Kanyarukiga - JUDGEMENT AND SENTENCE - Refworld

Judgement and Sentence 1 November 2010
annexed witness summaries or the opening statement. 579 However, a clear distinction must be
drawn between vagueness in an indictment and an indictment omitting certain charges altogether. 580
239. The Chamber notes that paragraphs 11 and 12 of the Amended Indictment charge the
Accused with participation in two particular meetings at the Nyange Parish prior to 15 April 1994.
Because the Amended Indictment is unambiguous with respect to the number of meetings that the
Accused is alleged to have attended, the Prosecution cannot “cure” the Indictment by including
additional meetings in its subsequent submissions. Hence, the Chamber will not rely on any
Prosecution evidence that does not relate to one of the two meetings specifically charged in the
Amended Indictment. The Chamber acknowledges, however, that certain Prosecution evidence,
while possibly at variance with the specific pleading in the Amended Indictment, could relate to one
of the meetings charged in paragraphs 11 and 12 thereof. Thus, the Chamber shall consider the
Prosecution evidence on a case-by-case basis to determine whether it relates to these two particular
meetings.
(a) Meeting at the Presbytery on 10 April 1994
240. Prosecution Witness CBY testified that Kayishema, Ndungutse, Ndahimana and
Kanyarukiga met Father Seromba at the inner courtyard of the Nyange Parish Presbytery on
10 April 1994. 581 The Chamber finds that the date, venue and participants given by the witness
closely track those alleged in paragraph 11 of the Amended Indictment. Thus, the Chamber is
satisfied that this evidence relates to the meeting charged in paragraph 11 of the Amended
Indictment and shall consider it in its deliberations below.
(b) Meetings on 8, 9 and 11 April 1994
241. Prosecution Witness CBY also testified that the Accused attended meetings in the courtyard
of the Nyange Parish Presbytery on 8, 9 and 11 April 1994. 582 The Amended Indictment does not
mention any meetings on 8, 9 or 11 April 1994. While the Chamber acknowledges that each of
these meetings could fall within the timeframe alleged in paragraph 11 of the Amended Indictment,
the Accused is only charged with attending one meeting “on or about 10 April 1994.” Considering
Witness CBY’s testimony about the meeting on 10 April 1994 more closely matches the allegation
in the Amended Indictment, the Chamber has disregarded the evidence of meetings on 8, 9 and 11
April 1994.
579 Bagosora et al., Decision on Aloys Ntabakuze’s Interlocutory Appeal on Questions of Law Raised by the 29 June
2006 Trial Chamber I Decision on Motion for Exclusion of Evidence (AC), para. 35; Niyitegeka, Judgement (AC), para.
197. See also Muhimana, Judgement (AC), para. 82. Accord Karera, Judgement (AC), para. 297; Muvunyi, Judgement
(AC), para. 97. The Chamber notes that many of the “disclosures” upon which the Prosecution relies to “cure” the
indictment, including witness statements, confession statements and the witnesses’ testimony in the Seromba trial, predate
the Amended Indictment.
580 Karera, Judgement (AC), para. 293. In Karera, the Appeals Chamber found that, where the amended indictment
contained allegations of two particular incidents of weapons distribution in locations other than Rushashi, the inclusion
of a third incident in Rushashi in the Prosecution’s pre-trial brief, annexed witness summaries and opening statement
did not cure a vague paragraph in the indictment. Rather, it expanded the charges specifically pleaded in the indictment
by charging an additional incident of weapons distribution in Rushashi. The Appeals Chamber found that this was “an
impermissible de facto amendment of the Amended Indictment.” Karera, Judgement (AC), paras. 295-296.
581 T. 8 September 2009, p. 35.
582 T. 8 September 2009, pp. 34-36 (illustrating that the Defence did not object during Witness CBY’s testimony on
these meetings).
The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-T 55