Mugesera Case: Yet Another Twist in the Debate about the Rwandan Justice System

To anyone who has followed the recent history of Rwanda, and particularly those familiar with the case law of the International Criminal Tribunal for Rwanda, the name Leon Mugesera will be well-known. His role in fomenting the climate of anti-Tutsi hatred that led to the 1994 genocide is discussed in several of the judgments, notably the first major ruling of the Tribunal in the Akayesu case.

This is from paragraph 99 of the Akayesu judgment:

…there were other propaganda agents, the most notorious of whom was a certain Léon Mugesera, vice-president of the MRND in Gisenyi Préfecture and lecturer at the National University of Rwanda, who published two pamphlets accusing the Tutsi of planning a genocide of the Hutu. During an MRND meeting in November 1992, the same Léon Mugesera called for the extermination of the Tutsi and the assassination of  Hutu opposed to the President. He made reference to the idea that the Tutsi allegedly came from Ethiopia and, hence, that after they had been killed, they should be thrown into the Rwandan tributaries of the Nile, so that they should return to where they are supposed to have come from. He exhorted his listeners to avoid the error of earlier massacres during which some Tutsi, particularly children, were spared. (references omitted).

Mugesera fled Rwanda prior to the genocide. Through a network of friends and allies, he made his way to Canada and successfully obtained resident status. In 1994, the Canadian government began proceedings to remove him from the country.

There was a long series of decision by immigration courts, culminating in an appeal to the Supreme Court of Canada, that he lost.

In the meantime, he initiated some litigation of his own, amongst other things suing the editor of this blog for defamation, a case he soon chose to abandon once he realised the energy that the lawyers of my former University in Montreal were prepared to devote to fighting the frivolous complaint.

Since the 2005 judgment of the Supreme Court, he has exhausted the remaining procedures available under Canadian law. Finally, after nearly 17 years, the end of his stay in Canada seems to be near.

The arguments about the alleged innocence of his remarks and the purported honesty of his refugee claim have now been rejected decisively and he has no more arguments in that area. His final challenge involves an attack on the Rwanda justice system. Mugesera claims that if returned to Rwanda, as the Canadian government now plans, he will be exposed to serious human rights violations.

This has been a familiar debate in recent years, with a number of related cases before national courts in Europe as well as the so-called Rule 11bis transfer decisions by the International Criminal Tribunal for Rwanda.

It seems that the tide has largely turned. Recently, the European Court of Human Rights rejected a complaint by a Rwandan who argued that if he were to be sent back by Sweden this would constitute refoulement contrary to the European Convention on Human Rights. Also last year, a Trial Chamber of the International Criminal Tribunal for Rwanda declared that improvements in the Rwandan justice system mean it was now acceptable for cases to be transferred there.

A Canadian immigration tribunal reached the same decision in early December, and it was on that basis that the proceedings to remove Mugesera in early January were undertaken.

Last week, a final attempt by Mugesera before the Federal Court of Canada was dismissed.

Then, the United Nations Committee Against Torture intervened with a provisional measures request to the Canadian government asking that deportation be suspended until the Committee can consider the merits. And a judge of the Quebec Superior Court granted a one-week interim injunction against the government.
For some accounts on the case by Canadian-based academics, see Rob Currie's blog and the posting on it by Fannie Lafontaine.  

Canadian public opinion (not to mention Rwandan public opinion) is frustrated by these delays and cannot understand why the proceedings were so protracted. In particular, newspaper editorials have been encouraging the government not to follow the provisional measures request by the Committee Against Torture. See the Globe and Mail and the Montreal Gazette.

Canadian officials have defied such requests in the past, and it will be unfortunate if the legal authority of the Committee Against Torture is further tarnished by the whole business.

Mugesera sued me back in 1997 because I said then that he should be sent back to Rwanda to answer the charges against him. When the University lawyers studied the tapes of my interviews and comments, they noted that I had consistently stated that Mugesera was presumed innocent, but that he should be put on trial in Rwanda for the serious charges against him. I haven’t changed my position by one iota.

I think his days in Canada are clearly nearing an end, although in this case one has learned to be prepared for the unexpected. We are still waiting for the Appeals Chamber of the International Criminal Tribunal for Rwanda to rule definitively on the transfer cases. Eventually, and hopefully sooner rather than later, Rwanda will be given a real opportunity to demonstrate that it can deliver fair trials. If it succeeds, an important chapter in attempts to address the 1994 genocide will be closed.

***

A postscript. In another Rwanda-related development, last week a French commission of inquiry into the famous plane crash which marks the starting point of the genocide concluded that the rocket that fired the missile came from the government military base close to Kigali airport. The report largely discredits the findings of French judge Jean-Louis Bruguière, who had promoted the thesis that the plane was shot down by RPF forces under orders from Paul Kagame. With last week’s report, that theory has lost a huge amount of traction. The Bruguière report, which was often cited by genocide deniers, is now largely discredited, and by an authoritative report from France itself.

See Linda Melvern’s column on this in The Guardian.