I cannot downplay the work of ICTR – says Prosecutor General

AFTER over 17 years, the UN decided to fold up the activities of the International Criminal Tribunal for Rwanda, and since July this year, the International Residual Mechanism started operating. The New Times sought to get the verdict on the work done by the court by interviewing Prosecutor General Martin Ngoga. The interview conducted by Felly KImenyi also touched varying issues like judicial reforms, Genocide fugitives, and the proposed prosecutorial competences to the Ombudsman, among others. Below are the excerpts. TNT: You may start by telling us about the judicial reforms and how your office has faired...Ngoga: Judicial reforms are a continuous process. Every other day we review our situation, look around for best practices, we take stock on where we have gone wrong, where we need to improve. This is routine and there must be a framework within which these issues are addressed.So reform is not a one-off activity but a continuous process, which is why most recently, the government found the need to establish the permanent law reform commission. Most specifically, the reforms we started implementing towards the end of the year 2003, I think have been largely successful in the sense that we have come a long way. Statistics are very clear on how much has been done in terms of tackling crime, in terms of dispensing justice in general. This is a challenge that has been simultaneously tackled with the building of institutions. As a country we did not have time to start building institutions first before we can start dealing with crime. In other words crime didn’t stop to give us a break to reorganise ourselves to put in place institutions to tackle it.Therefore we had a double task of dealing with crime that I can even say was more rampant because of our history, at the same time doing it in a way that considers the fact that we needed to build institutions on the same pace or even faster than it was happening around us.So we have come a long way and have done a good job I believe in terms of numbers of cases we handle and the quality with which we handle them, in terms of improving human resource personnel and the training of our judicial personnel. The qualifications they have today in comparison with what they had when we had just started implementing these reforms are quite impressive.I think it has been a remarkable progress, but as I said it is a constant and continuous process. There is still a lot we must do, there is a huge mileage of what we still need to cover and that is what we will continue to do.TNT: There is a law in parliament that will give prosecutorial powers to the Ombudsman. Don’t you see this as usurping powers of your office? Ngoga: This bill is in parliament and it is the wisdom of parliament that will guide its final process. From my point of view, there is no problem with the office of the Ombudsman being given powers to prosecute certain situations. I am not in position to predict whether this will succeed or not but I believe that all is being done in good faith.It is a way of trying to improve on our systems specifically in the area of financial accountability and fight against corruption. It is the Ombudsman that specifically deals with corruption, being given additional powers to prosecute some cases is something I personally have no problems with. We are looking forward to helping them to succeed in this mission that they are given if it happens.Of course it comes along with challenges. They are not a professional prosecutorial organ, but everything has a beginning. They will encounter some challenges that will also be tackled. The most important thing is that the initiative is forward looking; it is not something that will take us back. And collectively, we are able to collectively tackle whatever challenge this office will encounter. If need be, further improvements need to be done, this is how our systems have been operating all along. We never fear to confront challenges provided we maintain flexibility to have the ability to correct whenever we have to move forward.TNT: A lot has been said about the action on various reports by the Auditor General concerning financial impropriety by some government officials. People say that little is being done to bring to account people embezzling state finances…Ngoga: That kind of statement or conclusion is mainly motivated by the positive desire by the Rwandan public to tackle issues of accountability. The zeal with which they look at this problem is what makes them think that a little is being done. As a matter of fact, a lot is being done; we are guided by the law and are also accountable to do it not as we please but as the way the law requires us to do it.We have maintained the discipline of reporting to the relevant organs, to the parliament through the parliamentary standing committee on standing accounts, to the prime minister and through other forums.So we tackle all these cases that are in the reports by the Auditor General and within the context that our institutions operate.The trend is positive. We are not going backwards in terms of financial accountability. We are moving forward, and this is something that even the Auditor General has admitted. But I understand the anger amongst the public and their eagerness to see more action being taken, and this is a positive sign.When you have a population that is so demanding on issues of accountability, it is a healthy sign, and actually it is one of the signs that keep us in checks to make sure that we are not complacent, because we know there is a public that is demanding for our results.TNT: Gacaca courts closed