5.      Alibi

721.   An important part of the Defence case is that the two Accused have alibi for the periods where they are alleged to have committed criminal offences. In connection with these allegations the Chamber discussed whether the Accused had alibi for the morning of 16 April, see 3.8.3 (e); for the remainder of 16 April, see 3.11.4; and from 17 April to July 1994, see 4.3.

6.         Character of the Accused prior to April 1994

6.1       Defence

722.   Throughout the case, the Defence emphasized that the Accused were persons of high moral character and reputation, and that the accusations against them are totally inconsistent with their previous life and character. According to the Defence, their character "must be weighed against the inflated, erratic and false charges against them". [1048] For this reason, the Chamber will consider the evidence on good character and its significance, if any, in weighing the evidence adduced by the Prosecution against the Accused.

723.   According to the Defence, the Accused have devoted their lives to pastoral care and medicine. They have consistently avoided any political affiliation or activity. When violence broke out in April 1994, the Accused’s good character prevailed and their conduct remained consistent. They shunned the fighting but also worked fervently to re-establish pastoral and medical services that had been destroyed in the violence. Below the Chamber will consider the submissions on the Accused’s character and reputation prior to the events of April 1994. Evidence concerning the conduct of the Accused during the period April-July 1994 will be examined later (II.4 and 5).

6.1.1    Elizaphan Ntakirutimana

724.   The Defence submits that for fifty years, Elizaphan Ntakirutimana served the Seventh Day Adventist Church (SDA) as a teacher, office worker, accountant, treasurer, auditor and Gospel Minister. He was elected President of the Church in West Rwanda and South Rwanda a total of four times. He was known as a moderate man, a conciliator. Not a single Prosecution witness alleged that he had ever evidenced any bias against Tutsi before April 1994. Of Witness GG, who testified that the Accused had always been a "wicked" man, the Defence points out that the witness provided no evidence to support his claim. Leaders who served in the SDA in Africa have spoken highly of Elizaphan Ntakirutimana’s character and reputation. The Chamber heard testimonies and was provided with written statements to this effect (see 2.3).

725.   In support of Elizaphan Ntakirutimana’s good character the Defence also relies on the testimony of Faustin Twagiramungu, Prime Minister Designate in the Broad Based Transition Government under the Arusha Accords, who served as Prime Minister from July until August 1994. Reference is also made to a sealed affidavit by Defence Witness 33, who did not testify. According to the Defence, this witness, who for a period in April 1994 managed to save many lives in Kigali, "praised Pastor Ntakirutimana’s character". [1049]  

6.1.2    Gérard Ntakirutimana

726.   The Defence submits that the life of the Accused is "anchored by three unshakable rocks"; devotion to family, to religion and to his calling as a physician. He was a brilliant student, religious, and his close friends included both Hutu and Tutsi. According to the Defence, the officiating minister at Gérard Ntakirutimana’s wedding in 1989 was Pastor Amon Iyamuremye, a Tutsi; his best man, Augustine Mutijima, was a Tutsi; and one of his groomsmen, Josué Kayijaho (brother of Assiel Kabera), was also a Tutsi.

727.   After having obtained his Master’s degree in the United States, Gérard Ntakirutimana declined to practice his profession there because his goal in life was to practice medicine in his own country. In Rwanda, he was attracted by the vision of integrated health care expounded by Dr Oscar Giordano, director of the Mugonero Hospital in Ngoma. Thus, the Defence submits, "Dr. Gérard decided to go to Mugonero, an area where the population is mostly Tutsi, to a hospital where the staff was mostly Tutsi, in order to embark on a project to provide preventative holistic medicine to the community. He did this not for power, or wealth, but to care for and work with Rwandans as a doctor." According to the Defence, the accusations against Gérard Ntakirutimana are totally inconsistent with his life and character. [1050]

6.2  Prosecution

728.   The Prosecution argues that character evidence is irrelevant in this case and that it has had no intention of making the character of accused persons an issue. [1051] The Prosecution witnesses testified to criminal involvement or participation by the Accused. During the closing arguments, the Prosecution conceded that it had not been able to demonstrate that the two Accused had any political affiliation or were politically active. [1052]

6.3       Discussion

6.3.1    Introduction

729.   While evidence of prior good character is commonly taken into account at the sentencing stage, its acknowledgment at earlier stages of judicial reasoning is rare. In a decision in the case of The Prosecutor v. Kupreskic et al., the ICTY Trial Chamber stated:

