Kanyarukiga - JUDGEMENT AND SENTENCE - Refworld

Judgement and Sentence 1 November 2010
only a few hours after the church had been destroyed and after the killings had ended. 286 In other
words, Kanyarukiga was absent, according to the Defence evidence, exactly during the time the
events in the Amended Indictment are alleged to have taken place.
127. The Chamber notes that for each part of his trip and each location Kanyarukiga visited, the
Defence presented one or two witnesses who remember having seen him. There is no gap in the
evidence, which the Chamber expects would occur naturally 16 years after the event. Similarly, the
Chamber does not believe that, as the Defence alibi witnesses attest, Kanyarukiga would spend five
days attempting to rescue his family in the circumstances that existed in April 1994. In particular,
the Chamber does not accept that Kanyarukiga spent five days, including three days being
stationary in Gitarama, on a journey that could have been completed in one or two, 287 when
according to the evidence of the Defence witnesses, urgency was required to “evacuate”
Kanyarukiga’s family from Ndera. 288
128. The profile of the alibi witnesses further supports the Chamber’s view that the alibi cannot
reasonably be true. Ten of the thirteen Defence witnesses who testified as to the whereabouts of
Kanyarukiga during the relevant period were either related to the Accused, had business or other
relationships with the Accused or depended financially on the Accused. 289 All these witnesses have
an interest in a positive outcome for the Accused in this trial. For example, Witness
Nshogozabahizi, who is the Accused’s son, stated that he believes Kanyarukiga is unjustly accused
and believes he should be freed. 290 Further, Witness KG45 testified that, she has always been
grateful to Kanyarukiga and she responded affirmatively to questioning that suggested that she
would willingly help Kanyarukiga if she could. 291 With regard to the three remaining Defence
witnesses, the Chamber does not believe they are credible given their evidence, which fits
extraordinarily neatly into the alibi “story”. 292 The first of these is Witness Ndaberetse, who gave
three different explanations as to why he and Kanyarukiga took a different route back to Gitarama
286
See “Evidence” section above. Defence Witnesses KG45, KG59, Nshogozabahizi, KG18, Rukabyatorero,
Ndaberetse, Mutoneshwa, Muhayimana, KG55, KG44, KG46, Hitimana, Sebisukiro and KG24 provide evidence in
favour of the alibi for these dates.
287 See Registry Exhibit R4 (Kanyarukiga Mission Report), p. 2.
288 Witness Nshogozabahizi testified that, when Kanyarukiga left Nyange, he had sworn that he would do everything
possible to go and evacuate the family members who were in Ndera. T. 3 February 2010, p. 28. Witness KG45 testified
that Kanyarukiga told her he was going to evacuate his family from Ndera. T. 21 January 2010, pp. 61, 70, 77 (CS). See
Kalimanzira, Judgement (AC), para. 68 (finding no error in the Trial Chamber’s rejection of Kalimanzira’s claim that
he remained overnight in Kibungo due to security reasons).
289 Witness KG45, T. 21 January 2010, pp. 59, 62, 66, 67, 68-69 (CS); Witness KG59, T. 25 January 2010, p. 9 (CS);
Witness Nshogozabahizi, T. 3 February 2010, pp. 22, 51-52; Witness KG18, T. 10 February 2010, p. 8 (CS); Witness
Rukabyatorero, T. 2 February 2010, pp. 26-27; Witness Mutoneshwa, T. 21 January 2010, pp. 49, 53 (This witness is
Witness Muhayimana’s daughter, which also indicates that she has a close association with the Accused via her mother.
T. 20 January 2010, pp. 4, 30); Witness Muhayimana, T. 20 January 2010, pp. 2-3, 21; Witness KG55, T. 19 January
2010, pp. 37, 39 (CS); Witness Sebisukiro, T. 25 January 2010, pp. 31-32; Witness KG24, T. 2 February 2010, pp. 6-7,
10 (CS). Each witness admitted to having a personal, business or other close relationship with the Accused. See also
Kalimanzira, Judgement (AC), para. 70 (“Even if the Trial Chamber incorrectly characterized Witness Siniyobewe as a
friend rather than a former subordinate, the Appeals Chamber considers that a degree of caution would still apply to
Witness Siniyobewe’s testimony.”).
290 Witness Nshogozabahizi testified that he loves Kanyarukiga and said that all children love their fathers. He testified
that he knows very well that Kanyarukiga is unjustly being accused. The witness testified that he would like to see
Kanyarukiga free, because if he is freed and released then justice will have been served and because he knows that
Kanyarukiga is innocent before God and before the law. T. 3 February 2010, pp. 51-52.
291 T. 21 January 2010, pp. 63, 66.
292 The remaining witnesses who the Chamber finds not credible are Witnesses Ndaberetse, KG44 and KG46.
The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-T 29