Rwandan military officers look to EACJ to quash sentences

Saturday March 28 2020

Col Tom Byabagamba (left) and Rtd Brig Gen Frank Rusagara

Col Tom Byabagamba (centre) and Rtd Brig Gen Frank Rusagara (in glasses) at their trial in 2014. The brothers-in-law were found guilty of inciting rebellion against the established government. PHOTO | CYRIL NDEGEYA | NMG 

SAM KIPLAGAT
By SAM KIPLAGAT
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Two former senior Rwandan military officers serving 15 years in jail on charges of inciting the public have moved to the East African Court of Justice (EACJ) seeking to challenge their continued detention.

In a petition lodged at the EACJ’s sub-registry in Nairobi, Col Tom Byabagamba and Brig-Gen (Rtd) Frank Rusagara, who were sentenced in 2016, want their conviction and sentences quashed.

They also want the court to compel Rwanda’s Attorney General and the Court of Appeal to release their judgments, which have been withheld since they were sentenced by the Court of Appeal on December 27, 2019.

The Mr Byagamba and Brig-Gen (Rtd) Rusagara had initially been sentenced to 21 and 20 years in jail, respectively, by the Military High Court, but the Court of Appeal in Kigali reduced their sentences to 15 years each.

They argue through lawyer Michael Osundwa that their continued detention is unlawful and an infringement of Articles 6,7 and 8 of the treaty establishing the East African Community.

Unrecognised detention site

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They also say that holding them in solitary confinement and in an unrecognised detention site is contrary to the provisions of the Treaty, Rwandan law and in contravention of their rights. They are being held at Kanombe Military Police Base.
The application directs the respondent to immediately and unconditionally release the applicants from their illegal detention.

The Attorney General of Rwanda has 45 days to file his response.

Restoration
Mr Byabagamba will also be seeking the court to compel Rwanda to restore his military position without losing his rank.

Brig-Gen (Rtd) Rusagara retired from the military in 2013.

Before his arrest, he was the head of the Presidential Guard unit and was studying for his PhD in History; Mr Byabagamba served in the UN Mission in South Sudan in 2014.

The two were arrested and charged with knowingly spreading rumours with intent to incite citizens to oppose and revolt against the established government, committing acts aimed at tarnishing the image of the country and illegal possession of arms.

Following their arrest, they were held in solitary confinement at Kanombe military barracks and were brought before a military tribunal (lower court) for proceedings.

The matter was later heard by the Military High Court, which handles security related offences. But before the trial commenced, they made an application to the then Supreme Court (now Court of Appeal) challenging the jurisdiction of the Military High Court to hear the case, given that Brig-Gen (Rtd) Rusagara was already a civilian.

However, the Supreme Court upheld the decision to try them before the Military High Court. Also charged was Brig-Gen (Rtd) Rusagara’s driver Francois Kabayiza, who was accused of possessing arms and knowingly concealing evidence that would facilitate the commission of a crime.

The trial did not start until January 27, 2015 because of Mr Kabayiza’s health. According to Mr Osundwa, he complained before the trial court of torture, but the matter was not investigated.

Solitary confinement

Their application to be released on bail, pending the appeal, was rejected for the second time by the Court of Appeal. The court also ruled that the two were not being held in solitary confinement, but the state of their incarceration was a sign of respect because they were senior military officers who could not be mixed with the general population for their own safety.

The two have not been given copies of the judgment since the decision was made, nor typed proceedings, which were conducted in Kinyarwanda.

The two say their trial was a sham because witnesses never corroborated the claims. Brig-Gen (Rtd) Rusagara said an apology letter, which he allegedly wrote, was never produced during the trial.

In November, British parliamentarians wrote to the Rwandan government pleading for the release of two.

But Justice Minister Johnston Busingye replied that there was no way the government could intervene in judicial matters, and asked the UK MPs to respect the country’s system.

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