African Press International (API)

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The freezing of assest by a Kenyan judge causes Felicen Kabuga to ask for talks with Rwandese government.

Posted by African Press International on May 12, 2008

Publisher: Korir, africanpress@getmail.no source.standard.ke

A few days ago we released information to the effect that Kabuga was in Oslo and had a short meeting with some two Sudanese. He wants to open dialogue with the Rwandese government for his home return. He does not want to be captured. His request for talks with the Rwandese government will be published on this online website in a few days to come. Kabuga knows that when Kenya now freezes his assets, others may follow and that will make it difficult form him to continue hiding. API

BENCHWATCH
Court awaits defendant in Kabuga case

By Nyakundi NyambogaFelicien Kabuga is a man on the run and has so far successfully evaded arrest and trial for offences arising from the infamous genocide in Rwanda, nearly 14 years ago.

Kabuga was born in 1935 in Muniga Secteur, Mukarange Commune, Byumba prefecture, Rwanda, and is a wealthy and influential businessman. Among other positions, he was the President of the National Defence Fund, Rwanda.

Under President Habyarimanas rule, political and financial power in Rwanda was consolidated within a tight circle, the core of which was the extended family of the President.

Kabuga was a prominent member of this group by virtue of marriage of his two daughters to the sons of President Habyarimana and First Lady Agathe Kanziga. He also had control over the employees of the business enterprises that he headed, such as Kabuga ETS.

Last week, the Attorney-General, through the Director of Public Prosecutions Keriako Tobiko moved to the High Court for orders preserving property that the fugitive and his wife Mukazitoni Josephine own in an upmarket estate in the city of Nairobi. Application

The application was brought under Section 60 of the Constitution of Kenya, the Geneva Convention Act, Chapter198, Kenyas obligation under international law and the resolutions of the United Nations Security Council, the inherent powers of the court and all enabling provisions of law, procedure and practice.

Tobiko told High Court Judge, Mr Muga Apondi, that the application was necessitated by a request by the International Criminal Tribunal at Arusha charged with trying persons suspected of involvement in the Rwanda genocide.

The ICTR Chief Prosecutor, Mr Hassan B Jallow, had written the request.

Tobiko informed the court that Kabuga had been charged with the following crimes before the ICTR: Count I: Conspiracy to commit genocide; Count II: Genocide or alternatively; Count III: Complicity in genocide; Count IV: Direct and public incitement to commit genocide and; Count V: Extermination as a crime against humanity.

Subsequently, in 1997, Kabuga was indicted for the offences and a warrant of arrest was issued against him. Thereafter, Kenya was requested to assist in arresting Kabuga to face trial.

According to Tobiko, Kabuga has to date managed to evade arrest and justice. That is despite the public advertisements that have been made by the CID of Kenya.

The Director of Public Prosecutions referred the court to: Resolution No. 955 of the United Nations; Resolution No. 1165 of 1998 of the United Nations; Resolution No. 1431 of 2002 of the United Nations; Resolution No. 1503 of 2003 of the United Nations and Resolution No. 1534 of 2004 of the United Nations.

The theme running through the resolutions is for member states of the United Nations to assist in investigation to trace the suspects of the genocide in Rwanda, so that they can be brought to book.

The Director of Public Prosecutions also submitted that Kenya, as a member of the United Nations, has an obligation under international law to give full cooperation to the Arusha Tribunal.

To buttress his submission, he referred the court to a book, International Criminal Law by Antonio Cassese.

Relevant points in the book include the assertion that the statutes of the tribunals impose upon states an obligation to cooperate. This obligation is at the same time sweeping (for it embraces any matter where the tribunal may need the cooperation of a state), and strict (for it is assisted by the sanctioning powers of the Security Council in case of noncompliance by a state).

It follows from that obligation that states are not allowed to rely upon such traditional clauses for refusing cooperation or extradition as double criminality, political offence, nationality of the person requested for surrender, etc.

Others are that the tribunal is endowed with broad and binding powers, for it can issue binding orders to states for the handing over of evidence, arrest of suspects, etc, or subpoenas to individuals acting in a private capacity.

Also, although states may invoke national security concerns as grounds for refusing the transmission of documents and other evidence, this is subject to strict limitations, and the tribunal may have the final say on the matter.

The book also points out that tribunals may make a judicial finding of failure to cooperate, and the President is then authorised to submit it to the Security Council.

In addition, Tobiko also submitted that, following investigations by a joint team of CID officers and investigators from ICTR, Kabuga and his wife jointly own a Spanish Villa at Lenana Road, House No. 6 on LR No.1/1154).

Initially, the rents were collected by Kenya Trust Company Limited who used to deposit the same in the Account No.24872 of Kabuga at the Commercial Bank of Africa, Wabera Street.

Subsequently, that account was closed and Kenya Trust Company Limited started remitting an equivalent of Sh290,000 quarterly to Account No.000076004853, belonging to Kabugas wife in Belgium.

The fear expressed by Tobiko is that Kabuga may be using the proceeds to help him avoid capture and evade justice. The ruling

Justice Muga Apondi said: “The investigations by the CID officers from Kenya and investigators from the ICTR are not only meticulous but also detailed.

They clearly show that Kabuga and his wife own the Spanish Villa along Lenana Road, Nairobi. The investigations also show explicitly the bank accounts and transactions that Kabuga and his wife have been involved in.

“I hereby concede to the application and hereby issue an order for the preservation of the Spanish Villas and restrain Kabuga, Josephine, Kenya Trust Company and any of their agents from alienating, selling, disposing off, wasting or damaging the subject property or any part thereof, or any interests or rights therein until the conclusion or other determination of the case (Case N0JCTR97221) against Kabuga pending in the International Criminal Tribunal for Rwanda (the ICTR) or until further orders of this Honourable Court.”

Apondi also directed that all rental income or proceeds collected or received by Kenya Trust Company limited or any other managing agent from the use or occupation of the subject property less any management fee payable, be deposited with the Registrar of the High Court of Kenya until the conclusion of the case.

Kabuga, Josephine and Kenya Trust Company were to be served with these orders by way of advertisement in at least two local, one regional and one international paper.

The parties would be at liberty to apply for extension, variation, discharge or setting aside of these orders.

Kenya is a member of the United Nations and hence bound by the resolutions of the Security Council specifically, Resolution 1503 of 2003 that requested Kenya among other states to intensify cooperation with and render all necessary assistance to the ICTR.

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African Press International – api

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