Kanyarukiga - JUDGEMENT AND SENTENCE - Refworld

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Judgement and Sentence 1 November 2010 469. Defence Witnesses Mutume, Sibomana, KG45 and Tugirumukiza testified that they saw that Kanyarukiga’s pharmacy was closed on 15 April 1994. 1298 Each of these witnesses testified that they knew who Kanyarukiga was. 1299 The Chamber notes that two of these witnesses were young and lived close to Kanyarukiga in April 1994, but aside from this fact, the Chamber sees no reason to discount the evidence of Witnesses Mutume, Sibomana, and Tugirumukiza with regard to the closure of Kanyarukiga’s pharmacy. The Chamber note, however, it has found that Witness KG45 not credible in its discussion of alibi. 1300 470. Thus, given Witnesses CDK and CNJ’s evidence is uncorroborated and also partially contradicted by the Defence evidence, the Chamber finds that it has not been established beyond reasonable doubt that wounded assailants were treated at Kanyarukiga’s pharmacy. 471. Witness CDK provided evidence that he heard the Accused say to the attackers at Nyange Church on 15 April 1994 that they had to fight the inyenzi, which the witness testified was a reference to the Tutsi in the church. 1301 Witness CDK also gave evidence that Kanyarukiga approached the witness and those he was with and asked them to prepare and collect stones so they would be able to fight the Tutsi who had also gathered stones to attack. 1302 The Chamber notes that Witness CDK also testified that during the day of 15 April 1994, he saw the Accused moving amongst the members of the population “giving them instructions” and in the company of Kayishema and Ndahimana. 1303 These pieces of evidence are not corroborated by any other witness. The Chamber recalls that Witness CDK is one of the five Prosecution witnesses who were incarcerated together, the credibility of whom the Chamber has considered earlier in its deliberations. Given the Chamber has found that it cannot rely on this witness without corroboration from other credible evidence, the Chamber does not find it established, beyond reasonable doubt that Kanyarukiga said to the attackers that they had to fight the inyenzi or that Kanyarukiga was giving instructions to the attackers. 472. Witness CBR testified that Kanyarukiga was with Ndahimana when Ndahimana stated that the attackers were to “start working” and “begin work”, which was understood to mean “kill the Tutsi”. 1304 The Chamber notes its discussion of this witness and his credibility in paragraphs 591 to 595. Given the Chamber’s view that Witness CBR is generally credible, it finds it established that Kanyarukiga was with Ndahimana when he asked the attackers to “start working” or “begin work”. 473. Witness CDK recounted that he saw Kanyarukiga speaking to Rukara prior to the grenade being thrown. After this discussion, a ladder was found and Rukara used this ladder to climb on top of Kanyarukiga’s pharmacy and subsequently Rukara threw a grenade, which resulted in Tutsi “losses”. 1305 The Chamber recalls that Witness CDK was an accomplice to the attacks on 15 April 1994 and has therefore treated his evidence with caution. The Chamber further notes that there is no direct corroboration of Witness CDK’s testimony. While Witness CNJ provided some support for Witness CDK’s evidence when he testified that he saw Kanyarukiga at the Statue of the 1298 Witness Mutume, T. 27 January 2010, p. 31; Witness Sibomana, T. 1 February 2010, p. 30; Witness Tugirumukiza, T. 1 February 2010, p. 57. Witness KG45 testified to Kanyarukiga’s pharmacy being closed from 14 April to 21 or 22 April 1994. T. 21 January 2010, pp. 60-62, 70, 71 (CS). 1299 Witness Mutume testified that he lived near Kanyarukiga in Gaseke cellule in Ngobagoba secteur and has known Kanyarukiga since he was young. T. 27 January 2010, p. 27. Witness Sibomana testified that he has known Kanyarukiga since he was young. T. 1 February 2010, p. 26. Witness Tugirumukiza also testified that he has known Kanyarukiga since the witness was young. T. 1 February 2010, p. 52. 1300 See discussion at paragraphs 126 to 129. 1301 T. 16 September 2009, p. 7. 1302 T. 16 September 2009, p. 6. 1303 T. 16 September 2009, pp. 6, 7-8. 1304 T. 9 September 2009, pp. 18-19, 22-23. 1305 T. 16 September 2009, p. 6. The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-T 113
