Tuesday, Feb. 20th , 2018 - the Judge’s Chamber at the Tribunal of First Instance of Brussels has issued its decision in two cases concerning four Rwandans prosecuted for crimes of genocide and war crimes. These are: former Prosecutor of Butare, Mathias Bushishi, Colonel JMV Ndahimana, Captain Ildephonse Nizeyimana, and Thaddée Kwitonda, who served as a Defense Investigator at ICTR( June 1999-July 2001).
The decision ordered the arrest and referral of Mathias Bushishi and Mr. Kwitonda to the Cour d’Assises of Brussels, thus rejecting the Federal Prosecutor’s request to send them before the Correctional Court.
With regard to Captain Nizeyimana also cited in the decision, the Chamber took note of his previous conviction by the International Criminal Tribunal for Rwanda (ICTR) to 35 years in prison for the same facts and dismissed the public action under the principle of non bis in idem. This principle prevents a person from being prosecuted twice for the same facts.
In the case of Colonel Ndahimana, the Chamber ordered the referral to the Federal Prosecutor’s Office to join it to another identical file which is still under investigation.
It should be noted that these decisions are part of a request for a procedural settlement in which the Federal Prosecution had requested, in the cases of Bushishi and Kwitonda, the referral to the Correctional Court in lieu of the Cour d’Assises.
Back to Captain Nizeyimana, the Public Prosecutor’s Office had requested closure of the file following his conviction by the ICTR.
And about Colonel Ndahimana pursued in the same case with Mr. Kwitonda, the Federal Prosecution had requested the disjunction of the case, in order to be able to continue the investigation.
The accused and the charges
First case: Bushishi Mathias - 77, former State Prosecutor of Butare, charged with genocide and war crimes; including the participation on 31 May 1994, at the MRND palace in Butare(southern Rwanda), to a restricted security council allegedly aimed at planning the massacre and extermination of Tutsi in his jurisdiction.
Wanted by Interpol since 2002, Bushishi was arrested on 18 April 2011 and was detained following an arrest warrant issued by the Belgian investigating judge. He was detained at Forest Prison in Belgium until 17 February 2012, when he was released on bail with the obligation of judicial follow-up.
Cpt Ildephonse Nizeyimana, ex-FAR, has been convicted of genocide and crimes against humanity. He was the sentenced to 35 years in prison by the International Criminal Tribunal for Rwanda (ICTR).
In this case, it is expected that judge’s chambers will decide, in the case of Bushishi, on the request of the Public Prosecutor’s Office, to refer it to the Correctional Tribubal (where only professional sit), instead of the Cour d’Assises – a court involving a jury.
Whereas, concerning Cpt Nizeyimana, the Prosecutor requested the Chamber to take note of his conviction by the ICTR and to declare the case closed on the basis of the principle of non bis in idem.
Thadée Kwitonda, 54, charged with organizing and participating in massacres of Tutsis in the town of Butare. He is also charged for committing acts of violence in Nyakabanda, towards northern Rwanda (Ruhengeri Prefecture).
KWITONDA Thadée served as a Defense Investigator at the International Criminal Tribunal for Rwanda (ICTR) from June 1999 to July 2001, when his contract was suspended following the initiation of an investigation against him by the Office of the Prosecutor of the ICTR.
He was arrested in Kampala for illegal stay and then expelled to Brussels because he was naturalized Belgian. In Belgium, he was wanted by the judiciary; an investigation about him had begun in 2006 in connection with suspicions of an involvement in the Tutsi genocide in Rwanda in 1994.
Col.JMV Ndahimana, ex-FAR too, was reportedly one of the senior military officers serving in the Kigali military camp, where ten Belgian UN peacekeepers under the United Nations Assistance Mission in Rwanda (UNAMIR) were tortured and executed at the beginning of the massacres.
He also, allegedly, played a role in the killings that took place around Kigali as well as in his prefecture – Kibuye(west).
He was arrested at the end of March 2011 in Belgium, where he had fled after the genocide and was provisionally released from early 2012.
In the judgment 148/2017 issued on December 21, 2017, the Constitutional Court of Belgium declared unconstitutional and annulled the provisions of the aforementioned law that made possible the correctionalization of all crimes, thus reaffirming the jurisdiction of the Cour d’Assises in criminal matters.
It is on these considerations that the Judge’s Chamber has rejected the debate on the correctionalization as irrelevant.
The Federal Prosecutor is expected to send the file to the Chamber of Indictments at the Court of Appeal, which, in turn, after indictment, will return the two accused, namely Mathias Bushishiand Mr. Thaddée Kwitonda, to the Cour d’Assises of Brussels to be judged on the merits of the case.
The decision of the Chamber of Indictments is, itself, open to appeal in cassation.