Kanyarukiga - JUDGEMENT AND SENTENCE - Refworld

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Judgement and Sentence 1 November 2010 Habiyambere, Murangwabugabo, Habarugira and Father Seromba talking in front of Seromba’s office. 1598 He did not hear what they were saying nor did he see them enter the presbytery. 1599 Witness CDL, who testified that he arrived at the parish with Ndahimana between 7.00 and 8.00 a.m., agreed that other people, including Seromba, police, gendarmes and reservists, were already present. 1600 Witness CDL testified that he spoke to Ndahimana, Seromba and the others who were with them. 1601 575. Witnesses CBR and CDL both testified that after these discussions, Bourgmestre Ndahimana initiated the day’s attacks by firing a gun in the direction of the church. 1602 According to Witness CBR, this occurred around 8.00 a.m. and Kanyarukiga, Kayishema, Ndungutse, Habiyambere, Murangwabugabo and Habarugira were standing near Ndahimana when the shots were fired. 1603 Witness CDL testified that he was at the parish during this time, and after Ndahimana fired the first shots, police and others with firearms followed suit. 1604 Witness CDL did not see Kanyarukiga at this time. 1605 576. The Chamber recalls that Witnesses CBR and CDL both participated in the attacks on the Nyange Parish and were detained together at the Kibuye Prison, where they participated in the same Gacaca sessions. 1606 Therefore, the Chamber has treated their evidence with appropriate caution. However, the fact that these witnesses are accomplices does not necessarily render their testimony unreliable. Indeed, the Chamber finds that as participants in the attacks, these witnesses were inherently well placed to observe the scene outside the Nyange Church on 16 April 1994. The Chamber has found that Witness CBR’s evidence, in particular, was detailed and consistent. Further, while the Chamber has generally treated the evidence of Witness CDL with extreme caution due to concerns that the witness may have an interest in deflecting responsibility onto the Accused, the Chamber notes that, in this instance, the witness incriminated himself by testifying that he was with Ndahimana when Ndahimana fired on the church. Thus, based on their combined testimony, the Chamber is satisfied that certain “authorities,” including Father Seromba and Bourgmestre Ndahimana, were present at the Nyange Parish before 8.00 a.m. on 16 April 1994 and were talking in front of Seromba’s office. The Chamber is also satisfied that Bourgmestre Ndahimana fired shots in the direction of the Nyange Church around 8.00 a.m., initiating the day’s attacks. 577. Only Witness CBR placed Kanyarukiga at the parish during these events. While the Chamber is generally satisfied that Witness CBR provided a detailed and consistent account of the events he experienced on 16 April 1994, it finds that in view of Witness CDL’s conflicting testimony, it cannot rely on Witness CBR’s uncorroborated evidence to establish that Kanyarukiga was at the Nyange Parish before 9.00 or 10.00 a.m. Rather, given Witness CDL’s testimony that he accompanied Ndahimana on the morning of 16 April 1994, the Chamber finds that, had Kanyarukiga also been near the bourgmestre, Witness CDL would have seen him. 1598 T. 9 September 2009, pp. 29-30. 1599 T. 9 September 2009, p. 31; T. 10 September 2009, p. 9. 1600 T. 10 September 2009, p. 35. 1601 T. 10 September 2009, p. 35. 1602 Witness CBR, T. 9 September 2009, p. 32; Witness CDL, T. 10 September 2009, p. 35; T. 11 September 2009, p. 18. 1603 T. 9 September 2009, p. 32; T. 10 September 2009, pp. 9, 11. 1604 T. 10 September 2009, pp. 35-36, 38 (line 32), 39 (line 20); T. 11 September 2009, p. 18. 1605 T. 11 September 2009, p. 18. 1606 Witness CNJ, T. 8 September 2009, pp. 10-11; Defence Exhibit D18 (List of Protected Names shown to Witness CNJ); Witness CBR, T. 9 September 2009, pp. 49-52; Defence Exhibit D25 (List of Protected Names shown to Witness CBR); Witness CDL, T. 10 September 2009, pp. 72-75; Defence Exhibit D28 (List of Protected Names shown to Witness CDL). See also Personal Identification Sheets of Witnesses CNJ, CDL and CBR. The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-T 139