…. generally speaking, evidence of the accused’s character prior to the events for which he is indicted before the International Tribunal is not a relevant issue inasmuch as (a) by their nature as crimes committed in the context of widespread violence and during a national or international emergency, war crimes and crimes against humanity may be committed by persons with no prior convictions or history of violence, and that consequently evidence of prior good, or bad, conduct on the part of the accused before the armed conflict began is rarely of any probative value before the International Tribunal, and (b) as a general principle of criminal law, evidence as to the character of an accused is generally inadmissible to show the accused’s propensity to act in conformity therewith… [1053]

730.   In its judgement in the same case, the Trial Chamber, before considering the case involving each accused, stated that "due weight" had been given in each case to the fact that all the Accused were of good character and had called evidence to this effect. Five  of the Accused were convicted by the Trial Chamber. [1054]

731.   At the ICTR, one judgement contains an explicit discussion of the significance of previous good character. In Bagilishema, the Trial Chamber quoted the above statement in Kupreskic and stated:

The present Chamber concurs with the above statement, particularly in the context of serious violations of international humanitarian law, where evidence of prior good character is of little or no probative value. However, were such evidence shown to be particularly probative to the charges at hand, then the burden will be upon the Prosecutor to dispel any resulting doubts there may be regarding its case. [1055]

732.   The Chamber concurs with the above statements. Case law at the ICTR has illustrated that persons with no criminal record or who showed no previous animosity or hostile attitude towards the Tutsi population before 1994 nonetheless committed crimes in Rwanda from April to July 1994. [1056] But as indicated in the two statements quoted above, this does not mean that previous good character is necessarily without any significance whatsoever. In the present case, the Defence has stressed that the previous good conduct of the Accused is of particular relevance. The Chamber will therefore examine the probative value of the evidence.

6.3.1  Elizaphan Ntakirutimana

733.   Several witnesses testified about the good character of Elizaphan Ntakirutimana. Defence Witness Merle Mills was president of the Trans-Africa Division of the Seventh-Day Adventist Church from 1966 to 1980. [1057] He testified that as a core policy, the SDA "believes in and promotes the concept of separation of church and state, which means that the church does not involve itself with politics". [1058] The witness described Elizaphan Ntakirutimana as "one of our most capable leaders among the Africans". [1059] The Accused occupied several leadership positions within the organization of the church, including field president and auditor in the union. His re-election to various leadership positions indicated a track record consistent with the core policies of the church. [1060] Witness Mills never received complaints about Elizaphan Ntakirutimana violating church doctrine on anti-discrimination. The Pastor was "held in high esteem and did his job well". [1061] The witness also emphasised that the Accused did not become involved in politics during the 14 years the witness was president of the Trans-Africa Division. [1062] Witness Mills had not seen Elizaphan Ntakirutimana since leaving Rwanda in 1980. [1063]

734.   Shortly prior to his testimony, Witness Mills had asked several Seventh-Day Adventists who had worked with the Accused over the years for their "opinion of their relationship to Pastor Ntakirutimana, if he still held true to the principles of the church and its policies". [1064] Six such statements were received by the Chamber. [1065]

735.   The first statement is from Pastor Robert G. Peck, who was Rwanda Union Mission President from 1984 to 1990. When he arrived in Kigali, Elizaphan Ntakirutimana was doing auditing work for the Rwandan Union Mission. When he found irregularities, he showed courage irrespective of the workers ethnical affiliation (Hutu or Tutsi). Because of his adherence to principle, he was appointed to the post of mission President at Mugonero. He was "truthful, honest, fair, and reliable". His character was "impeccable and above reproach". To Mr. Peck’s knowledge, the Accused continued as a trusted worker for years after his departure in December of 1990. [1066]

736.   Mr. DeWitt S. Williams was president of the Central African Union from 1979 to 1982, when he lived in Burundi with responsibility for that country and Rwanda. Elizaphan Ntakirutimana was then president of the North Rwanda Field. According to the statement of Mr. Williams, Elizaphan Ntakirutimana was "always a kind Christian gentleman" who worked well with the Hutu and the Tutsi. Mr. Williams never saw him make any distinction between them, or heard anyone speak about him discriminating against another person. The Accused was nominated several times for his position as president. He was a "loyal Christian, faithful church member, and kind father and husband". [1067]

