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The BBC's Cathy Jenkins
"The case has raised many questions over whether the International Tribunal is truly independent."
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Thursday, 24 February, 2000, 20:25 GMT
Rwanda tribunal reviews genocide case

Jean-Bosco Barayagwiza
Barayagwiza's release was ordered after a bungled prosecution

The United Nations tribunal on the Rwanda genocide this week considered whether to reverse an appeal court decision to free a key suspect - a ruling which prompted the Rwandan Government to suspend co-operation with the tribunal. Our East Africa correspondent Cathy Jenkins was there.

As usual, the focus of the court proceedings was a smartly dressed person who would not have looked out of place in a conference hall or shareholders' meeting. Jean-Bosco Barayagwiza wore a suit, a red and gold tie, and gold-rimmed glasses for the hearing which will determine whether he is a free man or not.

Prosecution has to be allowed to do its duty
Prosecutor Carla del Ponte
Seated behind his legal team, he dutifully leafed through documents he had in a folder in front of him. But as is also the norm, the drama was all between the prosecutor and the defence laywer. As the day went on you almost forgot that Mr Barayagwiza was there.

The courtroom set aside for the hearing is a functional, no-frills sort of place where journalists watch proceedings from behind a glass screen. On this occasion the red-robed appeal court judges gave the UN's chief prosecutor, Carla del Ponte, two hours to present her case.

'Irrefutable evidence'

She wasted no time. Speaking in French, and using forceful jabs of her arm to emphasis her points, she made clear that for the tribunal to release Mr Barayagwiza would be an unpardonable error. The evidence against Mr Barayagwiza was irrefutable and incontrovertible, she said, and the prosecution had to be allowed to do its duty and try him.

Carla del Ponte Carla del Ponte: Vintage performance in court
It was a vintage performance which made at least the journalists very happy. Her highly-charged comments were the sort that make for a strong report. But Carla del Ponte was not there to win us over - to get the judges to change their decision, her team had to present the court with new facts which, had they been known in the first place, would have led the judges to make a completely different decision.

Broadly speaking, the prosecution argued that it had documents which proved that the delay in bringing Jean-Bosco Barayagwiza before the tribunal was not the prosecution's fault; there were lots of factors outside its control, for example, the action of the Cameroon authorities where Mr Barayagwiza was arrested and held before being transfered to Arusha. Once the judges had read the documents, the prosecution suggested, it would all be perfectly clear.

'No new facts'

On the other side of the floor, defense lawyer Carmelle Marchessault was ready for the counter-attack. Flourishing papers, and reeling off document numbers and dates, Ms Marchessault argued that the prosecution had not presented any new facts.

Jean-Bosco Barayagwiza Barayagwiza remains in custody pending a final decision
What it had done was create "a new category of new facts" and tried to pursuade the court to accept its definition. At the end of its allotted time, the defence team concluded that the judge had to release Mr Barayagwiza because their decision of 3 November 1999 had been correct and final. And if they did not, then a lot of questions would have to be asked about the tribunal's independence.

There was one more person to speak before the judges. Gerald Gahima, Rwanda's prosecutor general, appeared as amicus curiae - friend of the court. He said that the tribunal either had to try Barayagwiza or surrender him to the jurisdiction of a country which could. Rwanda was the obvious place.

Mr Gahima would have liked to have talked for a long time about his country's story, but the judges would not have any of it. They had a cut-off point, and the end of the day was the end of the day.

Chilling indictment

The indictment against Jean-Bosco Barayagwiza, which was quashed by the judges' November decision, makes for chilling reading.

It says that Mr Barayagwiza was behind a notorious radio station which broadcast virulant messages against the Tutsi-population and basically told Hutu militiamen to go out and massacre them.

Mr Barayagwiza had pleaded not guilty to the charges of genocide. At the end of the hearing, surrounded by tribunal security guards, and wearing a white bullet-proof vest he was led out of the courtroom.

For the moment, until the judges announce their decison on the matter, he remains in detention in Arusha. Conditions in the detention centre, when compared to the atrocious conditions of many of East Africa's jails, can be considered excellent.
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See also:
22 Feb 00 |  Africa
Warning over Rwandan suspect
16 Feb 00 |  Africa
Rwanda tribunal's shaky progress
06 Nov 99 |  Africa
Rwandan fury as genocide suspect freed
11 Nov 99 |  Africa
Rwanda snubs tribunal prosecutor
06 Nov 99 |  Monitoring
Prosecutor: The people feel betrayed
12 Nov 99 |  Africa
Prosecutor's Rwanda visit to go ahead
23 Nov 99 |  Africa
Prosecutor wants review of Rwandan's release
23 Feb 00 |  Africa
Call for genocide trials in Rwanda

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