THE PROSECUTION v. ZOMAHOUN ET AL.

# THE PROSECUTION v. ZOMAHOUN ET AL.

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2025-02-12 - Case/document no.: RPAA 00504/2021/CA - Collection: Court of Appeal

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THE PROSECUTION v. ZOMAHOUN ET AL. [Rwanda COURT OF APPEAL - RPAA 00504/2021/CA (Nyirandabaruta, P.J., Kaliwabo and Umugwaneza, J.) September 24, 2021] Criminal Procedure –Trial of a fugitive suspect – As long as a criminal case is still pending and the suspect has not yet been decisively acquitted over the charged offences, when a fugitive suspect later appears before the competent organs ( either by surrendering or subsequent arrest) all the previous proceedings are thereby nullified and the suspect is interrogated by the Investigation Bureau and the Public Prosecution, (if deemed necessary by those organs) the reappeared fugitive suspect must be re-indicted for the sake of preserving all his/her rights to due process of law. Facts: This case originated from the Prosecution’s indictment of three suspects Zomahoun, Kibuye Mukwende, and Umulinga before the Intermediate Court of Gasabo on various charges. All suspects, except for Zomahoun, who was a fugitive and lacked legal representation, were tried with legal assistance. After hearing the case, the Court declared all suspects not guilty due to doubtful incriminating elements of evidence. The Prosecution appealed the above verdict before the High Court, and on the hearing date, all the accused appeared in person except Zomahoun who was not personally present but appeared through his representatives, who thereby reminded the Court that he had requested the Court to allow him follow his trial online

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and the Court ruled that he would attend his trial via Skype. The Public Prosecution thereof raised an objection and requested the Court to first decide on the objection before the hearing proceeds. The Public Prosecution stated that Zomahoun, who was first tried as a fugitive suspect, cannot appear at the appeal trial, yet he has never been interrogated by the Public Prosecution. They prayed the Court to suspend the trial, and first order him to appear for an adversarial interrogation by both the Public Prosecution and the Investigation Bureau, and for case proper filing procedure as per the provision of article 168 of the Law n0 027/2019 of 19/09/2019 relating to criminal procedure. The High Court examined the objection, and held that Zomahoun must first be subjected to a certain virtual interrogation and have his case file completed. The Prosecution was not satisfied with the above decision and appealed the ruling before the Court of Appeal, submitting that their appeal stems from the provisions of articles 72 and 168 of the Law n0 027/2019 of 19/09/2019 relating to criminal procedure especially on matters pertaining to the making of interrogation statements and to the prosecution of fugitive suspects; arguing that since Zomahoun has never reported himself to judicial organs, he has no right to stand his trial at the appeal level. Before the Court of Appeal, the issue arose as to whether Zomahoun, who was tried as a fugitive by the Intermediate Court of Gasabo, could be a party to the appeal before the High Court, and whether the High Court should have ordered that he should be virtually interrogated. The Prosecution argued that, since Zomahoun had not been interrogated and could not be tried without an interrogation, the file should be viewed as having adhered to the formalities of the criminal investigation. They contended that these formalities must be respected even if the case is appealed and the fugitive suspect later appears.

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Accordingly, they argued that the fugitive must report to the Investigation Bureau for a preliminary investigation, after which the case file would be submitted to the Prosecution. Additionally, they noted that an acquittal at the first level does not guarantee the same outcome on appeal. For Zomahoun and his legal counsel, they submitted that tried fugitive suspects who must report themselves to judicial organs are the convicted, while for the acquitted suspects, the law is silent. The defence argued that Zomahoun, who got declared not guilty by the previous court, had no more reasons for reporting himself to judicial organs, yet he was acquitted by the previous judge, and argued that the High Court had no ground to try him in absentia, yet he appeared on Skype, and moreover he had been summoned. Held 1. As long as a criminal case is still pending and the suspect has not yet been definitely acquitted over the charged offences, when a fugitive suspect later reappears before the competent Organs ( either by surrendering or subsequent arrest) all the previous proceedings are thereby nullified and the suspect is now interrogated by the Investigation Bureau and the Public Prosecution and, (if deemed necessary by those organs) the reappeared suspect must be re-indicted for the sake of preserving all his/her rights to the due process of law. Therefore, a mere fact that Zomahoun reappeared online cannot be construed as the reappearance meant under article 168 of the Law n0 027/2019 of 19/09/2019 relating to criminal procedure. 2. The High Court should not have held that Zomahoun reappeared on a mere fact that he appeared on Skype, since such a reappearance is different from the fugitive suspect’s reappearance meant by the provision of article 168 of the Law n0 027/2019 of 19/09/2019 relating to criminal procedure.

