Opinion
When will Blinken “press” the FBI on Rusesabagina?
Because western politicians do not have
the liberty to discuss freely what their judicial authorities do with regard to
specific cases, they look for low hanging fruits
This
week the Secretary of State of the United States, Anthony Blinken, will visit
different African countries. On his agenda in Kigali, it is reported, will be
the conflict in the Democratic Republic of the Congo and apparently a meeting
where he will “press” President Kagame to release Paul Rusesabagina, he of
Hollywood fame and Rwandan infamy, and now convict, serving 25 years in prison
for terrorism. How does Blinken propose to promote good governance while
simultaneously interfering with judicial decisions?
My
time as a judicial officer spanned more than two decades. During that time, I
found that those who purport to promote good governance have also tended to
interfere with the independence of the judiciary. This conduct has always had
me wondering whether they were genuine regarding their desire to promote good
governance. We ought to recall that the independence of the judiciary is a key
pillar of the ideals they claim to promote. It is just not logical that one
would promote good governance while also undermining one of its key pillars.
In
cases involving the judiciary in Rwanda and pretty much of the global south,
there is never any attempt to analyze the subject matter of criticism
substantively on merit. For instance, in the criticisms against Rwanda’s
judiciary, if there was any attempt to analyze the country’s laws and say
“look; this is what the law says, this is how the court decision contradicts
the law”, then that would be a worthwhile discussion. However, their criticism
does not focus on substantive analysis of a particular case. Rather, it is
raised in the form of a collective verdict, underlain by a contemptuous
attitude, against the entire judicial system of the country as incapable of
delivering fair justice. And this happens only when verdicts pertain to cases
in which they have interests.
Peter
Erlinder and American tourists
Consider
the case of Peter Erlinder, the
American lawyer who was arrested in Rwanda in May 2010 when I was the
Prosecutor General. He was arrested based on our law against genocide denial
and revisionism. The law itself had been criticized a lot by some countries in
the West. However, that law had been enacted based on a similar law that
existed in Europe on punishing the denial of the holocaust. In other
words, as I
explained then, we were facing a situation that also obtained in
Europe. France and Belgium have
since also enacted
laws against denial of the genocide against the Tutsi.
When
Mr. Erlinder was arrested on the basis of that law, before we could produce him
in court, guided by our own law on criminal procedure, the State Department had
already begun to exert diplomatic pressure. There were also petitions from some
of his peers in academia in the U.S, pressing us to release him. The fact that
this reaction was coming before, not after the person had been produced in
court, can only explain one thing: that for them, it did not matter what the
charges were going to be. Nor even did it matter how much evidence we had
collected against him, and how credible it was. What mattered most to them was
that, based on who he was, he should not be in custody at all and,
additionally, he should not be the subject of any judicial process in Rwanda,
an African country.
This
is a clear example of an attack on the independence of the Rwandan judiciary.
Moreover, and based on the circumstances, personally in my capacity as a
judicial officer in Rwanda, I had to meet with political authorities in America
to explain why this person was being held in Rwanda and why we intended to
prosecute him.
It
is astonishing that the politicians in America entertained that discussion. I
attended it but it was a very problematic arrangement because this was a
meeting between a judicial officer and political authorities. I doubt it could
happen in their context: a judicial officer meeting officials in a foreign
ministry or state department to explain a case, in an effort to show them the
evidence against the accused. However, it is exactly what I was in the US to do
before senior officials in the State Department: show them the evidence we had
against their citizen.
I
met the Assistant Secretary of State for African Affairs, Mr. Johnny Carson.
The specific purpose of the meeting which had taken me to Washington was to
explain why Peter Erlinder had been arrested in Rwanda. The meeting took place
while he was still in custody. It may sound unusual that a Prosecutor General
of a sovereign country had to go all the way to explain to political
authorities why he was making certain decisions back home. As a universal
principle, mine were the same kinds of decisions taken by judicial officers who
are supposed to be independent and to be treated as such. Here I was, the
Prosecutor General of Rwanda and bearer of a constitutionally protected office,
but because of the realities we live in, in Washington to explain to Johnny
Carson why I had made those decisions.
After
the meeting at the State Department, I spoke at a gathering of academics and
other interested parties that the Atlantic
Council had invited. Here I tried again to explain why Mr. Erlinder was
being held. I met some of the people in academia who had written a petition for
his release to explain to them how indeed they were interfering with the
judiciary in our country. That is how we responded to that interference in our
judicial process.