737.   Mr. Don H. Thomas, who became acquainted with Elizaphan Ntakirutimana around 1958, wrote that over the years the Accused built "a reputation of honesty, fairness and dedication to his work". When Mr. Thomas worked in Rwanda in 1960 he observed that, in a time of political and social strife when "the majority Hutu began to discriminate against anyone suspected of being Tutsi", the Accused remained aloof from this unrest and the ensuing violence. During the period 1990-1993, when Mr. Thomas was treasurer of the African-Indian Ocean Division. On a number of occasions he observed the Accused participating as a field president at executive meetings in Kigali. He never perceived anything which would indicate that Elizaphan Ntakirutimana was involved in the politics of the time. The Division had to deal with a number of serious issues involving discrimination and even killing of Tutsi students at its university college in Bugoyi, but "never once did the name of Ntakirutimana surface as having been party to, or sympathetic towards, the violence meted out by Hutu mobs and the militia against defenseless Tutsis". According to the statement, Elizaphan Ntakirutimana "served His Lord faithfully all his working life, loving his fellow men regardless of their ethnicity". [1068]

738.   Mr. Burton Wendell was auditor of the Rwanda-Burundi Mission for eleven years and had contact with the Accused many times, in particular during Union committees and the annual Field year-end committees. According to Mr. Wendell’s statement, he never heard a word from the national workers complaining about any "Hutu-Tutsi bias". [1069]   Witness Mills recalled Mr. Wendell stating orally to him that he marveled how Elizaphan Ntakirutimana got along with the ethnic groups. [1070]

739.   Mr. Harvey L. Sauder, who first met Elizaphan Ntakirutimana in August 1973, and worked with him several weeks each year for five years thereafter, wrote that "I never once found him to be guilty of any ethnic bias toward his fellow workers and their congregations". In the hundreds of hours they traveled together the Accused "never once allied himself to any political party or ethnic group but always considered himself a servant of God and his church". Mr. Sauder considered Elizaphan Ntakirutimana one of the most outstanding pastors in the Rwanda field. [1071]

740.   The Chamber was also provided with a letter from Pastor Barry Burton to Ms Janet Reno, United States Attorney General, written on 30 September 1999, before the Accused was transferred to the ICTR. In the 1950s and 60s, Mr. Burton was a missionary and an internal auditor of the SDA in Rwanda and became rather well acquainted with Elizaphan Ntakirutimana. In the letter, Mr. Burton wrote that "[h]aving observed this man in action in the past and realizing historically that he has never during the past forty or so years taken sides in the constant upheavals in that unfortunate country, it is impossible for me to entertain under any circumstances the thought that he might be guilty of the charges that have been brought against him." [1072]

741.   Apart from Witness Mills, other Defence witnesses spoke favourably of Elizaphan Ntakirutimana’s prior character. According to Witness 23, "politics was something which was taboo" to him. [1073] The Accused appointed to church posts individuals belonging to both ethnic groups. [1074] Witness 7 testified that the Accused was not a member or supporter of any political party. [1075] He "was a respected man, firstly, because he was a member of the clergy. Secondly, he was an elderly person". [1076] According to Witness 4, both Accused "had very good relations with the[ir] neighbours. They were people who were very devoted in their work and they were very proper, upright in everything they did." [1077]

742.   Several Prosecution witnesses, all Tutsi, also gave a positive account of the Accused prior to April 1994. Witness QQ testified that Elizaphan Ntakirutimana was "a respected man". [1078] In Witness MM’s view, "everybody had great respect" for Elizaphan Ntakirutimana prior to the alleged events. [1079] Witness XX agreed that the Accused was a "very respected person". [1080] Witness FF confirmed that her and Elizaphan Ntakirutimana’s families had been very close, and that the families "trusted and respected each other and were friends". [1081] She also confirmed that Issacar Kajongi, a Tutsi relative of the witness, was a particularly close friend of Elizaphan Ntakirutimana before the war. [1082] Witness HH testified that he did not know of any conflict between Elizaphan Ntakirutimana or Gérard Ntakirutimana and Tutsi people prior to April 1994. [1083]

743.   Witness II said that Elizaphan Ntakirutimana "was our pastor, and he taught me religion … I knew him since I got to the age of reason … besides, he is the one who baptized me." [1084] (The witness was 34 years’ old at the time of his baptism in 1986. [1085] ) He also stated that the Pastor was "someone in whom we had placed a great deal of hope. We had thought that he was going to protect us. He had educated us, brought us up as a parent and he taught us in his church." But at the same time the witness said that the Pastor was someone who "participated in all the major meetings and would even meet with the president". [1086] This could be interpreted as an indication of political activity.  In later questioning, however, it transpired that the remark about the president was without foundation. [1087] In the Chamber’s view, and in view of their context, the remarks of the witness must be interpreted as a way of expressing that the Accused was an influential personality.