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Therefore, the High Court should not have allowed him to appear in such a way nor hear him on any matter. The case should therefore bounce back to the High Court, and the suspect should be tried the same way he was tried by the Intermediate Court of Gasabo, and he should be tried as a fugitive suspect unless he reports himself to the competent judicial organs as the Law so requires. The Public Prosecution’s indictment has merit. The Court’s decision that ordered the Public Prosecution to arrange for ZOMAHOUN’s online interrogation is hereby quashed. Statutes and statutory instruments referred to: The Constitution of the Republic of Rwanda of 2003 revised in 2015, article 29; Law n0 027/2019 of 19/09/2019 relating to criminal procedure, articles 160 and 162 No cases were referred to. Authors quoted: Stephani Gaston, Levasseur Georges et Bouloc Bernard, Procedure pénale, 16 éd, Dalloz, Paris, 1996, pp.770- 771. Judgment I. BACKGROUND OF THE CASE

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The Prosecution indicted Zomahoun Sosthène Thierry, Kibuye Mukwende Jean Pierre and Umulinga Alice before the Intermediate Court of Gasabo for various charges. All the indicted suspects were provided with legal assistance for the trial, except Zomahoun Sosthène Thierry who got tried as fugitive suspect. The seized court heard the case RP/ECON 00055/2020/TGI/GSBO on 07/01/2021, and declared all the suspects not guilty due to doubtful incriminating elements of evidence.

The Prosecution appealed against the above verdict before the High Court, and the appeal was docketed as RPA/ECON 00020/2021/HC/KIG, and on the trial day, Kibuye Mukwende Jean Pierre and Umulinga Alice appeared before the Court together with their legal counsels and Zomahoun Sosthène Thierry did not appear to the Court, instead, it is Counsel Mutabingwa Aloys, and Counsel Kimanuka who appeared on his behalf, and who thereby reminded the Court that Zomahoun Sosthène Thierry had written to the Court requesting and providing an online link for his trial, and the Court allowed him to appear via Skype.

The Prosecution raised an objection for which they requested the Court to first decide on before the trial proceeds. They argued that Zomahoun Sosthène Thierry, whom the previous Court tried as fugitive suspect, cannot appear at the appeal level, yet the Prosecution had never interrogated him over his charges. The Prosecution prayed the Court to adjourn the trial and order ZOMAHOUN Sosthène Thierry to first appear before the Investigation Bureau and the Public Prosecution for an adversarial interrogation, and have his case file completed as per

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the provision of article 168 of the Law n0 027/2019 of 19/09/2019 relating to criminal procedure.

ZOMAHOUN Sosthène Thierry together with Counsel MUTABINGWA Aloys and Counsel KIMANUKA assisting him and the rest of the co-accused submitted to the Court that there is no reason that can prevent ZOMAHOUN Sosthène Thierry from being heard by the Court; more so that he had highlighted the challenges that impeded his personal appearance before the Court, which included his personal illness, his wife’s sickness and Covid-19-pandemic, arguing that ZOMAHOUN made his submissions in Kinyarwanda and there is nothing that can prevent him from standing the appeal trial.

The High Court examined the raised objection, and held that ZOMAHOUN Sosthène Thierry must first be interrogated, and have his case file completed, but the Court ordered that his interrogation shall be conducted online, and moved that the hearing on the merits of the case should be resumed on 07/05/2021.