this year and those cases that were not tried are supposed to be tried in conventional courts. How well equipped are you to deal with these cases, given the central role prosecution has here?Ngoga: I think we are well equipped. I intend to convene a meeting in the next few weeks to take stock of how many cases are pending in our system, because we had set a deadline for us to be able to file all the cases that were referred to us by Gacaca.So I intend to call a meeting very soon to review how many cases have been handled. Otherwise I think the prosecution is ready to prosecute all the cases that were referred to us. We will not be even demanding for additional man power or resources because what we have in place is enough to handle these cases.TNT: Tell us the status of the genocide fugitives and what is being done to bring them to justice.Ngoga: We had a positive development most recently, more specifically when we succeeded to persuade the International Criminal tribunal for Rwanda (ICTR) to refer some of the cases to our national system. That is something that opened up the doors for other countries to start looking positively at the international indictments and extradition requests we sent abroad. Of course there is not yet enough of these cases being referred to Rwanda, not even enough are being prosecuted in foreign jurisdictions. But in comparative terms the period before and after the Arusha referral decisions, there is a huge difference.We are looking forward to keep improving what is happening, when we look at the number of foreign investigators coming here to pursue cases of fugitives it is encouraging.Look at prosecutions taking place abroad, such as the one in Oslo that was happening last month in Kigali via video link, this is something that wasn’t happening in the past.The issue of fugitives is a very challenging one- we have very many fugitives out there and we don’t even know the numbers. We can’t place a date for when we will have tried all cases, it is a huge challenge that has no turnabout. With respect to the holocaust, there are cases that keep being unearthed, it happened 60 years ago, so you can imagine the Genocide which happened only 18 years ago.So we can only talk about this problem in terms comparison between what happened yesterday and what happened today. There is a positive trend, but the challenge ahead is so enormous.TNT: What could be the most outstanding challenges in this quest? Ngoga: We continue to have challenges of indifference, on the part of some countries that do not put due weight to this matter of Genocide fugitives. Some countries make decisions that really do not reflect the reality on the ground. Challenges of some human rights organisations that stand in the way of justice and become a huge obstacle to our efforts of trying to track down and try these fugitives.But this does not deter us from continuing to do what we must do. We wish everyone would understand what we are trying to do but that is not the reality, so we continue to be derailed. But we are focused because we believe it is first of all our own before it is anyone else’s.TNT: Earlier this year you said that now, after the transfer of Mugesera (Leon from Canada), you had shifted position from ‘try them (genocide fugitives) in your jurisdictions’ to extradite them to Rwanda for trial’ what is the status quo? Ngoga: In the past, foreign jurisdiction would say that there is no possibility of fair trial in Rwanda, and a few of those with those beliefs did not want to provide room for impunity but opted to try these criminals in their own countries. So after the decisions, at that time they were citing decisions by Arusha (ICTR), they would cite human rights reports to justify the argument that there is no possibility of fair trial in Rwanda.After we obtained judicial decisions from ICTR and from the European Court of Human Rights, we thought there was no more excuse for anyone to claim Rwanda is unable to provide fair justice. So we thought there was no justification for anyone to refuse to extradite a fugitive to Rwanda. These are judicial decisions that confirm there is a possibility of fair trial in Rwanda, that the system of justice in Rwanda is fair and able- and these are supported by the highest international judicial institutions.This is what constituted the basis of my statement that actually we shall now be more focused on extraditions than calling for prosecutions abroad.Sadly some of these western jurisdictions keep shifting goal posts. In the absence of grounds to criticise our jurisdictions, they still find other reasons not to extradite fugitives to Rwanda- which is why some of them are sitting on their own judgments.In case of some fugitives, there are some judicial decisions that must be sent to Rwanda but political efforts have not been taken to implement what the courts require them to implement. The political reality is that certain governments even in the presence of judicial decisions still refuse to cooperate. So we will continue to demand for fugitives to be extradited to Rwanda because there is no more justification for claims that there is no fair trial in Rwanda.TNT: The Genocide survivors, under their umbrella Ibuka, believe that governments should do more in terms of diplomacy by calling for countries to have special provisions for trial of genocide fugitives. What do you say?Ngoga: The claim of the absence of domestic legislations to allow for extraditions and action on fugitives is a false claim.It is a claim that should not be entertained because it belittles the gravity of the crime of genocide.I understand that Rwanda doesn’t have extradition treaties with many