744.   Witness GG agreed that prior to the death of President Habyarimana, Elizaphan Ntakirutimana was a respected man. But he also testified, without giving reasons, that the Accused "was a wicked man. He had been a wicked man for a long time". [1088] When asked about the basis for this statement, he made an allegation against the Accused which related to April 1994. [1089] The testimony was not clear, and the allegation is not part of the Prosecution’s case. The Chamber also notes that according to the statement of the witness to investigators on 30 June 1996 his view was that the people trusted the Accused. Consequently, the Chamber disregards this part of Witness GG’s testimony.

745.   Finally, the Chamber has noted the letter dated 15 April 1994, addressed to the Accused by the Tutsi pastors who had taken refuge at the Complex (see 3.8.3 for the full text). [1090] It is written in a tone of great respect. Apparently, its authors believed that, even in those very tense and dangerous times, Elizaphan Ntakirutimana would intervene to the extent he could to save them. The letter was preserved by the Accused, who handed a copy of it to a journalist years later.

746.   On the basis of the available evidence, the Chamber accepts that until the outbreak of the events in April 1994, Elizaphan Ntakirutimana, then 70 years of age, was considered a trusted and respected religious leader. There is evidence that prior to that time he did not show any ethnic bias, even in periods of Hutu-Tutsi conflict. Furthermore, and as conceded by the Prosecutor, no evidence has been led that he was ever engaged in politics or had any political affiliation. [1091]

747.   The Defence stressed that Elizaphan Ntakirutimana, being a prominent member of the Seventh-Day Adventist Church, could not have acted as alleged by the Prosecution. The Chamber notes, however, that it follows from estimates led by the Defence that thousands of Church members participated in the killings. Therefore, even religious, devout followers, may change in critical times. [1092]

6.3.3    Gérard Ntakirutimana

748.   Prosecution Witness PP testified about the good character of Gérard Ntakirutimana. The witness, a Tutsi, regularly visited the Mugonero Hospital for treatment, at which times he would see Gérard Ntakirutimana. [1093] The witness specified that both he and his family were treated by the Accused on a number of occasions. The Accused would always treat him and his family with care, concern, and respect: "I think that generally that is the responsibility of every physician, and he did that. … If you decide to go and see him, it is because you have trust in him." [1094]

749.   Several Defence witnesses spoke highly of Gérard Ntakirutimana. Witness 11 studied medicine with the Accused at the University of Butare. [1095] "He was someone full of integrity, and he is among the category of persons that were referred to as ‘the gents’ of the university. Even during his studies and after he became a doctor, he didn’t do anything that would tarnish his image." [1096] Gérard Ntakirutimana taught at the University of Butare while Witness 23 was in attendance. [1097] According to the witness, he was a lecturer that many students respected and admired. [1098] Witness 7 testified that Gérard Ntakirutimana was not affiliated with any political party and was not involved in politics. [1099] He said of the Accused that "I wouldn’t consider him as a man with authority within the community because … he had been there for less than a year." [1100] The witness said he had never heard Gérard Ntakirutimana express any animosity towards Tutsi. [1101]

750.   The Chamber accepts that Gérard Ntakirutimana was a person of good character prior to the events in question. [It has attached due weight to this factor when assessing the evidence in support of the allegations against him.] The Chamber has also noted the evidence by the Defence that the Accused had close Tutsi friends and decided not to remain in the United States but to go home to Rwanda and practice medicine in Mugonero.

7.         Was There A Political Campaign to Falsely Incriminate the Accused?

7.1       Defence

751.    The Defence claims that the two Accused are victims of an "organized propaganda effort" that took root in Rwanda in late 1994, seeking to falsely incriminate the Accused for political gain. Witnesses GG and FF, among others, were agents of that campaign, which was conceived and directed by persons close to the new, RPF-controlled government. [1102]

752.   The Defence relies, firstly, on Witness 9, who testified that one Assiel Kabera, a politician who became Prefect of Kibuye under the new government, together with his brother Josue Kayijaho, was instrumental in establishing the survivors’ organization IBUKA. According to the Defence, Witness 9 remained in Rwanda for several months after July 1994. Between November 1994 and March 1995, the witness personally observed that Assiel Kabera, Witnesses GG and FF, and others participated in "political meetings" to secure indictments against the Accused. The witness also saw a man being beaten because he refused to make false accusations against Gérard Ntakirutimana. [1103]