The Prosecution was not satisfied with the above decision and appealed against it before the Court of Appeal on 13/04/2021, and the appeal case was registered under RPAA 00504/2021/CA. The Prosecution argued that their appeal stems from the provisions of articles 72 and 168 of the Law n0 027/2019 of 19/09/2019 relating to criminal procedure on matters pertaining respectively to the making of interrogation statements and to the prosecution of fugitive suspects. The Prosecution argued that a simple fact that ZOMAHOUN Sosthène Thierry never reported himself to judicial organs prevents him for appearing for the trial.

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The case was heard in public on 03/09/2021, with ZOMAHOUN Sosthène Thierry appearing the hearing online via Skype while Counsel Sadi Jashi and Counsel Mutabingwa Aloys assisted him in the Court, whereas Kalinda Steven served as ZOMAHOUN Sosthène Thierry 's interpreter, hired by ZOMAHOUN himself. The Prosecution was represented by Bunyoye Grace, National Prosecutor.

On the above date, so appeared KIBUYE Mukwende Jean Pierre and UMULINGA Alice both assisted by Counsel SHEMA Gakuba Charles, Counsel SEBUKONOKE Innocent and Counsel Mutabingwa Aloys, whereas AIMS-NEI (African Institute for Mathematical Sciences Next Einstein Initiative) was represented by Counsel NGABONZIZA Joseph. However, the Court, based on the nature of the Prosecution’s indictment, held that Kibuye Mukwende Jean Pierre, Umulinga Alice, and AIMS-NEI are not relevant to the issue at hand and, therefore, are not required for these proceedings.

The hearing resumed with examination of whether ZOMAHOUN Sosthène Thierry, who was once tried as fugitive suspect in the case RP/ECON 00055/2020/TGI/GSBO before the Intermediate Court of Gasabo, could have appeared before the High Court for the appeal on the aforementioned case, and the Court of Appeal also examined whether the High Court should not have ordered the Prosecution to arrange an online interrogation for ZOMAHOUN Sosthène Thierry.

II. ANALYSIS OF LEGAL ISSUES

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a. Whether ZOMAHOUN Sosthène Thierry who was once tried as fugitive suspect in the case RP/ECON 00055/2020/TGI/GSBO before the Intermediate Court of Gasabo could have appeared before the High Court for the appeal on the above mentioned case

For the above issue, ZOMAHOUN Sosthène Thierry submits that any related explanations can be provided by his defence team since it is a legal issue.

Counsel SADI Jashi argued that article 168 of the Law n0 027/2019 of 19/09/2019 relating to criminal procedure provides that it is the convicted fugitive suspects that must report themselves to either the Investigation Bureau, or the Public Prosecution or to the Administration of Correction services, but for the case of acquitted suspects, the article is silent. He argues that Zomahoun Sosthène Thierry declared by the previous Court not guilty had no more reasons of reporting himself to judicial organs, yet he got acquitted at the first instance. Counsel SADI Jashi argued that the High Court could not try him as fugitive suspect (in absentia) yet he appeared before the Court via Skype, and moreover he had been summoned.

For Counsel MUTABINGWA Aloys, the above mentioned article 168 concerns the re-indictment of a fugitive suspect, whereby when the latter reappears has to report himself either to the Investigation Bureau, to the Prosecution or to the Administration of Correction services. He argues that while before the Intermediate Court of Gasabo, ZOMAHOUN Sosthène Thierry was tried as a fugitive suspect and he was found not guilty; and such a status cleared him on reasons that would compel him to report himself to judicial organs, more so that the

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grounds for such self-reporting were already cleared by his innocence.

Counsel MUTABINGWA Aloys further argues that it is the Public Prosecution that appealed the Intermediate Court’s decision, and with a fact that the Intermediate Court had found ZOMAHOUN Sosthène not guilty, the High Court had no more reason to prevent him from appearing, and neither could the Court continue trying him as a fugitive suspect, all for the sake of preserving his constitutional rights enshrined in the Constitution of the Republic of Rwanda and other ordinary principles of law that seek due process of law. He argues that while before the Intermediate Court, ZOMAHOUN Sosthène Thierry was tried as a fugitive suspect, and before the High Court, he had an adversarial trial and moreover no single law forbids so. He argues that law remained silent on the re-indictment of a fugitive suspect acquitted at first instance, because such a scenario constituted no legal issue.