Later
on, Hillary Clinton, who was the Secretary of State, sent us documents making
the case for bail on medical grounds. Basically, Mr Erlinder was granted bail
based on medical reports furnished by the State Department, and in which Mrs
Clinton was guaranteeing that should the Rwandan courts need Mr Erlinder back,
then the US was going to cooperate.
Another
case is when we had some Rwandan nationals involved in crimes in which victims
were Americans
in Bwindi forest. We came under intense pressure to have them prosecuted in
the US.
To
the Americans, they didn’t conceive of a situation in which these people would
face justice in any other country other than the United States of America.
The
Rusesabagina case
Paul
Rusesabagina’s case and the way it ended was a product of many years of
judicial cooperation among several countries. During the investigations, Rwanda
worked with the United States, Belgium, Burundi and the Democratic Republic of
Congo. So, it was not simply a single incident that happened and led to the
conviction, contrary to what is being portrayed out there. Some time back in
2010 two senior commanders of FDLR were arrested in Bujumbura where they had
gone to collect money from a Western Union outlet. There was a transfer of
funds that Paul Rusesabagina had effected from San Antonio in Texas. Through
judicial cooperation, the two were extradited to Rwanda. The documents they had
on them had already been recovered by the Burundian authorities. They handed
them over to us officially. We discovered on further investigation that there
were earlier transfers via Western Union outlets in Dar es salaam in Tanzania
and Goma in the DRC. The money had been collected.
I
travelled to Washington and sought the services of an international law firm to
help me to secure an appointment with senior officials of the Federal Bureau of
Investigation (FBI). When we met, I shared the evidence I had. That is the time
that FDLR, an
offshoot of another terrorist group, Army for the Liberation of Rwanda (ALIR),
was still blacklisted by the US as a foreign terrorist group. So, there was a
good discussion between me and FBI officials. I got to learn from them the
following day that they had actually uncovered 11 more instances of transfers
of money through Western Union, which we knew nothing about. So, they uncovered
more than twice as much evidence as we had. But in this case, it does not
really matter how many transfers there were; what matters are the intentions
behind them.
My
point is that while I knew of about five transfers at the time I left for
Washington, by the time I departed to return to Rwanda, another 11 transfers
that I hadn’t known about before, had been uncovered. So, I returned to Rwanda
with a promise from the FBI that they were going to continue with the
investigation. Then one morning I received a phone call from the then US
ambassador to Rwanda, who wanted me to meet an official from Washington who had
a message from the FBI, which could not be shared through diplomatic channels.
When I met the official from Washington, he handed me a letter confirming that
the FBI had officially commenced investigations against Rusesabagina.
Through
our own activities as prosecutors, we learnt that around that time Rusesabagina
could not continue to engage in as much public speaking as he had done
previously. So he moved to Brussels. Once back in Brussels, he visited the US
only occasionally. As a result, we sought judicial cooperation from prosecutors
in Brussels and started working with them. They agreed to a commission
rogatoir, an arrangement under which their investigators can, on request from
another country, interrogate a suspect on their territory. The actual
questioning was done by Belgian prosecutors in the presence of Rwandan
officials. I had dispatched the then head of the Criminal Investigations
Department of the Rwanda National Police and one of the senior prosecutors from
my office. Under the supervision of Belgian prosecutors and police, Paul
Rusesabagina was interrogated in camera in the presence of the two Rwandans.
These records are available in the Prosecutor-General’s office.
I
understand that after I left Prosecution these efforts continued.
Rusesabagina’s homes were searched several times and he was interrogated
several times. This is when he went back to the United States. I learnt
from one of the witnesses during the trial that even when he was trying to fly
to Burundi where he thought he was going, he was trying to avoid going to
certain European destinations because he knew that the investigations into his
activities had intensified in Belgium. I think this clarifies the point I made
earlier, that the investigations into his activities were a collective effort
under international law, through judicial cooperation that involved several
jurisdictions, not simply the Rwandan authorities on their own.
People
who have come forward to criticize the way the case proceeded are mainly
politicians and Rusesabagina’s friends. These politicians know very well that
they cannot engage their own judicial authorities with these kinds of questions
because if they did that it would really be offensive to the independence of
those same authorities. This is why the Senate or House of Representatives in
the US cannot summon the FBI to talk about this case. Nor can the Belgian or
even European parliament summon Belgian prosecutors to talk about it. If they
did, they would get to learn that there is a lot more they do not know about.
Or perhaps they pretend not to know.
I
think it is as inappropriate for Western politicians to question the legal
actions of their own judicial institutions that have independent mandates, as
it is to question our own decisions which are properly made in line with our
laws and international laws. Our institutions are equally independent. They
must be treated as such.