753.   The Defence relies, in addition, on the testimony of Witness 31 that, in late 1994, Assiel Kabera provided the Minister of Justice in Kigali with a list of people from his region to be accused of genocide, "but without any documentation to support the claim". Other officials also supplied such lists to the Minister, but never was a list supported by any documentation. The final list, typed by Witness 31, was used by the Minister at a press conference in the Netherlands for the purpose of soliciting international support for Rwanda’s effort to pursue those it claimed had committed genocide. While Witness 31 did not claim that the Accused’s names were on the final list, or even on Kabera’s earlier list, the Defence contends that this evidence proves that the lists "were a purely political means of attacking enemies of the RPF". [1104]

754.   The Defence relies, thirdly, on a film (exhibit 1D41A) narrated by Assiel Kabera. It submits that the film was made "probably" in April 1995 at the time of the reburial of bodies at Mugonero Complex. This event was described by Witness QQ, who testified that it was filmed. [1105] The film opens inside the ESI Chapel at Mugonero, and the narrator, Assiel Kabera, declares that people who had gathered at the Chapel were killed in the presence "of the president of the Field, Ntakirutimana" (exhibit 1D41B). Moments later the narrator mentions the name of Witness FF, who appears and speaks to the camera. Witness MM also appears and speaks. (A translation of what they said was not tended; the Defence relied only on the narrator’s words in the first 70 seconds of the film.) While reference is made in the opening of the film to Elizaphan Ntakirutimana, no mention is made in the film to Gérard Ntakirutimana. Yet the Defence concludes that the film is political propaganda, unsupported by evidence, intended to defame and secure the prosecution of the two Accused. [1106]

755.   Fourthly, the Defence cites a publication (exhibit P29) by the human rights organization African Rights, dated 1 February 2000 and entitled "Charge Sheet No. 3: Elizaphan Ntakirutimana". The Defence states that "[t]he pamphlet is a crude attempt to smear Pastor Ntakirutimana and Dr. Gerard with false inflammatory propaganda. The entire magazine reeks with propaganda against the accused." [1107] The Defence does not provide examples of the alleged "propaganda", although it does point out that a number of Prosecution witnesses were interviewed by African Rights, and refers to excerpts from the publication in which allegations are made against Elizaphan Ntakirutimana. The Defence finds it significant that a number of Prosecution witnesses were interviewed by African Rights around the same time as they were interviewed by Prosecution investigators. The Defence submits that African Rights "worked closely with IBUKA and the RPF and was part of the campaign to secure the convictions" of the two Accused. [1108]

756.   The Defence further argues that Prosecution witnesses were coached to lie. For example, the Defence submits that alleged inconsistencies in the evidence of Witness DD "clearly show that he was under pressure by someone to make claims that were not true" as part of a "politically motivated effort". [1109] "Prejudice" by certain other witnesses establishes that they were part of the campaign. "Why would it be otherwise?", asks the Defence. [1110] Elsewhere, however, the Defence sees signs of a campaign, not in inconsistencies, but in the "uniformity" of evidence and "tactics" of certain witnesses: "The relationship among these witnesses [YY, UU, DD, VV, KK, II, SS, and XX], the striking similarities in their statements and their tactics, disclosed a concerted and directed political effort to convict [the Accused] with wildly concocted stories." [1111] As an illustration of the reasoning behind this proposition, the Defence claims that "[Witness] YY could only be a public authority with the approval of the RPF, if not by its actual appointment. He probably served in the RPA. He obviously headed a group of witnesses intended to convict [the two Accused] by false testimony, several of whom, including YY, UU and KK appear to have been soldiers." [1112]

7.2       Prosecution

757.   While the Prosecution does not directly or systematically refute this propaganda argument advanced by the Defence, it is clear that the Prosecution sees no merit in it. For example, the Prosecution stated in closing arguments:

The Defence would have you believe that many of the Prosecution witnesses are propaganda tools of the Rwandan government or have been put up to provide testimony by pressure groups and NGOs such as Avega and Ibuka. Well, I submit to Your Honours that if that is indeed the case, you will be amazed at the sort of evidence that people that fit such a description have given before this Court about these two accused persons. One such evidence is testifying that all the soldiers had done on the evening of the 16th was walk around dead bodies. We submit to Your Honours that is simply not the sort of account that witnesses who are all out to implicate accused persons give in criminal trials. This is what they saw, and they simply testified to what they saw. One of such witnesses is Witness MM. He’s highly criticised by the Defence for being a propaganda tool. Well, all he says is that he saw Gérard looking around dead bodies. [1113]

7.3       Discussion

758.   In the Chamber’s opinion, the Defence argument of an organised propaganda effort directed against the Accused could succeed only if the Defence were able to demonstrate that it is reasonably possibly true that the Prosecution’s witnesses, whether as leaders or as persons coerced, were participants in a campaign to falsely incriminate the Accused, for whatever reasons.