Judgement and Sentence 1 November 2010 578. In crediting Witness CDL’s evidence on this point, the Chamber has considered that while Witness CDL claimed to be a bystander, other witnesses identified him as a key player in the attacks on 15 and 16 April 1994. 1607 Given that Witness CDL is still serving time in Rwanda for crimes related to the events of 1994, 1608 he could have personal motivations to implicate the Accused while minimising his own role in the attacks. 1609 With respect to these particular events, however, Witness CDL has done exactly the opposite; he has placed himself at the parish with Bourgmestre Ndahimana while acknowledging that he did not see the Accused until later. 579. For these reasons, the Chamber finds that it has not been established beyond reasonable doubt that Kanyarukiga was at the Nyange Parish during the gathering before 8.00 a.m. or when Ndahimana fired at the church. 580. Witnesses CBR, CDL, CBK and CBY testified that Kanyarukiga also attended a meeting at the Nyange Parish later in the morning on 16 April 1994. 1610 According to Witness CBR, Ndahimana, Kanyarukiga, Kayishema, Ndungutse, Habiyambere, Murangwabugabo and Habarugira returned to Father Seromba’s office between 9.00 and 10.00 a.m. 1611 Witness CDL also placed the meeting near the secretariat. 1612 He testified that Ndahimana, Kayishema, Habiyambere, Kanyarukiga, Ndungutse, Gilbert Kanani and others informed Father Seromba of the decision to destroy the church 1613 and that Seromba accepted the decision because it was the only way to eliminate the Tutsi. 1614 Witness CBK agreed that Kanyarukiga, Kayishema and others met with Father Seromba on the morning of 16 April 1994 but said that they talked in the inner courtyard of the presbytery and then went upstairs to the bishop’s room. 1615 Witness CBY confirmed that the “authorities” had a meeting with a priest on the morning of 16 April 1994, but he did not say where. 1616 581. The Chamber notes that, while the witnesses disagreed somewhat over the exact venue of the meeting and its participants, they corroborated each other by giving evidence that: a meeting was held at the Nyange Parish on the morning of 16 April 1994, as alleged in paragraph 17 of the 1607 See, e.g., Witness CBK, T. 2 September 2009, p. 70; T. 3 September 2009, p. 9; Witness CDL, T. 11 September 2009, p. 23; Witness CNJ, T. 7 September 2009, p. 25; Witness CBS, T. 16 September 2009, p. 4. The Trial Chamber has omitted other similar references for witness protection reasons. The Chamber recalls that Witness CDL testified that he was a spectator during the events on 16 April 1994 and only pled guilty because he did not do anything to assist the victims of the attacks. T. 11 September 2009, p. 23. Given the narrow parameters of this alleged confession, the Chamber finds that the witness could have an incentive to minimise his involvement in the attacks in order to avoid additional charges. 1608 Order for Transfer of Detained Witnesses CDL and CDK, 20 August 2009; T. 10 September 2009, pp. 55, 60 (CS). 1609 Along these lines, the Chamber does not believe Witness CDL’s testimony that he left the Nyange Parish during the demolition of the church in order to check on something at a school and to see the parents of a boy who had allegedly been left at the parish. T. 10 September 2009, p. 43. The Chamber is concerned that this story may have been concocted to take the witness away from the parish during the height of the demolition. 1610 Witness CBR, T. 9 September 2009, p. 32; Witness CDL, T. 10 September 2009, pp. 38-39, 51-52; Witness CBK, T. 3 September 2009, pp. 25-26; Witness CBY, T. 8 September 2009, p. 47. 1611 T. 9 September 2009, p. 32; T. 10 September 2010, p. 9. 1612 T. 10 September 2009, pp. 51-52; Prosecution Exhibit P55 (Coloured Photocopy of Nyange Church Secretariat Photo K027-1655). 1613 T. 10 September 2009, pp. 51-52. 1614 T. 10 September 2009, pp. 36, 38-39. The Chamber notes that page 36 of the transcript only refers to meetings at the pharmacy, which have been excluded for notice. However, it also says that Father Seromba agreed to the demolition “since there were no other means whereby they could destroy the Tutsis.” T. 10 September 2009, p. 36. Witness CDL testified elsewhere, however, that the decision to destroy the church was communicated to Seromba at the parish. T. 10 September 2009, pp. 51-52. Therefore, the Chamber has used the evidence from page 36 of the transcript to the extent to which it relates to informing Seromba of the decision to destroy the church. 1615 T. 3 September 2009, p. 25. 1616 T. 8 September 2009, p. 47. According to his earlier testimony, the witness appears to be referencing Kayishema, Ndungutse, Ndahimana, “Théodomir” and Kanyarukiga. T. 8 September 2009, pp. 44-46. The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-T 140
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CHAPTER IV: LEGAL FINDINGS ........
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