EXECUTIVE SUMMARY
The American Bar Association Center for Human Rights has been monitoring criminal proceedings against Paul Rusesabagina in Rwanda since September 2020 as part of the Clooney Foundation for Justice’s TrialWatch initiative. This report, co-authored by TrialWatch expert Geoffrey Robertson QC and the ABA Center for Human Rights, details many aspects of the proceedings thus far which cause grave disquiet as to their fairness, and which may have irretrievably prejudiced the defense. Given the analysis below, which draws on standards established by the United Nations Human Rights Committee and African human rights bodies, the fairness of the proceedings appears to have been compromised such as to call into question any verdict convicting Mr. Rusesabagina.
Mr. Rusesabagina’s trial opened on February 17. After 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 judicial undertaking. These concerns persisted throughout the trial.
At a hearing on March 12, 2021, Mr. Rusesabagina, who is charged alongside 20 co-accused with various terrorism-related offenses, stated that he would no longer participate in his trial. Mr. Rusesabagina explained that his withdrawal was based on the court’s rulings that the trial could proceed despite his transfer to Rwanda outside of any legal framework and despite restrictions on his access to case materials. Since that date, Mr. Rusesabagina and his lawyers have not attended the trial, which has consisted of prosecution and defense presentations.
While the continuation of the trial in Mr. Rusesabagina’s absence may itself be consistent with international and regional human rights standards, the circumstances surrounding and subsequent to his withdrawal disclose severe violations of his fair trial rights. In particular, Mr. Rusesabagina has been denied his right to adequately prepare for trial and his right to confidential communication with counsel – potentially to the irreparable detriment of the defense.
Namely, the prison authorities, which are supervised by the Minister of Justice – the prosecuting authority in Mr. Rusesabagina’s case – insisted on intercepting, reading, and, oftentimes, retaining all communications between counsel and Mr. Rusesabagina on the pretext that they were entitled to maintain security and check for any escape plans. Even after the Minister of Justice and court ordered the prison to take greater care in distinguishing between non-privileged and privileged materials, officials heightened restrictions, subjecting Mr. Rusesabagina’s lawyers to intrusive searches for documents prior to entering the prison and, in one case, confiscating a document marked privileged and confidential. Any openness Mr. Rusesabagina might have felt in discussing the case and strategy with his lawyers has thus been extinguished.
The authorities further failed to effect simple reforms to address the lack of facilities available to Mr. Rusesabagina (which the court itself had deemed a problem), so that Mr. Rusesabagina could prepare for trial. On March 12, when the court ruled that the trial could proceed, the authorities had yet to return seized case documents to Mr. Rusesabagina or provide him with a computer (to review some 3,000 pages of court papers).
Where an accused withdraws from trial, courts are obligated to make all efforts to ensure that his or her fair trial rights are upheld. This often takes the form of appointing amicus counsel – an independent lawyer to probe the testimony of witnesses hostile to the defendant. Here, the court made no effort to this end: to the contrary, the court presiding over Mr. Rusesabagina’s case failed to ask questions testing the motives or credibility of the two witnesses against Mr. Rusesabagina who testified in hearings immediately following his withdrawal from the trial. Of subsequent witnesses, the court went so far as to ask leading questions about Mr. Rusesabagina’s guilt. This conduct strayed far from the principle that an accused’s withdrawal from the proceedings necessitates ever vigilant protection of his fair trial rights. Further, the verdict will not have been based on evidence which has been properly tested and will thus lack credibility.
More broadly, there have been allegations that the authorities are attempting to pressure Mr. Rusesabagina to resume participation in the trial before the verdict. Notably, the trial has taken place against a backdrop in which President Paul Kagame has repeatedly made comments characterizing Mr. Rusesabagina as guilty, a severe violation of the presumption of innocence.
In this context, the overwhelming question is whether Mr. Rusesabagina’s trial, both initially, and thereafter in absentia, can be considered fair. Taking into consideration the developments to date and noting that final conclusions on this matter will be issued after the verdict, it is doubtful that the court is prepared to offer the guarantees of fairness that these proceedings require in order to be credible if they are to result, as seems predetermined, in a conviction which may carry a sentence of life imprisonment.
Lastly, it appears that the Belgian authorities have assisted the Rwandan authorities in Mr. Rusesabagina’s prosecution since his transfer to Rwanda. This assistance, repeatedly referenced by the prosecution in submissions to the court, raises serious questions for the government of Belgium, whose diplomats have been present at the trial. In light of the above analysis, Belgium should clarify the scope and nature of its previous assistance, whether and how it addressed the potential that its support might facilitate fair trial violations, and whether it plans on continuing such support.
The court heard from civil parties on June 16, and prosecution closing arguments have now commenced. Defense closing arguments are expected to begin the week of June 21. This report is being released now, before the conclusion of the trial, to underscore the continuing importance of fair trial guarantees and the severity of the concerns regarding what has transpired to date. A full report will be released after the verdict is issued.