759.   The Chamber observes, however, that such demonstration cannot proceed simply from evidence that there were persons in Rwanda who made criminal allegations against the Accused or who sought out potential witnesses to consolidate evidence in establishing an organised propaganda program directed against the Accused, or to initiate prosecution against the Accused. For the Defence to succeed, it must produce reliable evidence tending to show that there was, first, a campaign of deceit against the Accused, intended to ascribe to them crimes which they did not commit and, second, that that campaign influenced the case mounted by the Prosecutor.

760.   Addressing first the testimony of Witness 9, the Chamber will consider whether the Defence submissions meet this two-fold test.

761.   Witness 9 testified that in early 1994 he was a student at the ESI Nursing School in Mugonero where he began teaching in September 1994. [1114] At that time, Witness QQ was the director of the school. [1115] Witness 9 remained in his teaching post until March 1995 but also engaged in trade. [1116] He testified that he saw the Prefect of Kibuye, Assiel Kabera, four times between November 1994 and March 1995. [1117] On these occasions, Kabera held meetings with Witnesses FF and GG, among others, at the Ngoma Commercial Centre. [1118] Witness 9 saw people gather for the meetings, but he did not personally attend any meeting. He testified as follows:

A. Yes, I was disturbed about the holding of these meetings.

Q. And did you come to learn what it was they were talking about and planning to do?

A. Yes.

Q. Can you tell us what that was?

A. They had planned the arrest of people they did not like, people the[y] were not happy with within that region.

Q. And how did you—you saw the meetings, but how did you come to learn what they—what they were about?

A. After drinking, some people came and threatened us and told us about their plan.

Q. What people came and threatened you after they were drinking, and what did they say? [1119]

[At this point it transpired that only one person came to threaten Witness 9. This person was neither Witness FF nor Witness GG.]

Q. Can you tell us what he did; what his work or position was; who he was?

A. He was a farmer, a breeder.

Q. And was he—approximately how old do you think he was?

A. Over 30.

Q. Was he a well-known person?

A. No.

Q. And I believe you have said he had been drinking. Do you know where and what he had been drinking?

A. Yes.

Q. Please tell us.

A. He was drinking a local beer called urwagwa…

Q. And what did this person who is the second name under No. 2 [of exhibit 1D37] say to you on that occasion?

A. He said that we had to give him money to go and buy beer, and that if we did not do so, he would do what he had done to others to us, and he cited the name of the old man, Pastor Elizaphan Ntakirutimana.

…

A.     I did not understand what he meant very well because I had not heard anything about the pastor on the radio or read anything for that matter. [1120]

762.   Witness 9 was then asked if he knew what was discussed at the meetings. He replied: "I’m in no position to know what was discussed during those four meetings for the simple reason that I did not attend any of them." [1121] Counsel for the Defence repeated the question, and the witness then said: "I told you that the idea was to arrest people they were not happy with, and that indeed happened, at least for a number of them." [1122]

763.   In addition to the four closed meetings, Witness 9 testified about a public meeting he attended in March 1995. Witness FF was present. [1123] Certain people from Kigali also participated. [1124] Three names were discussed at the meeting: Pierre Rudasimbukanwa, Gérard Muhayimana, and one Samuel. It appears, from the witness’s testimony, that the purpose of the meeting was to submit accusations against individuals who had committed crimes in 1994, and to compile "lists" of such persons. [1125] Some were then arrested: "What I’m saying in regard to this matter is that it was necessary and that these persons should be accused so that the guilt or otherwise could be established. In other instances, some of these persons who were blaming the person who has been accused, after the accusation, the person was transferred from Ngoma prison to Kibuye prison." [1126]

764.   Finally, Witness 9 referred to one Edison Munyamulinda who had been assaulted in September 1994. [1127] "He said that [the beating] was because he had not accepted that his name be on the list of persons who were to accuse other persons." [1128] Witness 9 alleged that Munyamulinda had been asked to accuse Gérard Ntakirutimana, but he stated that he did not know who had solicited the accusation. [1129] Witness 9, when asked again about this incident on the second day of testimony, offered a different explanation of the assault on Munyamulinda: "Now, coming to details, the fact that he was beaten up in public, that was not told to me because I myself was present at the spot. Now, as for what he told me regarding the reason for his beating, he told me that because the person whom he had wronged had pardoned him in public, but later on he was beaten up in public using the same pretext." [1130]

765.   For the purposes of this section only, the Chamber will suppose that Witness 9 is credible and that his evidence is reliable. Yet, even on the basis of this assumption, Witness 9’s evidence, considered in isolation, does not tend to show that there was a campaign of deceit against the Accused and, ipso facto, it does not show that such a campaign influenced the case mounted by the Prosecutor.