The Public Prosecution disagreed with ZOMAHOUN Sosthène Thierry’s legal counsels on their interpretation of article 168 (above mentioned) and avers that the suspect has never been interrogated and he therefore cannot be tried without a prior interrogation on the charged offences, arguing that the all criminal prosecution procedures must be always observed even when a fugitive suspect reappears at the appeal level. They requested that ZOMAHOUN Sosthène Thierry must report himself to the Investigation Bureau for preliminary investigations and later to the Prosecution for interrogation, and nothing assures that his innocence declared at the first trial will again be upheld by the appellate court.

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II. DETERMINATION OF THE COURT

Article 160 of the Law n0 027/2019 of 19/09/2019 relating to criminal procedure provides that “when the suspect, whether he or she is in Rwanda or in a foreign country, is not arrested because he or she hides or escapes justice, the public prosecution prepares a file for him or her and submits it to the competent court even if the suspect was not interrogated. After receiving the file, the court orders the accused to appear within one (1) month, failing which the court declares that he or she has disobeyed the law”.

Article 162 of the above mentioned law provides that “If the fugitive suspect fails to respect the time limits provided for under Article 160 of this Law, he or she is tried in absentia. The court rules on the case based solely on the submissions of the public prosecution” whereas paragraph one of article 168 provides that “ when a convicted fugitive surrenders himself or herself to the judicial police, the Public Prosecution or before the prison administration or if he or she is arrested before the penalty prescribes, the judgement and proceedings conducted from the time the fugitive was ordered to appear until the pronouncement of the judgment become void and the prosecution of the fugitive re-commences in accordance with the ordinary procedure”.

Regarding fugitive suspects, the law scholars argue that when a suspect is not available for trial and he/she chose to escape justice, he/she must be tried as a fugitive suspect. However, when he/she surrenders him/herself to the Administration of Correction services or he/she is arrested before his/her sentence prescribes ,

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all the previous proceedings must be nullified, and the suspect must be re-indicted1 .

The case file indicates that while before the Intermediate Court of Gasabo for the case RP/ECON 00055/2020/TGI/GSBO decided on 07/01/2021 (see paragraphs 6 and 12), ZOMAHOUN Sosthène got tried as a fugitive suspect, while his co-accused were provided with legal assistance and the Court held that ZOMAHOUN Sosthène Thierry and his co-suspects are not guilty (see paragraphs 80-84).

The case file also contains a judgement on the Prosecution’s appeal case RPA/ECON/00020/2021/HC/KIG rendered by the High Court on 09/04/2021 where the High Court held that ZOMAHOUN Sosthène Thierry has no reason that can prevent him from standing his trial online, more so that all the involved parties can clearly see him. And on the Prosecution’s request of ordering the suspect to personally appear before both the Investigation Bureau and the Public Prosecution for interrogation, the Court examined ZOMAHOUN Sosthène Thierry’s raised challenges about coming to Rwanda for interrogation, and it moved that the Prosecution should thereof arrange for him a virtual interrogation.

The analysis of article 168 of the above mentioned Law n0 027/2019, specifies that a suspect who got tried as a fugitive

1 Stephani Gaston, Levasseur Georges et Bouloc Bernard, Procedure pénale, 16éd, Dalloz, Paris, 1996, pp.770-771. (Lorsque l’accusé n’est pas présent, soit qu’il se soit dérobé à la justice dès le début des poursuites, soit qu’il se soit évadé au cours de celles -ci, il est jugé par contumace…Si l’accusé se constitue prisonnier ou s’il vient à être arrêté avant la prescription de la peine, la décision se trouve automatiquement anéantie.

