge near Munanira School where he went, he later taught there as a substitute teacher because he was intelligent student. He added that TWAGIRAYEZU Wenceslas and the Schools Inspector (Inspecteur de secteur Scolaire) called Bunani Jean, usually manned the Gacamena’s roadblock, that once he had seen him standing as a leader talking to Bunani Jean, but did not hear

23 what they were talking about. He also said that among the killers at the roadblock were Bunani who hunted down the victims using his dogs, Munyarwerere and TWAGIRAYEZU Wenceslas, and that even Bunani Jean killed a lady and cut off her breast and gave it to a dog. [70] He goes on to say that he himself was involved in the genocide, that he collaborated with the JPO36 Ntambara, the Bourgmestre and others, that he, Bunani Jean and TWAGIRAYEZU Wenceslas were members of MRND, that during the multiparty saga, between the years 1991-1992, they usually met at the political rallies at Mutura and Busasamana. [71] GASENGE Etienne testifies that they started killing at Mudende on April 7, 1994, and on April 8, 1994, they went to kill at Busasamana because they were called upon as it was very difficult to confront the Tutsis, upon their arrival they killed them and threw their bodies into Busasaman hole. He added that since June 1994, they were on training at Umuganda Stadium and have since been transporting undocumented Tutsis to slaughter them at the hole located at Gacuba II, and TWAGIRAYEZU Wenceslas was carrying a R4 rifle. [72] He testifies that when they were at Busasamana Parish, he saw TWAGIRAYEZU Wenceslas carrying a gun, and moved around with it but did not see him shooting, that among the Tutsis who were killed there, there were some who had survived the killings at Mudende

including Shyengo Joseph who survived at Mudende, the others were the students from Sebashyitsi’s family and others whose names he did not remember, but that there were between 300-900 Tutsis from Nyabishongo. [73] He also testifies that at the Commune Rouge where they went to kill those persons, they found TWAGIRAYEZU Wenceslas, who asked him where he lived and he replied that he lived at the Baptist pastors’ home at Gacuba II but that at that time he had nothing but did not see him doing anything he would blame him for, he only saw him there, and that they had killed up the Tutsis from the northern part and came to barricade those fleeing from Kigali to the DRC. He also testifies that after his release, KABERUKA Théophile, a member of the TWAGIRAYEZU Wenceslas’ family, TWAGIRAYEZU Wenceslas went to see him and asked him to defend him and remove TWAGIRAYEZU Wenceslas from the list of the killers because KABERUKA Théophile was said to be among those who would incriminate him and gave him a photo of himself, but that at the Prosecution level he testified that he had it before so that the person who gave it to him could not face any difficulties. He concluded by saying that his statements before the Court are the ones to be upheld because during investigation, they were incriminating the person who was absent whereas they are inculpating him face-to-face before the Court. 36 Judicial Police Officer

24 [74] HABINSHUTI RUZIBIZA Jean testifies that he knows TWAGIRAYEZU Wenceslas, that he knew him because he used to visit his uncle Pastor Munyankindi Seth who lived in his neighborhood, and that he knew him as a substitute teacher at Silas owned school, that he is from Gacurabwenge but does not know his parents. On April 7, 1994, he fled to the University of Mudende along with other persons armed with traditional weapons, upon their arrival, they took those arms from them and locked them up into a house, women and children were locked in isolation until 6 :00, when the Interahamwe came and they were given back their weapons so that they defend themselves. [75] He testifies that on April 8, 1994, at 8:00 a.m., the attacks broke out, one from Rwagare in which TWAGIRAYEZU Wenceslas was involved, equipped with a gun and a studded club called « ntampongano y’umwanzi», another one from Kanzenze, that they tried to defend themselves, in a bid to flee and realized that they barricaded them and shouted at them saying that they are cockroaches, and nine (09) persons survived this attack. He also testifies that in this attack, he saw TWAGIRAYEZU Wenceslas in front of many others but did not know the leader of the attack, that among those whom TWAGIRAYEZU Wenceslas killed in the attack were Ngara, Kabogi, Munyakabera, Hanyurwimfura Emmanuel and a child named Baseme and many others, and

that he did not see him in any other attack whatsoever despite the fact that upon his arrival in the DRC, Shyengo Joseph who was an acolyte at Busasamana Parish, told him that TWAGIRAYEZU Wenceslas a had even reached Busasamana. [76] SHYENGO Joseph testifies that on April 8, 1994, while the genocide was under way, he fled to Busasamana, upon his arrival at the Parish, he hid in the courtyard opposite the path from Gasiza, a huge attack broke out and started killing and opened fire through windows, and he saw TWAGIRAYEZU Wenceslas carrying a gun but did not see him shooting, TWAGIRAYEZU Wenceslas was along with the Schools Inspector Bunani Jean who was his friend and companion. He testifies that the gunshots began at around 9 : 00, and that among the victims who were killed at Busasamana are Kanyarutoki Matiyasi, Mazeze’s family members, Hilariya’s family members, Mudahuga’s family members and Ntabareshya’s fmily members. [77] He testifies that although in the course of investigation, he had stated that TWAGIRAYEZU Wenceslas was a teacher at Munanira Primary School, he came to get credible informtion according to which he was a substitute teacher, and the fact that he had stated that he knew well that TWAGIRAYEZU Wenceslas was living in the vicinity of the former Bourgmestre Butsingi, he said that the investigator may have been mistaken, that all he knew was that he lived in Gacurabwenge. He explained that the attack on Mudende was launched on 8 April 1994 at 6.00 am, but that at 8.45 a.m he was at Busasamana Parish because he was running.

25 [78] HABIMANA Theobald testifies that he knew TWAGIRAYEZU Wenceslas but did not know him personally because he saw him passing by his home in Gacurabwenge in the military patrol, that he was a substitute teacher and a well- positioned Interahamwe in the sector. He testified that the role of TWAGIRAYEZU Wenceslas in the genocide was evident in Mudende when an attack killed Tutsis who had fled from Gishwati Forest and Kayove in Kanage, continued to kill others who had fled to Busasamana Parish. He added that they met again at the former Institut Saint Fidèle and there were other Interahamwe who arrested the Tutsis pretending to save them from Nyundo, they brought them there and they killed them, they ended up in the Commune Rouge and that wherever he was with Biryamo, Gasenge Etienne and TWAGIRAYEZU Wenceslas, who had a R4 rifle, he used in this attack until it was over. [79] He explained that the Tutsis who had fled to Mudende at the Health Centre were shot down, despite one grenade that failed, that they later went down to Busasamana on 8 April 1994 before noon while TWAGIRAYEZU Wenceslas still had the gun, and that they met again at Saint Fidèle and the Commune Rouge that afternoon and at Nyundo already between 1 :00 and 3 :00 o'clock, and that they had managed all these journeys because of the civilian and military vehicles carrying them because between Mudende and

Busasamana there was a distance of between one kilometre (1km) and five kilometres (5 km), and on the way to Institut Saint Fidèle, Nyundo and Commune Rouge, they used taxis that were set to transport them. [80] BIRYAMO Joseph testifies that he knew TWAGIRAYEZU Wenceslas because in 1988, he worked at Rwerere Commune Headquarters where he saw him when he was on leave, and it was said that he is a High Scool student in the DRC. He added that in 1991, TWAGIRAYEZU Wenceslas attended political rallies as a substitute teacher representing the Interahamwe. He testifies that on April 8, 1994 at eight o'clock with the Interahamwe, the Bourgmestre and the soldiers led by Nguyeneza went to kill in Mudende, and upon their arrival, they found Inspector Bunani Jean and TWAGIRAYEZU Wenceslas, who had a gun, there was a group of people including the Conseiller, the Heads of cells, the soldiers and the policemen, that they had finished at noon (12 o'clock) and headed to Busasamana and that wherever they went, TWAGIRAYEZU Wenceslas had a gun he used to shoot down Gasanduku and Kanyarutoki who were among the refugees at Busasamana. [81] He added that after the killings perpetrated at Gacurabwenge, Rwerere Commune headquarters, they went for reception. He also testifies that the victims killed were buried in Nyabishongo cemetery, that among the persons he coud know who were close to TWAGIRAYEZU Wenceslas are Bunani and DTC. He added that Mudende killings were perpetrated thrice (03), that, the first attack broke out on 7 April 1994, the second on 12 April 1994 at 8:00, and the third (03) on 12 April 1994 when they finished the killings, the only attacks he knows and in which he was involved along with

26 TWAGIRAYEZU Wenceslas. He also testifies that the Mudende attack of April 8, 1994, proceeded to Busasamana and was led by Bunani Jean and TWAGIRAYEZU Wenceslas who were giving instructions. [82] DTA testifies that he already knows TWAGIRAYEZU Wenceslas who was a substitute teacher and collaborated with Bunani to carry out the killings, that they once met him with a gun and a studded club referred to as « ntampongano y’umwanzi » found him asking for identity papers from two (2) Tutsi women and a young man who wanted to cross over to the DRC, and when they failed to show them out, he started beating them, DTA slapped and beat the young man with a stick, and that there was also Ntamfura Claver who was a teacher, Ntamuhanga, Rukara, Munyazogeye, and Maniragaba and others. He also testifies that TWAGIRAYEZU Wenceslas beat the two (02) Tutsi ladies and one young man (1), and that they all connived to kill them, that if he is not mistaken, the killings were committed on 10 April 1994. [83] He also explained that at the Gacamena’s home roadblock, there were a lot of people killed but that those he had seen being killed by TWAGIRAYEZU Wenceslas using a club were three (03), that he did not use the R4 rifle he owned, and that he had never seen him before at this roadblock, except that DTB later told him that we had barricaded there another person named Rusesa. [84] DTB testifies that

he knows TWAGIRAYEZU Wenceslas, that he was a substitute teacher at Munanira School and lived with his sister, the wife of Munyazogeye who lived in Kigali, that he saw him at the Gacamena’s roadblock which had been established since 1992 at the time of the accomplices because in 1994 an old man named Rusesa was beaten there, TWAGIRAYEZU Wenceslas was there and the old man was rescued by the local residents who took him to the former Commune building and was detained, that TWAGIRAYEZU Wenceslas manned that roadblock until the genocide started and was involved in it like others, and that he saw him again on 08/04/14 because he was also hunted down, he did not move around anymore, that on this day, TWAGIRAYEZU Wenceslas participated in the killings that claimed lives of sixteen (16) persons who were killed in the morning, and that during that period of time, at the roadblock there were two (02) guns; however, TWAGIRAYEZU Wenceslas carried a traditional weapon, a studded club called ntampongano y’umwanzi. [85] DTC testifies that they know TWAGIRAYEZU Wenceslas when he was a primary school pupil because they were neighbors and they saw him like once a month because his uncle is TWAGIRAYEZU Wenceslas’ sister-in-law’s husband, that they used to see him going to onload vegetables onto the car he was using and he was partisan of CDR and MRND because it seemed to be one group. They also testify that they were with TWAGIRAYEZU Wenceslas during killings at Gacamena’s home, the ones that took place at Kabuhanga border post, place also referred to as Kinyogo, the ones that perpetrated at ISAR-TAMIRA and the ones committed at Busasamana, that they were together.

27 [86] They explain that the Busasamana killings took place on 8 April 1994 at 10:00 am, TWAGIRAYEZU Wenceslas had a R4 rifle and used it to shoot, the ones that were perpetrated at Gacamena’s home early at Kabuhanga border post, a place also referred to as Kinyogo, broke out at 1:00, the ones at Mudende occurred on 9 April 1994 all the day long because they killed many people, even there TWAGIRAYEZU Wenceslas had a gun. They testify that on April 9, 1994, they also went to ISAR-Tamira, and they were among the persons who arrived after the killings, they were told that the Interahamwe had gone down and that they followed them. [87] DTC testifies that the killings that took place near the Baptist Church headquarters at the Commune Rouge on 11 or 12 April 1994 because they heard about them when they had left for Goma to onload guns, when they arrived at the Pentecostal Church headquarters, they heard noise and they were told that it was TWAGIRAYEZU Wenceslas who had launched a grenade, upon their arrival they were told that the killings were over, and they were onloading corpses, and he got this information from Pastor Rukara. They also testify that there are the killings that were perpetrated at Bugeshi where twenty-four (24) persons were killed and that TWAGIRAYEZU Wenceslas was involved because they had worked together from Mudende and then moved to ISAR when they found out

that they had finished, and they moved on. Concerning the killings against Rupiya’s family members, they testify that TWAGIRAYEZU Wenceslas was there when they came and found a bus that brought others to help them. They also explained that with regard to his statements that TWAGIRAYEZU Wenceslas had old brothers who were scouts, he stated that because they came to interrogate him when he was sick and confused him with a scout who now lives abroad, but that he later recalled that it was TWAGIRAYEZU Wenceslas, and with regard to the gun he used to call Kalachnikov before, which he now calls R4 rifle, they testify that they were mistaken for a name because R4 guns were distributed at the Commune. [88] NSENGIYUMVA Kanyamishoro Innocent testifies that he was a shepherd keeping cattle near TWAGIRAYEZU Wenceslas’ home. He testifies that he knows his names but does not remember his face because he saw him a long time ago, remembers that on 09 April 1994 at 2 :00, they discovered him at Rwagare a place is also referred to as at Gacamena’s home, they chased them and Kanyamishoro intended to kill them, TWAGIRAYEZU Wenceslas was manning the roadblock and anticipated him to kill them with a black rifle whose he does not know the brand, that the Tutsis that TWAGIRAYEZU Wenceslas killed at that roadblock are so many and does not know their names. He explains that he can remember the names of

some of his companions Bicitse, Nyakagabo, Kangwe Jean Damascene, Senyoni Jean Damascene who was the Conseiller, and Gitaka but does not remember who had accompanied TWAGIRAYEZU Wenceslas at that roadblock. He also explained that during Mudende killings he was with TWAGIRAYEZU Wenceslas who came with Ntamaherezo and these were at the forefront when many persons were killed, that TWAGIRAYEZU Wenceslas shot and threw grenades and these killings took place before the Gacamena’s ones, that both attacks took place in front of Gacamena’s house, that he perpetrated both attacks with TWAGIRAYEZU Wenceslas.

28 [89] He testifies that his previous statement according to which TWAGIRAYEZU Wenceslas was a CERAI teacher at Gacurabwenge and his wife a teacher at Munanira School, was based on the fact he used to see him carrying books and assumed that he was a teacher and he used to travel together with this woman. He testifies that TWAGIRAYEZU Wenceslas and Ntamaherero were among the persons who delivered presentations to them during political rallies, and gave them MRND cards before the genocide began. He also testifies that his statement at the investigation level according to which he does not know anything about TWAGIRAYEZU Wenceslas whereas this time he says that he saw him during the killings that were perpetrated at University of Mudende, that he recalls that he stated it but the investigator did not mention it. He testifies that he was among the attackers to whom TWAGIRAYEZU Wenceslas gave guns and urged them to hunt down and kill the Tutsis. 2.2.1.3.2 The witnesses presented by TWAGIRAYEZU Wenceslas [90] The witnesses presented by TWAGIRAYEZU Wenceslas interrogated by the Court emphasize on the fact that he was not involved in the killings he was accused of. Witness Bazege Ntahondo Lea testifies that she knows TWAGIRAYEZU Wenceslas because they had been members of the same choir before he went to school in the DRC, at the place called Shonga, that he graduated in 1993 and was a

teacher until now, that he last met TWAGIRAYEZU Wenceslas in 1992 when they went to take their diplomas in the DRC. He went on to say that he had previously seen him occasionally on long holidays, and he also learned that Wenceslas was appointed Teacher at Gacuba in 1993. He submitted that during the genocide, while they were at work in the Parish during the night, they witnessed the killings at many roadblocks such as the roadblock near Gacamena’s home and at the Parish where they killed persons, but that he had never seen TWAGIRAYEZU Wenceslas, and that instead, there was a seasoned Interahamwe named TWAGIRAYEZU Mabuye and other Interahamwe. He explained that on April 9, 1994, when he arrived at Busasamana Church, he found that there was no activity, and that on that day they had started killing the Bagogwe and hunting down priests and nuns. [91] BARANGIRANA Tharcisse testifies that he knows TWAGIRAYEZU Wenceslas because they were domiciled in the same cell separated by one and half kilometers (1.5 km), that they sat together at school in 1982 or 1983 and completed together Munanira Primary School, after TWAGIRAYEZU Wenceslas went to school in the DRC, and that they last met in 1990 when he came on holidays. He testifies that he stood trial before the Gacaca courts because of the offences he allegedly committed at Gacurabwenge he was accused of, but does not know anything about what happened at Busasamana Church, that he was convicted of co-offending in the killings against a man and a child killed by Kanyamuhanda at Gacurabwenge.

29 [92] He testifies that the well-known killers at Busasamana are Nzabarankize Obed, Karimunda Denys, Karema Faustin and Gasasira Théoneste. He testifies that he saw the roadblock set at Gacamena’s home and there were people who were called the security guards to whom the conseiller had given guns to protect the roadblock, that the persons he can remember for the roadblock set at Gacamena’s home are the leader in charge of the cell Mbonyubwabo and the nyumbakumi (ten households leader) named Sebashyitsi Corneille, that he knows no one who was killed there. He testifies that on April 7, 1994 and April 8, 1994, he was at home because he did not like moving around, and he heard that Tutsis were killed at Busasamana Parish but did not remember the date. [93] Sebashyitsi Appolinaire told to the Court that he knew TWAGIRAYEZU Wenceslas as a child until he was an acolyte at the Parish, but that when he completed primary school he went to the DRC but he did not see him anymore because he sees him now, that since 1990 he was nyumbakumi (ten households leader) at Nyakajumba and that the roadblock set at Gacamena’s home was within his territory of Kanyajumba, at that roadblock there were no arrests, no killings, no injuries and that he had never seen TWAGIRAYEZU Wenceslas at that roadblock. [94] He further explained that in terms of the use of this roadblock, it was the cell leader who

was in charge of appointing the persons to man it during the night, because there was no longer any work during the day, that all the young men manned it, and he manned it once, that the cell leader used to report about the roadblock situation and imparted information of the last night ; and he appointed the persons to man the roadblock during the night, and nobody was in charge of managing it. He said that he does not remember the time when the roadblock was set up because it was done by the Conseillers, the cell leaders and the Bourgmestre, and the roadblock was removed when the people fled to the DRC. [95] NYIRABARIYANGA Ancille, who was Gacamena’s wife testifies that she knew TWAGIRAMUNGU Wenceslas when he was her children’s classmate in Munanira Primary School, but did not remember when they went to high school and she did not meet her any longer since they graduated from High School. He testifies that at Gacamena’s house, there has been a roadblock that was established since Habyarimana's plane crashed, but did not see TWAGIRAYEZU Wenceslas because the roadblock was set up by Konorade and manned it together with another young man whose name she cannot remember, did not remember when the roadbloch was erected, but was set up near her doorway and that no persons were killed there. She further testifies that concerning the functioning of the roadblock and its attendants she could not move to the streets but she knew who were there because the often shouted and chanted their names, that she could also know that some of those who died there because they used to say it and that it was located among many houses, that the people he knew who were killed are those who died above their very home in Mutura, that he and the children were hiding in a cave behind their house.