Judgement and Sentence 1 November 2010 Virgin Mary when the grenade attacks occurred, the Chamber regards Witness CNJ with extreme caution. 1306 474. While the Chamber recalls that Witness CBN, who the Chamber regards as credible, testified that he saw Kanyarukiga at the Statue of the Virgin Mary when the grenade was thrown, 1307 the Chamber has doubts with regard to this witness’s testimony in this particular instance. Firstly, the site visit illustrated to the Chamber that the distance from the Nyange Parish to the Statue of the Virgin Mary was not insignificant. 1308 Secondly, given the evidence provided by both Prosecution and Defence witnesses that there was chaos during the attacks on the morning of 15 April, 1309 as well as the evidence suggesting that the grenade was thrown between the parish and the statue, 1310 the Chamber has doubts as to whether Witness CBN would have seen Kanyarukiga standing at the statue from the witness’s vantage point at the parish. Further, Witness CBT testified that he did not see Kanyarukiga at all when the grenade was thrown. 1311 Although the Chamber does not regard Witness CBT favourably, given Witness CBT took part in the attacks on 15 April, this testimony adds to the Chamber’s overall doubts. Therefore, while the Chamber accepts that it is possible, based on Witness CBN’s evidence, that Kanyarukiga was present when the grenade was thrown, the Chamber is not satisfied that the Prosecution has proven beyond reasonable doubt that Kanyarukiga was present or that he was speaking to Rukara prior to the throwing of the grenade. Attacks on and attempted burning of Nyange Church later on 15 April 475. Paragraph 15 of the Indictment alleges that there was an attack on the church itself on 15 April, including an attempt to burn the Tutsi taking refuge in the church. This paragraph alleges that this attack was ordered, instigated, supervised and aided and abetted by Kanyarukiga, Kayishema, Ndungutse and Ndahimana. Prosecution Witnesses CBY, CBK, CBR, CNJ, CDK and CBT provide evidence that the Nyange Church was attacked again on 15 April 1994, when assailants unsuccessfully attempted to destroy the church by setting it alight with Tutsi having locked themselves inside. 1312 The Defence does not appear to dispute the occurrence of the further attacks on 15 April 1994; however the Defence does dispute the credibility of the Prosecution witnesses. Therefore, the Chamber finds that an attempt was made by assailants at the Nyange Church to destroy the Church by trying to set it alight. 476. Witnesses CBR and CDK attest to communal policemen shooting at the church after the Tutsi had locked themselves inside. 1313 Witnesses CBT, CBR and CNJ provide evidence as to the use of dynamite as a means of attacking the Nyange Church itself, while the Tutsi were taking 1306 T. 7 September 2009, pp. 15-16. 1307 T. 1 September 2009, p. 62. 1308 T. 20 April 2010, pp. 35-38, Registry Exhibit R4 (Kanyarukiga Mission Report), p. 2. 1309 Witness Sibomana, T. 1 February 2010, p. 41. 1310 Witness CBK stated that the grenade was thrown from the building that housed the Caritas restaurant. T. 3 September 2009, p. 18. See also Witness CNJ, T. 7 September 2009, p. 16. Witness CBY notes that the grenade was thrown from the roof of a building of the lower side of the parish, which was not far from the Caritas building. T. 14 September 2009, p. 17. The Chamber notes that the English transcript says “Caratis” while the French transcript says “Caritas”. French Transcript, T. 8 September 2009, p. 19. It is generally accepted that the Caritas building was part of the row of buildings in the Nyange Trading Centre. T. 20 April 2010, p. 38. See also the evidence provided by the aforementioned witnesses. 1311 T. 14 September 2009, p. 73. 1312 Witness CBY, T. 8 September 2009, p. 47; Witness CBK, T. 3 September 2009, pp. 7, 18, 23; Witness CBR, T. 9 September 2009, pp. 27, 65; Witness CNJ, T. 7 September 2009, pp. 19-20, 22, 31; T. 8 September 2009, pp. 4-5; Witness CDK, T. 16 September 2009, pp. 8, 35; Witness CBT, 14 September 2009, pp. 47-48, 73; T. 15 September 2009, p. 1. 1313 Witness CBR, T. 9 September 2009, p. 27; Witness CDK, T. 16 September 2009, p. 8. Witnesses CBK and CBT also mentioned that the church was shot or fired at. T. 3 September 2009, pp. 9, 18; T. 15 September 2009, p. 1. The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-T 114
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