766.   Witness 9 asserted that the objective of the four meetings attended by Kabera and Witnesses FF and GG was to plan "the arrest of people they did not like, people the[y] were not happy with within that region". Yet, this alleged purpose of the meeting would seem to exclude the two Accused, who had left the country in July 1994. Even if Elizaphan Ntakirutimana were a target, there is very little to suggest a campaign of deceit. The only evidence suggesting a possible false accusation against Gérard is the reported threat uttered by the man seeking to obtain beer (who prior to this incident had spent about thirty minutes drinking at the bar, according to the witness [1131] ), namely that if Witness 9 did not give him money to buy beer, "he would do what he had done to others to us", as he had done to Elizaphan Ntakirutimana. This reported remark suggests that accusations leveled against the Accused at the meeting (supposing they had been) were groundless. A vague suggestion of false accusation does not, in the Chamber’s opinion, amount to a reasonable probability that the Accused was a victim of a propaganda campaign.

767.   The assault on Munyamulinda occurred, according to the witness, in September 1994, and therefore is not connected, from the witness’s own account, with the four Kabera meetings, the first of which was held in November 1994. Indeed, no connection has been asserted between Munyamulinda and Witnesses FF and GG, who are reported to have attended the Kabera meetings. Munyamulinda was not a Prosecution witness. He may have been pressured to accuse Gérard Ntakirutimana (Witness 9 did not say "falsely" accuse). Yet, the accusation by one individual does not demonstrate a reasonable possibility that there was a campaign against the Accused -- that is, more than an isolated act of coercion. In any case, the decisive consideration is that the Munyamulinda incident reveals no connection with the Prosecution’s case, leaving the second arm of the test unfulfilled.

768.   As a final word, the Chamber sees nothing remarkable in the suggestion that, shortly after the events of 1994, meetings were convened by authorities at which lists of suspects were drawn up with the help of ordinary citizens. Assuming Witness 9’s evidence is true, the Chamber is not inclined to find, on this basis, that there may have been a campaign of deceit against the two Accused which influenced the Prosecution’s case.

769.   The Chamber will now consider the evidence of Witness 31. According to her testimony, the witness first joined the Rwandan Ministry of Justice in 1991. [1132] Sometime after 19 July 1994, she held a position close to the Minister of Justice. [1133] One day, she met with Assiel Kabera, the Prefect of Kibuye, who was visiting the Minister. [1134] Kabera handed her a file with a list of names which she glanced at briefly: "When I opened it, I saw the title ‘Lists of génocidaire[s]’." [1135] Later that day, the Minister gave Witness 31 a larger file, containing the papers from Kabera, amongst others, and asked her to type the list of names. [1136] The witness testified that, when typing the list, she could not distinguish which papers were Kabera’s. They "all had almost the same title, with a few differences: ‘Lists of génocidaire[s]’, or ‘Lists of people who were involved in genocide’, ‘who killed’, ‘who raped’, ‘who looted’, ‘those who ate cows’." [1137]

770.   The information from the list about each individual was limited to basic identification details. "He had asked me to add a last column where the charges would be placed. … I did not know what charge to put there because there were different titles, so I turned around and asked him the question. He reflected for a while, and he said to me, ‘It’s true, it’s odd. We should not do that because that is the prosecutor’s job.’ Then he told me, ‘Remove that last column and put one title, A list of alleged génocidaires’, which is what I did." [1138] Witness 31 further testified that the list which she typed consisted of names she recognised: "former authorities, ministers, members of parliament, secretaries-general, people who are known for their duties in the ministry, former préfets, soldiers, former soldiers". [1139] She did not claim to have noticed the names of the two Accused. She faxed the list to the Minister who, in the meantime, had travelled to the Netherlands to raise funds for the judicial infrastructure and to seek international cooperation in the arrest of persons whose names appeared on the list. [1140] At the end of her testimony, Witness 31 was asked if she knew whether Kabera had been dismissed from his position as prefect following accusations that he had falsely imprisoned citizens of Kibuye prefecture. She answered, simply, that she did not know. [1141] The witness did not claim or even suggest that Kabera or anyone else had falsely accused a listed person.