30 [96] SERUKIKO Théoneste testifies that he knows TWAGIRAYEZU Wenceslas because they have been clasmates at Munanira Primary School in 1979 and 1980, but he was ahead of them, and later went to school at Byumba and never saw him again. He testifies that he was tried by Gacaca Courts at Gacurabwenge site and was sentenced to a penalty, never heard people talking about TWAGIRAYEZU Wenceslas because the village where he lives is close to the village where Twagirayezu Wenceslas lives, as there is a distance of about two (02) kilometres. He explained that on April 8, 1994, he did not set foot at Busasamana Church because the plane had crashed when he was in Kigali on April 6, 1994, and spent there two or three (3) weeks because he does not remember the time of his departure, and there is no information about the genocide in his area. [97] BUFONO Silas, who was a watchman at the University of Mudende before, during and after the genocide, testifies that he last met TWAGIRAYEZU Wenceslas in the beginning of 1993 because the latter was a student in the DRC, and that at that time he had only seen him once, that he knew his behavior and character because they were neighbors, such that there was a twenty minute walk between their homes. He testifies that the attacks that assailed the University of Mudende started since the plane was downed after midnight and were perpetrated by people

coming from very far. He explained that when they came to the gate, he refused to open the gate for them, and they climbed over the fence, as soon as they entered the compound, he ran away and crossed through the barbed wires and went into the countryside and lay in the wheat plantation, and returned in the morning, hiding in the house located near cafetaria near the pedestrians’entrance because there were two (2) entrances for cars, and they were watching what was happening through the windows, for two (2) weeks they were fed by the white people. He testifies that on April 7, 1994 in the morning, the Interahamwe including Sisiro from Mutura and other three (03) young men started killing until the day broadlight but did not see, when the killings intensity decreased, the went back home and he continued to be the University watchman. [98] Pastor KABERUKA Théophile testifies that he knows TWAGIRAYEZU Wenceslas because before the genocide they were domiciled in the same cell, they had been classmates in primary school, they completed in school year 1981-1982, that when they were in Primary 4, TWAGIRAYEZU Wenceslas sustained a fracture when he was playing with an old tyre, he was taken to Ruhengeri Hospital where he recovered from, that after they took an exam and failed, TWAGIRAYEZU Wenceslas went to the DRC and the witness remained in the country, but from time to time, he could

come back to visit his parents, and it was an opportunity for them to meet. [99] He went on to say that in 1993, he saw TWAGIRAYEZU Wenceslas who was on holidays, that he had also been hired to teach at the Baptist College, that he had visited him at his residence in Kanyarutambi near Gacuba, that when the Easter holidays began they did not meet any longer because he told him that he was going to the DRC on holidays and that he

31 knew that he did not spend his holidays at home; that in 2000 he saw him again from the DRC and told him that he had come but that he was going abroad, that when they last met. [100] He also testifies that when Habyarimana's plane crashed, he was at Gacurabwenge, the genocide broke out when he was at home, that he did not know who were the Interahamwe leaders, that he did not reach the roadblock set up at Gacamena’s home, but he was present during information collection session but did not hear the name TWAGIRAYEZU Wenceslas because he can remember the names that were mentioned such as Bunani Jean, Kanyamihanda and Barangirana and those who were imprisoned such as Sebudari, Obed and Karema. He testifies that TWAGIRAYEZU Wenceslas has never been a teacher at Munanira School except that it is a place where he went to school because he could not ignore it since he was a teacher from 1987 to 1993 at Kanyundo and Mugongo and it was the same school Sector called Rwerere- Mutura, so he was head teacher of Mugongo, the headmaster of Munanira and Mugongo was the same person so that they used to attend meetings together. [101] AKIMANIMPAYE Theoneste testifies that he has known TWAGIRAYEZU Wenceslas since 1993 when he met him at the Baptist College where he worked as an accountant, worked with him from 1993 to 1994 when AKIMANIMPAYE Theoneste was in charge of discipline , that he did

not see him again in March 1994 because the students did not go to school, that by the time 1994 they fled to the DRC he returned to Gisenyi in 1998, the Gacaca Courts started their activities when he was present there but he had never heard the name of TWAGIRAYEZU Wenceslas being mentioned and that no student or staff member of their institute had been killed or removed from the school to be killed at Commune Rouge because he was better positioned to know it because he lived in the versant of the school vicinity, that later in 1998, he became a Pastor at this school, but had never heard a pastor named Rukara. He testifies that he was not aware of the fact that TWAGIRAYEZU Wenceslas had returned to the Institute in 1994 and it was still possible that he did not know it because between 7-15 April 1994 there was no urgent work in their Institute. [102] NYIRAMIGAMBI Immaculée submits that she knows TWAGIRAYEZU Wenceslas because the latter was a Christian who used to organise theater and concerts among the Baptists in 1989, that the genocide took place three months after her wedding at Majengo, and that she had three childred who were seven months old. She avers that she did not know the names of the gang leaders of the killings at the Commune Rouge because she could see soldiers and Interahamwe there, that they were repatriated in 1996 and went back home to Rwerere without returning to Gisenyi, that she took part in the information collection session but she did not hear the name of TWAGIRAYEZU Wenceslas. [103] MPAHATANYE Mathieu testifies that he knows TWAGIRAYEZU Wenceslas and his parents because they lived in the same village, and he was a teacher for a long time before the genocide from 1979 until he retired in 2008. He testifies

32 that he last met TWAGIRAYEZU in 1990 when he was a student in the DRC and never became a teacher at Munanira because he was such a senior teacher that he could not ignore the teachers he headed; he explains that the substitute teachers came to replace the women who had given birth; during the information collection sessions, the pointed out gang leaders of the killings of Tutsis were imprisoned such as Karema Faustin and Karimunda and that he even heard about Gacamena’s home roadblock but had not seen it and knows no one who was killed there. He also said that on April 7, 1994 and April 8, 1994, he did not come to Busasamana Church except that he is aware that the victims were killed there during the genocide. [104] SINDAMBIWE Emmanuel states that he was a cell leader and knows both TWAGIRAYEZU Wenceslas and his parents because the latter was his classmate at Munanira Primary School after TWARAYEZU Wenceslas went to school in the DRC and he had never been a teacher at this school. He also testifies that he had been part of Gacaca information collection session, but it was never reported that he had played a role in the genocide. He said that the roadblock set up at Gacamena’s home was established sometimes before the genocide and was removed by RPF after liberation, that no one was killed there because he knew so much about it as he is the one who led it, that the person in

charge of the roadblock Bunani Jean, a school Inspector, who was famous for the genocide, and that even in the information collection session, TWAGIRAYEZU Wenceslas was not mentioned , that there was another person named TWAGIRAYEZU also known as Ndabanyurahe Mabuye, who was Bourgmestre, Butsingiri Kantwari’s neigbour at Gasiza but that he had died in the DRC in 1995 and that he was an illiterate ordinary citizen. He testifies that near the roadblock set up at Gacamena’s home at a distance of about 300 metres away, there were people killed by Bunani and Nkunduwenda and that these people were unknown because they had come from the northern part of Mudende. [105] UGWANEZA Christophe testifies that among the persons metioned during the information collection meetings, as having been involved in the killings that took place at the University of Mudende, none of them named TWAGIRAYEZU Wenceslas was mentioned and that he lived at the university from the start of the genocide until when it was over; that his good deeds made him a a protector of the pact because he went to the university as a student and later became an employee duting the genocide. He explained that on April 6, 1994, there were the soldiers who had arrived alleging that they had to guard them, but shortly before, there were some who were arrested and killed and on April 7, 1994, at about 7:30 p.m., an overcrowded

military vehicle arrived and stopped them from leaving, and on April 8, 1994, at 8 a.m., amidst the killings, he provided a hideout to a student named Kanyoni, who was a tax collector, got him out after deceiving the soldiers’ vigilance. He testifies that among those who were involved in Mudende killings, he can remember Bigari, Biryamo and Davida, as well as soldiers and gendarmes, he returned to the University on 9 April 1994 at 1 :00 o'clock and 10 April 1994, but from 12 to 15 April 1994 no one was allowed to return to the University without his permission except the staff members.

33 2.2.1.4. The parties’ comments on the testimonies 2.2.1.4.1. Prosecution’s comments on the testimonies [106] The Prosecution argues that the testimony given by Ugwaneza Christophe is unfounded because he is unable to impart information about TWAGIRAYEZU Wenceslas as long as he testifies that he does not know him, and even if he saw him in the killings, he would not remember him very well because he told to the Court that he did not know all the killers who came to kill at the University of Mudende because they came from different places and they were a crowd surrounded by soldiers. It also argues that this witness testifies that during the information collection sessions, they could enumerate possible perpetrators of the genocide committed againt the Tutsi, which meant that they did not mention them all in such a way that he can testify that the accused was not involved in Mudende killings. [107] Concerning the testimony given by Bufono Silas, the Prosecution argues that it would not be helpful for TWAGIRAYEZU Wenceslas in terms of exculpating him, but rather it corroborates those witnesses incriminating TWAGIRAYEZU Wenceslas in relation to the dates on which the killings against Tutsis at the University of Mudende took place, because he said that on 6 April 1994 from midnight, he had spent the night outside in wheat plantation because they had been attacked and returned the

next morning, that on 07 April 1994 there were so many killers that he could not identify them who were there as long as he had been hiding himself. [108] The Prosecution argues that the testimony given by Bazege Ntahondi Lea could not help the accused in connection with Busasamana Parish killings because she claimed that on 8 april 1994 he had not been there and even when she reached there on 9 April 1994, she was unable to identify the victims and the killers. The fact that she never heard of the accused in the Gacaca information collection sessions, is also of no use for TWAGIRAYEZU Wenceslas because there is no principle stating that for a person to be prosecuted for the crime of genocide committed against the Tutsi in 1994, the charges must stem from Gacaca information collection meeting; therefore, due to the fact that this witness testifies that he did not know that TWAGIRAYEZU Wenceslas was in Rwanda, they are also unable to know that he had reached the crime scene where the genocide was committed in 1994. [109] It argues that the testimony given by Akimanimpaye Theoneste meant to exculpate TWAGIRAYEZU Wenceslas for the offences that were committed at the Baptist College because it is obvious that he did not have enough reliable information as long as he told to the Court that he was living outside the University and that during the genocide he did not return to it. Besides, the witness testifies that he had not seen the accused in April 1994 and that since March 1994 he

34 did not know whether he had gone to the DRC, however TWAGIRAYEZU Wenceslas told to the Court that on 10 April 1994 he had left his homeplace and returned to College to check on the progress of the work. [110] It submits that the testimony given by Sindambiwe Emmanuel does not reflect the truth about what happened at the roadblock set up at Gacamena’s home, because it showed that, although he was a leader, he did not have enough information based on the report he received as a leader, but that he was looking for the same as everyone else and that he said that he used to pass by about every three (3) days a week. It avers that the existence of another well-known TWAGIRAYEZU, who is perpetrator of the genocide, also known as Mabuye should not lead to confusion, because TWAGIRAYEZU Wenceslas the accused now has a different identity from that of the other mentioned perpetrator, since the so-called TWAGIRAYEZU Mabuye died in 1995, such that there is no way to confuse him with the accused. The fact that the witness testifies that he did not come to Busasamana Parish, that he had just heard that the Tutsi had been killed there, clearly shows that he could not have told to the Court that he had such detailed information about the modus operandi of the genocide, such that he could testify that TWAGIRAYEZU Wenceslas is innocent. [111] The Prosecution argues that the testimony delivered

by Nyirabariyanga Ancille should not be credible because she told to the Court that she could not move to the street because there was a cave behind her home where she was hiding with her children, of course, she could not find out what was going on outside. It also argues that the witness is not telling the truth when she says that since the accused went to the high school she has not seen him again, however, TWAGIRAYEZU Wenceslas alleged that he used to spend holidays there. [112] Regarding the testimony given by Barangirana Tharcisse, the Prosecution argues that it must not be considered as an exculpatory evidence, since he does not have any information about Busasamana Parish killings because it is claimed that he did not reach there, and the fact that TWAGIRAYEZU Wenceslas was not mentioned in the information collection sessions, also does not make him innocent because there is no principle setting out that for the person to be prosecuted for the genocide, the information must have been imparted during the information collecting meeting, since it cannot be guaranteed that the above stated meeting found all information, that nobody was forgotten such that it would be lying to mention any person found now. [113] In respect of the testimony given by Serukiko Theoneste, it states that he has no information related to the offences TWAGIRAYEZU Wenceslas is accused of, because Habyarimana’s plane crashed when he was in Kigali and where he spent three (03) weeks, so he cannot recount the story about what and who he did not see in particular act, because he was not able to identify him since he was not there, and what he says about information collection sessions is also irrelevant as it was explained in relation to other witnesses.

35 [114] The Prosecution contends that the testimony given by Nyiramigambi Immaculée is arbitrary because she herself tells to the Court that there were several killings at the Commune Rouge and that she only went through them twice (02), making it clear that her information is incomplete as to what happened. It also argues that this witness would not be able to watch every killer properly because she said that they would not be able to delay because the killers were urging them to leave because in case of delay, the killers extorted money from them. It argues that although it is not necessary for every alleged perpetrator of the genocide to be identified in Gacaca Court information collection sessions, it is clear that even if TWAGIRAYEZU Wenceslas was mentioned during information collection session about the Commune Rouge, Nyiramigambi Immaculée could not have been aware of it because she did not follow what was said in the information collection process, and that from her residence to the Commune Rouge, it was eight (08) minute walk for her, indicating that she could not watch through the window to see what was happening at the Commune Rouge. [115] With regard to Mpahatanye Mathieu’s testimony, the Prosecution argues that he could not recount the story about what happened at Busasamana Parish since he was not there because he testifies that he heard of the killlings that

took place there from others who were talking about them. The fact that the witness also claimed that he last met the accused in 1990 shows that he is not able to know his own use of his time and activities in various places. [116] Concerning the testimony given by Sebashyitsi Appolinaire, the Prosecution argues that it is not credible because he contradicts himself by claiming that he reached at Gacamena’s home roadblock once (01), and again he claimed that he used to go there to check whether the appointed young men were present. It also argues that this witness contradicts himself as to when he last met TWAGIRAYEZU Wenceslas because he testifies that he had not seen him any longer since he wet to school in the DRC; however, he also says that he does not know when the accused went to the DRC, and again he says that they used to meet at the Parish during the holidays, which means that his statements are full of contradictions, and in respect of his testimony according to which nobody was killed at the roadblock or arrested, this is contradicted by Kaberuka Théophile who is exculpating the accused who said that at this roadblock, people were shot down as testified by many Prosecution witnesses such as DTA and DTC. [117] It also alleges that the defence of TWAGIRAYEZU Wenceslas who claims that witnesses accusing him do not know him is unfounded, because they claimed to know him

well and to have identified him, and explained that he was a substitute teacher at Munanira School, in 1993 he also worked at Gacuba II Baptist School and in 1991-1994 he was the head of the Christian youth at AEBR as he admits in his interview at the Danish Immigration Service. So, what the defendant and his lawyer allege that TWAGIRAYEZU Wenceslas could not do anything in Rwanda when he was at the school in the DRC, is unfounded.

