Kanyarukiga - JUDGEMENT AND SENTENCE - Refworld

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Judgement and Sentence 1 November 2010 Prosecution mentioned a meeting at the CODEKOKI building briefly in its Pre-Trial Brief. 1244 However, this meeting was not mentioned in either Witness CBR or Witness CDK’s summary annexed to the Prosecutor’s Pre-Trial Brief. The Chamber notes that the Defence objected to the introduction of this evidence on a number of occasions. The Chamber recalls that an accused may only be convicted of criminal conduct correctly pleaded in the indictment. 1245 The Chamber therefore will not consider this evidence in its deliberations on the basis that this is a new allegation of which the Accused has not been given sufficient notice. 451. Turning now to the evidence on its merits, Prosecution Witnesses CBR, 1246 CNJ, 1247 CBT 1248 and CDK 1249 each place the Accused at the Nyange Church on 15 April 1994 in the company of the local authorities. They each testify to seeing at least one of Kanyarukiga, Kayishema, Ndungutse and Ndahimana at the parish or the Statue of the Virgin Mary on 15 April 1994. 452. The Defence submits, both in cross-examination and in its closing brief, that not only were these four witnesses (in addition to Witness CDL) found guilty of perpetrating crimes at Nyange Parish by the Gacaca courts, but they were also incarcerated together in the Kibuye Prison and therefore should be treated with “maximum” caution. 1250 It has also been submitted by the Defence that Witnesses CBR, CNJ, CBT, CDK and CDL all took part in Gacaca sessions regarding the destruction of the Nyange Church in Kibuye Prison, which suggests collusion, and as a result, these witnesses should be treated with further caution. 1251 It is noted that a number of these witnesses admitted to taking part in Gacaca sessions regarding the events at Nyange Parish. 1252 Further, these five witnesses took part in a sensitisation program whilst in Kibuye Prison, which encouraged 1244 The Prosecutor’s Pre-Trial Brief, para. 40. 1245 Muvunyi, Judgement (AC), para. 18, citing Nahimana et al., Judgement (AC), para. 326; Ntagerura et al., Judgement (AC), para. 28; Kvočka et al., Judgement (AC), para. 33. 1246 Witness CBR testified to seeing a number of “authorities,” including Bourgmestre Ndahimana, IPJ Kayishema, businessman Gaspard Kanyarukiga, the President of the Court Habiyambere and the teacher Ndungutse. T. 9 September 2009, p. 23. He also testified to seeing Kanyarukiga at the Statue of the Virgin Mary early on the morning of 15 April 1994 and again around midday at the same place. T. 9 September 2009, pp. 16, 58. This witness identified the Accused in court. T. 9 September 2009, p. 31. 1247 Witness CNJ said that he arrived at Nyange Parish between 11.00 a.m. and 1.00 p.m. and was received by Ndahimana, Kayishema, Ndungutse, Kiragi and Habiyambere and these men congratulated them for coming as reinforcement. T. 7 September 2009, pp. 13, 56. He also stated that after the grenade attack, Habiyambere, Kayishema, Ndungutse and the Accused were present at the Statue of the Virgin Mary. T. 7 September 2009, pp. 16-17. This witness identified the Accused in court. T. 7 September 2009, p. 35. 1248 Witness CBT saw a number of “authorities” at the Nyange Parish, including Kanyarukiga, Habiyambere, Gaca Butelezi (a presiding judge), IPJ Kayishema and Télesphore Ndungutse. T. 14 September 2009, p. 40. Witness CBT saw the Accused on 15 April 1994 in a group of “officials” saying to these people that all inyenzi who were seeking refuge at the Nyange Church had to be killed. T. 14 September 2009, pp. 46, 49. This witness identified the Accused in court. T. 14 September 2009, pp. 49-50. 1249 Witness CDK saw the Accused, Kayishema, and Ndahimana together with those people that were gathered in the square at the Statue of the Virgin Mary. Kanyarukiga met with the people who were at the square and he talked with them, prior to the attacks on the morning of 15 April 1994. Witness CDK also saw Kanyarukiga around the time that the grenade was thrown. T. 16 September 2009, pp. 6-7. This witness identified the Accused in court. T. 16 September 2009, p. 13. 1250 Defence Final Brief, paras. 326-329. 1251 The Defence submits that there is direct evidence of collusion between these witnesses and Witness CDL. Defence Final Brief, para. 328. The Chamber has not been provided with any direct evidence of collusion. 1252 Defence Final Brief, paras. 328-329; Witness CDL, T. l0 September 2009, pp. 73-74; Witness CNJ, T. 8 September 2009, pp. l0-12; Witness CDK, T. l6 September 2009, p. 21; Witness CNJ, T. 8 September 2009, pp. 10-11; Witness CBR, T. 9 September 2009, pp. 49-52. See also Defence Exhibit D28 (List of Protected Names shown to Witness CDL); Defence Exhibit D46 (List of Protected Names shown to Witness CDK); Defence Exhibit D18 (List of Protected Names shown to Witness CNJ); Defence Exhibit D25 (List of Protected Names shown to Witness CBR); Defence Exhibit D41 (List of Protected Names shown to Witness CBT). See also Personal Identification Sheets of Witnesses CDK, CNJ, CBR, CDL, CBT. The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-T 107