771.   The Chamber observes that the Defence contention, that the evidence presented by Witness 31 proves the lists to be "a purely political means of attacking enemies of the RPF", is completely unfounded. There is no indication that the list from Assiel Kabera was the product of a campaign of false incrimination; there is no evidence connecting Kabera’s list to the two Accused; and there is no evidence that the compilation of lists by the Rwandan Minister of Justice in late 1994, as described by Witness 31, has somehow tainted subsequent investigations by the Prosecutor of the Tribunal. Therefore, the second argument of the Defence also fails to raise doubt.

772.   The third argument raised by the Defence concerns the film of which the opening sequence is apparently narrated by Assiel Kabera. The narrator is heard to say, according to a translation provided by the Defence, that persons gathered at the ESI Chapel were killed in the presence of Elizaphan Ntakirutimana. The camera then pans to Witness FF, who appears to give an interview in Kinyarwanda. No translation of the witness’s words was provided. The Defence submits that the film is a propaganda instrument. However, the testimony of Witness 9 undermines that claim. This Defence witness testified to having viewed the film just prior to his testimony. [1142]   He stated that one of the interviewees in the film, when asked what Elizaphan Ntakirutimana had done, "replied by saying that, Pastor Ntakirutimana had done nothing in regard to the events of 1994, that he had no role during those events." [1143] The Chamber observes that, had the film really been intended as part of a smear campaign directed against the Accused, this interview would not have been included.

773.   Even assuming that Assiel Kabera alleged in this film that Elizaphan Ntakirutimana participated in killings at Mugonero, and invited Witness FF to speak on the subject in the film, this does not in any way amount to evidence of a campaign of false incrimination. Insofar as no other evidence has been adduced on the purpose of the film, the Chamber concludes that the Defence has failed to make a case that the testimony of Witness FF, and by inference the Prosecutor’s allegations, were tainted by a campaign of deceit in which Assiel Kabera assumed a role.

774.   The remaining arguments of the Defence also fail to raise a doubt. The fact that the organization African Rights published its interviews with persons who later testified for the Prosecutor in this case does not indicate a campaign of deceit against the Accused. Nor does the publication indicate an intent to ascribe to the Accused crimes which they did not commit. Nor does it reasonably suggest that the case mounted by the Prosecutor has been tainted by any such campaign. Inconsistencies in the testimony of witnesses, which the Chamber has evaluated in this chapter, are a common feature of trials and may bear on the credibility of a witness. However, in this instance, the Defence has not shown that any alleged inconsistency is symptomatic of a concerted effort to fabricate evidence against the Accused.

775.   In closing arguments, the Defence was asked why the two Accused, in particular, should be the targets of a political campaign. The answer was entirely speculative:

it’s very hard for anybody, and certainly for us to know—I know they find it still hard to believe; who and why? But I think clearly it has to do—in part at least, and I believe in a very major part—[with] the overall attack on the churches … We know what happened where ten bishops and the archbishop were killed one day [in 1994] by RPF soldiers … The Adventist church is the second largest church … in Rwanda. … A new government that represented a very small minority of the people … not the kind that can win in a democratic election … And the churches would be independent. … So I have to think that it was primarily the church and it had to mean, too, that at least the pastor was seen as an independent human being, not manipula[ble], not coercible, not conformist, a moderate and a conciliator and a peaceful man but not one that would participate in violence or repression or anything like that. And then why Gérard? In part, I think, because it’s a very neat way of getting at a father and a very cruel way of getting at a father, and in part, perhaps … that they saw him as younger and stronger and more vigorous and a greater threat in the future than his father might be. I go back to say that the two were targeted is undeniable and we’d have to ask those who targeted them why… [1144]

776.   The Defence includes a similar speculative argument in its Closing Brief: "The RPF needed to eliminate all Church leadership from 1994 to maintain even its precarious control of Rwanda." [1145] However, neither in its final argument nor elsewhere in its case does the Defence offer an explanation why the RPF would initiate a campaign of false accusations against a church leader who was not, apparently, politically active at any time prior to leaving the country in July 1994, and who is not alleged to have posed a threat to the regime thereafter.

777.    In conclusion, the arguments advanced by the Defence under this section, taken individually or collectively, fail to create a reasonable possibility that the Accused were subject to a campaign of false incrimination, having any bearing on this case.