36 2.2.1.4.2. The comments of TWAGIRAYEZU Wenceslas and his lawyer about the witnesses’ statements [118] TWAGIRAYEZU Wenceslas and his lawyer contend that in general the Prosecution witnesses have been characterized by lack of sincerity and their statements are full of contradictions before the various institutions which interrogated them, because starting with Gasenge Etienne they find that his testimony and statements show that he did not already know TWAGIRAYEZU Wenceslas, that his statements are full of contradictions, they do not concur with one another about the role of the accused in the Genocide committed againt the Tutsi and he did not tell the truth because before the Danish Investigation Service, he said that he had never heard the leader of Interahamwe called TWAGIRAYEZU Wenceslas and therefore he could not give accurate information about his role in the Genocide committed againt the Tutsi while he does not know him. [119] They also argue that before the Prosecution, Gasenge Etienne stated that he knows the accused well because he went to Munanira Primary school and became a teacher there, and that they used to be together in the meetings during the multiparty period of 1991 and 1992, which is also not true since the accused has never been a teacher in any way at Munanira Primary School, since Gasenge Etienne claims that the accused was called TWAGIRAYEZU Nyundo,

names which he has never been given. [120] They also argue that Gasenge Etienne stated that he was not aware that the accused had manned the roadblock and that he did not know that any people were killed there, then he was questioned again and changed the wording by stating that the accused was at the roadblock and that he was involved in the killings that took place at Gacamena’s home, at Busasamana and at the Commune Rouge where he was spotted with a R4 rifle, that when he appeared before the Court, he testified that the accused was now working as a substitute teacher because he was very intelligent and it was also not true, and that when they reached Busasamana Parish, they met the Interahamwe led by Bunani Jean and the so-called TWAGIRAYEZU Nyundo was among them carrying a gun, but he had previously said that Gasenge Etienne’s statements are full of contradictions, such that they cannot be relied on as evidence proving the role of TWAGIRAYEZU Wenceslas in the offences he is accused of. [121] Regarding the testimony given by Kanyamishoro Nsengiyumva Innocent, they allege that the witness testifies that TWAGIRAYEZU Wenceslas was a teacher at Munanira Primary School, but he died and that the identity and private life of the accused are not true, and even his statements before the Prosecution that the accused became a teacher at Busasamana CERAI and had a wife who was a teacher at Munanira Primary school, all that is not true. They also argue that this witness contradicts himself and as to the role of the accused in the acts of the Genocide againt the Tutsi where he

37 started by stating that he had never seen the accused in the killings against the Tutsi who had fled to the University of Mudende but that the accused could have been there because he liked being with Bikindi Simon. [122] They argue that the witness surprisingly came to testify that the accused was the leader of the Gacurabwenge roadblock and that he was involved in the killings of Tutsis at Mudende and at Busasamana Parish, but that he met the accused only once during the genocide at the roadblock near Gacamena’s home where he found that three (3) persons had just been killed including one woman (1) and two men (2). They also argue that this testimony, in addition to being contradictory, appears to be so untrue in such a way that that it should not be relied upon. [123] Regarding the testimony and statements of DTA, they argue that their statements were full of contradictions and are untrue because the accused was a teacher at Munanira Primary School showing that he did not know him, and that the so- called TWAGIRAYEZU he knows is also named Wellars but that it is really the accused, and later they were questioned again and said that the accused was a substitute teacher at Munanira Primary School, such statement is also untrue. They argue that DTA’s testimony according to which the accused had been with other Interahamwe at the Gacamena’s home roadblock where he found that

three (3) persons had just been killed, including two (2) men, and one (1) seventeen year old young man, but that they did not identify the killers, and that when interrogated again, he stated that these three (03) persons had been killed by the accused with a R4 rifle, which is in contradiction with the testimonies given by the accused’s witnesses who testify that nobody was killed or died at Gacamena’s home roadblock; which means that this witness’ statements are untrue. [124] Concerning the testimony and statements of DTB, they argue that they state that they knew the accused well, that he became a teacher at Gisenyi in 1992, that after one (1) year the accused later changed his duty station and began teaching at Munanira Primary School, he had a wife called Nirere, which is untrue. Regarding the role of the accused in the killings, DTB testifies that he never spotted the accused in the attacks, that all they knew was that when they saw him working on the roadblock in front of Gacamena’s home roadblock with the traditional weapon referred to as Ntampogano y’umwanzi, a studded club, and when questioned again, he changed the wording and stated that the accused was involved in the killings of sixteen (16) persons, who were killed at Gacamena’s home roadblock, which makes his statements unfounded. [125] In repect of the testimony and the statements by DTC, TWAGIRAYEZU Wenceslas

and Counsel BIKOTWA Bruce, contend that they should be relied upon because the witness testifies that they found the accused at the roadblock located at Gacamena‘s home carrying a Karachinikove and five young men, including Kamere, son of Gacamena, who had just killed three (3) unidentified persons including two (2) women and a man (1). Regarding the killings against the Tutsis who had fled to the Busasamana Church, with DTC, they testify that they took the accused there by car, and elsewhere they

38 stated that they had seen TWAGIRARAYEZU Wenceslas arriving, getting off ONATRACOM37 bus which had transported him from Gacurabwenge to Busasamana to lauch an attack there, that such attack killed more that two hundred (200) persons including Rupiya’s family members. They als argue that DTC’s statements that the accused was the Interahamwe leader at Gacurabwenge, where he headed around five hundred (500) militiamen are also untrue because he never headed Interahamwe. [126] Regarding the testimony and statements by Habinshuti Ruzibiza Jean, they argue that he also did not know the accused because he said that TWAGIRAYEZU Wenceslas was known throughout Gisenyi because he became a teacher and the School Inspector at Munanira, and elsewhere he stated that he had become a substitute teacher though he had not done all these jobs ; that this shows contradictions, inconsistencies and a lack of emphasis on his testimony. They argue that Habinshuti Jean stated that he saw TWAGIRAYEZU Wenceslas with a gun in the attack on the University of Mudende on 8 April 1994; that this attack killed many people including Mukamurenzi and his children, Ngara and his wife, Munyakabera, Kabogi, Hanyurwimfura Emmanuel, Baseme and others; and that on this date he saw him in the Busasamana attack, but when he was asked how the accused coud be in all those places at the same time; he answered that he was

mistaken because he was not present at Mudende. They also argue that Habinshuti Ruzibuza Jean stated that he saw the accused in the Mudende attack in which he was at the forefront of it, and he could not identify TWAGIRAYEZU Wenceslas’ companions because there were so many people, which shows that he does not tell the truth. [127] As to the testimony and statements by Shyengo Joseph, TWAGIYEZU Wenceslas and his lawyer argue that the accused was a teacher at Munanira Primary School, while elesewhere he testified that he did not know him personally. They argue that, regarding the role of the accused in the genocide, Shyengo Joseph testifies that TWAGIRAYEZU Wenceslas was a representative of Interahamwe at the level of Gacurabwenge Sector because in 1992, on a day he did not remember well, he saw him together with Bunani Jean who both had guns coming from a meeting at Rwerere Commune Headquarters, that on 8 April 1994 at 9:00 am he saw the accused in the attack at Busasamana Church with a gun and heard the Interahamwe calling him a teacher; elsewhere he stated that his statements according to which TWAGIRAYEZU Wenceslas took part in the killings that took place at Busasamana Church were dictated to him by DTC; therefore, this shows that from time to time, Shyengo Joseph conveniently changed his wording. [128] Regarding the testimony and statements by Habingoma Théobald, they argue that what he stated that TWAGIRAYEZU Wenceslas was a teacher at Munanira is untrue, and what he stated that the accused found him at Busasamana Church 37 Office National des Transports en Commun

39 taking part in the attack that aimed at killing Tutsis, after killing Tutsis who had taken refuge at the University of Mudende, is wrong. They also argue that his statements according to which the accused was leading Interahamwe at the level of Busasamana Sector, is also wrong. They further allege that Habingoma Theobald changed the wording again to say that he had been with the accused in the attack that killed Tutsis at the University of Mudende, at Busasamana, at Institut Saint Fidèle, at Nyundo and in Gisenyi, at the Commune Rouge, that this change in wording shows that the witness’statements are not true. [129] TWAGIRAYEZU Wenceslas and his lawyer argue that the testimony and statements by Biryamo Joseph are untrue because he testifies that the accused was named Nsengiyumva and was the Inspector of all Rwerere schools in 1986, but the name of the accused and the role of Inspector were not part of the accused's experience, just as he was not a substitute teacher as he stated it when he was questioned again.They argue that Biryamo Joseph’s statements according to which he saw TWAGIRAYEZU Wenceslas on April 7, 1994, at Busasamana in a mob of about one hundred (100) Hutus, including DTC and Bikindi as leaders, is not true. They also argue that his statement according to which the authorities generally had pistols and other guns, TWAGIRAYEZU Wenceslas having a machete he

used to kill five [05) Tutsis, including three (03) women and two (02) children, is not true. They also allege that this witness stated that the accused had been involved in the attack at the University of Mudende, contrary to what he had previously stated, all this indicates that his statements are untrue. 2.2.2. DETERMINATION OF THE COURT [130] In this case at hand, the issue is to determine whether the statements and testimonies incriminating the accused are relevant to the way in which the witnesses describe how they know TWAGIRAYEZU Wenceslas and how they describe his involvement in the criminal acts constituting the offences he is accused of. [131] Article 65 of Law no 15/2004 of 12/6/2004 relating to Evidence and its Production provides that only the court assesses the relevance, pertinence and admissibility or rejection of testimonial evidence. It shall not be influenced by the number of witnesses. It shall mainly consider their knowledge of facts and the objectivity and sincerity of their testimonies. [132] In Prosecution v. Ngurinzira, the Supreme Court elucidated that in assessing the relevance of testimonial evidence, the court relies upon the knowledge of the witnesses, their objectivity and their sincerity, and compares them to other evidence38. 38 Prosecution v. NGURINZIRA, RPAA 0118/11/CS, CS (13/11/2015), 1(RLR) vol. 2017 para. 13.

40 [133] In Popović et al., the International Criminal Tribunal for the Former Yugoslavia established that when exercising its broad discretion, a trial chamber has to consider relevant factors on a case-by-case basis, including the witness’demeanor in court; his role in the events in question; the plausibility and clarity of his testimony; whether there are contradiction or inconsistencies in his successive statements or between his testimony and other evidence; and prior examples of false testimony; any motivation to lie; and the witnesses’ responses during cross-examination. […] the application of these factors, and the positive and negative impact they have on the witness’ credibility, varies according to the specific circumstances of each case39. [134] Finds that, in The Prosecutor v. Aloys Simba, the International Criminal Tribunal for Rwanda elucidated that it is within the discretion of the Trial Chamber to assess any inconsistencies, to consider whether the evidence taken as a whole is reliable and credible and to accept or reject the “basic features” of the evidence 40. [135] In Prosecution v. Nikomeze Chantal, the Supreme Court found that the testimonial evidence could not be relied upon if it is full of contradictions in the various institutions before which the accused had been questioned41. While in Prosecution v. Gatera Célestin, the Supreme Court found that the

overwhelming contradictions of the witnesses gives rise to doubt as to the relevance of their testimony42. [136] Finds that, as clarified in these cases, the relevance of testimonial evidence is based on the knowledge of the witness, and the way they explain its rationale, taken together with other evidence, and in its analysis, the court's discretion depends on various factors, having regard to the particularities of each case, and that the court has the power to assess whether contradiction or change in wording or testimony is to such an extent to invalidate or uphold its relevance, that if the witnesses contradict themselves in the various institutions before which they have been questioned, it may render their testimonies unfounded, that the contradiction gives rise to serious doubt as to its admissibility and pertinence. 39Prosecutor v. POPOVIC et alii, IT-05-88-A, ICTY, Appeals Chamber (30/01/2015), para.132. (“The Appeals Chamber is mindful that when exercising its broad discretion, a trial chamber has to consider relevant factors on a case-by-case basis, including the witness's demeanor in court; his role in the events in question; the plausibility and clarity of his testimony; whether there are contradictions or inconsistencies in his successive statements or between his testimony and other evidence; and prior examples of false testimony; any motivation to lie; […] the

application of these factors, and the positive and negative impact they have on the witness's credibility, varies according to the specific circumstances of each case. 40Prosecutor v. Simba Aloys, Appeals chamber, ICTR- 01-76 – A (27/11/2007), para.103 “ [...] It is within the discretion of the Trial Chamber to assess any inconsistencies, to consider whether the evidence taken as a whole is reliable and credible and to accept or reject the “basic features” of the evidence [...]”. 41 Prosecution v. NIKOMEZE Chantal, RPA 0003/15/CS rendered on 29/12/2017, paras. 22 and 24. 42 Prosecution v. GATERA Celestin, RPA 0084/10/CS rendered on 09/05/2014, para. 26, Vol. 4 October 2015.

41 2.2.2.1. In relation to the circumstances in which the witnesses of the Prosecution describe the accused [137] The Court finds that, in light of the testimonies and the statements by the witnesses heard before the Rwandan and Danish Investigation Services, the witnesses testified that they knew who they were incriminating on the basis of his work and conduct in political parties. [138] Regarding the work done by TWAGIRAYEZU Wenceslas, the Court finds that, before the Danish Investigation Service, the interrogated witnesses who are Gasasira Patrick43, DTA44, Maniragaba Theodomir45, Nzabarankize Obed46, Ruzibiza Habinshuti Jean47, Shyengo Joseph48 and Habingoma Théobald49 testified that TWAGIRAYEZU Wenceslas was a teacher at Munanira Primary School; this was also the case with Kanyabugoyi Theoneste50, Munana Thacien51, Rwasibo Alphonse52, DTC53, Shyengo Joseph54, Biryamo Joseph55 and Habingoma Théobald56 who testified before Rwanda Investigation Bureau. Finds that in the courtroom, Habingoma Theobald57, Gasenge Etienne58, Biryamo Joseph59, Shyengo Joseph60, Ruzibiza Habinshuti Jean61 and DTA62 testified that TWAGIRAYEZU Wenceslas was a substitute teacher at Munanira Primary School. 43 Statement recorded on reference number P-09-204. 44 Statement recorded on reference number P-09-005. 45 Statement recorded on reference number P-09-114. 46 Statement recorded on reference number

P-09-156. 47 Statement recorded on reference number P-09-228. 48 Statement recorded on reference number P-09-217. 49 Statement recorded on reference number P-09-161. 50 Statement dated 12/12/2013. 51 Statement dated 18/12/2013. 52 Statement dated 20/12/2013. 53 Statement dated 24/12/2013. 54 Statement dated 24/12/2013. 55 Statement dated 11/12/2013. 56 Statement dated 13/12/2013. 57 Hearing report dated 18/04/2022. 58 Hearing report dated 18/04/2022. 59 Hearing report dated 18/04/2022. 60 Hearing report dated 18/04/2022. 61 Hearing report dated 18/04/2022. 62 Hearing report dated 18/04/2022.

42 [139] Finds that, before the Rwanda Investigation Bureau, Nsengiyumva Kanyamishoro Innocent63 testified that TWAGIRAYEZU Wenceslas was a teacher in Gacurabwenge CERAI64; KABERA Samuel65 testified that he was a teacher in BUSASAMANA CERAI; Mbonyubwabo Jacques66 testified that he was a teacher at Gisenyi Primary School; Habimana Moise 67 testified that he was a teacher (Professor) at Gisenyi; Ruzibiza Habinshuti Jean68 testified that he knew him as a Headmaster of Munanira School. Before the Danish Investigation Service, Biryamo Joseph69 stated that he knew TWAGIRAYEZU Wenceslas who has been the Inspector of all Rwerere schools since 1986, while DTC 70 testified that he knew him as a teacher at Rwerere Primary school. [140] Concerning the way in which the witnesses know TWAGIRAYEZU Wenceslas in the activities of political parties, the Court finds that, before the Danish Investigation Service, DTC71 and Shyengo Joseph72 testified that he was the leader of Interahamwe and Ndagijimana Theoneste73 testified that he was the head of Interahamwe in Rwerere. Before the Rwanda Investigation Bureau, Habingoma Tonny Théobald74 stated that TWAGIRAYEZU Wenceslas was the head of the Interahamwe in Rwerere, while Nsengiyumva Kanyamishoro75 stated that he represented the MRND at the Commune level; Shyengo Joseph76 and Gasenge Etienne77 stated that he was only a member of the MRND while

Rwasibo Alphonse78 stated that TWAGIRAYEZU Wenceslas was the head of CDR in Gacurabwenge Sector. [141] Finds that, however, in addition to the circumstances in which the witnesses knew TWAGIRAYEZU Wenceslas in relation to his work and his role in political parties, there is also another way, at first sight, the witnesses described who is TWAGIRAYEZU they knew, such as Biryamo Joseph who stated before the Danish Investigation Service that 63 Statement dated 11/12/2013. 64 Centre d’Enseignement Rural et Artisanal Intégré 65 Statement dated 12/12/2013. 66 Statement dated 13/02/2014. 67 Statement dated 13/01/2014. 68 Statement dated 12/02/2014. 69 Statement recorded on reference number P-09-099. 70 Statement recorded on reference number P-09-188. 71 Statement recorded on reference number P-09-188. 72 Statement recorded on reference number P-09-117 73 Statement recorde on reference number P-09-200 74 Statement dated 11/12/2013. 75 Statement dated 11/12/2013. 76 Statement dated 13/12/2013. 77 Statement dated 18/04/2022. 78 Statement dated 20/12/2013.

43 TWAGIRAYEZU was also known as Nsengiyumva Wenceslas79 and Kanyamishoro Nsengiyumva who stated that TWAGIRAYEZU he knew had died80. Finds that, before Rwanda Investigation Bureau, Nsengiyumva Kanyamishoro Innocent stated that TWAGIRAYEZU Wenceslas had a wife who was also a teacher at Munanira Primary School, in Gacurabwenge Sector81; before the National Public Prosecution Authority, Gasenge Etienne stated that among the well- known Interahamwe he knew TWAGIRAYEZU Nyundo82; before the Danish Investigation Service, he stated that he never heard of Interahamwe leader who was called TWAGIRAYEZU Wenceslas83. Finds that, before the Court, Bageze Ntahondi Lea testified that there was a famous Interahamwe whose name was TWAGIRAYEZU Mabuye84; Sindambiwe Emmanuel stated that there was a person called TWAGIRAYEZU Jean also known as Mabuye Ndabanyurahe, who lived near Bourgmestre Gatsingiri’s home at Gasiza who probably died in 199585; before the Danish Investigation Service, Nizeyimana Célestin stated that TWAGIRAYEZU he knew was the cell leader who died in 199686. [142] Finds that TWAGIRAYEZU Wenceslas, argued87 that after graduating from Munanira Primary School in 1982, he went to High School in the DRC until his graduation in 1991 as evidenced by the degree issued on July 02, 1991; that after graduation he continued to live in the DRC with his uncle who was a leader at Luhanga

Baptist Church, and was hired to teach children religion from 1991 to June 1993; in July 1993 he returned to Rwanda to apply for a job, which he found at the Baptist School named « Collège Baptiste Gacuba II » , and started working in September 1993 as a treasurer and in November 1993, he started teaching, and in February 1994, he became the Officer in charge of discipline until July 1994. [143] Finds that, among the witnesses presented by TWAGIRAYEZU Wenceslas such as Mpahatanye Mathieu88 and Kaberuka Theophile,89 who testified that the accused attended High school in the DRC, and the Prosecution witnesses including Biryamo Joseph90 and DTC91 stated that TWAGIRAYEZU Wenceslas was sometimes seen at home because he 79 Statemenet recorded on reference number P-09-099. 80 Statemenet recorded on reference number P-09-263. 81 Statement dated 11/12/2013. 82 Statement dated 21/05/2020. 83 Statement recorded on reference number P-09-260. 84 Hearing report dated 21/04/2022. 85 Hearing report dated 22/04/2022. 86 Statement recorded on reference number P-09-231. 87 Hearing report dated 26/10/2021. 88 Hearing report dated 22/04/2018. 89 Hearing report dated 18/04/2018. 90 Hearing report dated 18/04/2018. 91 Investigation statement dated 24/12/2014 and hearing report dated 18/04/2018.

