Rwanda and the United Kingdom are locked in a dispute over the release of two genocide suspects and the refusal by a British court to allow the extradition of three others.
The British insist that the three be tried in the UK and if not, they must have foreign defence lawyers represent them in Rwandan courts.
Kigali would also have to allow one foreign judge on the Bench hearing the cases before they can be extradited.
Last week, the UK High Court discharged Celestin Mutabaruka and Emmanuel Nteziryayo, two of the five suspects, ruling that they have each been the subject of earlier criminal proceedings in their absence in Rwanda, conducted in the traditional Gacaca courts.
“Their return would breach the principle of double jeopardy that prevents an accused person from being tried again on the same charges or would represent an abuse of process,” the verdict reads.
Mutabaruka was the head of a forest management company in Musebeya, while Nteziryayo was the burgomaster — the equivalent of a mayor — of Mudasomwa Commune in southern Rwanda.
The court said the other three, Vincent Brown alias Vincent Bajinya, Charles Munyaneza, and Celestin Ugirashebuja, “are at a real risk of a flagrant denial of justice if returned to Rwanda.”
But the court left open the possibility of extraditing the three, pending certain changes in the Rwandan judicial system.
These conditions include adequate funding for investigation, development of the defence’s cases and for representation in court by experienced and properly resourced advocates and assurance of admission to the Rwandan Bar for suitably qualified, and experienced foreign defence counsel, where so desired.
While observers say that the two requirements will be relatively straightforward for Rwanda to address, they insist the third requirement of having at least one non-Rwandan judge in any trial will be much more difficult.
Dr Phil Clark, a scholar who was an expert witness in this case, told the court that Rwanda would find such a demand politically unpalatable, as this would undermine her sovereignty and strong spirit of self-determination. Dr Clark still questions the rationale for this demand by the court.
Rwandan officials did not respond to requests for comment. The Rwanda government maintains that it would benefit Rwandan society to have these suspects prosecuted in Rwanda, where local people can follow the trials and see justice served.
But the UK courts ruled that Kigali must indicate their willingness to abide by the condition by 4pm on August 18, 2017 or forfeit the opportunity.
“The UK legal system would never tolerate the idea of foreign judges sitting in British courts,” said Dr Clark.
“Even more so in the current Brexit debates, there is widespread opposition to the power of the European courts over UK law. It is an unfortunate irony that in this context the British courts are demanding those other countries’ courts incorporate foreign judges to facilitate extraditions from the UK,” he added.