countries in the world, but my argument is that this should not be the basis of inaction. If these legislations are absent, they can be put in place. The other day I was talking about double standards; you can see how much the British have invested in the case of Julian Assange; in comparative terms, the case of Assange is nothing when you compare with Genocide fugitives who killed thousands of people with some now living in the UK. The case of rape takes precedence over these ones in those countries. If there is absence of a certain domestic legislation, why can’t it be put in place? Why should a civilised system opt for impunity just because there is no particular legislation?So I do not like to argue about the absence of extradition treaties or MoUs. We are talking about cases of Genocide suspects and unless these systems don’t understand what this is about, the claim of the absence of these systems is nothing.TNT: There are thousands of Genocide fugitives present in African countries. How has the issue of extraditing fugitives from African countries been?Ngoga: In comparative terms, the African response has been most disappointing. I am not proud of some of my colleagues’ systems in Africa that have been sitting on this matter with the highest level of indifference.Of course we have exceptional cases of countries that have cooperated with us or with ICTR. We have others that have been totally indifferent such as Mozambique, Malawi and to some extent Zambia. These people don’t seem to know the gravity of what we talk about. We have fugitives running about in their capitals and doing flourishing businesses and who are well known. We have been there and spoken to them, mentioned names, but it remains without any progress.If you ask me about Europe, we have problems there, but in comparison terms, Europe has done a better job than some of our African countries. It is really pathetic; Genocide is an international crime and should not have geographical boundaries. But having happened in Africa, I thought there should be more sensitivity on the African countries, but instead it is the opposite. It is a challenge for some of these countries to really review their situation and understand that what they are doing is not acceptable and undermines our own credibility as Africans. If we cannot care about a serious problem that happened on our continent, if we can decide to sit on such a serious matter and allow fugitives of Genocide to become prominent business people in our capitals, then where do we find the moral authority to criticise anyone who tries to do the same?TNT: Have you tried to use regional platforms on which Rwanda sits with some of these countries to bring the fugitives to book?Ngoga: We have used Interpol, regional platforms and have even established personal contacts with relevant officials. But so far in my opinion we are making very little progress.TNT: Rwanda was last month elected to the UN Security Council. Do you think this is a position that the country can use to seek for more cooperation on trying Genocide fugitives?Ngoga: I think Rwanda’s agenda on UNSC is bigger than just this one, but I think it provides one more platform to address this issue.We may talk about development, investments, but Genocide fugitives remain one of the top priorities of the Rwandan government. Therefore, I am not looking forward to a situation where those representing us can overlook this one. It is one more platform that we will try to utilise. TNT: A few years back, your office said that there were thousands of Burundians who participated in Genocide and you were looking at means of bringing them to book. What is the update?Ngoga: If you review Gacaca records you will find a lot of Burundians who were accused. But the problem is that these were villagers in refugee camps and were not involved in the higher level of planning the Genocide. They had not interacted very much with the locals so there is a huge challenge of identifying them and getting them to stand for trial. So I cannot claim to have made a serious progress on this front but as a matter of fact some Burundians were involved in the Genocide. Those who were in Rwanda as refugees and those who went back after, some were involved and the Gacaca records are clear on this one. It is a challenge as big as that of Rwandans who fled to DRC Democratic Republic of the Congo); if you look at the list of Gacaca fugitives most of them are in the DRC, so when these people will be brought in to justice is still a challenge.TNT: ICTR is winding up its activities; as a matter of fact the International Residual Mechanism has been set up to see off the tribunal. You are even conveniently a one-time representative of the government to the tribunal, how do you bill its performance? Ngoga: Being good or bad is subjective. As matter of fact, we had the ICTR which was a good thing, and they handled some cases which were of high level that could have been probably challenging if they weren’t handled by ICTR.They also handed down some judgments that contributed enormously to the international law which is beneficial not to just Rwanda. They surely left a mark on the history of the world- on how the world responds to international atrocities like the Genocide. It is also a fact that they would have done a better job, so it s a good thing that we had the ICTR and we are grateful because the possibility of not having it all was also there.I think there are a lot of people who would have preferred not to have it in place. Not just perpetrators but some powerful politicians. Possibly Rwandans would not have expected more, the ICTR being an institution of the UN, which doesn’t have