44 was attending school in the DRC. Also it finds that, concerning the fact that the accused was not a teacher at Munanira Primary School, is also stated by Mpahatanye Mathieu who explained that he started teaching at Munanira Primary School from 1979 to 2000, that during this period of time, the accused did not teach at the school except that he attended it, because as a teacher leading his colleagues, he was not likely to ignore it. [144] Having analyzed the circumstances in which the witnesses presented by both parties know TWAGIRAYEZU Wenceslas and having compared them with the accused’s defence who argued that he became a teacher in Rwanda for the first time from September 1993 at Collège Baptiste Gacuba II, the Court finds that the witnesses who assert that they know him well contradict one another seriously as to his job, because some say that he was a regular teacher, some state that he was a substitute teacher, others that he was a headmaster, others that he was a teacher at primary school, others that he taught at CERAI. Also it finds that they contradict one another as to his position in the activities of political parties, with some claiming to be the head of the MRND, the CDR and the Interahamwe at the sector or commune level, others claiming to be merely a member of MRND, this denotes that their statements and testimonies about their knowledge of the accused are

untrue, given the fact that some of those who had claimed to be a regular teacher or head of education before investigation institutions; and before the Court, after mentioning that TWAGIRAYEZU Wenceslas was a teacher, they happened to learn that he was a substitute teacher, as demonstrated by the analysis of witnesses’ statements; further these statements are also contrary to Gasenge Etienne’s statements according to which TWAGIRAYEZU Wenceslas used to replace teachers while he was still a student as he was very intelligent 92. [145] Also it finds that misrepresenting TWAGIRAYEZU Wenceslas is based on the fact that he was portrayed as a wealthy man who was known locally, well paid by the government and had a large land area93, who was often with Jean Bunani who was Commune School Inspector94, who represented the Interahamwe during the meetings aimed at preparing the genocide 95 or who was the head of MRND and CDR96 at the commune and sector level, who was with Munyagishari Bernard who was the leader of Interahamwe at the former Gisenyi Prefecture level97and Ntamaherezo who was the leader of Interahamwe at Gacurabwenge98 and Bikindi Simon who was famous during the genocide99; however, as indicated 92 Hearing report dated 18/04/2022. 93 Statement before the Danish Investigation Service recorded on side P-09-187 - P-09-191. 94 Statement by Rwasibo Alphonse before the Prosecution

dated 20/12/2013; and by Shyengo Joseph before the court dated 18/04/2022. 95 Investigation Statement by Shyengo Joseph dated 13/12/2013. 96 Investigation Statement by Kanyamishoro Nsengiyumva Innocent dated 11/12/2013. 97 Statement by Maniragaba Theodomir before Rwanda Investigation Bureau dated 13/12/2013. 98 Statement by Kanyamishoro Nsengiyumva Innocent before Rwanda Investigation Bureau dated 11/12/2013. 99 Statement by Kanyamishoro Nsengiyumva Innocent before the Danish Investigation Service recorded on side P-09-263 to P-09-264.

45 above, it is obvious that before July 1991, TWAGIRAYEZU Wenceslas was a student attending High School in the DRC and who lived there and who sometimes came back home for holidays and who continued to live in the DRC after his graduation until he came back to Rwanda in June 1993; thus, the fact that the witnesses claim to have been acquainted with him well, yet in explaining the manner in which they have encountered him and attributed to him duties and responsibilities that he had never performed, the allegations made by TWAGIRAYEZU Wenceslas and his lawyer that he is accused by witnesses who do not know him well, are well founded. [146] The Court finds that the witnesses questioned during the investigation and who testified before the Court, explained in various ways how they had witnessed or cooperated with TWAGIRAYEZU Wenceslas in the killings and many also referred to the weapon he was carrying in the course of the criminal acts he is accused of. [147] Regarding TWAGIRAYEZU Wenceslas' role in the Mudende killings, the Court finds that the witnesses have been in serious contradiction as they were interrogated before various institutions, including Kanyamishoro Nsengiyumva Innocent who stated before the Danish Investigation Service that he had never seen the accused in the killings that took place at the University of Mudende and did not know whether he was involved in the

genocide, but when he continued to be interrogated, he submitted that he stated doubtfully that TWAGIRAYEZU Wenceslas was involved in the killings against the Tutsis at the University of Mudende100; before the Court, he confirmed that on 09 April 1994 at 10 :00, TWAGIRAYEZU Wenceslas participated in Mudende attack alongside with Ntamaherezo and many others, and used a gun and a grenade101 to kill. [148] The Court finds that HABINGOMA Théobald alias Simpamanuka, when questioned by the Danish Investigation Service102 and Rwanda Investigation Bureau 103, he stated that on the day he did not remember well, between 7 and 12 April 1994, around 3:00 p.m., the perpetrators of the killings at the University of Mudende, including TWAGIRAYEZU Wenceslas, had just killed at Busasamana Church and went on to wage at Petite barrière, at the Commune Rouge and at Nyundo, wherever he went, TWAGIRAYEZU Wenceslas used his weapon; however, before the Court, he testified that on 8/4/1994, the attack took place at the University of Mudende, and the attackers went on attacking Busasamana Parish, from which they went to Institut Saint Fidèle, to Nyundo and to Commune Rouge, alongside with TWAGIRAYEZU Wenceslas who was giving instructions. 100 Statement recorded on side P-09-261 to P-09-264 101 Hearing report dated 18/04/2022. 102 Statement recorded from reference number P-09-163 to reference number P-09-164. 103 Statement dated 11/12/2013.

46 [149] The Court finds that before Rwanda Investigation Bureau104, BIRYAMO Joseph stated that the attack against the University of Mudende took place on 12 April 1994 and from there they went to the Busasamana Church and found TWAGIRAYEZU Wenceslas; while before the Court105 he testified that on 8 April 1994, together with Interahamwe, the Bourgmestre and the soldiers launched Mudende attack and found TWAGIRAYEZU Wenceslas, who was equipped with a weapon; after Mudende killings, they went with TWAGIRAYEZU Wenceslas to kill at Busasamana, and then they went to Rwerere Commune Headquarters at Gacurabwenge for reception. [150] The Court finds that HABINSHUTI Ruzibiza Jean, before the Danish Investigation Service, stated that on April 8, 1994, the Interahamwe and soldiers attacked the University of Mudende where they had taken refuge, he hid in the bush, and a few days later, along with other refugees, headed to Busasamana to seek refuge in the DRC, met Interahamwe including TWAGIRAYEZU Wenceslas with a gun and a grenade, and he saw him shooting a girl106; but before Rwanda Investigation Bureau, he stated that he saw TWAGIRAYEZU Wenceslas on April 8, 1994, in the attack of Mudende with a gun107; and before the Court, he stated that in addition to spotting him in the attack, he also witnessed him and the victims he killed including Ngara, Kabogi, Munyakabera, Hanyurwimfura

Emmanuel and a child named Baseme and many others 108. [151] The Court finds that before the Court, DTC testified that on April 9, 1994, TWAGIRAYEZU Wenceslas participated in a day-long killings, carrying a gun, and many persons were killed109. The Court finds that Maniragaba Theodomir, who was among the killers at the University of Mudende on April 8, 1994, before Rwanda Investigation Bureau, he stated that he had never seen TWAGIRAYEZU Wenceslas in the attack110. [152] The analysis of the testimonies highlights significant inconsistencies and contradictions as follows: • Nsengiyumva Kanyamishoro Innocent first stated that he does not know TWAGIRAYEZU Wenceslas in the killings, but once questioned again, he changes the wording and states that they collaborated in the killings. 104 Statement dated 13/12/2013. 105 Hearing report dated 18 /04/2022 106 Statement recorded from reference number P-09-220 to reference number P-09-222. 107 Statement dated 12/02/2014. 108 Hearing report dated 18 /04/2022. 109 Hearing report dated 18/04/2022. 110 Statement dated 13/12/2013.

47 • HABINGOMA Théobald hesitates on recounting how the killings occurred, because he stated that the killings in which he spotted the accused started at Busasamana and moved forward to Mudende, and once interrogated again, he changed his mind and stated that the killings started at Mudende and proceeded to Busasamana. • HABINSHUTI RUZIBIZA Jean stated that when Mudende was attacked on April 8, 1994, he hid and left a few days later to Busasamana where he met with Interahamwe including TWAGIRAYEZU Wenceslas, but once interrogated again, he stated that he saw TWAGIRAYEZU Wenceslas on April 8, 1994, the day on which Mudende was attacked; • BIRYAMO Joseph stated that after Mudende and Busasamana attacks of 8 April 1994, they went to Rwerere Commune Headquarters for reception together with TWAGIRAYEZU Wenceslas, while Habingoma Théobald stated that, after Mudende and Busasamana attacks, they moved on to Institut Saint Fidèle, Commune Rouge and Nyundo together with TWAGIRAYEZU Wenceslas. [153] The Court finds that these statements and testimonies firstly assert that TWAGIRAYEZU Wenceslas was not involved in the acts of which he was accused, they then doubt whether this role was materialized, the witness ended up confirming that he saw the accused committing the offence, they are extremely defective based on lack of consistency and contradictions which make them unreliable as to the

truthfulness of the facts; it finds that the testimonies are varying about the critical issue of how were conducted the attacks in which the witness was involved with the accused, taking into account the contradiction as to the place where they began, extent of their continuation and extent of their end and how they encountered each other, therefore the statements and testimonies do not substantiate the facts. Thus, the serious inconsistencies and extreme contradictions in these testimonies make them irrelevant in such a way that they cannot be relied upon as irrefutable elements of evidence substantiating the role of TWAGIRAYEZU Wenceslas in the killings that took place at the University of Mudende. [154] Concerning the role of TWAGIRAYEZU Wenceslas in the killings that took place at Busasamana Church, the Court finds that the witnesses have changed their statements to the extreme as they were being questioned by the investigative authorities, such as Shyengo Joseph who told to the Danish Investigation Service that TWAGIRAYEZU Wenceslas was involved in Busasamana Church killings that he was told by the DTC 111; however, before Rwanda Investigation Bureau, he stated that on 8 April 1994, at 3 : 00 a.m, when he had taken refuge at Busasamana Parish, there was the attack by Interahamwe and soldiers and he hid in poultry and he spotted TWAGIRAYEZU Wenceslas in the attack with a gun and 111 Statement recorded from reference number P-09-215 to reference number P- 09 -218.

48 he heard other interahamwe calling him teacher and borrowing his weapon in a bid to shoot112. The Court finds that before it, he repeated what he had said before the Rwanda Investigation Bureau, but he stated that he did not know if TWAGIRAYEZU Wenceslas shot with a gun he saw him carrying because he was hiding113. [155] HABINGOMA Théobald alias Simpamanuka before the Danish Investigation Service stated that from April 7 to 12, 1994, at around 2 :00, TWAGIRAYEZU Wenceslas encountered him at Busasamana Church where he saw him leading a group of Interahamwe around six hundred (600) armed with guns and three (03) grenades, who entered into the church and fired bullets, and Wenceslas fired his gun, it was around 3 o’clock114. Before the National Public Prosecution Authority, he stated that after the killings they were both involved in the attack at Busasamana, they moved forward to the University of Mudende and after they took part in the attack that assailed petite barrière’, at Commune rouge at Nyundo wherever he was, TWAGIRAYEZU Wenceslas used his gun115; however, before the Court, he stated that on 8 April 1994 he was with TWAGIRAYEZU Wenceslas in the attack which started in Mudende, went on to Busasamana Parish, after they went together at Institut Saint Fidèle, Nyundo and Commune Rouge, in all those places, they were with TWAGIRAYEZU Wenceslas who was among the persons who

were giving instructions116. [156] Before the Danish Investigation Service, BIRYAMO Joseph stated that on 7 April 1994 he saw TWAGIRAYEZU Wenceslas participating in Busasamana Church attack, leading a mob of Interahamwe including Bikindi Simon and DTC with a pistol and other guns but TWAGIRAYEZU had a machete and butchered three (03) women and two (2) children with it 117; however, before Rwanda Investigation Bureau, he stated that the killings in which he spotted TWAGIRAYEZU Wenceslas are the ones that occurred on April 12, 1994 at Busasamana Church, after the ones they committed at the University of Mudende following the attack they waged against the University of Mudende; that they found TWAGIRAYEZU Wenceslas at the church with a gun and a dog and he was the one leading the killers from Busasamana and Rwerere and he shot down Kanyarutoki and Gasanduku118; before, the Court, he testified that on April 8, 1994 he was with TWAGIRAYEZU Wenceslas who was carrying a gun in the course of Busasamana attack that they launched after 112 Statement dated 13/12/2013. 113 Hearing report dated 18/04/2022. 114 Statement recorded on side P-09-161. 115 Statement dated 11/12/2013. 116 Hearing report dated 18/04/2022. 117 Statement recorded from reference number P-09-098 to reference number P-09-100. 118 Statement dated 13/12/2013.

49 they had killed persons at Mudende, and after those killings they moved on to Gacurabwenge at the Commune headquarters for reception119. [157] Before the Danish Investigation Service, DTC stated that on 7 April 1994, in the morning, after two (2) Tutsi women and one (1) man were killed at the Gacurabwenge roadblock, the killers including TWAGIRAYEZU Wenceslas continued the killings at Busasamana Church, DTC was driving and TWAGIRAYEZU Wenceslas was sitting next to him, upon their arrival, several Tutsis were killed and TWAGIRAYEZU Wenceslas was involved in the killings of those inside the Church with his gun, these killings were perpetrated between 9 :00 a.m and 2 :000 p.m; he also stated hat after the killings, he did not see TWAGIRAYEZU Wenceslas anywhere else committing crimes, he did not hear this from anybody120; however, before Rwanda Investigation Bureau he stated that on around April 7, 1994 around 2 :000 p.m, when he was manning the roadblock, he saw TWAGIRAYEZU Wenceslas getting off the ONATRACOM-owned bus with a gun, he brought the attackers from various sectors to take part in Busasamana attack121; before the Court, he stated that the killings took place at Busasamana on April 8, 1994 at 10 :00 a.m, he was with TWAGIRAYEZU Wenceslas he used a R4 rifle that he had, they proceeded to Kabuhanga border post referred to as Kinyogo at around 2 :00 p.m.122 [158] The

analysis of these statements highlights inconsistencies and contradictions as follows : • SHYENGO Joseph stated that he was told by DTC about the role of TWAGIRAYEZU Wenceslas in the Busasamana killings, when questioned again, he stated that he saw him in the attack ; • Habingoma Theobald stated that when they were involved in Busasamana Church killings, TWAGIRAYEZU Wenceslas found them there, and after the killings, they went on to Mudende killings, while elsewhere he stated that together with TWAGIRAYEZU Wenceslas they came from the attack in the University of Mudende and went to participate in the attack at Busasamana Parish ; • DTC stated on one side that on April 7, 1994, between 9:00 and 14:00, he participated in the Busasamana attack transporting TWAGIRAYEZU Wenceslasin the vehicle, they were seated side by side; on another side, he said that on this day at around 119 Hearing report dated 18/04/2022. 120 Statement recorded from reference number P-09-188 to reference number P-09-189. 121 Statement dated24/12/2013. 122 Hearing report dated 18/04/2022.

50 13:00, when he was manning the roadblock, he saw TWAGIRAYEZU Wenceslas getting off the ONATRACOM-owned bus to take part in Busasamana attack; • As to the killings that took place at Busasamana on April 8, 1994, and continued to kill at Kabuhanga border post, a place referred to as Kinyogo; whereas Joseph stated that after the attack of April 8, 1994 at Busasamana and Mudende they moved on to Rwerere Commune headquarters for reception; whereas Habingoma Théobald stated that on April 8, 1994 after Mudende attacks, they continued to kill at Nyundo and at Commune Rouge, all together with TWAGIRAYEZU Wenceslas; • BIRYAMO JOSEPH stated that in the course of Busasamana attack on April 7, 1994, TWAGIRAYEZU, who carried a machete, butchered three (3) women and two (2) children, while DTC stated that in Busasamana attack of April 7, 1994, TWAGIRAYEZU Wenceslas shot down those who were inside the Church. [159] The court finds that these inconsistent statements and testimonies of every witness and the contradictions among the various witnesses in such a way that even when the accused was spotted during the acts constituting the offences he accused of that took place at Busasamana is so serious that it undermines the probative value of the testimonies; therefore, these statements and testimonies are not to be relied upon to establish that TWAGIRAYEZU Wenceslas was involved in Busasamana

Church killings. [160] As to the role played by TWAGIRAYEZU Wenceslas in the killings that took place at the roadblock set up near Gacamena’s home, there is a variety of testimonies. The Court finds that Kanyamishoro Nsengiyumva Innocent, before the Danish Investigation Service, stated that on April 9, 1994, he arrived at the roadblock located near Gacamena’s home, twenty (20) meters away from the roadblock, he saw the dead bodies of two (2) men and an eighteen (18 )-year-old girl and could not identify the killers123. However, before Rwanda Investigation Bureau, he had stated that TWAGIRAYEZU Wenceslas killed two men (2) and one girl (1) with his rifle, in April 1994, on the fourth day (4)124; and before the Court, he stated that at that roadblock; on April 9, 1994 at around 2 o'clock, TWAGIRAYEZU Wenceslas dislodged the Tutsis at Rwagare, they chased them away and TWAGIRAYEZU Wenceslas killed them with a gun. [161] GASENGE Etienne, before the Danish Investigation Service, stated that he knew that there was a roadblock at Gacurabwenge but never heard of the killings against the Tutsis at that very roadblock125. Before the National Public Prosecution Authority, he stated that he used to encounter TWAGIRAYEZU Wenceslas in the political rallies in 1991-1992, 123 Statement recorded from side to side P-09-264. 124 Statement dated 11/12/2013. 125 Statement recordef on reference number P-09-260.

