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MEMORANDUM
TO: MR. Johnston Busingye
Minister of Justice and Attorney General
Rwanda, Kigali
From: Charles KM Kambanda, PhD
Attorney and Counsel-at-Law
New York State,
United States of America
Date: November 08th, 2019
RE: Concerning the contrivance and misapprehension of common law sub judice rule, in your response to the British Legislators’ call for Col. Tom Byabagamba and Brig. Gen. Frank Rusagara’s release.
I. Introduction
This Memorandum serves to draw your attention to the shameful falsehoods and inaccuracies in your letter dated 6 November 2019, addressed to The Rt. Hon. Baroness D’Souza CMG, and other UK Legislators, hereafter the British legislators. On behalf of the government of Rwanda, you dismissed the British legislators’ call for the immediate release of Col. Tom Byabagamba and Brig. Gen. Frank Rusagara. You wrongly argued that the British legislators’ letter amounts to ex facie contempt of court and your government does not interfere with cases that are before a competent Court of law.
You invoked the Common Law sub-judice rule; that substantive issues of the matter before a competent court cannot be discussed outside the Court. You contend that the government of Rwanda wouldn’t comment on Col. Tom Byabagamba and Brig. Gen. Frank Rusagara case because the detainees appealed their conviction. Your ‘argument” is erroneous, at law, because it is settled law that the common law sub judice rule does not apply (1) where the case involves matter of public concern, like the instant case and (2) when citizens are exercising their duty to hold government officials accountable.
In your letter, you faked what you called a UK case; “Assange v. United Kingdom”. No such case has ever been litigated in the United Kingdom. You faked the parties, facts and the “ruling”.
II. Background
On 4 November 2019, The Rt. Hon. Baroness D’Souza CMG, House of Lords et al., wrote to the President of Rwanda, expressing their concern regarding continued detention of Col. Tom Byabagamba and Brig. Gen. Frank Rusagara.
On 31 March 2016, Col. Tom Byabagamba and Brig. Gen. Frank Rusagara were convicted different political crimes. Col Tom Byabagamba was convicted of Inciting insurrection or trouble amongst the population, committing an act aimed at tarnishing the image of the Country or the Government, Contempt of the national flag and Concealing objects which were used or meant to commit an offence. Rtd Brig Gen Frank Rusagara was convicted of Inciting insurrection or trouble amongst the population, committing an act aimed at tarnishing the image of the Country or the Government, Illegal possession of guns and their ammunitions.
On 23 December 2017, The UN Working Group on Arbitrary Detention rendered its opinion No 85/20 17 that the deprivation of liberty of Mr. Frank Rusagara, and Tom Byabagamba is arbitrary and in contravention of Article 95,9,10,12 and 19 of the Universal Declaration of Human Rights and Articles 7, 9,10,14,15,17 and 19 of the International Covenant on Civil and Political Rights, Category I, II and III, and that the deprivation of liberty of Mr. François Kabayiza is arbitrary and in contravention of articles 9 and 10 of the Universal Declaration of Human Rights and Articles 9 and 14 of the International Covenant on Civil and Political Rights, category III.
Col. Tom Byabagamba and Brig. Gen. Frank Rusagara were sentenced to 21 and 20 years, respectively.
The British legislators requested for the release of Col. Tom Byabagamba and Brig. Gen. Frank Rusagara, at least on humanitarian ground, because of the deteriorating health condition of the two former Kagame loyalists.
III. Col. Tom Byabagamba and Brig. Gen. Frank Rusagara case is a matter of public concern for Rwandans and friends of Rwanda, including the British Legislators – whose taxpayer’s money sustains your government. The British Legislators moved to hold Rwanda to the Commonwealth and/or international human rights standards.
The “crimes” for which the two Kagame former loyalists were convicted of are ridiculous political crimes; spreading rumors, tarnishing the image of the country and government, concealing evidence from the government and undermining Rwanda flag. These “crimes” are classic political crimes in Criminology. Political ‘crimes” are legal acts, criminalized at the convenient of the dictator trying to hold on to power by all means. Jefferson Thomas, one of the Founding Fathers of the US, in his Correspondence and Papers vol. 12, 1816 -1826, calls political crimes “acts against the oppression of the government”. The two detainees, like thousands of other political prisoners, are in prison for standing up to oppression.
The “crimes” the two detainees are accused of constitute State crime; your government is perpetrating hilarious crimes against Rwandans using unconstitutional codified political crimes, in contravention of the 2003 Constitution of Rwanda, as amended. The 2003 Constitution of Rwanda, in its Preamble, provides that “Rwanda is committed to uphold people’s fundamental human rights … and build a State governed by rule of law and a pluralistic Democracy”. Chapter IV provides that “Rwanda is committed to uphold human rights and freedoms”. Article 24 guarantees the right to liberty and security of a person. Article 27 provides for free participation in government [affairs]. Article 29 provides for Due Process. Article 38 provides for freedom of expression. The political crimes against Col Tom Byabagamba and Brig. General Frank Rusagara are evidence that the government of Rwanda does not respect the 2003 Constitution and the international legal instruments Rwanda ratified. President Paul Kagame’s junta uses the law, and courts of law, to entrench violation of human rights and freedoms.
Aside from the preposterous political crimes the two former senior military officers were convicted of, the two men were denied their right to fair hearing and the right to confront their accusers. The detainees were not allowed to cross-examine their accusers, in contravention of the 2003 Constitution of Rwanda and the relevant International Conventions Rwanda ratified.
IV. Your claim that The UN Working Group on Arbitrary Detention opinion NO 85/20 17 is not binding on Rwanda is outrageous. Your insistence that the British Legislators should not cite the UN Group’s opinion is ridiculous.
