As Kaka disputes court’s competence to try him

BY FELLY KIMENYI AND GODWIN AGABAKIGALI - The Military Tribunal yesterday granted bail to Brigadier Generals Sam Kanyemera Kaka and Frank Rusagara.Their trial will get underway in substence on September 6.

Kaka, also an MP was arrested on August 9, while Rusagara – commandant of Rwanda Military Academy in Nyakinama – was thrown in jail on August 1.The two were charged with obstructing a judicial operation, with the Military Prosecution saying that the generals failed police attempts to arrest businessman Assinapol Rwigara weeks ago."The Military Tribunal has thereby given Brigadier Generals Frank Rusagara and Sam Kanyemera bail as prescribed by the law as it is their absolute right,” Lt. Joseph Ngabonziza, who was a member of the three-man quorum read. He pronounced the decision in the evening when the court resumed. Court proceedings had taken place earlier in the day.

Brig. Gen. Steven Kalyango, the vice-president of the tribunal, had presided over the morning session.

The court also said that prosecution had not produced the accused in court on time to seek bail since their temporary arrest warrant had already expired. The officers were for the first since their arrest, appearing before court.The temporary arrest warrant expires seven days after the arrest.

On the competence of the tribunal to try Kaka which the General contested, court ruled that this will be determined when the litigants start presenting the merits of the case. Prosecution did not display interest to appeal against the bail.During the morning proceedings, Kaka had said that Military Tribunal has no competence to try him since he is no longer in the military."I am still wondering why I am appearing before this court. I am a Member of Parliament representing the RPF (Rwandese Patriotic Front) and it is very clear in the law that a soldier is supposed to be non-partisan. I don’t know the reason I was brought to this court,” Kaka told presiding judge Brig. Gen. Steven Kalyango. Kaka, who turned up in civilian attire unlike Rusagara who wore military fatigue is army former chief of staff and was a member of the high command of the former RPA rebels during the liberation struggle.He was arrested on August 9, a week after Rusagara was thrown in jail.

The two men are accused of barring three police officers from arresting Rwigara on July 27 at a funeral at Kabusunzu. Rwigara, who handed himself over to Prosecutor General Martin Ngoga yesterday, had went into hiding following the July 12 landslide at his construction site which killed two people.However, the military prosecution which was represented by Capt. Ngabo Kayijuka said: "It is provided for by the law of criminal procedure that a person jointly charged with a military officer is automatically court marshaled.” He however said that the two are not accomplices but rather co-authors of the crime.

The Generals, through their lawyers had requested to be granted bail."Your lord, before we start this trial in substance, we would like to bring to your attention the fact that our clients are in illegal detention. We want them to be granted bail before the trial begins,” said Athanase Rutabingwa, the attorney for Kaka. He said that the accused were arrested on a temporary arrest warrant which has since expired.

Procedurally, a temporary arrest warrant expires after seven days and those days have elapsed since the arrest of the two Generals."These are men of integrity and their addresses are well known, there is no way Rusagara will flee this country he fought to be in. He should be granted bail as it is provided for in principle,” Francois Rwangampuhwe, the counsel for Rusagara told court.Rusagara, who was until late 2005 the president of the military tribunal, was until his arrest the commandant of Rwanda Military Academy in Nyakinama.

Rutabingwa said that his client’s rights were violated when he was arrested. "My client is an MP who must enjoy his privilege of immunity.”

Also questioned was the manner in which Speaker Alfred Mukezamfura lifted Kaka’s immunity. The legislator said the process to lift his immunity was illegal, saying that there were no minutes signed by the three members of bureau of the Chamber of Deputies, on the decision.

According to Parliament’s Internal Rules of Procedure, during the MPs’ session period, no Deputy suspected of a serious felony may be arrested or prosecuted without the authorisation of the Chamber of Deputies. By the time of his arrest, the MPs were on recess.Article 91 of the procedures adds: "When the Parliament is not in session, no Deputy may be arrested without the authorisation of the Bureau of the Chamber of Deputies unless he or she is caught flagrante delicto committing a felony or the Bureau of Chamber of Deputies has previously authorised his or her prosecution or a court of law has passed a final verdict and sentence against him or her.” However, the defendant said that the letter nullifying his immunity bears the signature of only Mukezamfura.

Other bureau members are Denis Polisi and Yvone Uwayisenga, both vice speakers.It is supposed to be done by bureau of MPs and according to the letter it bears only the signature of Alfred Mukenzemfura. Rwagampuhwe said immunity is not decided by only the Speaker of the Parliament.Mukezamfura received a letter from the military prosecutor requesting him to authorize Kaka’s arrest at around 3 p.m on August 7.

Then, the Speaker replied authorising the arrest on August 8. And the Military Prosecution signed the retired General’s arrest warrant at around 3 pm on August 9, leading to his arrest that same evening. They have since been held at Kanombe Military Barracks until yesterday.Meanwhile there was drama in court during the proceedings earlier in the day when Rusagara stood up and walked towards the backdoor. "General, General ……,” Gen. Karyango called out as a standby military police captain rushed and stopped him from continuing.Rusagara returned and requested to Karyango to give him time, to ease himself, prompting latter, to adjourn the session until the accused returned after about five minutes.

Ends