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suspect loses on some of his legal rights ( especially rights to due process of law provided under article 292 of the Constitution of the Republic of Rwanda of 2003, revised in 2015), and that is why when a fugitive suspect reappears either by surrendering to the competent Judicial Organs or by a subsequent arrest before the his/her sentence prescribes, the verdict on his previous trial is quashed and the suspect is again re-indicted and all his rights to due process of law must be observed (the suspect must be informed of the nature and cause of charges and the right to defence and legal representation ), rights that he/she all lost while convicted as a fugitive suspect. The same still applies to a fugitive suspect who, as long as the case is still pending and it has not yet finally decided for a definitive acquittal, reappears ( either by surrendering to the above mentioned Judicial organs or by

2 Article 29 of the Constitution of the Republic of Rwanda of 2003 revised in 2015 reads that: Everyone has the right to due process of law, which includes the right: 1° to be informed of the nature and cause of charges and the right to defence and legal representation; 2° to be presumed innocent until proved guilty by a competent Court; 3° to appear before a competent Court; 4° not to be subjected to prosecution, arrest, detention or punishment on account of any act or omission which did not constitute an offence under national or international law at the time it was committed. Offences and their penalties are determined by law; 5° not to be held liable for an offence he or she did not commit. Criminal liability is personal; 6° not to be punished for an offence with a penalty that is severer than the penalty provided for by the law at the time that offence was committed; 7° not to be imprisoned merely on the ground of inability to fulfil a contractual obligation; 8° not to be prosecuted or punished for a crime which has reached its statute of limitations. However, the crime of genocide, crimes against humanity and war crimes are not subject to statute of limitations. A law may determine other crimes which are not subject to statute of limitations.

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subsequent arrest) all the previous proceedings are thereby nullified, the reappeared fugitive suspect must now be interrogated by the Investigation Bureau and then by the Public Prosecution, and (if deemed necessary by those organs), the reappeared suspect must be re-indicted for the sake of preserving all his/her rights to due process of law .

The analysis of this article indicates that the reappearance of a fugitive suspect refers either to any self-reporting to the competent Judicial Organs (the Investigation Bureau, the Public Prosecution, or to Administration of Correction services) or to any subsequent arrest.

With regard to this case, this Court finds that when ZOMAHOUN Sosthène Thierry’s trial in the judgment RP/ECON 00055/2020/TGI/GSBO rendered by the Intermediate Court of Gasabo on 07/01/2021 was appealed before the High Court, all parties were still in a constant status as imposed by the Intermediate Court of Gasabo which tried ZOMAHOUN Sosthène Thierry as a fugitive suspect, while KIBUYE Mukwende Jean Pierre and UMULINGA Alice appeared before the Court being assisted; and the Intermediate Court’s decision regarding the proceedings and the parties’ appearance for the trial has never been appealed. Therefore, the fact that ZOMAHOUN Sosthène Thierry reappeared online should not be regarded as the reappearance meant by the provision of article 168 of the above mentioned Law n0 027/2019 of 19/09/2019, since the Investigation organs which the provision specifies about still cannot access him; and legally, he is still considered as a fugitive suspect.

The Court finds baseless the argument by ZOMAHOUN Sosthène Thierry’s legal counsels by which ZOMAHOUN

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Sosthène Thierry is not concerned by the provision of article 168 of the Law n0 027/2019 of 19/09/2019 relating to criminal procedure, stating that their client was declared innocent at the first instance and yet the article concerns convicted fugitives whose sentence is not yet prescribed. The Court explained that the judgment that declared ZOMAHOUN Sosthène Thierry not guilty is not final since it has been challenged by an appeal. Therefore, as it has been above explained, he has no reason of violating the provision of the above mentioned article which required him to surrender himself to the criminal investigation organs for interrogation and a retrial just as the above mentioned article 168 so provides.

The Court of Appeal finds that his defence counsels failed to legally prove about their client’s rights to appear before the High Court for a virtual adversarial trial, yet the procedure of his previous trial has never changed, more so that a judicial procedure cannot be altered by the parties’ appreciations or preferences as the appealed verdict intends to put it. On the contrary, a procedure must always abide by the applicable laws.