51 but did not know his involvement in any killings in 1994126;when questioned again, he stated that at this roadblock, Bunani Jean shot down a woman carrying a child who wanted to cross into the DRC, then he cut off her breast and gave it to his dog and TWAGIRAYEZU Wenceslas was present127. Before the Court, he repeated what he had previously stated before the Prosecution when interrogated in 2021 and added that the date on which it happened in April 8, 1994128. [162] Before the Danish Investigation Service, DTA testified that between 10 and 12 April 1994, about ten o'clock, he saw TWAGIRAYEZU Wenceslas at the roadblock opposite the house of a businessman called Gacamena, where a man, a woman and a child were arrested, Bunani Jean instructed the killers to kill them, they kept them away from the roadblock and killed them with clubs, TWAGIRAYEZU Wenceslas killed a man and a woman with a club129. Before Rwanda Investigation Bureau, he stated that two (2) Tutsi women and a young man (1) between the ages of 14 and 17 were killed130. Before the Court, he made the same statement as before Rwanda Investigation Bureau 131. [163] Before the Danish Investigation Service, DTB stated that during the genocide, there was a roadblock near Gacamena’s home, which he manned three (3) times, and that on all these occasions he found TWAGIRAYEZU Wenceslas, that one day he found the bodies of about

ten (10) or twelve (12) persons near the roadblock, there were many young men including TWAGIRAYEZU Wenceslas132. Before Rwanda Investigation Bureau, he stated that TWAGIRAYEZU Wenceslas manned the roadblock near Gacamena’s home set up by the conseiller of Gacurabwenge Sector in years 1992-1994 to hunt down Tutsis and their so-called accomplices and he had a traditional weapon referred to as ntampongano y’umwanzi ( a stdded club), but he did not say that TWAGIRAYEZU Wenceslas killed any human being because he did not accompany him in any attack whatsoever133. Before the Court, he stated that from 1992, TWAGIRAYEZU Wenceslas manned the roadblock set up near Gacamena’s home until the time of the genocide because an old man called Rusesa was beaten there in 1992 when TWAGIRAYEZU Wenceslas was present, he was also involved in attacks in various areas, and on 8 April 1994, in the morning, at this roadblock, sixteeen (16) persons were killed in the presence of TWAGIRAYEZU Wenceslas, armed with a traditional weapon, a studded club called ntamponganoy’umwanzi literally meaning no concession to the enemy134. 126 Statement dated 22/05/2020. 127 Statement dated 23/11/2021. 128 Hearing report dated 18/04/2022 and 20/04/2022. 129 Statement recorded from reference number P-09-006 to reference number P-09-007. 130 Statement dated 11/12/2013. 131 Hearing report dated 18/04/2022. 132 Statement recorded on reference number P-09-229. 133 Statement dated 13/02/2014. 134 Hearing report dated 18/04/2022.

52 [164] Before the Danish Investigation Service, DTC stated that on April 7, 1994 in the morning at Gacurabwenge roadblock along the road, two (02) Tutsi women and one (01) man were killed, using a club upon instructions of TWAGIRAYEZU Wenceslas, but he was not personally involved135. Before Rwanda Investigation Bureau, he stated that between 7 and 9 April 1994, he saw TWAGIRAYEZU Wenceslas at a roadblock located in front of Gacamena’s home with a Kalashnikov rifle and five young men (5), who had killed two (02) women and one (01) man. Before the Court, he stated that he was with TWAGIRAYEZU Wenceslas who had a R4 assault rifle during the killings that took place at the roadblock near Gacamena's home in the early hours of the morning. [165] The analysis of these statements highlights inconsistencies and contradictions as follows: • Kanyamishoro Nsengiyumva Innocent first stated that on 9 April 1994 he found two (2) men and one (1) girl killed at the roadblock near Gacamena’s home but he did not identify the killers; however, once questioned again, he stated that on this date, TWAGIRAYEZU Wenceslas dislodged Tutsis and shot them down; • Gasenge Etienne, on one side, he stated that he had never heard of any Tutsi being killed at the roadblock near Gacamena’s home, once again questioned, he submitted that a woman who was carrying a child had been killed at the roadblock by Bunani

Jean, TWAGIYEZU Wenceslas was also present;  DTB, at first, stated that he did not say that TWAGIRAYEZU Wenceslas killed any human being because they did not carry out the attack together, elsewhere he stated that he had carried out attacks in various areas and that on 8 April 1994, at the roadblock near Gacamena’s home, sixteen (16) persons were killed, and Wenceslas had a traditional weapon, a studded club called the ntampongano y’umwanzi literally meaning no concession to the enemy. • With respect of three (3) Tutsi killed at the roadblock, Kanyamishoro Nsengiyumva Innocent stated that these are two (2) men and one (1) girl; DTA stated that they are two (2) women and a boy, while in the other case it is said to be a woman, a man and a child; DTC stated that they are two (2) women and one (1) man; • DTA, stated that TWAGIRAYEZU Wenceslas himself killed a man and a woman using a club upon instructions of Bunani Jean, while DTC stated that on 7 April 1994, the three (03)Tutsis were killed as per orders of TWAGIRAYEZU Wenceslas that he, however, did not touch them, elsewhere claiming that he found that they had been killed when he passed by driving Sembeba’s car; 135 Statement recorded from reference number P-09-188 to reference number P-09-189.

53 • Concerning the dates on which these three (03) Tutsis were killed, Kanyamishoro Nsengiyumva Innocent stated that they had been killed on April 9, 1994, the DTA stated that they had been killed between April 10, 1994 and April 12, 1994, and DTC stated that they had been killed on April 7, 1994 and April 9, 1994; • Regarding the circumstances in which these three (03) Tutsis were killed, Kanyamishoro Nsengiyumva Innocent stated that he did not identify the killers, while elsewhere, he stated that they were shot dead ; DTA and DTC stated that they were struck with a club to death. [166] The Court finds that these serious inconsistencies and contradictions undermine the relevance of the testimony, such that they cannot be relied upon to establish that TWAGIRAYEZU Wenceslas was involved in the killings at the roadblock near Gacamena’s home. [167] Regarding ISAR-Tamira killings, Rwasibo Alphonse, when questioned by Rwanda Investigation Bureau stated that on 7 April 1994, at 10.00, he was with TWAGIRAYEZU Wenceslas at Kabatwa Hospital where he came to visit him after his wife had given birth, and the soldiers came and asked them where the Tutsis were, showed them, arrested them, and asked them to take them to their barracks at ISAR-Tamira, and on the way TWAGIRAYEZU Wenceslas killed with a club Nyirinkwaya’s wife who had refused to walk with the child she was carrying on her

back, the others were killed by others; that it was around noon or around 1 :00 when they went back to Rwasibo Alphonse’s home, they drank beer and he went back home late in the evening. [168] The Court finds that, as stated above, these statements by Rwasibo Alphonse, who has not been questioned by the Court, cannot solely be relied upon because they are corroborated by other elements of evidence as provided for in Article 8 (2) and (3) of Law No 47/2013 of 16 June 2013 relating to transfer of cases to the Republic of Rwanda which prohibits the taking of evidence in writing without further substantiation submitted to the court. [169] Concerning the killings at Commune Rouge and its surroundings as well as at Nyundo, Habingoma Théobald alias Simpamanuka, before the Danish Investigation Service, states that that between 7 and 12 April 1994, together with TWAGIRAYEZU Wenceslas, after Busasamana killings, moved forward to the University of Mudende until 7 :00 P.M, to take part in, “Petite barrière” attack and encountered some two hundred (200) Tutsis kidnapped by Interahamwe and killed them at Commune Rouge, they went on to Nyundo Church where they onloaded about five hundred (500) Tutsis on trucks and went to kill them at Commune Rouge as they were instructed by Col. Anatole Nsengiyumva 136. 136 Statement dated 6/9/2012, from side P- 09-160 to side P-09-164.

54 [170] The Court finds that before Rwanda Investigation Bureau, HABINGOMA Theobald stated that between 8 and 12 April 1994, after carrying out Mudende killings, they moved forward to “Institut Saint Fidèle” that they reached at around 4 :30, and arrested the students and their staff and loaded them on two (2) Minibuses and took them to Nyundo at around 8 :00 P.M; they killed them, and the soldiers who were part of the attack went to sleep at Gisenyi Military Camp137 but before the Court, he stated that the killings took place on 8 April 1994, and started killing at Mudende, they moved on to Busasamana Parish, and from there to the “Institut Saint Fidèle” , upon their arrival, they took people and told them that they were taking them to Nyundo for rescue, and from Nyundo they took some people and went to kill them at Commune Rouge 138. [171] The Court finds that before the Court, he stated that on April 9, 1994, when they came from Goma after onloading guns, upon their arrival at the Pentecostal Church, they heard a grenade blast, when they asked who was responsible for the grenade attack, Pastor Rukara told them that it was launched by TWAGIRAYEZU Wenceslas139. [172] The analysis of these statements points out considerable contradictions as follows : HABINGOMA Théobald states that on April 8, 1994 they started the killings at Busamana, continued at Mudende, went to Petite

barrière and found that they had arrested two hundred (200) Tutsis and went to to kill them at Commne Rouge , and then they went to Nyundo and killed other five hundred (500) Tutsis and they also killed them at Commune Rouge, elsewhere he stated that they started the killings at Mudende, and continued on to Busasamana before noon; in the afternoon they went to “Saint Fidèle” and arrested the students and their staff and took them to Nyundo where they killed them between 1:00 and 3:00 pm, and after the killings they went back home; elsewhere he stated that among the students they took from “Saint Fidèle” and took them to Nyundo, some were taken to Commune Rouge to be killed; whereas DTC sated that on 8 April 1994, before noon, they continued the killings at Kabuhanga border post an area also referred to as Kinyogo, and after 1 :00; while BIRYAMO Joseph stated that on that date, they had started at the University of Mudende, continued the killings at Busasamana, and after they went to Rwerere Commune Headquarters for reception. [173] The Court finds that these inconsistencies especially regarding the manner in which the attacks headed to Commune Rouge, its surroundings and Nyundo were carried out, both in the vicinity and at Nyundo, be it in terms of their origin, be it in terms of the way they were carried out, be it in terms of the victims killed and where they were killed, undermine the relevance of the testimony in such a way that they cannot be relied upon to establish that TWAGIRAYEZU Wenceslas was 137 Statement dated 11/12/2013. 138 Hearing report dated 18 April 2022. 139 Hearing report dated 18 April 2022.

55 involved in the acts constituting the offences he is accused of, that were perpetrated at the Commune Rouge and its surroundings and at Nyundo . [174] Finds that, in general, taking into account all the testimonies given about the acts constituting the offences that TWAGIRAYEZU Wenceslas is accused of having committed in various places, apart from the extreme contradictions that appeared in witness statements as demonstrated, there was also an apparent contradiction of facts such as the misrepresentation of the date or time, of the weapons used or owned by TWAGIRAYEZU Wenceslas, in which some witnesses said that the gun used was Kalachinikov, in other cases they said that it was R4, or claimed that he had only a gun and a club, elsewhere claiming that he had a gun only or a gun and a grenade, or misrepresentation of victims whereby they had trouble asserting that a victim killed was female or male. [175] The Court finds that having due regard to the precedents arising from the cases decided by the Rwandan Courts and by the International Criminal Courts, the contradictions on small details of the facts have often been regarded as not undermining the testimonies and statements, as explained in Prosecution v. Ntamaherezo Iryamukuru, in which the Court of Appeal clarified that the contradiction of the witnesses with regard to the facts in the case does not undermine the quality

of the evidence they adduce140, which was the precedent set by the Supreme Court in Prosecution v. Sgt. Biziyaremye Jean Baptiste, in which the Court found that concerning the testimonies given, incostincency is not confined to the terms used by the witness only, or the misalignment of the wording while explaining what they are testifying about, that the most important thing is the substance of the wording that remains constant141. This is also the precedent upheld by the International Criminal Tribunal for Rwanda (ICTR) in various cases, including Prosecution v. Bikindi Simon, in which the Tribunal elucidated that that due to the length of time that has elapsed between the beginning of the testimony and the start of the testimony, an inconsistency over minor facts about the witness or between witnesses cannot invalidate the testimony142. [176] The Court finds that, taking into account the specificities of the case, the manner in which the inconsistencies over minor facts have been repeated, for several witnesses, in the same way and on the same facts, combined with the extreme contradictions in other parts of the evidence, discredit the quality of their testimonies and their statements as evidenced by 140 Prosecution v. Ntamaherezo Iryamukuru, Court of Appeal, RPAA 00141/2022/CA, Court of Appeal (31 May/2023), para. 33. 141 Prosecution v. Sgt. Biziyaremye Jean Baptiste, RPAA

0117/07/CS, Supreme Court (17/09/2010), Rwanda Law Reports, vol. II, 2011, n0 9, page 60, para.14 142Prosecutor v. Bikindi Simon, ICTR-01- 62 T (2/12/2008), p.12, para 32. “La Chambre reconnaît qu'il s'est écoulé une longue période entre la date des faits allégués dans l'acte d'accusation et celle des dépositions à I'audience. Ainsi, le manque de précision ou I'existence de contradictions mineures entre les dépositions de différents témoins ou entre la déposition d'un témoin et ses déclarations antérieures, n'ont généralement pas été considérés comme jetant nécessairement Ie discredit sur ces dépositions.

56 the statements and testimonies of some witnesses such as Habingoma Théobald who stated before the Danish Investigation Service that Busasamana and Mudende killings occurred between 8 and 12 April 1994; before the Danish Investigation Service and Rwanda Investigation Bureau, Buryamo stated that they had taken place on 7/4/1994; DTC stated they had taken place on 7/04/14, but before the courts, al the witnesses stated that the killings took place on April 4, 1994. [177] The Court also finds that, regarding the knowledge that the witnesses had about TWAGIRAYEZU Wenceslas, in the course of investigation, they stated that they knew TWAGIRAYEZU Wenceslas as a teacher at Munanira Primary School, Kanyamishoro Nsengiyumva Innocent stated that the accused was CERAI Teacher, Habineza Ruzibiza Jean stated that the accused was Headmaster at Munanira School, but before the Court, all of them changed their wording and assert that TWAGIRAYEZU Wenceslas was a substitute teacher, which was not true as demonstrated above. [178] The Court finds that, even though it is normal, taking into consideration the time that elapsed between the time when the witnesses gave their testimonies and the time when the facts they witnessed happened, this discrepancy over minor facts should be understandable and should not undermine their statements; but this discrepancy of witnesses accused ofwho changed their

statements, leads to agreeing with one another on the same statement (1), which is also irrelevant, viewed in conjunction with the extreme contradiction of their other aspects of their testimony as illustrated above, demonstrates that the distortion of statements and testimonies did not result from a distortion caused by the time elapsed, but rather from the inconsistencies of what they say anytime when they are questioned, because of their lack of knowledge about what they testify in relation to the acts constituting the offences that TWAGIRAYEZU Wenceslas is accused of, such that when combined are to invalidate their statements and their testimonies as the reasons put forward by some witnesses for distorting their statements are unfounded because for instance, Shyengo Joseph testified that after stating that TWAGIRAYEZU Wenceslas was a teacher, he happened to know that the accused was a substitute teacher143. [179] The Court also finds that for instance, GASENGE Etienne stated that he changed his statement because before the accused was not present, but before the Court Gasenge Etienne was incriminating him face to face. The Court also finds that this unjustified discrepancy can also be seen in the picture of the accused that Gasenge Etienne showed to the Court that he had been given it by Kaberuka Theophile from TWAGIRAYEZU Wenceslas’ family in order to help him identify him in order to exculpate him144; however, before the Prosecution, when asked how he got the photo, he stated that he had got it as a person they used to meet in various aspects of MRND party145. 143 Hearing report dated 18/04/2022. 144 Hearing report dated 20/04/2022 145 Statement dated 22/05/2020.

57 [180] The Court finds that DTC stated that he changed his previous statement according to which he knew TWAGIRAYEZU Wenceslas well as a person whose siblings were scouts because he was sick, and that he even changed what he had said before that the accused owned a Karachinikov rifle, and later stated that it was a R4 rifle, because the R4 rifles were given out at the Commune Headquarters146. [181] The Court finds that the irrelevance of the testimonies and the statements as to the role of TWARAYEZU Wenceslas in the criminal acts he is accused of has also been confirmed by his witnesses who describe his behavior and how he was not involved in the crimes of which he is accused, because for instance, Sebashyitsi Appolinaire portrayed TWAGIRAYEZU Wenceslas stating that he knew him as a child until he was an acolyte at the Parish, but when he graduated from Munanira Primary School, he did not see him again because he went to the DRC, he knew him well because since 1990, he had been the leader of ten households called nyumbakumi at Kanyabijumba where the roadblock near Gacamena’s home was set up, and had witnessed nobody was arrested, killed or injured at that roadblock and had never seen TWAGIRAYEZU Wenceslas 147. [182] The Court finds that NYIRABARIYANGA Ancilla, the wife of Gacamena, whose names were given to the roadblock, also explained how she knew TWAGIRAYEZU Wenceslas who

was her children’s classmate at Munanira Primary School, and elucidated that a roadblock was set up near her home since Habyarimana’s plane crashed, that TWAGIRAYEZU Wenceslas never manned it, she had not seen any casualties, but nobody was killed there, rather, the people known to have been killed in the area are those who were murdered in the place opposite to her family’s home in Mutura148. [183] The Court finds that in his testimony, SERUKIKO Théoneste emphasizes the fact that he knew TWAGIRAYEZU Wenceslas as his former classmate at Munanira Primary School in the years 1979 - 1980, that during Gacaca Courts proceedings, he was tried at Gacurabwenge site and was sentenced to a penalty but that he never heard of TWERAYEZU Wenceslas being mentioned in the acts of genocide149. [184] The Court finds that in his testimony, BUFONO Silas testified that he had last seen TWAGIRAYEZU Wenceslas in early 1993 because he was a student in the DRC, and that at that time he only saw him once; that in the genocide he was working as a watchman at the University of Mudende, that in the attack of the morning of 07/04/1994, waged by 146 Hearing report dated 18/04/2022. 147 Hearing report dated 21/04/2022. 148 Hearing report dated 21/04/2022. 149 Hearing report dated 21/04/2022.

