Regional
Monitoring monitors: Geoffrey Robertson in contempt of court
![image](webadmin/images/rusesabagina.jpg-20210701100501000000.jpg)
The
Rwanda Bar Association (RBA) recently issued a review of the monitoring report
produced by the American Bar Association (ABA) on Paul Rusesabagina's trial, to
provide an impartial view.
The
author of the review is Justice Dr. Emmanuel Ugirashebuja, former President of
the East African Court of Justice. The review provided a high level analysis
and whoever enjoys reading fine legal writings will enjoy it, not only because
it robustly shows how sloppy the monitoring team is. It is also edifying
to see a calm intellectual expose the shallowness and sarcasm of international
experts on African matters.
Last
month, the American Bar Association Center for Human Rights, as part of
the Clooney Foundation for Justice’s TrialWatch initiative issued a report on
their monitoring of Rusesabagina’s trial (hereafter the Clooney Foundation
report). The report co-authored by TrialWatch expert Geoffrey
Robertson QC and the ABA Center for Human Rights carries a lot of
unqualified criticism about the conduct of the trial to the extent that it
borders on contempt of court.
It
concludes that: "… it is clear that Mr. Rusesabagina’s fair trial rights –
in particular his right to confidential communication, his right to the
presumption of innocence, and his right to prepare his defense – have been
violated, potentially to the irreparable prejudice of the defense,
calling into question the fairness of any potential convicting verdict (emphasis
mine).
Additionally,
the report criticises the action of the Court in providing five minutes to
journalists to take photographs, the court’s failure to appoint an amicus counsel
for Rusesabagina (after his complete withdrawal from the proceedings), and the
judges’ line of questioning.
Inspired
by the earlier mentioned review, let me briefly respond to these criticisms
before I return to reasons as to why I think Robertson, in the Clooney
Foundation report, is bordering on contempt of court, a criminal offence in
Rwanda.
The claim of the violation of Rusesabagina’s
right to confidential communication is about the prison’s inspection of his
documents and searching through the communications with his legal team. This
criticism is redundant. It is the Court that made such a determination, and to
use it against it is frivolous to say the least. As noted in the Clooney
Foundation report, the Court determined "that there are documents from
[Rusesabagina’s] trial, as well as other documents, that have been seized, and
their return to [him …] is taking a long time …" and the Court ordered
that "documents which form part of the case file which Rusesabagina Paul
exchanges with his lawyers should not be seized.
" The protection of communications between a
suspect and his lawyer is crucial to the preparation of defense strategies
since it gives confidence to the suspect to be open in sharing with his lawyer.
Therefore, after the Court’s determination that there was an inspection of
confidential communications, Rusesabagina (if he had not been ill-advised to
withdraw from the proceedings) could have shown the Court that the documents
seized from him reached the prosecution and, therefore, directly or potentially
compromised his defence. The Court would have examined the issue and decided,
for example, to remove such information from prosecution evidence.
On the other hand, if it was a matter that began
and ended as a prison management matter, the court would, for example,
compensate for the time. The question of surveillance, monitoring and
inspection of prisoners and their possessions is a double edged sword. Whereas
international standards and rules for the treatment of prisoners require the
minimum use of intrusive searches, and protect confidential communications, the
prison management has a mandate of protecting the wellbeing of prisoners and to
ensure that there is no abuse of such privileges.
You may disagree with the existence of "an
escape plan" and it could be true that the prison management acted on a
wrong tip, but that is the reality of intelligence. Sometimes it is wrong.
Nonetheless, given the consequences of not acting, the prison management ought
to investigate all tips.
The
third argument is that the judges’ line of questioning was "apparently
designed to extract information inculpating Mr. Rusesabagina." First, the
report's authors should acknowledge that this is their personal opinion. We are
all entitled to opinions. If they claim it's a professional opinion, still it's
Robertson's professional opinion.
Other
legal professionals probably saw calm, brilliant and organized witnesses who
fully explained their motivations to testify in the case so no one doubts or
speculates. Second, to presume good intentions on the side of the authors, I
will blame this professionally erroneous argument on their limited knowledge on
the differences in the roles of a common law judge versus a civil law judge.
As
Geoffrey C. Hazard argues, whereas the role of a common law judge "is to
decide between competing presentations of evidence and law that are tendered by
the advocates," a civil law judge "is responsible for deciding a case
according to the truth of the matter." There is nowhere such a difference
is more visible than in the questioning of witnesses.
A
civil law judge is "responsible mainly for eliciting the evidence leading
to the truth." The judges would not have probed the credibility of
witnesses if, in their view, the witnesses had established their own
credibility beyond doubt. Still they asked them serious questions whose
interpretation can't be Robertson's monopoly.
Another
criticism is that when "the defendants were led into the courtroom, the
first thing the judges did was to adjourn for five minutes to enable
photographs to be taken, raising concerns that the trial was more public
spectacle than a judicial undertaking." This is the perfect example of
"when you do you’re damned, when you don’t you’re damned.
"
It is an understatement to say that it is strange, and probably it is the first
and last time a court is being criticized for providing access to the media.
Unless there are special reasons for a hearing to be in camera, it is
always good practice that a trial be conducted in public to ensure transparency
of proceedings, and to protect the interests of parties in the case and
those of the public at large.
The
role of journalists is paramount especially in this period of the Covid-19
pandemic measures, where not everyone is permitted to attend proceedings.
Again, had the court restricted the access to the proceedings, the criticisms
would have been multiple. But at least now, whatever happened in the courtroom
is available for all of us to see. What bothers me is what the authors were
driving at. Did the photo session prejudice the hearing in some way, or they
think it was not necessary? Either way, who are they to tell what the Court
should have done, on such an issue, really?
Let me return to the central argument – that this report is
intended to serve one purpose, contempt of court. Article 262 of Rwanda's 2018
law determining offences and penalties in general stipulates that "[a]ny
person who discredits an act or a decision of judicial organs, in a manner
likely to cause contempt or lack of independence of the judicial organ, by use
of statements, writings, images or any act, commits an offence."
Robertson ought to
know this common law rule, and as Bhag Singh notes "[i]t is regarded as a strict
liability offence that may interfere with the course of justice, regardless of
the intention of the contemner." Contempt of
Court is an offence against the justice system as a whole. It includes, among
other things, criticisms of courts or judges which
may undermine public confidence in the judicial system.
I would like to argue that this is exactly what Robertson, through the American
Bar Association and the Clooney Foundation, is trying to do. The first reason
is the timing of the release of the report.
It can be argued
that the timing is intended to interfere with the judges’ deliberations since
the proceedings are nearing closure, and this is evident in a threat that is
made on releasing "the final report on the case – which raises additional
concerns about the fairness of the proceedings." Basically, Robertson is
warning our judges that if you don’t follow the recommendations we have
provided, a much more damning report will follow. Otherwise, if this report is
not final, what is its purpose, if it is not to intimidate judges?
The
two black defence lawyers Rusesabagina has, just don't exist in Robertson's
world. I might be wrong, but let Robertson please define an "international
lawyer" for us. Again, these are my thoughts after reading the two
reports (Clooney Foundation report and the review report), and I invite you to
read them.
Dr Alphonse Muleefu is a Senior Lecturer, School of Law and Ag. Principal College of Arts and Social Sciences, University of Rwanda.
Source: www.newtimes.co.rw