The Court finds that if ZOMAHOUN Sosthène Thierry really wanted to appear before the court and stand the trial on the Prosecution’s indictment as it has been above explained, he has to abide by the provision of article 168 of the Law n0 027/2019 of 19/09/2019 relating to criminal procedure; that is, surrendering himself to the Investigation Bureau and to the Public Prosecution for interrogation. His virtual (Skype) appearance before the High Court and his defence against the verdict on the case in which he had tried as a fugitive suspect violate the provision of the above mentioned law since he could not be tried without a prior interrogation, and moreover his reappearance had nullified the

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previous verdict, and the re-prosecution was supposed to start anew. Nonetheless, the High Court held that he has no reason that can prevent him from standing an online trial; though it also ordered that he must first undergo an interrogation by the Public Prosecution.

In light of the above explanations and the referenced legal provisions, the High Court should not have concluded that ZOMAHOUN Sosthène Thierry had reappeared for trial merely because he participated via Skype in the hearing of the case RPA/ECON/00020/2020/HC/KIG on 26/04/2021. Such an appearance differs from the reappearance of fugitive suspects as defined under Article 168 of Law No. 027/2019 of 19/09/2019 on criminal procedure. Furthermore, according to this provision, the High Court should not have allowed ZOMAHOUN Sosthène Thierry to appear online for his trial, nor could it decide his case using such a procedure. The Court of Appeal finds that the procedure adopted by the High Court was unlawful. Consequently, the case No. RPA/ECON/00020/HC/KIG will be returned to the High Court, where it shall be heard in the same manner as the first trial conducted by the Intermediate Court of Gasabo. ZOMAHOUN Sosthène Thierry will still be tried as a fugitive suspect unless he surrenders himself to the competent criminal investigation authorities, as required by law. b. Whether the High Court should order to the Prosecution to arrange a virtual interrogation for ZOMAHOUN Sosthène Thierry

The Prosecution argued that ZOMAHOUN Sosthène Thierry got tried as a fugitive suspect by the Intermediate Court of Gasabo; but for the appeal trial before the High Court, he appeared online intending to stand his trial via Skype. The

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Prosecution objected and prayed the Court not to allow him appear online arguing that such a procedure violates the provisions of article 72 of the Law n0 027/2019 of 19/09/2019 relating to criminal procedure. The Court deliberated on the objection and admitted this objection, and subsequently held that all the previous trial-related proceedings must be nullified, and ordered that ZOMAHOUN Sosthène Thierry must first be interrogated, adding that he shall be interrogated via an online arrangement. The Public Prosecution re-objected the court’s decision and argued that the interrogated suspects must personally sign the interrogation statements, and reminded that at times, interrogation sessions involve adversarial debates, arguing that online interrogation precedent will cause many negative effects on future trials since many of the fugitive suspects might bring it forth for reference, yet it contradicts the provision of the above mentioned article 72.

The Public Prosecution rebutted the argument by which the suspect’s defence team submitted that the provision of article 168 of the above mentioned law relating to criminal procedure does not concern him since he was acquitted at first instance; the Public Prosecution argues that such a defence is unfounded since the case is not finally decided yet, and the fact that the Prosecution has lodged an appeal against it, nothing proves that the previous decision verdict will be upheld.

The Public Prosecution further submits that if ZOMAHOUN Sosthène Thierry wishes to avail himself to judicial organs, he should surrender to the Investigation Bureau and undergo an in-person interrogation as required by law. It contends that his claim of not being a fugitive is inaccurate and the COVID-19 pandemic in Canada does not justify his absence,

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as the pandemic is worldwide, and flights are operational in Canada. As for his family issues, including his wife’s illness and his scheduled doctor’s appointment, the Prosecution avers that these are insufficient reasons for failing to surrender to the investigative authorities, noting that if these commitments coincide with the date of the interrogation, an alternative date could be provided.