a good history with Rwanda.I personally don’t play down what ICTR did. They might have done better but they contributed well to serving justice to the Genocide. It is something that has contributed to the international processes in terms of future guidance to deter future atrocities.TNT: Do you foresee a time when ICTR will hand over the cases files of the ‘big fish’ Genocide suspects?Ngoga: I don’t know but whether it happens or not, I have no problem with it. If tomorrow the ICTR or Security Council decides to close down the mechanism and hand over the so-called big fish case files to Rwanda, we will be more than willing to receive them.But if it doesn’t happen, we have no problem with coexisting with the mechanism. We made a promise to be cooperating with the mechanism the same way we cooperated with the ICTR, if the decision had been taken not to close the ICTR, we wouldn’t have a problem as long as they continued to operate within the statutes provided.So we will leave those cases to the mechanism for as long as it remains a decision of the Security Council. But if they make a different decision, Rwanda has never run away from responsibility.TNT: What are some of the big challenges that your office faces?Ngoga: We are just one institution among many intuitions of this country and the challenges we face are not so different from the general-the abilities of our country and the capacity of our government to facilitate our institutions. But we are not complaining about that because we understand the challenges and the capacities of our nation and the aspiration of our people and we have to work within that context. The mission of our office is to work towards a crime free community- it has never been realised but the harder you work towards such a wishful ambition, the better.If you review Gacaca records you will find a lot of Burundians who were accused. But the problem is that these were villagers in refugee camps and were not involved in the higher level of planning the Genocide. They had not interacted very much with the locals so there is a huge challenge of identifying them and getting them to stand for trial. So I cannot claim to have made a serious progress on this front but as a matter of fact some Burundians were involved in the Genocide. Those who were in Rwanda as refugees and those who went back after, some were involved and the Gacaca records are clear on this one. It is a challenge as big as that of Rwandans who fled to DRC Democratic Republic of the Congo); if you look at the list of Gacaca fugitives most of them are in the DRC, so when these people will be brought in to justice is still a challenge.TNT: ICTR is winding up its activities; as a matter of fact the International Residual Mechanism has been set up to see off the tribunal. You are even conveniently a one-time representative of the government to the tribunal, how do you bill its performance? Ngoga: Being good or bad is subjective. As matter of fact, we had the ICTR which was a good thing, and they handled some cases which were of high level that could have been probably challenging if they weren’t handled by ICTR.They also handed down some judgments that contributed enormously to the international law which is beneficial not to just Rwanda. They surely left a mark on the history of the world- on how the world responds to international atrocities like the Genocide. It is also a fact that they would have done a better job, so it s a good thing that we had the ICTR and we are grateful because the possibility of not having it all was also there.I think there are a lot of people who would have preferred not to have it in place. Not just perpetrators but some powerful politicians. Possibly Rwandans would not have expected more, the ICTR being an institution of the UN, which doesn’t have a good history with Rwanda.I personally don’t play down what ICTR did. They might have done better but they contributed well to serving justice to the Genocide. It is something that has contributed to the international processes in terms of future guidance to deter future atrocities.TNT: Do you foresee a time when ICTR will hand over the cases files of the ‘big fish’ Genocide suspects?Ngoga: I don’t know but whether it happens or not, I have no problem with it. If tomorrow the ICTR or Security Council decides to close down the mechanism and hand over the so-called big fish case files to Rwanda, we will be more than willing to receive them.But if it doesn’t happen, we have no problem with coexisting with the mechanism. We made a promise to be cooperating with the mechanism the same way we cooperated with the ICTR, if the decision had been taken not to close the ICTR, we wouldn’t have a problem as long as they continued to operate within the statutes provided.So we will leave those cases to the mechanism for as long as it remains a decision of the Security Council. But if they make a different decision, Rwanda has never run away from responsibility.TNT: What are some of the big challenges that your office faces?Ngoga: We are just one institution among many intuitions of this country and the challenges we face are not so different from the general-the abilities of our country and the capacity of our government to facilitate our institutions. But we are not complaining about that because we understand the challenges and the capacities of our nation and the aspiration of our people and we have to work within that context. The mission of our office is to work towards a crime free community- it has never been realised but the harder you work towards such a wishful ambition, the better.

Insight

I cannot downplay the work of ICTR – says Prosecutor General