58 Interahamwe including Sisiro from Mutura and three (03) other young men (3), who killed the Tutsis until noonday, he did not see TWAGIYEZU Wenceslas150. [185] The Court finds that in his testimony, KABERUKA Théophile explained how he knew TWAGIRAYEZU Wenceslas as a resident of the same cell before the genocide, they had attended the same primary school until his graduation in the 1981-1982 school year, that Twagirayezu Wenceslas had attended secondary school in the DRC, during that time he was occasionally seen in Rwanda during holidays, that they had last met during 1993 holidays. He emphasized the fact that TWAGIRAYEZU Wenceslas had never been a teacher at Munanira because he was not likely to ignore it since he was a teacher from 1987 to 1993 in Kanyundo and Mugongo and it was in the same school Sector as Munanira , but he knows that in 1993 Wenceslas was hired to teach at Collège Baptiste; that something else he can witness is the fact that he did not hear of the name TWAGIRAYEZU Wenceslas during Gacaca information collection sessions, instead, Bunani Jean, Kanyamihanda, Barangirana, Sebudari, Obed and Karema were mentioned.151 [186] The Court finds that in his testimony, AKIMANIMPAYE Théoneste confirmed that he knew TWAGIRAYEZU Wenceslas from 1993 when he found him at Collège Baptiste where he worked as an accountant, and until 1994, as of March 1994, he did not see him

again because the students did not go to school ; and he testified that during Gacaca Courts trials, TWAGIRAYEZU Wenceslas was never mentioned 152. [187] The Court finds that in his testimony MPAHATANYE Mathieu testified that he knew TWAGIRAYEZU Wenceslas and his parents as people who lived in the same Village, and that as a teacher for longtime from 1979 to 2008 when he retired, as well as a senior teacher (Maître Responsable) at Munanira Primary School, testified that the accused had never been a teacher and that he could not ignore the teachers he was leading, and that he had only last met him in 1990 in the DRC. MPAHATANYE Mathieu also emphasizes the fact that during information collection session, those who were seen leading the genocide committed againt the Tutsi , are among others Karema Faustin and Karimunda, who were even imprisoned153. [188] The Court finds that in his testimony, SINDAMBIWE Emmanuel as a fomer cell leader, admitted that he knew TWAGIRAYEZU Wenceslas and his parents and that they had been classmates at Munanira Primary School, that afterwards TWAGIRAYEZU Wenceslas went to school in the DRC and that he had never been a teacher at this school; 150 Hearing report dated 21/04/2022. 151 Hearing report dated 22/04/2022. 152 Hearing report dated 22/04/2022. 153 Hearing report dated 22/04/2022.

59 that he took part in Gacaca information collection sessions for a long time and that, however, they never claimed that TWAGIRAYEZU Wenceslas had been involved in the genocide. He stated that he knows nobody who was killed at the roadblock near Gacamena’s home 154. [189] The Court finds that UGWANEZA Christophe, as a person who has been at the University of Mudende since the beginning of the genocide until the end of it, in his testimony confirms that he has never heard the name of TWAGIRAYEZU Wenceslas among the people who participated in the killings at this University, that those who were involved in Mudende killings he remembers are Bigare, Biryamo and David as well as soldiers and gendarmes155. [190] The Court finds that Sebudahe Xavier, who appears in the case file of the Prosecution, says that he knows TWAGIRAYEZU Wenceslas when he was a student in Goma/DRC, that he was involved in the Genocide committed againt the Tutsi in Gacurakili and that he pleaded guilty, that in the genocide he has never seen TWAGIRAYEZU Wenceslas, that if ever he was involved in it, he would probably have carried it out in other areas 156. [191] The analysis of these testimonies and statements indicates that TWAGIRAYEZU Wenceslas has never been a teacher at Munanira School, or at another school or a headmaster of a school or other educational leader at Rwerere, that after graduating from

primary school, he went to high school in the DRC, and that he was occasionally seen at home in Rwanda for holidays, that nobody was killed at the roadblock near Gacamena’s home and that during Gacaca information collection sessions about various places where TWAGIRAYEZU Wenceslas is accused of committing crimes, was never mentioned among the perpetrators. [192] The Court finds that these testimonies are relevant and are to be relied upon because they were given by the persons who had been close to TWAGIRAYEZU Wenceslas’ family since his childhood, his primary schoolmates, local teachers, local authorities at the local levels of nyumbakumi (ten households) and cell and some of those who had been involved in the genocide in the area, it is obvious to the Court that they have sufficient knowledge of what they are testifying about. [193] The Court finds that the fact that TWAGIRAYEZU Wenceslas occasionally came to Rwanda on holidays and that he acknowledged that from 1991-1994 he was the leader of the Christian youth at the AEBR was not sufficient to establish that, although he was studying in the DRC, he could not carry out other activities or other work in Rwanda, such as the MRND and CDR parties’ activities or Interahamwe according to the Prosecution, since the accused had clearly explained 154 Hearing report dated 22/04/2022. 155 Hearing report dated 22/04/2022. 156 Investigation statement dated 13/12/2013.

60 that the duties assigned to him in Rwanda as a student in the DRC were not specific duties but only those in the Church which he could carry out when he was present only. [194] The Court finds that the fact that the accused has not been mentioned in the Gacaca Court information collection session does not mean that he must not be prosecuted for genocide as confirmed by the International Criminal Tribunal for Rwanda in Gatete Jean Baptiste case, which confirmed that the fact that Gatete Jean Baptiste was not mentioned in the judgments rendered by the Gacaca Court is of no use to the court, since the fact that one court does not mention a person in pending cases does not mean that he has not been involved in the charges against him because what is to be considered is his own actions and evidence157. The Court finds that, however, TWAGIRAYEZU Wenceslas portrayed by the Prosecution witnesses as someone who has been prominent in the activities and meetings aimed at planning and perpetrating genocide could not have been mentioned in all the places where TWAGIRAYEZU Wenceslas is alleged by the Prosecution to have committed or directed the killings. [195] Having due regard to the allegations of the Prosecution and the defence and the evidence presented by them consisting of documents, statements and testimonies on all matters raised in this case, be it the defence of alibi, be it

the defence against the acts constituting the offences TWAGIRAYEZU Wenceslas is prosecuted for; having regard to the case law by the Rwandan courts, the International Criminal Courts and the courts of other States; having regard to the legal provisions on the consideration of evidence and its probative value, the Court finds that both parties concur with each other that after graduating from primary school, TWAGIRAYEZU Wenceslas went to high school in the DRC and completed it in 1991. The Court finds that before and after this year, with the exception of the Baptist School of Gacuba II, where the accused admittedly has been a teacher since September 1993, the testimonies according to which the Prosecution witnesses stated that he was a teacher or a leader in education system in Rwanda, whereby they claim that he was prominent in partisan activities, are irrelevant due to the loopholes highlighted above such that they can be relied upon to establish that the accused's conduct in these circumstances is true. [196] The Court finds that as long as TWAGIRAYEZU Wenceslas has been able to provide elements of evidence consisting of documents, statements and testimonies instill doubt on all matters raised by the Prosecution in this case, alleging that he was in Rwanda from 7 to 9 April 1994, the Prosecution did not produce elements of evidence beyond reasonable doubt 157 The defence

further argues that Gatete's name was not mentioned in any Rwankuba Gacaca proceeding which ran from 2003, and that witnesses BBR and AIZ failed to mention Gatete in their testimonies during Gacaca proceedings concluding events in Rwankuba in April 1994. However, the Chamber considers that, the absence of Gatete's name from such proceedings is not significant. Indeed, it is highly speculative to suggest that the general lack of information about an accused in other judicial proceedings necessarily suggests that he was not involved”. ICTR-2000-61-T, section 130, pp. 30

61 proving that the elements of evidence adduced by TWAGIRAYEZU Wenceslas in a bid to show that he was in the DRC during that period of time, is irrelevant. [197] The Court finds that, as demonstrated above, the extreme inconsistencies and contradictions of the prosecution witnesses discredit the elements of evidence on the role of TWAGIRAYEZU Wenceslas in the acts constituting the offences he is prosecuted for. Pursuant to Article 111 of Law No 027/2019 of 19/09/2019 relating to the criminal procedure as amended to date so far provides that the benefit of doubt is given to the accused. If the proceedings conducted as completely as possible do not enable judges to find reliable evidence proving beyond reasonable doubt that the accused committed the offence, the judges order his or her acquittal, the Court finds that it has to declare that the accused is not guilty of the charges against him. One (1) out of three (3) members of the bench has a a dissenting opinion. III.DECISION OF THE COURT [198] Declares that the Prosecution indictment has no merit; [199] Declares that TWAGIRAYEZU Wenceslas is not guilty of the charges of genocide and extermination as a crime against humanity; [200] Orders that TWAGIRAYEZU Wenceslas be released immediately after the pronouncement of the judgment. [201] Rules that the court fees are borne to the Public Treasury.

62 DISSENTING OPINION BY JUDGE NGABIRE BLAISE IN THE JUDGMENT RP 00003/2019/HC/HCCIC RENDERED ON 11/01/2024 Dissenting opinion In light of the judgment n ° RP 00003/2019/HC/HCCIC rendered on 11/01/2024, the Court found that the defence of alibi raised by TWAGIRAYEZU Wenceslas according to which he was not present at the place where the acts constituting the alleged offences were committed on 07, 08 and 09 April 1994 is well founded, and declared that the Prosecution indictment has no merit, therefore declared that TWAGIRAYEZU Weceslas is not guilty of the offences he is accused of 158 , and ordered his immediate release after the pronouncement of the judgment, I hereby do not concur with my colleagues159 on the ruling in this case for the following reasons: I. Concerning the defence of alibi [202] In paragraph 53 of the judgment, in relation to Twagirayezu Wenceslas's defence of alibi, the Court found that it was possible that on 07, 08, 09 April 1994, TWAGIRAYEZU Wenceslas was in the DRC, a place which is different from the area where he is alleged by the Prosecution to have committed on those dates the acts constituting the offences he is prosecuted for. The Court thus ruled for the reasons favouring the accused for the following reasons: a) While applying for asylum at the Danish Immigration Service, Twagirayezu Wenceslas himself claimed that between January and July 1994 he

was in Gisenyi, Rwanda160 ; he did not claim that from the end of March until 9 April 1994 he was in Zaïre / DRC on the Easter holidays, but started saying this when he was questioned by the Prosecution on 20/12/2018 when he started to face charges against him. While at the Danish Immigration Service again, Twagirayezu Wenceslas admitted that he supported the Interahamwe, but did not support the killings when they started to carry them 158 TWAGIRAYEZU Wenceslas charged with the crime of genocide and the crime of extermination as a crime against humanity, provided for by Article 91, 1º, and 94, 2º of A Law Nº68/2018 of 30/08/2018 determining offences and penalties in general and punished by Articles 92 and 95 of this law 159 Article 130, paragraph 6, of Law relating to the civil, commercial, labour and administrative procedure as amended ho date provides that However, a judge or judges who do not agree with the majority opinion may write their dissenting opinions which form part of the judgement and are recorded after the signatures of the members of the panel. Such opinion is not pronounced in public. Article 1 of this law provides that This Law governs the civil, commercial, labour and administrative procedure. It also governs the procedure applicable to other cases in the event such procedure is not governed by any other specific laws except where the provisions of this Law cannot apply to such other cases. 160 See his statement before the Danish Investigation Service recorded from side P-09-310 to side P-09-371, escpecially on side P-09-350.

63 out 161 ; it is clear that when the Interahamwe started the killings, TWAGIRAYEZU Wenceslas was there, and it is undeniable that the 1994 genocide committed againt the Tutsi began on April 07, 1994. Thus, the statement of Wenceslas made at the Danish immigration Service prior to the commencement of his prosecution must be taken or understood, without the need to analyze it in such a way as to doubt the truthfulness162 of what he said afterwards, since he did not state why he had made such a statement, and it is not appropriate that his defence of alibi should be accepted on the basis of contradictory and inconsistent testimony that contradicts what he himself said at the time and supported by the various witnesses that will be presented below. b) The witnesses presented by TWAGIRAYEZU Wenceslas on his defence of alibi are his friends from the DRC who testified to have been with him on April 07, 08, and 09, 1994 in the DRC; it is unclear how he secretly went on Easter holidays in Zaïre /DRC without the knowledge of his family and coworkers, only his friends in DRC were aware; it is understood that his witnesses who stated that on April 07, 08, and 09, 1994 he was in the DRC are bribed witnesses he brought in the case to exculpate him, that they were referring to the crimes he allegedly committed in places they were absent from after 09 April 1994, asking for the acquittal of

the suspect163 , and that there were witnesses heard by the Court who stated that the document titled “Pétition et témoignage pour l’innocence de Mr. Twagirayezu Wenceslas” was presented to them for signature without knowing its contents164 , as well as some who contradict each other, and some who are in contradiction with Twagirayezu Wenceslas165 ; it is evident that the contents of the document are not true. Thus, the testimonies of the witnesses exculpating Twagirayezu Wenceslas on his alibi should not be admissible on 161 See side P-09-351 in fine where it reads: Even though the asylum seeker supported the Interahamwe militiamen, he never supported the killings when they started committing them. He was not involved; this may also have triggered their hatred againsty him. This also shows his personality. He will not sit back in front of injustice.’’ 162 In paragraph 48 of the judgment, the Court held: TWAGIRAYEZU Wenceslas’s grounds for seeking asylum in Denmark, alleging that he was in Rwanda from January to July 1994, does not meant that he never left Rwanda during that period of time, because the relevance of allegations must be analysed and construed while taking into account the periods of time and the reasons. 163 See the document titled “Pétition et témoignage pour l’innocence de Mr. Twagirayezu Wenceslas” written at Kitshanga / RDC onMay 31, 2018 by exculpating

witnesses, their letter to the Minister of Justice of Denmark informing him that TWAGIRAYEZU Wenceslas is innocent. 164 For example: Witnesses Madingo Ntabuntu Ignace, Bakali Murefu Innocent, Lukando Manu Alias Pasteur Dusabe, Maombi Muromba Estella. See the hearing report dated 19 and 20 April 2022. 165 For instance: Testimony by Mvunabandi Kagabo that on 06 April 1994 at 6:30 and on 07 April 1994 in the morning , he was with Twagirayezu Wenceslas at Luhanga and learnt that Habyarimana’s plane crashed and that after the 07 April 1994, did not know of Twagirayezu Wenceslas’ return to, however as per the petition, dated 31 May 2018 which he signed, Twagirayezu was in Zaire / DRC till the 09 April 1994 , which is contradicted by Twagirayezu Wenceslas’ statements who says that he departed from Luhanga on 06 April 1994 before Habyarimana’s plane crashed, Pastor Senzoga Ndeze Patrick told the court that after saying goodbye to Twagirayezu Wenceslas on 06 April 1994, he did no longer hear from him, but he also says that on 08 April 1994 Twagirayezu Wenceslas was still in the DRC! AND Maombi Malomba Estella told the court that she last met Twagirayezu Wenceslas on 06 April 1994, that after this date, she did not know of his return to Rwanda , hower, as per the petition dated 31/5/2018, she signed stating that till 09 April .

64 the basis of Article 65 of Law No 15/2004 of 12/06/2004 relating to Evidence and Its Production166 because those who delivered such testimonies state what they do not have knowledge of, and how they clearly make the statement involves forging, and their testimonies are strongly contradictory; therefore, they should not be taken as reliable due to lack of credibility. c) TWAGIRAYEZU Wenceslas does not produce the documents (Passport, Laisser-passer, Jeton de Sortie, ...) he used to cross into the DRC, showing how and when he travelled from Rwanda to the DRC and where he crossed, or showing the person who saw him crossing to the DRC on the day he crossed the border. The fact that, in his defence, Twagirayezu Wenceslas says that he returned to Rwanda on 9 April 1994 via an irregular route is not proof that he left Rwanda at the end of March 1994 via an irregular route, but he must show proof of how he crossed from Rwanda. d) Some witnesses stated that Twagirayezu Wenceslas was in Rwanda on April 07, 08 and 09, 1994, some of them claimed to have seen him, others claimed to have taken part in the killings; these are as follows:  Pastor Kaberuka Theophile, who stated thatTwagirayezu Wenceslas did not go abroad because the school year begins in September (9) and ends in June (6) of the same year; therefore, the accused had not gone abroad yet167 ; the fact that Pastor Kaberuka

Theophile before the Court had explained that Twagirayezu Wenceslas had told to him that he would go to the DRC for Easter holidays does not confirm that Twagirayezu Wenceslas really went there or was not in Rwanda on the 7th, 08th, and 09th April 1994;  Nahimana Emmanuel, who worked with Twagirayezu Wenceslas at the Gacuba II Baptist School in 1994, stated that between 02 and 06 April 1994 and before as early as March 1994, Twagirayezu Wenceslas was there168; this statement of Nahimana Emmanuel was corroborated by Pastor Nkezabera Paulin, Secretary General of the AEBR in 1994 who stated that he knew Twagirayezu Wenceslas because he taught at the Collège Gacuba II, that he used to go to his home to play the guitar, and that before the genocide, Twagirayezu Wenceslas wa at Collège Baptiste II because two days before the genocide, he had come to borrow his guitar169. There is no doubt about these facts, but the witnesses are very knowledgeable. The fact that these witnesses do not remember the exact date is not a serious flaw that would undermine their testimony as it will be shown below. 166 Article 65 of Law nº 15/2004 of 12/06/2004 Relating to Evidence and its Production provides: Only the court can assess the relevance, pertinence and admissibility or rejection of testimonial evidence. It shall not be influenced by the number of witnesses. It shall mainly consider their knowledge of facts and the objectivity and sincerity of their testimonies 167 See his statement before the National Public Prosecution Authority of 08 July 2019. 168 See his statement before the National Public Prosecution Authority of 08 July 2019. 169 See his statement before the National Public Prosecution Authority dated 21 June 2020.

