Kanyarukiga - JUDGEMENT AND SENTENCE - Refworld

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Judgement and Sentence 1 November 2010 Withholding of Food from the Tutsi 315. The Prosecution alleges that the Tutsi who sought refuge at the Nyange Parish were denied food and water prior to the demolition of the church. 801 The Prosecution relies on the testimony of Witnesses YAU and CBS to support this allegation. 802 316. Witness YAU was the only Prosecution witness to implicate the Accused in events related to the denial of food at the Nyange Parish. Witness YAU testified that, the day after she arrived at the Nyange Parish, Gaspard Kanyarukiga and Fulgence Kayishema asked the Tutsi to give them money so that they could buy food for those who had sought refuge at the parish. 803 According to the witness, the Tutsi never received any food from Kayishema or Kanyarukiga. 804 317. The Chamber is mindful that Witness YAU is a survivor of the massacres at the Nyange Parish and presumably an eye-witness to the events that transpired at that location. At the same time, the witness’s testimony lacks detail and is called into question by her inability to recall dates or the chronology of particular events. 805 The Chamber notes that the witness appeared confused throughout her testimony and failed to recognise or recall several of her prior statements. 806 According to her September 1996 pro-justitia statement, for example, Witness YAU told IPJ Siméon Muragizi that, on 14 April 1994, Father Kayiranga asked the Tutsi for money so that he could buy them food and flour for porridge. 807 Witness YAU denied having made this statement during cross-examination and, 808 when confronted with a copy of the document, responded, “[f]or me, this is like a dream … I’m telling you what I know about those events, but I really don’t know what you’re talking about here.” 809 Having considered her evidence as a whole, the Chamber is concerned that Witness YAU may still be traumatised by the events that she experienced in April 1994 and that her testimony is therefore insufficiently reliable to support a finding of fact without corroboration. 318. In this instance, Witness YAU’s evidence was not only uncorroborated but also inconsistent with that of Witness CBN, who attested that it was Father Kayiranga and another priest who collected money from the Tutsi at the parish. 810 In view of these irregularities, the Chamber finds 800 The Chamber finds it unnecessary to determine exactly who disarmed the Tutsi at the parish on 13 April 1994. 801 Prosecutor’s Final Trial Brief, paras. 122-124. 802 Prosecutor’s Final Trial Brief, paras. 123-124. 803 T. 15 September 2009, pp. 12-13, 40-42. 804 T. 15 September 2009, pp. 12, 40. 805 See, e.g., T. 15 September 2009, p. 10 (Witness YAU could not remember the date on which President Habyarimana died.); T. 15 September 2009, p 11 (Witness YAU could not recall the day or date on which Kayishema and Kanyarukiga transported Tutsi to the parish nor could she recall how many days she stayed at the Nyange Church.); T. 15 September 2009, p. 14 (Witness YAU could not recall on which day after her arrival the Tutsi were disarmed and Kanyarukiga and Kayishema threw food on the ground.); T. 15 September 2009, pp. 15-16 (Witness YAU mixed information about the different attacks that were launched against the Tutsi.); T. 15 September 2009, p. 32 (“For my entire life, I have never been interested in dates. I remember that even at the very beginning of my evidence I had to ask for today’s date.”); T. 15 September 2009, p. 36 (stating that she did not remember the day when the President died), 41 (“I never remember dates.”); T. 15 September 2009, p. 43 (With regard to her testimony in the Seromba trial in 2004, Witness YAU stated, “Counsel, do not ask me questions regarding my evidence in Seromba’s trial which took place last year.”); T. 15 September 2009, p. 44 (“I know that the attack in question took place but I cannot tell you whether it was on the first day, the second day or the third day after my arrival at the parish.”). 806 See, e.g., T. 15 September 2009, pp. 35, 41, 43, 47-49, 52, 54. 807 T. 15 September 2009, pp. 51-52; Defence Exhibit D45 (Pro-Justitia of Witness YAU dated 1 October 2004). 808 T. 15 September 2009, pp. 48-49. 809 T. 15 September 2009, p. 52. 810 T. 2 September 2009, pp. 14-16. The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-T 75