If
there was a need to discuss what went wrong in all those three cases in
technical terms, it would have to be about whether it is a breach of criminal
procedure in Rwanda or of any internationally known judicial principle, based
on evidence, based on procedural stage or the judgement itself. That is the
kind of discussion people ought to have. However, a blanket condemnation of
Rwanda’s judiciary, apparently because it cannot conduct a fair trial against
anyone, is extremely problematic.
Rusesabagina
was properly sentenced. Then a House Committee sits and decides that this was
not fair! There is no criticism that focuses on the evidence. Was it
fabricated? No one says anything about this. All they say is “no no, the trial
was not fair!” In what sense was it not fair?
If
it was an appeal brief, something that someone can use in a higher judicial
authority to show that the authority below did not do their job, even if this
was to be at an appeal level in America, what would be the content of that
brief? Nothing, literally nothing.
So,
what they are trying to do is simply to get him released because he is who he
is, regardless of what he did. They want him released because he is a resident
of the US. However, residents or nationals of the US are capable of committing
crimes outside of the US. If this is true, then it follows that they can end up
in the judicial arms of jurisdictions outside the US.
Erlinder
and Rusesabagina are citizens and residents of the United States, respectively,
who chose to be involved in crimes in Rwanda. Where they committed crimes was a
matter of choice and implicitly they chose where they would face justice for
those crimes. You cannot say that these are Americans and they should not face
justice where they committed crimes. Unlike Erlinder, Rusesabagina’s
crimes involved the loss of nine lives. But it is surprising that American
pressure against Rwanda isn’t aligned with the victims as was the case with the
two Americans who were victims of the attacks in Bwindi forest. It is similarly
unfortunate that Mr. Blinken hasn’t even interested himself in meeting
with the victims of Rusesbagina’s crimes.
Respect
at home, contempt abroad
What
comes out clearly from the discussion up to this point is that interferences
are generic in nature and never attempt to discuss the cases on merit. Also,
they tend to be from political authorities. Their own judicial authorities
which in some cases get involved in investigations would never countenance such
interference. For example, while Rusesabagina was being investigated by the
FBI, at no point did they complain to us that what we did interfered with their
own investigations. Even the same politicians who sought details about our
investigations could not possibly tell us about the investigation processes in
their own countries, because of the principle of separation of powers, leading
to respect for judicial independence in their countries.
It
is because of respect for their own judicial authorities that the Department of
State in their discussions with the Rwandan authorities do not mention what
they know about the FBI’s involvement in the case. It is because they cannot
interfere with the FBI in the same way they interfere with our judicial
authorities. This is exactly what the Dutch authorities were doing when we were
prosecuting Victoire Ingabire and working with Dutch judicial authorities. They
simply did not comment on the issue. They would talk to us in a manner that
suggested they were not at liberty to discuss with their own judicial
authorities regarding what they knew and what they had done about the case in
question.
The
same applies to Belgium. The noises Members of Parliament have been making
about the matter never go as far as mentioning the fact that Rusesabagina was
once interrogated by the office of the prosecutor in Belgium. They would never
mention that the Belgian police raided his home several times, conducted
searches, and handed over to Rwanda the documents they found there. Because
they do not have that liberty to discuss freely what their judicial authorities
do with regard to specific cases, they look for low hanging fruits.
And
so, in countries such as Rwanda, they even raise these issues with authorities
that ordinarily would have no liberty to make decisions about them. So, when
Blinken says they will travel to Rwanda to “press” the president, how do you
press the executive for something that is actually in the judiciary? If a
reverse situation were to happen, which button do you press in America?
Moreover, when Blinken seeks to raise the Rusesabagina affair with the
President of Rwanda, is it in order for him to do what without breaching any of
those principles that are so treasured in the US, just as they are in Rwanda?
When
Blinken starts his tour to lecture Africans on good governance, he should shed
light on this blatant violation of judicial independence that time and again
makes a mockery of the very principles of democracy and the rule of law. When
is he going to talk to his own judicial officers who were also involved in
working with us on these matters, who know a lot more than he does? Indeed,
Blinken should be prepared to tell us when he is going to solicit their views
and whether this is possible without endangering his political career. If there
is such an opening in the United States, when is it going to be operationalized
to allow him to press the FBI before pressing Rwanda? Perhaps judicial
interference promotes good governance in Rwanda but undermines democracy in the
United States?
The
author is the Speaker of the East African Legislative Assembly (EALA) and
former Prosecutor General of the Republic of Rwanda.
Source: www.panafricanreview.rw