65 Although the two witnesses have not been heard by the Court, their statements must be accepted because they are supported by that of their colleagues who have been heard by the Court, namely Gasenge Etienne170, Habinshuti Ruziza Jean171 , Shyengo Joseph172, Habingoma Théobald173 , Biryamo Joseph174 , DTA175, DTB176, DTC177 and Nsengiyumva Kanyamishoro Innocent178 , all stated that they knew Twagirayezu Wenceslas, and that he was involved in the 1994 Genocide committed againt the Tutsi . Their testimonies of these witnesses are set out below in Chapter II on the role of Twagirayezu Wenceslas in the charges brought against him. e) The document referred to as "Décharge" dated April 8, 1994179 does not give rise to doubt in the fact that Twagirayezu Wenceslas was not present in Rwanda on this date (from morning till evening), 07 and 09 April 1994, nor does it instill doubt in the charges against him, since it is inevitable that a person goes to Goma and return to Rwanda within a few hours, especially since there is no clear evidence of the existence of such a "Décharge" , and TWAGIRAYEZU Wenceslas does not provide evidence of who he gave the money to and the evidence on which Kikwindi Kimende Stanislas based his consent while accepting to surrender the money. Another reason which make the document dated April 8, 1994 unreliable is that the acts that TWAGIRAYEZU wenceslas is

prosecuted for are not limited to the dates 07- 09 April 1994 on which he alleged he was not present. 170 See the hearing report dated 18 and 20 April 2022, his statement before the National Public Prosecution Authority dated 23 November 2021. 171 Idem, and his statement before the Danish Investigation Service recorded from side P-09-220 to side P-09-222, and his statement before Rwanda Investigation Bureau dated 12 February 2014. 172 See the hearing report dated 18 April 2022, and his statement before Rwanda Investigation Bureau dated 13/12/2013. 173 Idem, and his statement nbefore the Danish Investigation Service dated 06/9/2012 recorded from side P-09-163 to side P- 09-164, and his statement before Rwanda Investigation Bureau dated 11/12/2013. 174 Idem, his statement before Rwanda Investigation Bureau dated 13/12/2013, and his statement before the Danish Investigation Service recorded from side P- 09-098 to side P-09-100. 175 Se the hearing report dated 18/04/2022, his statement before the Danish Investigation Service recorded from side P-09-006 to side P-09-007, and his statement before Rwanda Investigation Bureau dated 11/12/2013. 176 See the hearing report dated 18/04/2022, his statement before the Danish Investigation Service with side P-09-229, his statement before the National Public Prosecution Authority dated 13/02/2014. 177 See the hearing report dated 18/04/2022,

his statement before Rwanda Investigation Bureau dated 24/12/2014, and his statement before the Danish Investigation Service recorded from side P-09-188 to side P-09-189. 178 See the hearing report dated18/04/2022, and his statement before Rwanda Investigation Bureau dated 11/12/2013. 179 This document was written in Kiswahili (Kiswahili) in the following terms: “Mimi Twagirayezu Wenceslas nimepokea pesa zenye mwanainchi Stany Gikwindi Kimende alinepa 300 Z (300 zaires ambayo baba yangu Pasteur Senzoga Bihuri amenituma nimleteye, na sasa ivi hana deni yengine tena. Mimi Twagirayezu Wenceslas”.

66 f) In summary, the elements of evidence adduced by TWAGIRAYEZU Wenceslas, consist of documents and testimonies on the defence of alibi, they do not cast doubt on the elements of evidence adduced by the Prosecution in this case, but the elements of evidence produced by the Prosecution in this case undeniably demonstrate that the the defence of alibi presented by Twagirayezu Wenceslas as to the dates of 07, 08 and 09 April 1994 is unfounded. II. Concerning the role of Twagirayezu Wenceslas for the charges brought against him [1] While considering Twagirayezu Wenceslas's role in the charges brought against him, the Court found, in paragraph 145 of the judgment, that the manner in which the witnesses of both sides testified to be aware of Twagirayezu Wenceslas, in comparison with his admission that he had been a teacher for the first time in Rwanda since September 1993 in Collège Baptiste Gacuba II, that the witnesses who incriminated him confirmed that they knew him, their testimonies were full of serious contradictions about his jobs, his position in the activities of the political parties, that their statements and testimonies were not true; however, the fact that the witnesses questioned agreed on the fact that Twagirayezu Wenceslas was a teacher, but disagreed on the school where he was a teacher, on his political affiliation and certain aspects of his physical appearance,

is not a serious flaw that makes the Court to reject their testimonies in such a way that the Court would conclude that they do not know the accused given the time elapsed since the genocide was committed, the critical times of genocide perpetrators and victims went through, and the fact that no one among the witnesses knew that they would be summoned as a witness to keep or investigate in depth the information about Twagirayezu Wenceslas as to his conduct during the genocide committed against the Tutsis in 1994; rather, what matters most in their testimonies is the fact that all the witnesses identified him properly, agreed that he was known as a teacher, that he himself admitted that to the work he did from November 1993 to July 1994, and that in a document in the Danish Immigration Service that confirmed that he was a teacher180 , and witnesses incriminating him of participation in the activities of political parties that planned and perpetrated the genocide, in particular his participation in the 1994 genocide committed againt the Tutsis, and that he was not prosecuted for his role or participation in political parties; rather, what should be taken into consideration is the charges against him, to consider whether he perpetrated them or not . [2] Also, with regard to the way the witnesses know Twagirayezu Wenceslas in the activities of the political parties, the most

important thing is that the witnesses agree that Twagirayezu Wenceslas was Interahamwe, and that he was involved in the killings at the roadblocks as will be shown below in their testimonies; contradictions about the political party in which Twagirayezu Wenceslas was involved would be a serious flaw that would lead to the conclusion that the witnesses did not know him, notwithstanding that many citizens do not have sufficient knowledge of the political parties. 180 See page P-09-328 and P-09-329.

67 [3] Twagirayezu Wenceslas also admitted that while studying in the DRC, he occasionally came to Rwanda on holidays, and that from 1991-1994 he was the leader of the Christian youth at the AEBR, meaning that during that time he came to Rwanda, he could carry out other activities or other work in Rwanda, such as political or Interahamwe related activities, as he was leading the Christian youth at the AEBR during that time he was on holidays in Rwanda. [4] Besides, with regard to the physical appearance of Twagirayezu Wenceslas, what should be taken into consideration is that every witness stated that Twagirayezu Wenceslas according to how they remembered him and what they remembered about him, they all agreed on to his identity, the colour of his skin, and on the shape of his hand and head, and the description they gave is right, as he himself admitted before the Court the testimony of witnesses that he had broken his arm as a child and got sick for long time. The fact that Twagirayezu Wenceslas did not have any descriptive features before 1994 and in 1994 such that any person who portrays him otherwise, would describe as someone other than himself, the Court should not confirm that the witnesses accusing him do not know him. [5] The fact that there was another Twagirayezu who committed the genocide, called Mabuye, should not be relied upon by the Court to assert that the

witnesses testifying against Twagirayezu Wenceslas did not know him because Twagirayezu Wenceslas, who was mentioned in this case with his identity, those who mentioned another Twagirayezu alias Mabuye did not indicate that his identity corresponded to that of Twagirayezu Wenceslas, who was mentioned in this case, but stated that Twagirayezu alias Mabuye died in 1995 so that he should not be identified with Wenceslas, who was mentioned in this case. [6] In paragraph 175 of the judgment, the Court found that, in addition to the more serious contradictions which emerged from the witness statements, there were also inconsistencies which appeared on any material such as the misrepresentation of the date or time, the weapons used or owned by Twagirayezu Wenceslas, in which some witnesses claimed that the gun used was Kalachinikov, in other cases claimed to be R4, or claimed to be the possession of a firearm and ammunition, in other words to say that he had only a gun, or a gun and a grenade, or to pretend that the victim was a woman or a man; in paragraph 176, which is based on precedents, both in cases decided by the Rwandan Courts and in cases decided by the International Criminal Courts, observes that the contradiction with regard to the small details of facts has often been regarded as not undermining the relevance of testimonies or statements; and, however, in paragraph 177,

the particularities of the present case, the way in which the contradiction with the small details of the facts occurred on several occasions, for many witnesses, and which are contradictory in the same manner and on the same facts, undermining the relevance their testimonies and statements as is apparent from the statements and testimonies of some witnesses; but also in paragraph 179 the Court found that taking into account the time elapsed between the time when the witnesses began to testify and the time when the witnessed facts took place, the contradiction over small facts should be understandable and not undermine the

68 relevance of their testimony; it adds, however, that the behaviour of the incriminating witnesses for changing the wording to converge to a single statement (1) which is also untrue, combined with the extreme contradiction of their statements and testimonies, put together lead to invalidating the statements and testimonies because some of the reasons put forward by some witnesses for changing their wording are unfounded. [7] The findings of the Court in paragraphs set out in the preceding paragraphs are contradictory, and the contradiction which the Court considers to be particularly serious is also considered to be a contradiction of the small details of the facts because the contradiction which the Court established is based on a misrepresentation of the date or time, the weapons used or owned by Twagirayezu Wenceslas, whereby some witnesses claim that the weapon used was Kalachinikov, in other places claiming to be R4, claiming that he had only a gun and a rifle, otherwise claiming that he only possessed a gun and a grenade, or a misconception that the victim was a woman or a man, about the number of victims killed, how the attacks were carried out, where they came from, the persons killed and where they were killed, as indicated in the testimonies analyzed in the preceding paragraph 175 of the case, and that nothing confirms that the witnesses changed their testimonies

and statements to converge to a single statement ( because the Court did not show the basis of the finding, it only set it out), rather one witness testified separately, another also testified according to their knowledge of the facts and how they remember it. Also, the fact that many witnesses have contradicted one another on several occasions, and contradict each other in the same way on similar facts, should not undermine the relevance of their testimonies and their statements given the time elapsed between the date when the witnesses started testifying and when the testified facts took place, as the Court held in paragraph 179, and the severity and intensity of the killings in the 1994 genocide committed againt the Tutsi, and with the participation of a large number of people. [8] Among the witnesses incriminating Twagirayezu Wenceslas for having been involved in the offences against him, there is Gasenge Etienne, who was involved in the 1994 genocide committed againt the Tutsi, he stated that on April 7, 1994 they started the killings at Mudende, and on April 8, 1994 they went to kill at Busasamana because they had been told that the Tutsis were resisting, and there they killed them and dumped them into the hole in Busasamana. He also stated that they took the Tutsis without identity papers and went to kill at the hole at Gacuba II and Twagirayezu Wenceslas had a R4 rifle.

He went on to state that Twagirayezu Wenceslas and the School Inspector called Bunani Jean who manned the roadblock near Gacamena’s home, that he saw Twagirayezu Wenceslas is among the killers he remembered that were at that roadblock, along with Bunani Jean who hunted down the Tutsis using a dog , and Munyarwerere. He also stated that Bunani Jean and Twagirayezu Wenceslas were members of MRND 181, that during many years of politicial parties between 1991-1992, they used to meet in the political rallies at Mutura and Busasamana, and that he saw Twagirayezu 181 Mouvement Révolutionaire National pour le Développement.

69 Wenceslas carrying a gun at Busasamana Parish. He stated that when they were about to kill the Tutsis at Commune Rouge, they found Twagirayezu Wenceslas, and he asked where he lived and told him that he lived among the Baptist pastors at Gacuba II. He said that after his release, Kaberuka Theophile, a member of the TWAGIRAYEZU Wenceslas’ family, wanted to get in touch with him to ask him to remove Twagirayezu Wenceslas from the list of killers because he was said to be among the incriminating witnesses and gave him a photo of the accused. Gasenge Etienne concluded the testimony by stating that his testimony before the Court is the one to uphold during investigation they were testifying against the person who was not present, while in the courtroom they were testifying against the person he was facing. [9] Habinshuti Ruzibiza Jean told to the Court that on April 8, 1994 at 8 a.m., the attacks broke out including the one from Rwagare of which Twagirayezu Wenceslas was part, and having a gun and a studded club, the other attack came from Kanzenze, that they tried to defend themselves, trying to run away for saving their life but they realized that they were ambushed and were referred to as cockroaches, and nine (09) of them survived the killings. He also stated that he saw Twagirayezu Wenceslas in this attack at the forefont of many others but did not know who was in charge of

the attack, that among those whom Twagirayezu Wenceslas killed in the attack were Ngara, Kabogi, Munyakabera, Hanyurwimfura Emmanuel and a child called Baseme and many others, and that he did not see him in any other attack except that upon his arrival in the DRC, Shyengo Joseph told to him that Twagirayezu Wenceslas also had even reached Busasamana. [10] Shyengo Joseph stated that upon his arrival at the Parish, he hid in the courtyard opposite the path from Gasiza, that there was attack starting to kill and they opened fire through the windows, that he had seen Twagirayezu Wenceslas with a gun with his friend School Inspector Bunani Jean, that the gunshots had started at nine o'clock, that among those he remembered who died at Busasamana were Kanyarutoki Mathias, the members of Mazeze's family, the members of Hilariya's family, the members of Mudahuga's family and the members of Ntabareshya's family. [11] Habingoma Theobald told to the Court that Twagirayezu Wenceslas was Interahamwe with prominent position in the sector, that his role in the genocide was revealed at Mudende when an attack killed Tutsis who had fled from the Gishwati and Kayove forests in Kanage, continued to kill others who had fled to Busasamana Parish. He also said that they met again at former Institut Saint Fidèle and other Interahamwe, they arrested Tutsis who said that they were going to save them at

Nyundo, brought them there and killed them, then they came to Commune Rouge, and that wherever he was with Biryamo Joseph, Gasenge Etienne and Twagirayezu Wenceslas who had a R4 rifle that he used until the end of the attack. This witness explained that the Tutsis who had fled to Mudende at the Health Center were shot dead except one grenade that went wrong, that they later went to Busasamana on 8 April 1994 before noon while Twagirayezu Wenceslas was still armed with a gun, and they met again at Saint Fidèle and Commune Rouge in the afternoon, and at Nyundo between 1 and 3 o'clock, they were able to make all these trips by means of the civilian and military vehicles that transported them

70 because between Mudende and Busasamana there was a distance between one (1) kilometre and five (5) kilometres, and that on the routes to Saint Fidèle, to Nyundo and to Commune Rouge they used the taxis meant to transport them. [12] Biryamo Joseph stated that for instance in 1991, Twagirayezu Wenceslas used to attend political rallies representing Interahamwe, that on April 8, 1994, at eight o'clock in the afternoon, the Bourgmestre and the soldiers led by Nguyeneza went to kill Tutsis at Mudende, upon their arrival, they found Inspector Bunani and Twagirayezu Wenceslas, who had a gun, a group of people all around, cell leaders, soldiers and policemen, that they closed at noon (12h00) and headed to Busasamana, and that wherever Twagirayezu Wenceslas had a gun, with which he shot dead Gasanduku and Kanyarutoki who were among the internally displaced people who were at Busasamana. He also stated that after those killings, they moved on to Gacurabwenge, at Rwerere Commune Headquarters for reception, that they went to bury the killed victims in Nyabishongo cemetery, among those he could identify and who were close to Twagirayezu Wenceslas are Bunani Jean and DTC. He went on to say that the killings in which he participated along with Twagirayezu Wenceslas are the ones that took place three times at Mudende: the first attack of April 7, 1994, the second attack of April 8, 1994 at

8:00, and the third of April 12, 1994 was the culmination of the killings, and that the Mudende attack of April 8, 1994 proceeded to Busasamana led by Bunani Jean and Twagirayezu Wenceslas. [13] DTA told to the Court that Twagirayezu Wenceslas had collaborated with Bunani Jean in the killings, that once they met with Twagirayezu Wenceslas having a studded club, he found that he was asking for the documents of two (02) Tutsi women and a young man who wanted to cross over to the DRC, but he started to hit them, and DTA then slapped and beat the young man with a stick, and that there was Ntamfura, Claver who was a teacher, Ntamuhanga, Rukara, Munyazogeye and Maniragaba and others. He also stated that Twagirayezu Wenceslas had beaten the two (02) Tutsi women and a young man to death and buried them under Munyazogeye’s avocado tree, as he remembered that the assassination took place on April 10, 1994. He added that it was DTB who told him that Twagirayezu Wenceslas had ambushed another one called Rusesa. He also stated that the fact that accoding to the investigation of December 11, 2013, Twagirayezu Wenceslas had two (2) guns and two (2) grenades but killed people with a studded club, that he remembers that the gun he had was a R4 rifle but he didn't use it that day to kill three (3) persons. [14] DTB stated that he used to see Twagirayezu Wenceslas at the roadblock near Gacamena’s

home which had been set up since 1992 during the time of accomplices because in 1994 an old man called Rusesa was beaten and was defended by the local residents and taken to the former Commune Headquarters, where he was imprisoned, that this roadblock had existed until the time of the genocide where he participated in the killings like the others, that he saw him again on 08 April 1994 at the roadblock, but since he was also hunted down, that he did not move around again; and that Twagirayezu Wenceslas was involved in the killings of 16 Tutsis who were killed in the morning of that day, and that at that time at the

71 roadblock, there were two guns (02), that Twagirayezu Wenceslas had a gun referred to as ntampongano y’umwanzi (no concession to the enemy). [15] DTC stated that Twagirayezu Wenceslas was a member of CDR182 and MRND because it seemed to be the same group, and that he was with him during the killings at Gacamena’s home, at Kabuhanga border post also referred to as Kinyogo, at ISAR-Tamira, and at Busasamana. He also stated that in the killings that took place at Busasamana and at Gacamena’s home, Twagirayezu Wenceslas had R4 rifle, and that he used it during Busasamana and Mudende killings all day long on 9 April 1994 where many Tutsis were killed, and Twagirayezu Wenceslas had also a gun. On April 9, 1994, at around 1 o’clock, the Tutsi were killed at ISAR-TAMIRA. DTC also stated that in the course of the killings that took place near Collège Baptiste at Commune Rouge, on April 11 or 12, 1994, they heard people shouting telling them that it was Twagirayezu Wenceslas who had carried out a grenade attack, and upon their arrival, they realized that the killings were over and they were onloading the dead bodies, that he was told this story by a Pastor called Rukara. He also stated that Twagirayezu Wenceslas was involved in the killings in Bugeshi where 24 Tutsis were killed, and that he was involved in the murder against Rupiya. He explained that with regard to his statement that

Twagirayezu Wenceslas with his scout brothers, that he said this because he was ill when they came to ask him and he confused him with a scout who lives abroad, he remembered that it was Twagirayezu Wenceslas, and with regard to the weapon he had previously called the kalashnikov, which he now claims to be R4 rifle, he said that he was mistaken on the name because R4 were the guns given at the Commune Headquarters. [16] Nsengiyumva Kanyamishoro stated that he remembered that on April 9, 1994 at 2 o'clock, Twagirayezu Wenceslas dislodged the Tutsis at Rwagare, a place referred to as Gacamena’s home, and chase them away in a bid to kill them, but that Twagirayezu Wenceslas had outpaced him and shot them dead with a black gun whose brand remains unknown to him, that the Tutsis that Twagirayezu Wenceslas shot dead at that roadblock were so many, but he did not know their names. He also stated that the killings at Mudende claimed lives of many Tutsis, and that although he was with Twagirayezu Wenceslas who brought with him Ntamaherezo and many others, that Twagirayezu Wenceslas shot and carried out a grenade attack. He went on to say that what he said before that Twagirayezu Wenceslas was a teacher at Gacurabwenge CERAI while his wife was a teacher at Munanira school based it on the fact that he saw him carrying books and thought he was a teacher. He said that before the genocide, Twagirayezu Wenceslas and Ntamaherezo were among the people who came to train them and gave them MRND cards. He also stated that in his investigation statements where it was mentioned that he did not know about Twagirayezu Wenceslas, and now he says that he saw him during the 182 Coalition for the Defense of the Republic.