Judgement and Sentence 1 November 2010 that it cannot rely on Witness YAU’s uncorroborated testimony to establish that Kanyarukiga was involved in collecting money from the Tutsi at the parish. 811 319. Witness YAU also testified that, at some point, a nun named Sister Jean or Mama Yohani tried to give rice and beans to the Tutsi civilians who had gathered at the parish. 812 According to Witness YAU, Mama Yohani brought the food out, but Kayishema and Kanyarukiga poured it on the ground. 813 Witness YAU was the only witness to testify about this event. Indeed, Witness CBS, also a Tutsi survivor of the events at the parish, categorically denied that this incident occurred. 814 Given the lack of corroboration for Witness YAU’s evidence, the Chamber finds that the Prosecution has not established that Kanyarukiga and Kayishema poured food intended for the Tutsi onto the ground. 320. Finally, Witness CBS testified that Father Seromba instructed the gendarmes at the parish to shoot anyone who ventured into the parish banana plantation. 815 Witness CBN corroborated Witness CBS’s account, testifying that, on 14 April 1994, Father Seromba instructed gendarmes to shoot any Tutsi who tried to collect bananas from the parish plantation. 816 Witnesses CBS and CBN are both Tutsi survivors of the events at the Nyange Parish. The Chamber finds that these witnesses provided detailed, consistent and corroborative testimony regarding the Tutsi civilians’ attempts to obtain food prior to the massacres on 15 and 16 April 1994. As discussed further in paragraphs 456 to 458, the Chamber has found both witnesses credible. Thus, based on their evidence, the Chamber accepts that there were gendarmes at the Nyange Parish after 12 April 1994 and that Father Seromba instructed them to shoot any Tutsi who tried to take bananas from the parish banana plantation. Attacks on 13 and 14 April 1994 321. The Prosecution alleges that Hutu assailants attacked the Tutsi at the Nyange Parish on 13 and 14 April 1994. 817 The Defence submits that, by removing references to events on these dates 811 While the Chamber accepts that money may have been collected from the Tutsi for the alleged purpose of purchasing food, it finds that the evidence is inconclusive with respect to the date and persons involved. Indeed, the Chamber notes that, while Witness CBN testified that Father Kayiranga was involved in collecting money from the Tutsi on 14 April 1994, other evidence suggests that Father Kayiranga did not arrive at the parish until 15 April 1994. See, e.g., Witness YAU, T. 15 September 2009, p. 18; Witness KG15, T. 11 February 2010, pp. 16, 28, 37 (CS). See also Witness CBS, T. 17 September 2009, p. 37. 812 T. 15 September 2009, pp. 14, 42. The Chamber recalls that, on 15 January 2010, it denied a Defence request to exclude Witness YAU’s testimony that Kanyarukiga poured food intended for the Tutsi at the parish onto the ground. Decision on Defence Motion for a Stay of the Proceedings or Exclusion of Evidence Outside the Scope of the Indictment (TC), 15 January 2010, para. 40. On 23 March 2010, the ICTR Appeals Chamber upheld the Trial Chamber’s decision. Kanyarukiga, Decision on Gaspard Kanyarukiga’s Interlocutory Appeal of a Decision on the Exclusion of Evidence (AC), 23 March 2010, para. 11. 813 T. 15 September 2009, pp. 14, 42-43. Witness YAU could not recall the date on which this incident occurred, nor could she place it chronologically in relation to other events. T. 15 September 2009, p. 42. The Chamber recalls that Witness YAU testified in the Seromba trial that Sister Jean brought the Tutsi food, but she did not say that Kayishema and Kanyarukiga threw it on the ground. T. 15 September 2009, pp. 42-43. 814 T. 17 September 2009, p. 11. 815 T. 16 September 2009, pp. 45-46. 816 T. 1 September 2009, p. 60. 817 T. 24 May 2010, p. 20. See also Witness CBN, T. 1 September 2009, pp. 54-55, 59; Witness CBK, T. 2 September 2009, p. 70; T. 3 September 2009, pp. 6-7; Witness CBY, T. 8 September 2009, p. 36; Witness CBR, T. 9 September 2009, p. 11; Witness YAU, T. 15 September 2009, pp. 15-16 (Witness YAU did not mention any dates during her testimony. However, based on her narration of the events, the Chamber is of the opinion that she most likely arrived at the Nyange Parish on 13 April 1994 and departed on 15 April 1994). The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-T 76
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