Judgement and Sentence 1 November 2010 prisoners to confess their crimes and provide details of others who took part in those crimes in order to reduce their sentences. 1253 453. The Chamber recalls its discussion of the jurisprudence regarding accomplice evidence. 1254 The Chamber has concerns about the effect that the Gacaca sessions and sensitisation program may have on the testimony of these witnesses. Specifically, the Chamber regards Witnesses CBT, CDL and CNJ with greater caution than Witnesses CBR and CDK. There is evidence that Witness CDL was more involved in the attacks than he testified to, which the Chamber believes may influence the extent to which he implicates the Accused in the attacks on 15 April 1994. 1255 The Chamber has discussed its concerns with regard to Witness CNJ and CBT in paragraphs 468 and 496, which are serious in the Chamber’s view. With these concerns in mind, the Chamber is extremely cautious with regard to these two witnesses. However, while the Chamber is mindful of the witnesses’ incarceration together and treats their evidence with caution, it does not believe that this fact alone invalidates their testimony. 454. Witness YAU corroborates that Kanyarukiga was at the church on the morning of 15 April 1994. 1256 Although this witness identified the Accused in court, 1257 the Chamber has serious reservations with regard to this witness and believes that she lends only corroborative value to the evidence that Kanyarukiga was present at Nyange Church on the morning of 15 April. The Chamber will look to more credible witnesses for corroboration of Kanyarukiga’s presence. 455. The Chamber notes that Witnesses CBK, CBN, CBS, and CBY, who are not accomplices to the attacks in Nyange, also place Kanyarukiga at Nyange Parish on the morning of 15 April 1994. Witness CBK placed the Accused at the Nyange Parish on 15 April 1994 1258 along with Bourgmestre Ndahimana, IPJ Kayishema, Brigadier Christophe Mbakirirehe and Father Seromba who were all “heading” the assailants. 1259 In addition, Witness CBK provides evidence that Kanyarukiga, along with Grégoire Ndahimana, IPJ Kayishema, Brigadier Christophe Mbakirirehe and Anastase Rushema, met with the Hutu assailants prior to the attacks on 15 April 1994 in the Nyange Parish grounds and subsequent to this, the assailants launched grenades and shot at the church. 1260 Witness CBN gave evidence that Kanyarukiga was with the assailants opposite Kanyarukiga’s pharmacy between 9.00 and 10.00 a.m. on 15 April 1994. 1261 Witness CBS also saw the Accused at the Statue of the Virgin Mary in the company of Ndahimana and Rushema during 1253 Witness CBR, T. 9 September 2009, pp. 48, 49; Witness CNJ, T. 7 September 2009, p. 55; Witness CBT, T. 14 September 2009, p. 49; Witness CDK, T. 16 September 2009, p. 20. Witness CDL is also an accomplice and admitted to this. T. 10 September 2009, pp. 71-72, 74. 1254 See paragraph 49. 1255 Witness CNJ, T. 7 September 2009, pp. 25-26; Witness CBT, T. 14 September 2009, p. 27 (CS); Witness CDK, T. 16 September 2009, p. 48. Witness CBR also gave evidence with regard to Witness CDL, however the Chamber does not reference it here for witness protection reasons. 1256 T. 15 September 2009, pp. 18-19. The witness refers to Kanyarukiga being at the church on the morning of the “third day” as this witness does not give dates during her testimony. The Chamber has inferred that Witness YAU’s account of the “third day” relates to 15 April 1994. 1257 T. 15 September 2009, pp. 30-31. 1258 T. 3 September 2009, pp. 7, 9. Witness CBK positively identified the Accused in court. T. 3 September 2009, pp. 37-38. 1259 T. 3 September 2009, p. 7-8. 1260 T. 3 September 2009, p. 9. 1261 T. 1 September 2009, pp. 61, 64. The Chamber notes that in his statement dated 2 February 1996, Witness CBN said that he saw Kanyarukiga every day the witness was at the Nyange Church. Defence Exhibit D4 (Statement of Witness CBN dated 2 February 1996), p. 4. Witness CBN also testified that he saw the Accused with Kayishema and Mbakirirehe opposite Kanyarukiga’s pharmacy during the attacks on the morning of 15 April 1994, however, this witness then went on to say that he saw Kanyarukiga only once on 15 April. T. 1 September 2009, pp. 61, 64. The Chamber has considered this. The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-T 108
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