72 killings at the University of Mudende, he remembers that he said it but the investigators did not write it. He also stated that he was one of the persons to whom Twagirayezu Wenceslas gave guns and urged them to hunt down and kill the Tutsis. [17] There are also witnesses who have not been heard before the Court but who also incriminate Twagirayezu Wenceslas of having participated in the offences of which he is accused, their statements should also be upheld as they are supported by the testimonies of their fellows set out above, on the basis of Article 8, paragraphs 2 and 3 of Law No 47/2013 of 16/06/2013 relating to the transfer of cases to the Republic of Rwanda which recognises that the High Court may convict a person on basis of written testimony in case it is corroborated by other testimonies 183; these witnesses are the following: Nahimana Emmanuel184, Pasteur Nkezabera Paul185, Rwasibo Alphonse186, Ntaganda Jean Claude187 , Munana Thacien188, Habimana Moise189, Kabera Samuel190 and Kanyabugoyi Thoneste191. [18] The testimonies and the statements of all the witnesses mentioned above are valid and should be accepted because they were given by the neighbours of Twagirayezu Wenceslas who knew him well from his childhood age, some of whom had been his schoolmates, others who had been involved in the 1994 genocide committed againt the Tutsi in their own localities, it is

evident that they stated what they knew very well. [19] The Court should not have upheld the defence of Twagirayezu Wenceslas arguing that the witnesses mentioned above contradict themselves and contradict on his role in the 1994 genocide committed againt the Tutsi , as the analysis of their testimonies indicates that they all agree that he participated in the killings against the Tutsis in several places including: at the University of Mudende, at Busasamana Catholic Parish, at the roadblock near Gacamena’s home, near ISAR-Tamira, at Commune Rouge and in its surroundings, and at Nyundo; each of the witnesses has testimony according to their memory and what they witnessed, and the other has expressed himself in his own way, in such a way that it is not understandable 183 Article 8 of paragraphs 2and 3 provides: ‘‘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.’’ 184 See his statement before the National Public Prosecution Authority dated 08/07/2019. 185 See his statement before the National Public Prosecution Authority dated 21/06/2020. 186 See his statement before Rwanda Investigation Bureau dated 20/12/2013. 187 See his statement before Rwanda Investigation Bureau dated 12/02/2014. 188 See his statement before Rwanda Investigation Bureau dated 18/12/2013. 189 See his statement before Rwanda Investigation Bureau dated 13/01/2014. 190 See his statement before Rwanda Investigation Bureau dated 12/12/2013. 191 Idem

73 that it is contradiction, inconsistencies and serious contradictions, but rather every witnesses answered questions depending on how he was interrogated and what they knew or remembered. [20] The fact that the witness mentioned where the killings started, where it continued and where it ended in a different way, is also not a serious flaw that would make his testimony inadmissible, since what matters is that all the witnesses mentioned above agree that Twagirayezu Wenceslas was involved in the killings that took place in all those places, taking into account also the number of attacks, the fact that they were launched in several places, and a big number of participants. [21] While assessing the probative value of the evidence adduced and taking into account the long time elapsed since the genocide took place when the witnesses began to testify, the severity of the genocide and its consequences both for the perpetrators and for the victims, as the Court held in paragraph 179, and the evidence adduced is considered together, rather than individually; it is evident that it is not easy for the witnesses to confuse statements with each other to testify in the same way as if they had been counseled to testify in the same way, or as if they were in charge of or closely following the acts of genocide committed against the Tutsi in 1994. It is therefore obvious that the

confrontations and contradictions as to the date or time at which the acts were performed, the place where they were performed, the equipment used for killing (weapons), the number of victims or their gender, the nature of the attacks, their origin, the victims and where they were killed, should be regarded as contradictory or contradictory to each other in a way that should not undermine the quality of the evidence presented. [22] The content of the foregoing paragraph has also been confirmed by the Rwandan Court of Appeal in which it has held that the contradiction of the witnesses with regard to the facts in the case does not detract from the quality of the evidence they give192 , which is the position of the precedent set by the Supreme Court in which it found that the contradiction was not confined to the words used by the witness or the ambiguity of the wording to describe the conduct of the witness, that what matters most is that the substance of the statements made by the witness remains unchanged193 ; and this is also confirmed by the International Criminal Tribunal for Rwanda in various cases, including Prosecutor v. Karera François at first instance and appeal194 Prosecutor v. Kajelijeli195, and Prosecutor v. Bikindi Simon196. 192 Judgment nᵒ RPAA 00141/2022/CA of 31/5/2023, Prosecution v. Ntamaherezo Iryamukuru, para.33. 193 See Judgment nᵒ RPAA 0117/07/CS decided

by the Supreme Court on 17/9/2010, Prosecution v. Sgt. BIZIYAREMYE Jean Baptiste and Cpl Ngabonziza Faustin, vol. II, 2011, nº 9, p. 60. 194 Judgment no ICTR-01- 74- T , Prosecutor v. Karera François decided on 07 December 2007, para.248, p.73, confirmed at appeal level by judgment nᵒ ICTR - 01- 74- A of 02 February 2009. 195 International Criminal Tribunal for Rwanda, judgment n ° ICTR-98-44A-T of 1 December 2003, Prosecutor v. Kajejejeli, Para. 156.

74 [23] In analyzing the testimonies of witnesses who have incriminated TWAGIRAYEZU Wenceslas of committing crimes, the Court has analyzed the statements of every witness, citing one flaw in his testimony, pointing out another flaw in the other testimony, and concluding that these testimonies are contradictory; however, the testimony against TWAGIRAYEZU Wenceslas, which has been considered together, undeniably proves his direct role in the 1994 genocide committed againt the Tutsi because, in addition to appearing in the 1994 killings that murdered the Tutsi in their place of refuge, he was also spotted manning the roadblocks where they were killed as indicated. [24] In paragraph 197 of the judgment, the Court found that « the fact that the accused was not mentioned in the Gacaca Court information collection session did not mean that he should not be prosecuted for the crime of genocide because what is considered is his personal acts and evidence », but it added that « the witnesses portray TWAGIRAYEZU Wenceslas as a well-known person in the acts and preparatory meetings that led to the genocide per se, which would not have prevented from being mentioned in all the places where, according to the Prosecution, he participated in the killings or led the killings »; however, nothing confirms that the prominent participants in the acts and preparatory meetings of genocide per se and

all the acts of genocide per se were mentioned in the Gacaca Court information collection reports. The Court's findings in this paragraph 197 are also contradictory, and the Court should not dismiss evidence against the accused on the ground that the defendant was not mentioned in the Gacaca court information collection reports covering all the areas in which the accused is alleged by the Prosecution to have committed or led the killings. III. Concerning the exculpatory testimonies given in favour of TWAGIRAYEZU Wenceslas [25] In paragraph 182 of the judgment, the Court held that the irrelevance of the statements and testimonies on the role of Twagirayezu Wenceslas in the acts of which he was accused had been confirmed by witnesses who had explained how he knew him and how he had not been involved in the alleged criminal acts; however, the witness Sebashyitsi Apollinaire testified that he had reached the roadblock near Gacamena’s home once (1), and that he used to go there to make sure that the young men he had appointed were present. This witness also stated that since TWAGIRAYEZU Wenceslas went to the DRC, he never saw him again, and that he did not know when he went (to Congo), and he said that during the holidays they used to meet at Busasamana Parish. He also testified that no one was killed or arrested at the roadblock near Gacamena’s home. The testimony of this witness

contains some contradictions because he once said that he went to the 196 Judgment nº ICTR-01- 62 T, Prosecutor v. Bikindi Simon rendered on 02/12/2008, p.12, para 32 (La Chambre reconnaît qu'il s'est écoulé une longue période entre la date des faits allégués dans l'acte d'accusation et celle des dépositions à I'audience. Ainsi, le manque de précision ou I'existence de contradictions mineures entre les dépositions de différents témoins ou entre la déposition d'un témoin et ses déclarations antérieures, n'ont généralement pas été considérés comme jetant nécessairement le discrédit sur ces dépositions”).

75 roadblock near Gacamena’s home once (1), and elsewhere he testified that he often went there to see that the young men were there, and that since TWAGIRAYEZU Wenceslas went to Congo, he never saw him again, but that they also used to meet at Busasamana Parish during the holidays. While this witness claims that no one was killed or arrested at the roadblock near Gacamena’s home, this is contradicted by Kaberuka Theophile, who also exculpates TWAGIRAYEZU Wenceslas because he testified that the persons were shot dead at that roadblock, as other witnesses such as DTA and DTC stated it. The fact that this witness also said that he had never seen TWAGIRAYEZU Wenceslas at the roadblock near Gacamena’s home, is irrelevant because he did not show that he manned it every day, such that he could know all who had appeared there. His testimony should therefore not be accepted. [26] The witness Nyirabariyanga Ancille, who claims to be close to Twagirayezu Wenceslas's home, told to the Court that she could not go to the street because there was a cave behind her home where she was hiding with her children, she could not find out what was going on outside because she was hiding in a cave. She also stated that since TWAGIRAYEZU Wenceslas went to high school she never saw him again, but TWAGIRAYEZU Wenceslas said that he used to come for holidays, as her closest neighbor she would not have

missed him coming for holidays. Therefore, her testimony should not be accepted because she does not tell the truth. [27] The witness Bufono Silas, who testified about the killings against the Tutsis at the University of Mudende stated that on April 6, 1994 from midnight, he had spent the night outside in a wheat plantation because they had been attacked and returned the next day, and on April 7, 1994, there were some Interahamwe, he could not identify the killers there because he was hiding. His testimony does not exculpate Twagirayezu Wenceslas because it is clear that he could not see him in the mob of killers, especially because he was hiding, rather his testimony corroborates that of witnesses incriminating him as to the dates on which the killings against the Tutsis took place at the University of Mudende. [28] The witness Akimanimpaye Theoneste testified that he knew Twagirayezu Wenceslas from 1993 to 1994 when he found him at Collège Baptiste where he worked as accountant, and that after March 1994 he never saw him again because the students were not studying. The testimony does not exculpate Twagirayezu Wenceslas because it appears that the witness did not have information about the actions he was accused of committing in April 1994, since he claims to have last met him in March 1994, and that he was living outside the school, and that during the genocide, he never

returned there. Therefore, his testimony should not be relied upon. [29] The witness Mpahatanye Matthieu stated that he learned of the killings that took place at Busasamana Parish by other fellows who were talking about it, and that he last met Twagirayezu Wenceslas in 1990, this witness had no knowledge of the killings that were carried at Busasamana Parish because he was not present when they took place. The fact that this

76 witness also claimed to have last seen Twagirayezu Wenceslas in 1990 also indicates that he is unable to identify his actions in all places during the 1994 genocide committed againt the Tutsi. His testimony should therefore not be accepted. [30] The witness Sindambiwe Emmanuel stated that he knew nobody who was killed at the roadblock near Gacamena’s home and that he had not reached Busasamana Parish, he only heard that the Tutsis were killed there. His testimony does not exculpate Twagirayezu Wenceslas, nor does it reflect the truth of what happened at the roadblock near Gacamena’s home, although he was a cell leader, he did not have enough information about what happened at Gacamena’s home because he said that he used to walk around three days a week, and at Busasamana Parish because he said that he did not come during the genocide ; but his testimony shows that he was also seeking information. The fact that the witness also testifies that he did not come to Busasamana Parish, that he only heard that Tutsis were killed, also he shows that he has no knowledge of what happened in the 1994 genocide committed againt the Tutsi. His testimony should therefore not be accepted. [31] The witness Ugwaneza Christophe said that he did not know Twagirayezu Wenceslas, he cannot impart any information about him, and even if he had seen him during the killings at the University of

Mudende, he would not have known him because he told to the Court that he could not identify all the killers who came to kill at the University because they came from all the areas, it was a crowd of people surrounded by soldiers and gendarmes. [32] The witness Sebudahe Xavier testified that during the genocide he had never seen Twagirayezu Wenceslas, but he added that, unless he went to perpetrate it in other places, it is understandable that this witness also does not unequivocally testifies that Twagirayezu Wenceslas was not involved in the acts for which he is accused of because he claims not to have seen him, but adds that he was not present in all the places, where he said: « unless he went to perpetrate it in other places, and in this case Twagirayezu Wenceslas is accused of having been involved in killings of Tutsis in various places in the former Rwerere Commune, particularly at the roadblock near Gacamena’s home, at ISAR-TAMIRA, at the University of Mudende, at Busasamana Church, at Nyundo, at Institut Saint Fidèle and the place referred to as Commune Rouge. [33] The witness Bazege Ntahondi Léa stated that on 8 April 1994 she never went to Busasamana Parish, that she arrived there on 9 April 1994, and that at that time he could not identify the victims and the killers. She also stated that she had never heard of Twagirayezu Wenceslas during Gacaca Court information collection session. The testimony given by Bazege Ntahondi Léa does not exculpate TWAGIRAYEZU Wenceslas from his role in the killings that took place at Busasamana Parish because he himself claimed that he had never been present at the time of the killings, and that even when she arrived on 9 April 1994, she could not identify the victims and the killers.

77 [34] The fact that in their testimonies Serukiko Théoneste, Pastor Kaberuka Theophile, Sindambiwe Emmanuel and others who testify that during Gacaca court hearings, they have never heard of TWAGIRAYEZU Wenceslas, being mentioned in the atrocities of genocide, does not exculpate TWAGIRAYEZU Wenceslas because there is no principle according to which for a person to be prosecuted for the crime of genocide committed againt the Tutsi in 1994, one must have been mentioned in the Gacaca Court information collection reports, or that any person prosecuted for the involvement in the 1994 Genocide committed againt the Tutsi, must have been mentioned during Gacaca Court information collection session. [35] All in all, the testimonies and the statements made by the witnesses exculpating Twagirayezu Wenceslas from his role in the 1994 genocide committed againt the Tutsi should not be accepted on the basis of Article 65 of Law No 15/2004 of 12 June 2004 relating to evidence and its production 197 because some of them incriminate him of what they do not know, others contradict themselves and contradict one another, while others create scenarios in such a way that their statements and testimonies are not reliable. [36] In paragraph 198 of the judgment, the Court held that, because of serious contradictions and inconsistencies which hinder the quality of the evidence adduced by the

Prosecution on the role of TWAGIRAYEZU Wenceslas in the charges against him, that TWAGIRAYEZU Wenceslas was not found guilty of the offences of which he was charged, persuant to Article 111 of Law No 027/2019 of 19/09/2019 relating to criminal procedure as amended to date198; however, TWAGIRAYEZU Wenceslas should be declared guilty of the offences of which he is charged, and be punished in accordance with the law, because what the Court has called inconsistencies and serious contradictions is untrue, it is rather inconsistencies and contradictions on small facts which should not discredit the elements of evidence adduced by the Prosecution on the role of TWAGIRAYEZU Wenceslas in the acts constituting the offences he is accused of. 197 Article 65 of Law nº 15/2004 of 12/06/2004 Relating to Evidence and its Production provides: “Only the court can assess the relevance, pertinence and admissibility or rejection of testimonial evidence. It shall not be influenced by the number of witnesses. It shall mainly consider their knowledge of facts and the objectivity and sincerity of their testimonies’’. 198 Article 111 of Law nº 027/2019 of 19/09/2019 relating to the criminal procedure provides: ‘‘The benefit of doubt is given to the accused. If the proceedings conducted as completely as possible do not enable judges to find reliable evidence proving beyond reasonable doubt that the accused committed the offence, the judges order his or her acquittal.” .