ZOMAHOUN Sosthène Thierry submitted that they started investigating on him while he was on a work trip in Canada, he argues that he did not go to Canada as a fugitive and he explains that since he has no more job in Rwanda he has no reasons of coming back in the country. He also argues that his work trip coupled with some other challenges that he explained in the letter he addressed to the President of the High Court, and the one he wrote to the President of the Court of Appeal on 23/06/2021, and his concerns included the gravity of the 4th wave of Covid -19 pandemic in Canada which imposed restrictions on peoples’ movements in Canada, for him it was impossible to travel. And, such a scenario added to his own family problems that included his wife’s cancer terminal illness which needed a lot of his time and a special care. Besides, he states that after 10 years of his services to African Institute for Mathematical Sciences Next Einstein Initiative, the Institute fired him, and he thereof developed related serious health complications, and he is now on regular medical appointments. He avers that all the above concerns are the serious reasons that made him fail to come back to Rwanda.

Counsel SADI Jashi representing ZOMAHOUN Sosthène Thierry for this case referred to article 92 of the Law relating to criminal procedure and argued that with the provision

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of the above article, the Prosecution had various ways of interrogating the suspect such as “rogatory commission” arrangement more so that in these modern times, and due to the possibility of virtual trials, hearing reports are no longer necessarily signed, as hearings are conducted via Skype. He also gave a reference on judgment RS/PSV/SPEC 00001/2021/CS rendered on 04/02/2021, whereby the Supreme Court held that the Covid-19 Pandemic constituted an excuse of force majeure and ZOMAHOUN Sosthène Thierry could as well have been interrogated via Zoom, and thus interrogating him on each issue at a time.

Counsel MUTABINGWA Aloys submits that article 29 of the Constitution of the Republic of Rwanda recognises the right to due process of law for each individual litigant, and such a right is of public order; and the Public Prosecution cannot so far explain about any harm that might result from virtually interrogating the suspect. He argues that the signing of the interrogation statements does not constitute an issue more so that in this modern era, the signing of hearing reports is no long a practice. He argues that his client has a right to be informed of the nature of his charges together with the right to defence and the right to obtain legal assistance, as per the provision of article 68 of the Law n0 027/2019 of 19/09/2019 relating to criminal procedure. DETERMINATION OF THE COURT

Paragraph one of the article 168 of the above mentioned Law n0 027/ 2019 provides that “when a convicted fugitive surrenders himself or herself to the judicial police, the Public Prosecution or before the prison administration or if he or she is

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arrested before the penalty prescribes, the judgement and proceedings conducted from the time the fugitive was ordered to appear until the pronouncement of the judgment become void and the prosecution of the fugitive re-commences in accordance with the ordinary procedure”.

Just as it has been above explained, the Court of Appeal finds that the High Court held that ZOMAHOUN Sosthène Thierry appeared with reference to the parties’ perspectives, and not to the existing legal references; and the High Court heard his defence yet he was supposed to be tried as fugitive suspect. Such a platform led the Court into examining the challenges he raised about his failure to come in Rwanda, yet it was not for the Court to hear and examine such concerns. Conversely, it is the investigation organs that had the competence to hear his challenges and then bring it to court for decision. In no case, should it be the appellate court to hear him, moreover, for the appeal of a judgement in which he was tried as a fugitive suspect.

The Court of Appeal therefore finds that the High Court had no authority to examine the suspect’s challenges on reporting back to Rwanda, since the issues to do with criminal investigations and prosecution were not in the court’s jurisdiction. And the Court of Appeal disqualifies as well itself from examining his concerns over not coming back to Rwanda, since it equally has no jurisdiction for such matter. III. DECISION OF THE COURT

Holds that the Prosecution’s indictment has merit;

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Holds that the High Court’s decision for case RPA/ECON/ 00020/2021/HC/KIG of 09/04/2021 ordering the Prosecution to arrange a virtual interrogation for Zomahoun Sosthène Thierry is hereby quashed;

Orders for the resumption of the case RPA/ECON/ 00020/2021/HC/KIG pending before the High Court, and ZOMAHOUN Sosthène Thierry shall be tried as a fugitive suspect, just as it had been so held by the Intermediate Court of Gasabo;

Holds that the decision on court fees is temporarily suspended.