A. The UN Working Group on Arbitrary Detention points to binding legal instruments.
You “argued” that the UN Working Group on Arbitrary Detention opinion NO 85/20 17 is not “binding” on Rwanda ” [because] the United Kingdom government recently noted in the case of Assange v United Kingdom, that opinion of UN Working Group on Arbitrary Detention is not judicial in nature and non-binding on domestic courts”. First, you faked Assange v United Kingdom No such Court case has ever happened in the UK. Second, the UN Working Group has never issues an opinion over the UK. The only Court case involving Assange in the UK is Assange v Swedish Prosecution Authority, [2012] UKSC 22. It’s direful for a Minister of Justice and Attorney General to “cite” a fake case, in a letter of such importance.
The UN Working Group on Arbitrary Detention opinion on Col. Tom Byabagamba and Brig. Gen. Frank Rusagara case determined that your government is in violations of specific international legal instrument and the Constitution of Rwanda. These legal instruments are binding on Rwanda. The UN Group on Arbitrary Detention “named and shamed” the government of Rwanda. Thereupon, your argument that the Group’s opinion is not binding on Rwanda is a lazy no-count and must be treated with the contempt it deserves.
B. Contrary to your “argument”, Assange’s case is distinguishable from Co. Tom Byabagamba and Brig. Gen. Frank Rusagara.
Assuming your intention was to cite Assange v Swedish Prosecution Authority, [2012] UKSC 22, not Assange v United Kingdom you faked, you or your office should have bothered to know that in Assange v Swedish Prosecution Authority, [2012] UKSC 22, Mr Julian Assange challenged the validity of the European Arrest Warrant (EAW) on the ground (amongst others) that his arrest warrant had been issued by a public prosecutor who was not a ‘judicial authority’ as required by article 6 of the Framework Decision and by sections 2(2) and 66 of the 2003 Act. The Supreme Court (Majority) held that the EAWs were binding to domestic Courts. Whilst Minority – Lord Mance – ruled that domestic courts were not bound as a matter of European law to interpret Part 1 of the 2003 Act in a manner which accords with the Framework Decision. It is heinous that you and your office confuse the Framework Decision in Assange v Swedish Prosecution Authority, [2012] UKSC 22 with the UN Working Group on Arbitrary Detention opinion Co. Tom Byabagamba and Brig. Gen. Frank Rusagara’s case.
V. The government of Rwanda cannot rely on Common Law sub judice rule in this case
A. It is despicable, at law, to invoke common law sub judice rule in matters of public concern and/or interest.
In your letter, you opined that President Kagame and his government cannot interfere with the judiciary, in violation of the common law sub judice rule. For all we know of President Kagame’s dictatorship, this is frothy assertion. First, Col. Tom Byabagamba and Brig. Gen. Frank Rusagara are in prison for ridiculous political crimes. Political crimes are created by dictators, for the dictator’s political survival. Second, there is no independent institution in Rwanda. The fact that you have draconic laws like the crimes Col. Tom Byabagamba and Brig. Gen. Frank Rusagara are accused of is proof that your government is a dictatorship. In a dictatorship, all institutions serve the absolute ruler. The British Legislators, like all right thinking Rwandans, are asking your government to drop those ridiculous political crimes from the criminal code, respect the 2003 Constitution of Rwanda and all the international legal conventions Rwanda ratified.
In Exparte Bread Manufacturing Lts, Re Truth and Sportsman Lt (1937) SR (NSW) 242, Court held that statements are not contemptuous if they raise legitimate and pressing issues of public importance; also Rv Edmonton Sun, 200 ABQB and Midi Television (pty) Ltd v Director of Public Prosecution (2001) SCA 56 (RSA). In Attorney General v Time Newspapers [1973] 1 ALL ER. 815 (UKCA), the Supreme Court held that matters of public interest cannot be suppressed merely because of the common law sub judice rule. When citizens are exercising their constitutional duty to hold government accountable for its excess, government cannot invoke sub-judice rule. Your government cannot invoke sub judice rule in this case.
B. Where government is involved, common law sub judice rule trigger complex freedom of speech legal issues
In Dagenais v Canadian Broadcasting Corp. [1994] 3 S.C.R. 835, Court held that the common law sub judice rule cannot overshadow freedom of expression. Dagenais case set two-fold standard to ensure that sub judice rule does not suppress freedom of speech; the necessity and salutary effect standard. Justice Ruthrfold reasoned that sub judice rule is not a tool that can be pulled out of the box for use on occasions when it suits one’s interests.” In almost all cases when government evokes common law sub judice rule, freedom of speech legal issues arise. When government invocation of sub judice rule trigger free speech legal issues, the Dagenais two-fold sub judice standards convert to strict scrutiny standard because freedom of speech is a fundamental right.
In jurisdictions where ex facie contempt is codified, the Statute must create a public affairs exception or a defense. The rationale is that matters of public concern or when people endeavor to hold their government accountable, sub judice rule does not apply. That’s the law; your government can’t re-invent common law sub judice rule
VI. Conclusion
Concocting case law ( fake parties, facts and ruling) and invoking sub judice – which you know or should know – does not apply to the instant case – puts you, your office and government of Rwanda to disrepute and raises competence issues for you and your office. ‘Citing” a bogus case, like the “Assange v United Kingdom” you faked, in a document of national importance, is unbecoming of any lawyer, much less a country’s Attorney General. Col. Tom Byabagamba and Brig. Gen. Frank Rusagara, like many other Rwandans, are languishing in prison because President Kagame perceives them as a threat to his absolute power. Heed the British legislators’ call; your government should respect the 2003 Constitution of Rwanda and all the international human rights conventions Rwanda ratified. Rwandans must build a democratic society for sustainable development or your government is clutching at straws.
